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The freedom of expression is a First Amendment right, state Sen. Jeff Irwin (D-Ann Arbor) joked to the media after a vote on his bill SB 351 to expand protections for individuals breastfeeding to include those using a breast pump or other means to express milk.

Michigan became one of the last states to protect public breastfeeding in 2014 through bipartisan legislation called the Breastfeeding Anti Discrimination Act, which garnered widespread support in the Legislature.

The act and partnering legislation allows for breastfeeding in public spaces, whereas previously state public indecency laws didnt specifically exempt breastfeeding from indecent exposure and the corresponding criminal penalties.

However, the current law is not enough to protect infants in Michigan, Shannon McKenney Shubert, executive director of Michigan Breastfeeding Network told lawmakers in the Senate Health Policy committee on Oct. 4.

There are so many reasons why direct bodyfeeding is not always feasible or possible. I have heard countless stories of folks who absolutely must pump breastmilk, Shubert said. Human milk benefits everyone, everyone should partner and work together for the success of families to provide their babies and children with human milk in whatever way works for each family.

Shubert said 90% of families in Michigan incorporate some form of pumping in their infant feeding journey and the legislation provides opportunities to keep individuals in the workforce, limit infant mortality and increase family wellness, as well as support reclamation of traditional birthing practices for cultural communities that have been prevented from breastfeeding.

After the 26-12 vote, Irwin said he was happy to have voted while serving in the House for the 2014 legislation that created the defined right to breastfeed in public settings But he said SB 351 presents an opportunity to make good legislation better.

Breastfeeding is an important function for the mom and the baby and the idea that folks should be shamed out of public spaces for that is just wrong, Irwin said. But the one thing that we left out was pumping and expression of the milk, so I thought this was a hole that we could fill, and that we could just simply make sure that we were doing everything we could to support breastfeeding moms and their babies.

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Bill banning discrimination against pumping or expressing breast ... - Michigan Advance

Previously, I blogged the abstract and introduction of my new article, Taxing Nudity: Discriminatory Taxes, Secondary Effects, and Tiers of Scrutiny, which has just been published in the Journal of Free Speech Law. It's based on my work with the Georgia Association of Club Executives v. Riley case, where we challenged a Georgia tax on adult entertainment establishments on First Amendment/free speech grounds.

In this post, I'll give you Part I, "Erotic-Expression Taxes vs. Nudity Taxes", which canvasses the different kinds of taxes in different states. (The article obviously has a lot of footnotes go to the article itself if you want to see those.)

* * *

I. Erotic-Expression Taxes vs. Nudity Taxes

A. Erotic-Expression Taxes

Several states have adopted taxes targeting adult entertainment businesses. In Georgia, for instance, the Safe Harbor/Rachel's Law Act imposes a tax, equal to $5000 or 1% of gross revenue, whichever is greater, on every "adult entertainment establishment." The covered entities include, among other categories:

any place of business or commercial establishment where alcoholic beverages of any kind are sold, possessed, or consumed wherein . . . [t]he entertainment or activity therein consists of nude or substantially nude persons dancing with or without music or engaged in movements of a sexual nature or movements simulating sexual intercourse, oral copulation, sodomy, or masturbation.

The money collected goes into the Safe Harbor for Sexually Exploited Children Fund, the purpose of which is to provide (among other things) "care, rehabilitative services, residential housing, health services, and social services, including establishing safe houses, to sexually exploited children."

Note a few features of this statute, which are found in some other states' statutes as well. The set of covered businesses is defined in some way that includes nudity (or substantial nudity). The set of covered businesses is further limited to those that serve or allow the consumption of alcohol. And the money collected is to be used to fund (among other things) programs related to sex crimes.

Here are a few other examples:

I'll refer to such taxes by the general label of "erotic-expression taxes." The ones listed above target not just nudity, and not just eroticism, but particular performative expressionwhether referred to generally as "entertainment" or more specifically as "dancing," and possibly also incorporating particular erotic content, for instance "specified sexual activities" or "movements of a sexual nature."

Such statutes require analysis under the First Amendment: nude dancing communicates an erotic message, and is thus expressive conduct.Indeed, when a Supreme Court plurality in Barnes v. Glen Theatre, Inc. upheld a requirement that dancers wear pasties and G-strings, it didn't rely on any theory that nude dancing was non-communicative. Rather, it wrote that such a requirement "does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic."

One may argue that nude dancing and similar activities are non-expressive or valueless and are therefore not a matter for the First Amendment, but that view would require a major change in doctrine. That these activities have been characterized as being "within the outer perimeters of the First Amendment," or "within the outer ambit of the First Amendment's protection," is irrelevant: whether outer or inner, the First Amendment still applies. In fact, as I argue below,these taxes not only require First Amendment analysis but also turn out to be unconstitutional: because they turn on what sort of content is presented, they're content-discriminatory and should therefore be analyzed under strict scrutinya standard that they fail.

B. Nudity Taxes

Other states have what I'll call "nudity taxes"the focus is still nudity and/or eroticism, but not necessarily particular expressive activity that conveys an erotic message.

The distinction between erotic-expression taxes and nudity taxes, while important, isn't necessarily very sharp. The Utah statute seems to fall more on the nudity side, because the nude services covered by the statute include not just dancing but also non-expressive activities like waitressing or massage.

One could say the same of the Illinois statute; activities could "appeal primarily to an interest in nudity or sex" without being expressive. But it's a tougher case: the inclusion of "entertainment" within the defined term, and the listing of "a striptease club" as one of the covered categories, could support an inference, based on standard methods of statutory interpretation, that the definition is meant to primarily cover expressive performances. Moreover, for both of these statutes, we need to look at the government's practice of enforcement to see whether it primarily targets expressive businesses.

Still, for purposes of this Article, the theoretical difference between a tax that targets erotic expression and a tax that targets nudity is significant. The Supreme Court has said that nudityunlike nude dancingisn't inherently expressive. A properly phrased and evenhandedly enforced nudity tax would therefore be analyzed under intermediate scrutiny. I argue that such taxes are likely unconstitutional even under this lower standard,but at least on its face the standard seems easier to meet.

C. Tax Exemptions

There are also taxes on erotic dancing that that are embedded within tax exemptions. That is, there's some general tax; there's an exemption from that tax for performances; but the exemption doesn't cover erotic dancing. So erotic dancing, unlike other performances, ends up being covered by the general tax.

For instance, the City of Chicago and Cook County had tax ordinances that taxed amusements, which they amended to provide exemptions for "live theatrical, live musical or other live cultural performances" taking place in small venues. But that category of "live ... performances" was defined to specifically exclude "performances conducted at adult entertainment cabarets," and such cabarets were defined in terms of whether topless dancers "[d]isplay or simulate the display of 'specified anatomical areas'" or "[e]ngage in, or engage in simulation of, 'specified sexual activities.'"The state of New York, similarly, taxed "place[s] of amusement," exempted "dramatic or musical arts performances," but did not include exotic dancing at an adult "juice bar" in the exemption.

These tax exemptions stand on a different footing than the taxes discussed above, because tax exemptions are subject to a different First Amendment regime than taxes. Even when a tax exemption is content-based, the Supreme Court has conceptualized tax exemptions as subsidies, and "the government can make content-based distinctions when it subsidizes speech."

Perhaps this distinction between discriminatory taxes and discriminatory tax exemptions doesn't make sense, but it's longstanding blackletter law.Perhaps it ought to be questioned, but that's beyond the scope of this Article. So I'll just note that these content-discriminatory tax exemptions exist and have been assumed to be constitutional. If tax exemptions were judged on the same basis as actual taxes, they would be subject to all the arguments I make in the rest of this Article; but I won't mention them any further.

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Taxing Nudity: Discriminatory Taxes, Secondary Effects, and Tiers of ... - Reason

The difficult question of who gets to decide what is lawful speech protected by the First Amendment and what is not is one of the questions that members of a legislative panel investigating Big Tech are pondering.

The Arizona House of Representatives Committee on Oversight, Accountability and Big Tech, which held its second meeting on Monday, is looking into ways to stop government officials and employees from pushing social media companies to censor speech that those officials flagged as misinformation. The creation of the ad hoc committee, chaired by Scottsdale Republican Rep. Alexander Kolodin, was at least partially inspired by the past actions of Gov. Katie Hobbs, when as secretary of state, she and others in her office asked Twitter to take down posts that contained election disinformation.

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Dean John Sauer, the former solicitor general of Missouri who has won injunctions in Missouri and Louisiana blocking the Biden administration from communicating privately with social media companies to urge them to take down content, shared with the committee his thoughts on government censorship. In 2020, he was the counsel of record in an amicus brief filed on behalf of several Republican attorneys general after the 2020 election in a failed bid to challenge the results of the presidential race in Pennsylvania, Wisconsin, Michigan and Georgia.

Sauer told lawmakers that monitoring of social media posts through a collaboration among state, local and federal officials, along with academic researchers at the Stanford Internet Observatory, has been going on in the U.S. since 2020. He claimed that the federal government used these researchers to launch a mass flagging campaign that it could not undertake on its own.

The federal government cannot induce private entities to do what it cannot, he said.

Sauer added that most social media platforms already have their own moderation policies, but they usually arent very aggressive in enforcing them, either because they dont have the resources or because there isnt a good economic incentive to do so.

He says that these people all worked together to try to censor protected political speech.

They want to stop posts from going viral, he said.

He added that a great example of this was when officials from the Arizona Secretary of States Office asked social media platforms to remove social media posts about Arizonas Sharpiegate. This happened in 2020 when a false claim that ballots in Maricopa County werent counted because voters used Sharpie markers to fill them out went viral on social media.

Thats core political speech thats being shut down on the basis of viewpoint, by state and local officials, Sauer said, while failing to acknowledge that the Sharpie claims were objectively untrue.

They want platforms to take down admittedly true information that contradicts preferred government narratives, he said later, predicting that the government intends to keep doing so through the 2024 election cycle.

He said that what was then called misinformation by senior White House officials from the Trump and then the Biden administration were later determined to be respectable, defensible viewpoints, including that COVID-19 was created in a lab in Wuhan, China, that COVID vaccines were not effective in stopping the spread of the disease and that voting by mail was an easy system to cheat.

But what constitutes a respectable, defensible viewpoint depends on who is making that determination, with Sauer claiming that very debatable viewpoints get silenced.

While the possibility of a lab leak cannot be ruled out, most scientists do not believe that is how COVID originated. Although Pfizer was not required to test whether its initial vaccine stopped the spread of COVID, only testing to determine if it protected the receiver from becoming ill, subsequent research has proven that vaccination did contribute to slow the spread of the disease. And while some continue to claim that voting by mail is open for rampant fraud, there is no evidence thats the case.

Sauer argued that White House officials urged social media platforms to take down the truthful stuff because it was too effective and too persuasive in countering the federal governments own arguments.

But Sauer used the attempted censoring of former Fox News host Tucker Carlson as an example of content that he said was truthful and too persuasive, even though lawyers for Fox told a judge in 2020 when Carlson was accused of slander that viewers should know Carlson was not stating actual facts on his show but exaggerating and making non-literal commentary.

Sauer made several suggestions for the Arizona legislature to consider implementing into law when it reconvenes in January, including prohibiting government actors from flagging social media posts for removal and allowing private citizens to sue for damages for every social media post taken down at the request of the government.

Ilya Shapiro, a conservative legal scholar whose talks at college campuses across the country have been the target of protests, spoke to the committee about the coercive power the government has over social media companies when it asks those companies to delete certain posts.

The legality of those requests depend on whether the social media platform really has the power to deny what the government is asking, he said.

Shapiro argued that the best way to deal with government censorship is to create more transparency, by enacting a law that would require government officials and workers to disclose to the public all requests to take down social media posts.

In light of government power over social media, these requests are perceived as demands or veiled threats, he said, adding that social media companies want to stay on the good side of their regulators.

Sunshine is the best disinfectant, he said.

Sauer added that the question of whether social media companies can censor speech themselves, without government influence, will be heard by the U.S. Supreme Court in February. The Texas law in question would allow the state government itself to take control of content moderation for social media sites.

Also offering his thoughts during the meeting was Carl Szabo, vice president at NetChoice, a tech trade organization that gets funding from companies including Amazon, Google and Meta, which owns Facebook.

Szabo advocates for freedom of choice on the internet. NetChoice challenged the Texas law that will go before the Supreme Court in February, to argue that the state cannot compel companies to host speech they dont agree with.

When it comes to social media platform rights to censor content, Szabo pointed out that many of the posts that companies remove on their own are spam, and any law that might unintentionally stop companies from deleting those posts could end up with a clog of spam posts, making a site essentially unusable

He added that social media companies and law enforcement still need the ability to report and remove content that includes things like child sexual abuse and graphic violence, so lawmakers should keep that in mind when crafting legislation, being careful not to entirely ban government employees from flagging posts.

NetChoice has filed lawsuits in both Texas and Florida, challenging laws that say the platforms cant remove any political content. NetChoices argument is that the First Amendment bars the government from compelling a business to say something that it doesnt want to say, just the same as it cant limit speech.

Political speech is in the eye of the beholder, Szabo said, adding that, under Texas and Florida laws, social media platforms would be required to host terrorist recruitment videos, because that could be considered political speech.

NetChoice won its challenges to both of those laws at the trial and appeals courts, and both laws are currently blocked until the cases are heard by the U.S. Supreme Court.

Kolodin asked whether the government could implement a law simply saying that social media cant censor lawful speech, but Szabo countered that its difficult to cover all the bases, and that what is considered lawful could be a matter of opinion.

Saying that a platform must host speech collides directly with the First Amendment, Szabo said.

Kolodin told the committee that hell be mulling over these issues until the legislature begins its next session in January.

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Who gets to decide what the truth is when social media is rife with ... - Arizona Mirror

After George Hawkins completed a 13-year term in a Virginia prison for attempted murder, he asked the state last spring to restore his right to vote. So far, the administration of Gov. Glenn Youngkin, who has unfettered discretion over such requests, has twice turned him down with almost no explanation.

Governor Youngkins authority is enshrined in Virginias State Constitution. But now a lawsuit filed by the Fair Elections Center, a Washington, D.C.-based voting rights organization, argues that the federal Constitution limits that power.

The suit, in federal District Court in Richmond, claims that the First Amendment bars Governor Youngkin, a Republican, from arbitrarily silencing Mr. Hawkinss voice in political affairs. Instead, it calls for Virginia to set rules governing decisions on restoring voting rights.

Otherwise, the lawsuit says, governors could say their rulings on voting rights were impartial, while secretly basing their decision on information or informed speculation on the applicants political affiliations or views.

Last week, U.S. District Judge John A. Gibney allowed the case to proceed, putting off a decision on whether state rules on granting clemency are subject to judicial review until after hearings early next year.

The stakes are potentially large in the Virginia suit and a similar one in Kentucky. (A third state, Iowa, also vests power over voting in the governor but is not being sued because an executive order restores the right to former prisoners who have completed their sentences.)

More than 66,000 Virginians on probation or parole remained disenfranchised as of 2022, according to the Sentencing Project, a criminal justice advocacy group.

In Kentucky, Gov. Andy Beshear, a Democrat, signed an order in 2019 that has automatically restored the franchise to more than 190,000 people. But the lawsuit there challenges the governors decision to exclude from automatic restoration more than 55,000 former prisoners who committed high-level felonies like murder or were convicted outside state courts.

In court arguments, the state said this summer that the only standard for restoring voting rights to those not covered under automatic restoration is whether the governor judges the applicant worthy. In nearly four years, Governor Beshear has personally restored rights to 60 people.

But when a criterion like worthy can encompass peoples skin color, political views or even their deference to authority, both suits argue, it cannot justify a government decision to limit a citizens political rights.

Most states either automatically restore the voting rights of former prisoners or have written guidelines on the matter. Virginia is the only state that still places all voting rights decisions in the governors hands, the result of Mr. Youngkins decision to abandon the automatic restoration policy of his Democratic predecessor, Ralph Northam.

Government attempts to silence citizens because of their opinions or behavior, commonly called viewpoint discrimination, have long been seen by courts as particularly offensive First Amendment breaches. And the Supreme Court has frequently ruled that government officials cannot arbitrarily deny First Amendment rights.

But whether those legal principles apply to a governors decision on the right to vote remains in dispute. In the Kentucky suit, the Sixth Circuit Court of Appeals already has ruled that they do not. That power, the court said this summer, applies to licensing decisions like granting parade permits, not to a governors pardon powers. The Elections Center plans to appeal the decision to the Supreme Court.

Lawyers for Governor Youngkin made the same argument in the Virginia lawsuit. State rules for granting clemency are rarely, if ever appropriate subjects for judicial review, they wrote in a September filing.

A spokeswoman for Governor Youngkin, Macaulay Porter, said in an email that the governor firmly believes in the importance of second chances. She said voting-rights decisions take into consideration the unique elements of each situation, practicing grace for those who need it and ensuring public safety.

One scholar of First Amendment law, Kevin F. ONeill at Cleveland State University College of Law, said courts may not agree that First Amendment protections that apply to issues they commonly see, like the granting of parade permits, also cover far less common cases, like a governors refusal to restore voting rights.

At the least, he said, a plaintiff would need to show that some denials of voting rights are rooted in arbitrary factors like race or politics, not just that they could be.

Ordinarily, he said, you cant win a constitutional case based on hypotheticals.

Mr. Hawkins, the onetime Virginia convict, went to prison at 17 after being singled out by police officers for a shooting incident in a crowd that left him and two others wounded. He has never cast a ballot.

I fought my case from start to finish, he said, from the day I was convicted until the day I came home this year. Being denied the vote, he said, is like saying my sentence aint enough.

He added: I dont now what makes me ineligible, I dont know when I could be eligible. Im kind of free like a second-class citizen. I dont want to be a nonvoter for the rest of my life.

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Lawsuits Challenge Voting Rights Left to Governor Discretion in ... - The New York Times

Gabby Miller is staff writer at Tech Policy Press.

The popular video sharing app TikTok, which is owned by the China-based parent company ByteDance, has come under increased scrutiny in the past year over security and privacy concerns, as well as fears that the apps algorithms and design may harm mental health, especially for children and teens. Over the course of the last week, there were multiple legal developments in state and federal courts that may affect the platforms future. The Utah Division of Consumer Protection (UDCP) launched a lawsuit against the company, a California judge greenlit a slew of claims against TikTok and other tech giants, and a challenge to a law banning TikTok in Montana had its first hearing in court.

Last Tuesday, Utahs Division of Consumer Protection (UDCP) sued TikTok over its surreptitiously designed video sharing app. The Utah regulator claims that TikTok uses features to hook young users and mislead parents about the apps dangers to childrens mental health and well-being. The regulator alleges the social media giant illegally baits children into addictive and unhealthy use, blatantly misrepresents the apps safety, and deceptively portrays itself as independent of its China-based parent company ByteDance.

At a press conference announcing the lawsuit, Utahs Republican Governor, Spencer Cox, promised the state will hold social media companies accountable by any means necessary. The lawsuit references the actions of other regulators around the world, including a $368 million fine levied against TikTok by Irelands Data Protection Commission for violating European privacy laws, as well as settlements related to the handling of childrens data with the Federal Trade Commission (2019) and the UK Information Commissioners Office (2023).

A legal challenge to a law banning TikTok in Montana (SB 419) had its first court hearing last Thursday under District Judge Donald W. Molloy. TikTok was joined by five of its creators in challenging the ban, which was passed by Montana lawmakers this spring. The company says the ban is unconstitutional. The lawsuits by the company and the creators accuse Montana of infringing on users First Amendment rights and claim that the state violated its legal authority regarding national security and foreign policy concerns.

Some reports characterized Judge Molloys questions and comments as weighing largely in favor of the plaintiffs. In the hearing, which lasted less than an hour, he slammed the Montana legislature for its paternalistic views of social media users and faulted lawmakers for not taking lesser measures to protect users before passing a total ban. He was also skeptical as to whether Montana could even provide the necessary evidence required to validate the ban. Is there some prohibition for a legislature enacting legislation that may not have any factual basis but is just an opinion of the law enforcement people or some other entity? asked Molloy, before promising he will decide whether to grant a preliminary injunction before the bill takes effect on Jan. 1, 2024.

Montana was the first state to pass such a ban, but more than thirty states have taken up some form of legislative action restricting TikTok.

Free speech advocates and the tech industry associations, among others, have expressed their support for striking down the Montana bill, with NetChoice and the Chamber of Progress filing a joint amicus brief in August in support of the creators. After Thursdays hearing, the Knight First Amendment Institute at Columbia University offered a statement in support of a preliminary injunction. Theres really no question that TikTok and its users should prevail here, Jameel Jaffer, executive director of the Knight Institute, said in an official statement. Montana simply hasnt offered any persuasive reason why it cant achieve its interests with means that impose less of a burden on First Amendment rights. If Montana wants to protect its citizens privacy, it should pass a privacy law.

On Friday, a judge in California threw out a raft of claims brought by teens and their parents against TikTok, Meta, Snapchat, and YouTube, but allowed claims related to the design of the social media apps to advance. Los Angeles County Judge Carolyn B. Kuhl gave the go-ahead for the lawsuits in California to explore a negligence theory that argues companies have acted carelessly. This advance[s] a novel legal theory that attempts to treat social media platforms as defectively designed products to bypass Section 230, which has been nearly bulletproof in protecting platforms from suits based on user content, according to Bloomberg Laws Isaiah Poritz.

This decision is an important step forward for the thousands of families we represent whose children have been permanently afflicted with debilitating mental health issues thanks to these social media giants, lawyers for the plaintiffs said in a statement, according to Bloomberg. But there are signs that tech industry voices disagree. MediaPosts Wendy Davis quoted Chris MacKenzie, communications director for the Big Tech-funded group Chamber of Progress, as saying the ruling fundamentally misunderstands Section 230.

TikTok is also facing significant federal scrutiny. Despite President Joe Bidens TikTok ban on government devices being held up in the courts, there are some signs of renewed bipartisan energy to pass alternative legislation that would address concerns about TikTok. And TikTok will soon have to answer to the European Union as the Digital Services Act (DSA) takes effect. Last week Thierry Breton, the EUs internal market commissioner, posted a public warning to TikTok along with similar letters to Meta, Google, and X that in order to comply with the DSA, the platform must urgently address illegal content related to the Israel-Hamas war. Only one thing is certain: there is no end in sight to TikToks trials and tribulations.

Gabby Miller is a staff writer at Tech Policy Press. She was previously a reporting fellow at the Tow Center for Digital Journalism, where she used investigative techniques to uncover the ways Big Tech companies invested in the news industry to advance their own policy interests. Shes an alumna of Vassar College, where she studied feminist and queer theory, as well as Columbia Universitys Graduate School of Journalism.

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TikTok's Trials and Tribulations Mount - Tech Policy Press