chilling effects – Techdirt (original) (raw)

Judge Says Of Course The US Can’t Detain Or Deport Mahmoud Khalil Just Because Marco Rubio Wants To Dress Up As A Fascist

from the chilling-effects dept

We’ve written a few times about the case of Mahmoud Khalil, a Columbia University grad student who was one of the first people detained by ICE and told he was being kicked out of the country solely because Marco Rubio said he doesn’t belong here. No due process. No hearing. Just Rubio’s arbitrary say-so.

A federal court has now rightly ruled that this is all nonsense, and the government has no legitimate claim to detain or deport him on this basis. Though, the judge immediately gives the US government 40 hours to appeal, so Khalil is not yet free.

If you don’t recall, Khalil was seized by ICE agents and pulled away from his pregnant, American-citizen wife. The agents initially told him his visa had been revoked—apparently not realizing he was a green card holder, not a visa holder. When confronted with this basic factual error, they pivoted on the spot to claim his green card was also revoked, sending the government scrambling to reverse-engineer some legal justification for what they’d already done.

Judge Michael Farbiarz finds the entire argument wholly unconvincing. Indeed, he notes that it seems clear that the decision to detain and deport Khalil appears to be wholly arbitrary and/or based on his protected First Amendment activity (he was active in protesting Israel’s actions against Gaza).

Faced with the obvious First Amendment problem, the government tried to argue that Khalil’s detention wasn’t really about his protest activities. Instead, they claimed it was about something a post-hoc fishing expedition turned up: an alleged minor paperwork discrepancy in his green card application.

The judge wasn’t buying it. If this paperwork issue was really the driving force, why is Khalil being detained when others with similar alleged discrepancies aren’t? As the court notes:

Maybe the Petitioner would be detained, in any event, on that second basis. And if so, it might be argued, there would not be any incremental chilling effect from detaining the Petitioner for an additional reason, the Secretary of State’s determination.

But that argument does not work.

The reason: the evidence is that lawful permanent residents are virtually never detained pending removal for the sort of alleged omissions in a lawful-permanent-resident application that the Petitioner is charged with here. And that strongly suggests that it is the Secretary of State’s determination that drives the Petitioner’s ongoing detention — not the other charge against him.

In other words, the government’s paperwork excuse is bullshit. If people aren’t normally detained for these alleged omissions, then why is Khalil? The answer is obvious: the only actual basis the government is using to detain Khalil is Rubio’s “determination” that his free speech activities were somehow unwelcome here.

From there, the court finds that Rubio’s arbitrary determination has already harmed Khalil, costing him a job, harming his reputation, and chilling his speech. Indeed, the court notes that the government doesn’t contest any of this.

The judge then makes the obvious point about where the public interest lies:

“[T]he public has no interest in the enforcement of what is very likely an unconstitutional statute.” Odebrecht Constr., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268, 1290 (11th Cir. 2013); accord, e.g., Schrader v. Dist. Att’y of York Cnty., 74 F.4th 120, 128–29 (3d Cir. 2023); Chamber of Com. of U.S. v. Edmondson, 594 F.3d 742, 771 (10th Cir. 2010).

And on the other side of the ledger, there is a chilling effect on speech. See Amalgamated Transit Union Loc. 85, 39 F.4th at 109 (“There is a strong public interest in upholding the requirements of the First Amendment. And, if a plaintiff demonstrates both a likelihood of success on the merits and irreparable injury, it almost always will be the case that the public interest will favor the plaintiff.”) (cleaned up).

The government will almost certainly appeal, so this isn’t over yet. But it is yet another example of a court looking at what the Trump regime is doing and saying “what the fuck, that’s not right…” And it still won’t take back the many months that Khalil was locked up for no good reason, missing the birth of his child, and losing out on many opportunities.

Filed Under: chilling effects, deportation, detained, donald trump, free speech, mahmoud khalil, marco rubio, protests

Trump’s War On Free Speech Gets The John Oliver Treatment

from the tell-'em dept

At a time when mainstream media continues to struggle with calling out Trump’s censorial power grabs for what they are, John Oliver just devoted an entire segment to exposing what Techdirt readers already know: Donald Trump’s administration has been waging a direct and sustained assault on free speech and the First Amendment, with FCC chairman Brendan Carr serving as his lead enforcer.

His latest episode not only provides much-needed mainstream coverage of this issue, but does so with the kind of detailed receipts that make the hypocrisy impossible to ignore — well, impossible unless you’re a mainstream news outlet that apparently needs a British comedian with a giant rat costume budget to explain what’s happening right in front of your face.

The segment packs an impressive amount of evidence into less than 30 minutes, with Oliver managing to explain Trump’s entire censorship strategy faster than some rando MAGA account can scream “But what about Hunter Biden’s laptop?” The most damning portion comes when he breaks down the administration’s two-pronged strategy to pressure media companies:

And Carr does seem deep in the tank for the president. Trump supporters have celebrated this image of him wearing a gold Trump pin. And after the Hollywood Reporter published an article titled, “Trump’s media pitbull is off the leash.” That included this horrifying picture of car as a pitbull, he tweeted it saying, “Woof woof.”

One past FCC commissioner said, “I’m about as worried as I can be about the future of the FCC. I would say Carr is the most ideological chairman we’ve ever had and the most political.”

And he’s wasted no time pursuing Trump’s agenda. His FCC is now investigating all the major broadcast outlets except for Fox.

And Carr’s stewardship of the FCC has also been part of a new squeeze Trump’s been putting on the networks with the FCC on one side and lawsuits on the other.

Here is how it works. The FCC has the ability to regulate the broadcast licenses of local TV and radio stations. The big networks each own a bunch of those. CBS, for instance, owns all of these [Shows image of owned/operated CBS affiliates]. And while the FCC revoking a license is incredibly hard, what it can do is make it very hard for networks to sell those stations, which given the frequency of media mergers and acquisitions can be a real problem.

So networks now have that threat hanging over them while at the same time Trump is applying legal pressure by filing lawsuits to put them on the defensive. It is pretty flagrant: Trump files a lawsuit demanding money. At the same time, his FCC starts making noises about plans to make that company’s life unpleasant. So, the networks settle in the hopes it’ll keep Trump happy and get everyone off their back. And maybe they think twice about the tone of their coverage in the future.

Right now, CBS is caught in this exact squeeze, largely arising from a 60 Minutes segment that aired just before the election featuring an interview with Kamala Harris, which Trump maintains was misleadingly edited. He has sued the network in a lawsuit First Amendment lawyers have called “frivolous and dangerous” and “ridiculous junk.”

He then goes through and details how absolutely bullshit the claims about 60 Minutes’ supposed “edits” are and even compares them to how Fox News deceptively edited an interview with Trump himself.

What Oliver lays out here isn’t just run-of-the-mill media criticism — it’s a coordinated strategy using government abuse of power to create a chilling effect on speech. The FCC, under Carr, becomes the enforcement arm while Trump’s personal lawsuits provide the second front of attack. This pincer movement creates enormous pressure on media outlets that might otherwise stand firm against either threat alone.

Of course, the fact that many media orgs don’t really seem all that interested in standing up for free speech at all is another issue, which maybe Oliver can talk about later this season.

What makes Oliver’s segment particularly valuable is that he doesn’t just preach to the choir. He provides detailed evidence that exposes the cynical strategy at work. As we’ve pointed out repeatedly, Trump and Carr repeatedly wrap themselves in the language of free speech while actively working to suppress it. This rhetorical sleight-of-hand has proven remarkably effective with many mainstream outlets who seem unable to deal with bad faith liars. They continue to frame Trump as a “free speech champion” even as his administration uses governmental power to silence critics.

The segment shows (for not the first time) how comedy is doing the accountability job that traditional news outlets have largely abandoned. Documenting both the tactics and the hypocrisy with actual receipts allows Oliver to present the simple reality: we’re living in an era where censorship by the GOP is being masqueraded as free speech advocacy.

This matters because the “free speech warrior” branding has been remarkably resistant to factual evidence. When someone with Oliver’s platform and reach breaks through that messaging armor, it creates an opportunity for people to realize just how ridiculous this argument is, and to understand that “free speech” is more than just a slogan to be weaponized against political enemies — it’s an actual principle that requires defending even when it’s inconvenient to your political goals.

And maybe, just maybe, if enough people start to understand that, we can finally move past this exhausting era where “defending free speech” apparently means “fighting for your god-given right to post slurs on Twitter without consequences” while actual government censorship gets a pass because it claims to be fighting “wokeness” — as if the First Amendment has a “but not if it’s too woke” exception clause that we all somehow missed.

Filed Under: 1st amendment, brendan carr, chilling effects, donald trump, free speech, john oliver

FCC Commissioner Gomez Calls Out Administration’s Attack On Free Speech, Warns She May Get Fired

from the preach dept

We mentioned recently that the only remaining Democratic commissioner at the FCC (and the only remaining Dem commissioner across both the FCC and FTC since Trump illegally fired the Democratic FTC Commissioners) has started calling out FCC Commissioner Brendan Carr’s attacks on free speech. In a speech yesterday, she went even further: calling out the administration’s bullshit attacks on free speech, Section 230, DEI… and closing on a remark regarding the likelihood of her getting fire. Given that the entire thing is relevant to Techdirt’s usual content, we’re running the published transcript of her speech. Please read the entire thing.

REMARKS OF
FCC COMMISSIONER ANNA M. GOMEZ
2025 MEDIA INSTITUTE COMMUNICATIONS FORUM May 15, 2025

Good afternoon. It’s a pleasure to be back at the Media Institute. When I spoke here last year, I mused about how much had changed since I spoke at a Media Institute lunch in 2009. I think it’s safe to say that the rate of change has accelerated over the past year.

Our current political moment poses challenges unlike anything I thought I would face as an FCC Commissioner. This Administration has been on a campaign to censor and control since, well, before day one. And since day one the FCC has been implementing the will of this Administration and undermining the First Amendment at every turn.

The First Amendment has protected our fundamental right to speak freely and to hold power to account since 1791. It is foundational to our democracy. Today, the greatest threat to that freedom is coming from our own government.

Silencing dissenting voices is not a show of strength—it’s a sign of weakness. It comes from a place of fear. Fear that opposing views, rather than presidential decrees, will win out in the public debate of ideas.

And that is why I am here today and have been speaking out broadly.

I realize that, in this space, I am preaching to the proverbial choir. But it is worth noting that never in my career have I received as much support as I have for speaking out about the importance of the First Amendment and the dangers the current FCC’s actions pose to democracy.

And, over the last few months, I’ve found myself aligned with voices with which I never imagined I’d agree. Why? Because across the ideological spectrum there remains a shared belief that the First Amendment is fundamental to democracy and is worth fighting for, even—and especially—when it’s politically inconvenient.

The Administration’s coordinated efforts to censor and control are manifesting in a multitude of ways.

In the Tech Media Telecom ecosystem, they have initiated investigations and floated debilitating rate regulation schemes that target national network broadcasters for their newsrooms’ editorial decisions, harassed private companies for their Diversity, Equity, and Inclusion efforts and threatened tech companies that respond to consumer demands for content moderation and fact-checking. Separately, they have attempted to shutter Voice of America and sought retribution against lawful residents that protest Administration policies.

They are banning books and seeking to erase history from the public record and from our national museums. And they are targeting law firms, unions, and all those that have the skills and the will to stand up for the victims of this campaign of censorship and control. And, of course, I cannot leave out the fact that they have been firing presidentially appointed, Senate-confirmed Commissioners of multimember independent agencies who dare to speak the truth.

Broadly speaking, these efforts are unprecedented and indefensible.

Today I want to talk about the FCC actions that are antithetical to the goals of the Communications Act, the remit of the agency, and the guarantees of the First Amendment.

Broadcasting

Let’s start with broadcasting.

Last year at this luncheon I made what I thought was an obvious statement: “our country needs a press free from interference from regulators like me.” Yet here we are.

The FCC’s licensing authority is being weaponized to chill speech and to punish the press. We are witnessing a dangerous precedent: the transformation of an independent regulator into an instrument of political censorship. This FCC has made clear that it will go after any news outlet that dares to report the truth if that truth is unfavorable to this Administration.

This isn’t the first time that the FCC has faced Administration pressure to weaponize its broadcast licensing authority. In 1939, FDR named Larry Fly chairman of the FCC. Chairman Fly, best known for his focus on addressing monopolization of the airwaves, called attention to the fact that NBC and CBS could “say what more than half of the people may or may not hear,” and he underscored that “Democracy [could not] rest upon so frail a reed.”

During this time, FDR was convinced that newspaper publishers were biased against him, and he saw radio as the next avenue through which the press would provide unfavorable coverage of him. So, FDR asked Fly to ban newspapers from getting FM licenses. Rather than capitulating to Administration pressure, Fly refused to take punitive, politically motivated action against the press. Instead, he underscored that the FCC would not ban radio licenses for newspapers, and he reaffirmed the agency’s commitment to diversity in media control.

Again, during the Kennedy administration, the FCC faced pressure from the White House. Reacting to an unfavorable NBC news report, President Kennedy called on Chairman Newton Minnow to withdraw NBC’s licenses. And the next day, Minnow told a Kennedy aide, “tell the President he is lucky to have an FCC Chairman who does not always do what he is told.” Minnow stood up against the weaponization of the agency’s licensing authority, an action for which President Kennedy later thanked him.

This is what courage looks like—FCC Chairs refusing to wield the agency’s licensing authority as a weapon in contravention of the First Amendment and the Communications Act, even in the face of political pressure.

I want to be clear. In addition to undermining informed civic engagement, there are serious health and safety consequences to silencing broadcasters. Imagine your local TV or radio station goes dark because the FCC doesn’t like something an anchor said. That’s not just a media story. That’s a threat to public safety.

I’ve visited local TV and radio stations across the country and in a variety of communities. Local news provides lifesaving information during storms, wildfires, and other emergencies. It serves veterans, seniors, and rural communities. But partisan politics is now putting these resources at risk. The FCC should not be in the business of controlling access to vital local information. We should be promoting free and open access to the news.

Unfortunately, the Administration efforts to censor and control appear to be working, at least for now. Some media outlets are finding it is easier to retreat in the face of government threats, veiled or otherwise, than to be responsive to their audiences.

As I’m sure you’re all aware, last month Bill Owens, the executive producer of 60 minutes resigned. He started at CBS News as an intern in 1988 and was only the third executive producer to run 60 minutes in its 57-year history. He resigned because he no longer felt he had the “independence that honest journalism requires.” Pardon my language, but that is a B.F.D.

Speaking as a government regulator, we need journalists to report the truth even when it cuts against our arguments or our political biases. And corporate parents should give journalists the independence they need. A free press requires free journalists.

On the international front, Voice of America and Radio Marti were once models of press freedom in contrast to propaganda regimes like those in Russia and China. Efforts to shutter these institutions or to undermine their independence sends a global message: America no longer practices what it preaches. This is extremely concerning.

The press is the fourth estate. The delicate system of checks and balances upon which American democracy is built does not function without a free press. To the journalists out there, do not capitulate, continue to speak up and hold power to account.

Section 230

A conversation about freedom of the press and censorship should include speech online, so I am going to turn to online speech and the growing government effort to undermine Section 230.

Just as the Administration is attacking journalists that hold it to account, it is attacking digital media platforms that provide fact-checking and moderation of content its users do not want. Claiming such user-supported moderation constitutes censorship, the Administration has pressured social media companies to stop these practices. One tool it is using in this effort is the threat that the Commission may reinterpret or adopt rules regarding Section 230.

As the Supreme Court has held, moderation by private companies is itself a form of speech that is protected by the First Amendment. When online platforms respond to their users’ demands by moderating content in specific ways, they’re not censoring—they’re exercising their right to speech. Fact-checking, filtering, and moderation are all legitimate responses to user demand. The government’s duty under the First Amendment isn’t to second-guess these market offerings. It’s to stay out of the way.

I acknowledge that there are many valid concerns about how we engage in the proverbial digital town square and Congress may well determine Section 230 needs reform. Until that happens, however, Section 230 plays a critical role by providing digital platforms with the ability to establish rules of behavior in their own little corners of the Internet. By permitting digital platforms to set up rules to moderate the content users post, they are able to offer unique features and experiences that attract customers.

If a digital platform has a specific vision for social discourse that it wants to make available to consumers, including allowing users to deploy their own choice of content moderation tools, Section 230 and the First Amendment allow it to create that world and to offer it as a service to the public.

FCC proposals to weaponize Section 230, however, are not efforts to solve the widely-recognized problems with online platforms. They are attempts to increase government control of online speech by exposing platforms that want to facilitate user-supported fact-checking or create welcoming online environments to debilitating lawsuits. This is not about reining in Big Tech. This is about censorship.

Let’s review: the Administration’s ongoing campaign of censorship and control is not only chilling speech but it is also attempting to control who gets to speak. Another example of this attempt to control is punishing private companies for their fair hiring practices.

DEI

I have always believed that your first action in any role reveals your priorities. This FCC’s first action was not about closing the digital divide or protecting network security. No, its first move was to eliminate anything that even resembled Diversity, Equity, or Inclusion.

We’ve seen attempts to micromanage employment practices within private media companies, including threatening to impose heavy regulatory burdens on companies that require the FCC’s approval of their transactions. These actions are not only wrong, but they also jeopardize economic growth in the name of ideological purity.

Perhaps more alarmingly, these steps have been disguised as an effort to protect the “public interest” and produce proof of “invidious” discrimination. What this comes down to is that the FCC is asserting that fairness for all requires discrimination against some. And that’s just not right. These are not good-faith regulatory efforts. These are intimidation tactics meant to control who gets to speak. And they are antithetical to our core mission.

The Communications Act created the Federal Communications Commission for the purpose of [quote] ‘regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nationwide, and world-wide wire and radio communication service.’ [unquote]

Efforts from the private sector, to support diversity of voices in media, support the foundational mission of the FCC.

Agency Independence

And finally, in the vein of government control run amok, I want to talk about one more critical topic. Here’s something I never thought I’d have to say in a speech: we must protect the independence of independent agencies.

The FCC is supposed to make decisions based on law, facts, and technical expertise—not politics. We take our direction from the Constitution, the law, and the public.

That is what Congress intended. When Congress considered the establishment of a Federal Radio Commission in the late 1920s, it considered the possibility of vesting the power in the Secretary of Commerce alone. This idea, however, was struck down. And it was struck down specifically because Congress feared that a single individual, subject to political will, would possess too much control over who could operate the cutting-edge communications technology of the time, radio.

Ultimately, after deliberation, Congress concluded that a multi-member Commission was the best choice. As Commerce Secretary Herbert Hoover testified to Congress, “we cannot allow any single person or group to place themselves in a position where they can censor the material which shall be broadcast.” The relationship between the power vested in the FCC and the duty to uphold First Amendment rights was unambiguous from the inception of the agency.

When Congress later amended the Federal Radio Commission to create the Federal Communications Commission, it once again chose to vest authority in a multi-member independent agency. Congress’s message to us could not be clearer. The FCC was designed to be an independent expert agency led by a multi-member, multi-party Commission.

While FCC Commissioners have had policy disagreements across the agency’s history, by and large we’ve understood the responsibility of ensuring that those on the “outside” looked to us as a stable, independent, expert-driven regulatory body. Problematically, as we’ve seen at other independent agencies such as the Federal Trade Commission, the Consumer Product Safety Commission, and the Equal Employment Opportunity Commission, today, when minority Commissioners dissent, they are marginalized—or worse, fired.

It is vividly illustrative that even when this Administration holds so much power, it cannot tolerate disagreement or dissent. And that is why it continues to chip away at First Amendment rights.

To address this issue, I have launched a First Amendment Tour to Challenge Government Censorship and Control. In partnership with consumer and civil society organizations across the ideological spectrum, I am hosting and participating in speaking engagements and listening sessions focused on protecting the rights and freedoms enshrined in the First Amendment.

I refuse to stay quiet while the government weaponizes its regulatory tools to undermine the First Amendment. This is how I’m using my voice. I encourage you to use yours too.

And if I’m removed from my seat on the Commission, let it be said plainly: It wasn’t because I failed to do my job. It’s because I insisted on doing it.

Filed Under: 1st amendment, anna gomez, brendan carr, censorship, chilling effects, dei, fcc, free speech, section 230

Trump Administration’s Targeting Of International Students Jeopardizes Free Speech And Privacy Online

from the attacking-all-the-rights dept

The federal government is using social media surveillance to target student visa holders living in the United States for online speech the Trump administration disfavors. The administration has initiated this new program, called “Catch and Revoke,” in an effort to revoke visas, and it appears to be a cross-agency collaboration between the State Department, the Department of Homeland Security (DHS), and the Department of Justice. It includes a dedicated task force and the use of AI and other data analytic tools to review the public social media accounts of tens of thousands of student visa holders. Though the full scope remains unclear, current reports indicate that the administration is surveilling for “pro-Hamas” sentiment, “antisemitic activity,” or even just “conduct that bears a hostile attitude toward U.S. citizens or U.S. culture.” At the time of publishing of this blog post, the federal government has already revoked over 1600 student visas for a variety of reasons.

This social media surveillance program is an alarming attack on freedom of speech and privacy—for both visa holders here in the United States and their American associates.

A Dangerous Erosion of Free Speech

While there is some nuance in the interplay between freedom of speech and immigration law, one principle is evident: foreign nationals who currently reside in the U.S.—including student visa holders—are protected by the First Amendment. The Supreme Court stated in Bridges v. Wixon (1945) that “[f]reedom of speech and of press is accorded aliens residing in this country.”

First Amendment-Protected Political Speech

Revoking student visas based, in part, on what students have said publicly on social media is especially constitutionally problematic given that the Trump administration is targeting core First Amendment-protected political speech. As the Supreme Court stated in Mills v. Alabama (1966), a central purpose of the First Amendment is to “protect the free discussion of governmental affairs,” whether on political issues, public officials, or how the government should operate.

The administration is targeting non-citizen students for “pro-Hamas,” antisemitic, and even just pro-Palestinian speech. Yet what falls under these categories is vague and not clearly defined. For example, the administration detained a Georgetown University researcher due to social media posts that are critical of Israel, but do not express support for Hamas.

More importantly, even controversial or offensive speech falls within the protections of the First Amendment. There are several categories of speech that do not enjoy First Amendment protection, including true threats of violence, inciting imminent violence, and providing material support for terrorism. However, short of rising to that level, the student speech targeted by the administration is protected by the First Amendment. Worse still, the administration is broadly going after students who simply appear to be “social activists” or are engaged in speech that is generically “anti-American.”

Such an overbroad social media surveillance and visa revocation program—one that sweeps in wholly lawful speech—strikes at the heart of what the First Amendment was intended to protect against.

Chilling Effect

Social media surveillance motivated by the government’s desire to punish political speech will chill (and certainly has already chilled) student visa holders from speaking out online.

The Supreme Court stated in Lamont v. Postmaster General (1965) that a government policy that causes individuals “to feel some inhibition” in freely expressing themselves “is at war with the ‘uninhibited, robust, and wide-open’ debate and discussion that are contemplated by the First Amendment.” More recently, Supreme Court Justice Sotomayor expressed in a concurring opinion that “[a]wareness that the Government may be watching chills associational and expressive freedoms” guaranteed by the First Amendment.

In other words, student visa holders are more likely to engage in self-censorship and refrain from expressing dissenting or controversial political views when they know they’re being surveilled. Or they may choose to disengage from social media entirely, to avoid the risk that even seemingly harmless posts will affect their visa status and their ability to continue their education in the United States.

Student visa holders may also limit whom they connect with on social media, particularly if they fear those connections will have political views the current administration doesn’t like. The administration has not expressly stated that it will limit its surveillance only to the social media posts of student visa holders, which means it may also look at posts made by those in the students’ networks. This, too, undermines the First Amendment. The freedom to associate and express political views as a group—“particularly controversial ones”—is a fundamental aspect of freedom of speech, as the Supreme Court stated in its landmark NAACP v. Alabama (1958) decision.

American Citizens Impacted

Because student visa holders’ social networks undoubtedly include U.S. citizens, those citizens may also be subject to social media scrutiny, and therefore will also be chilled from freely speaking or associating online. Government agents have previously held visa holders responsible for the activity of their social media connections. Knowing this, a U.S. citizen who has a non-citizen friend or family member in the U.S. on a student visa might hesitate to post criticisms of the government—even if fully protected by the First Amendment—fearing the posts could negatively impact their loved one. A general climate of government surveillance may also lead U.S. citizens to self-censor on social media, even without any foreign national friends or family.

A Threat to Digital Privacy

Social media surveillance, even of publicly available profiles and especially with automated tools, can invade personal privacy. The Supreme Court has repeatedly held that the government’s collection and aggregation of publicly available personal information—particularly when enhanced by technology—can implicate privacy interests. The government can obtain personal information it otherwise would not have access to or that would usually be difficult to find across disparate locations.

Social media aggregates personal information in one place, including some of the most intimate details of our lives, such as our health information, likes and dislikes, political views and religious beliefs, and people with whom we associate. And automated tools can easily search for and help find this information. Even people who choose not to post much personal information on social media might still be exposed by comments and tags made by other users.

Constitutional Harms are Exacerbated by Automated Tools

The Trump administration is reportedly deploying artificial intelligence and other automated tools to assist in its review of student visa holders’ social media posts. While facts are still coming to light, any form of automation is likely to amplify speech and privacy harms to student visa holders.

By the government’s own assessment in another context—evaluating the admissibility of visa applicants (discussed below)—social media surveillance has not proven effective at assessing security threats.

Human review of public social media posts is itself prone to problems. Social media posts are highly context-specific, and government officials often have trouble differentiating between sarcasm, parody, and exaggeration from unlawful support for controversial causes. This leads to mistakes and misinterpretations. For example, in 2012 an Irish citizen was turned back at the border because DHS agents misinterpreted two of his Twitter posts: one, that he was going to “destroy America” – slang for partying – and two, that he was going to “dig up Marilyn Monroe’s grave” – a joke. These mistakes are even more likely when the posts are not in English or when they contain cultural references .

Human review augmented by automated tools is just as bad. Automated tools also have difficulty understanding the nuances of language, as well as the broader context in which a statement was made. These algorithms are also designed to replicate patterns in existing datasets, but if the data is biased, the technology simply reinforces those biases. As such, automated tools are similarly prone to mistakes and misinterpretations. Yet people often defer to automated outputs thinking they are correct or fair simply because a computer was used to produce them. And in some cases, decision-makers may even use these tools to justify or cover their own biases.

Most concerning would be if automated systems were permitted to make final visa revocation decisions without any human review. As EFF has repeatedly stated, automated tools should never get the final say on whether a person should be policed, arrested, denied freedom, or, in this case, stripped of a student visa and forcibly barred from completing their education.

Government Social Media Surveillance is Not New—and is Expanding

That the Trump administration is using social media surveillance on student visa holders residing in the United States is a disturbing apparent escalation of a longstanding trend.

EFF has long sounded the alarm on the civil liberty harms of government social media surveillance. In particular, since 2019, visa applicants have been required to disclose all social media accounts they have used in the last five years to the U.S. government. That policy is the subject of an ongoing lawsuit, Doc Society v. Pompeo, in which EFF filed an amicus brief.

Secretary of State Marco Rubio recently upped the ante by ordering officials to deny visas to new or returning student applicants if their social media broadly demonstrates “a hostile attitude toward U.S. citizens or U.S. culture (including government, institutions, or founding principles).” Notably, Rubio indicated this standard could also apply to current student visa holders. The State Department also announced it will review the social media of any visa applicant who has been to Gaza since 2007.

The Trump administration has also proposed dramatically expanding social media scrutiny by requiring non-citizens already legally residing in the U.S. to disclose social media accounts on a variety of forms related to immigration benefits, such as people seeking lawful permanent residency or naturalization. U.S. Citizenship and Immigration Services (USCIS), a component of DHS, also announced it would look for “antisemitic activity” on social media to deny immigration benefits to individuals currently in the country.

Protecting Your Accounts

There are general steps you can take to better protect your social media accounts from surveillance. Understand, however, that the landscape is shifting rapidly and not all protections are foolproof. Law enforcement may be able to get a warrant for your private information and messages if a judge is convinced there is preliminary evidence supporting probable cause of criminal activity. And non-governmental individuals and groups have recently used other forms of technology like face recognition to identify and report student activists for potential deportation. You should conduct your own individualized risk assessment to determine what online activity is safe for you.

Still, it never hurts to better secure your online privacy. For your current social media accounts, consider locking them down:

• Make public accounts private and ensure only approved connections can see your content. Note that if your past public posts have already been copied and saved by an outside party, making your account private will not undo this. It will, however, better protect your future posts.
• Some platforms make certain information publicly viewable, even if you’ve made your account private. Other information may be public by default, but can be made private. Review each platform’s privacy settings to limit what information is shared publicly, including friend lists, contact information, and location information.
• You should also review your friends or followers list to ensure you know every person you’ve approved, especially when making a once-public account private.

If you create a new social media account:

• Query whether you want to attach your legal name to it. Many platforms allow you to have a pseudonymous account.
• When setting up the account, don’t provide more personal information than is necessary.

EFF’s Surveillance Self-Defense guide provides additional information on protecting your social media accounts from a variety of actors. If you’re not sure what information is publicly available about you on social networks or other sites, consider doing some research to see what, if anything, others would find.

By targeting international students for broad categories of online speech, this administration is fostering a climate of fear, making students anxious that a single post or errant “like” could cost them their U.S. visa or even lead to detention and deportation. This will, ultimately, stifle political debate and silence dissent–for non-citizens and citizens alike–undermining the open dialogue crucial to democracy.

Originally published to the EFF’s Deeplinks blog.

Filed Under: 1st amendment, chilling effects, free speech, international students, privacy, surveillance, visas

State Department Gadfly Looks To Use Twitter Files Playbook For Vengeance

from the the-reveal-matters-more-than-the-evidence dept

Earlier this year, soon after Elon Musk began stripping away parts of the government he had no constitutional authority to destroy, we warned that it appeared officials in the White House were gearing up to use the Twitter Files playbook on the US government.

The basics of the playbook are as follows:

1. Search through copious amounts of internal messaging and documents for anything that can be positioned (usually misleadingly) to be spun by ignorant idiots as damning.
2. Feed that work to a group of the most credulous, simping journalists that can be found.
3. Let them run with reports on those “released” documents, which will massively misrepresent the reality within them.
4. Sit back and relax as the totally false made-up narrative is considered “accepted truth” by a large segment of the population (even those outside of the MAGA brainwash cult).

As Charlie Warzel aptly explained, this approach works because “what mattered more was the mere existence of a dump of primary-source documents — a collection of once-private information that they could cast as nefarious in order to justify what they believed all along.”

The evidence itself is secondary to the performance of “revelation.”

And now it appears this playbook is set to play out at the State Department.

Darren Beattie is a top State Department official who had been in the first Trump administration before being fired for speaking at a white nationalist conference, and who later founded an independent news site mostly known for having effectively no credibility and pushing utter nonsense that somehow always seems to align with the MAGA cult view of the world.

Last week, MIT’s Tech Review revealed that one of the things Beattie has done at the State Department is begin a total witch hunt for documents he can use to mislead the public in Twitter Files-like fantasyland.

The document, originally shared in person with roughly a dozen State Department employees in early March, requested staff emails and other records with or about a host of individuals and organizations that track or write about foreign disinformation—including Atlantic journalist Anne Applebaum, former US cybersecurity official Christopher Krebs, and the Stanford Internet Observatory—or have criticized President Donald Trump and his allies, such as the conservative anti-Trump commentator Bill Kristol.

The document also seeks all staff communications that merely reference Trump or people in his orbit, like Alex Jones, Glenn Greenwald, and Robert F. Kennedy Jr. In addition, it directs a search of communications for a long list of keywords, including “Pepe the Frog,” “incel,” “q-anon,” “Black Lives Matter,” “great replacement theory,” “far-right,” and “infodemic.”

For several people who received or saw the document, the broad requests for unredacted information felt like a “witch hunt,” one official says—one that could put the privacy and security of numerous individuals and organizations at risk.

Specifically, Beattie went looking at the internal documents for the Counter Foreign Information Manipulation and Interference (R/FIMI) Hub, which was set up to — as it says on the tin — counter foreign information manipulation.

As we’ve discussed for quite some time now, the MAGA world insists that any discussion of “countering foreign manipulation” is really a cover story for “censoring domestic truths.” That’s never been the case, and it makes MAGA people look very foolish every time they make this claim, but it won’t stop them.

People within the State Department who have called this out as problematic are drastically understating what’s really happening. They’re treating this like a simple records request gone wrong, rather than recognizing it as part of a calculated disinformation campaign (which is ironic, since they’re supposed to be the disinfo experts):

Several State Department staffers call the records requests “unusual” and “improper” in their scope. MIT Technology Review spoke to three people who had personally seen the document, as well as two others who were aware of it; we agreed to allow them to speak anonymously due to their fears of retaliation.

While they acknowledge that previous political appointees have, on occasion, made information requests through the records management system, Beattie’s request was something wholly different.

Never had “an incoming political appointee” sought to “search through seven years’ worth of all staff emails to see whether anything negative had been said about his friends,” says one staffer.

Another staffer calls it a “pet project” for Beattie.

While it certainly is improper for Beattie to be doing this, it seems likely that it’s about a lot more than finding out whether or not anyone in this group said anything mean about Beattie and his friends. Assuming this follows from past practice around the Twitter Files or Jim Jordan’s weaponizing of his congressional committee against anyone he believes is insufficiently willing to suck up to Trump, it appears that the intent here is to publish out of context, misleading versions of what they find to try to justify the false claims that operations like R/FIMI are actual part of the “censorship industrial complex.”

Tech Review has published an excerpt of Beattie’s “sensitive but unclassified” request for records, which shows just how unserious this is:

That’s literally “please do a search of previous records for any time anyone mentioned me or my shit-peddling friends.”

It also asks for any documents with a long list of “keywords” or “phrases” related to topics that the MAGA world obsesses over:

If you don’t soak your brain regularly in the vats of the MAGA world’s distortion field, you might not realize there are specific stories behind most of these, but you can tell that this is a mass fishing expedition, to see if the State Department was calling out the absolutely constant flood of bullshit that Beattie and his friends were peddling throughout the majority of the Biden administration, while also checking to see if the State Department folks had been calling out how the nonsense peddlers were coming from inside house.

It’s likely that some of these topics came up at some point or another, though generally under the context of whether foreign adversaries were looking to use domestic culture war controversies to stir up more anger and divisiveness. But if there are any mentions of any of this we’ll be hearing for days upon days from the names listed that it was an example of the government being “weaponized” against them, when the reality will likely be more along the lines of “get a load of this useful idiot pushing nonsense again.”

Meanwhile, rest assured that this fishing expedition is, itself, an example of an illegal weaponization of the government against people for their own speech and expression regarding how best to respond to things like purposeful disinformation. That’s because many of Beattie’s targets appear to be the voices most associated with researching disinformation and the ways to counter it (which, again, don’t mean “censorship” and quite frequently mean “with more speech.”)

Also included among the nearly 60 individuals and organizations caught up in Beattie’s information dragnet are Bill Gates; the open-source journalism outlet Bellingcat; former FBI special agent Clint Watts; Nancy Faeser, the German interior minister; Daniel Fried, a career State Department official and former US ambassador to Poland; Renée DiResta, an expert in online disinformation who led research at Stanford Internet Observatory; and Nina Jankowicz, a disinformation researcher who briefly led the Disinformation Governance Board at the US Department of Homeland Security.

[….]

Labeled “sensitive but unclassified,” the document lays out Beattie’s requests in 12 separate, but sometimes repetitive, bullet points. In total, he sought communications about 16 organizations, including Harvard’s Berkman Klein Center and the US Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA), as well as with and about 39 individuals.

Notably, this includes several journalists: In addition to Bellingcat and Applebaum, the document also asks for communications with NBC News senior reporter Brandy Zadrozny.

The Tech Review article says that it’s unlikely there will be all that much responsive to these requests because that’s not what these organizations actually do:

(Staffers say they doubt that Beattie will find much, unless, one says, it’s “previous [FOIA] queries from people like Beattie” or discussions about “some Russian or PRC [Chinese] narrative that includes some of this stuff.”)

But, again, just as with the Twitter Files, that is unlikely to matter that much. Something will be found that can be presented out of context or surrounded with a bunch of misinformation to make it appear like something it is not. We’ve seen this before.

And, as the article notes, that’s definitely in the works:

Five weeks after Beattie made his requests for information, the State Department shut down R/FIMI.

An hour after staff members were informed, US Secretary of State Marco Rubio published a blog post announcing the news on the Federalist, one of the outlets that sued the GEC over allegations of censorship. He then discussed in an interview with the influential right-wing Internet personality Mike Benz plans for Beattie to lead a “transparency effort.”

“What we have to do now—and Darren will be big involved in that as well—is sort of document what happened … because I think people who were harmed deserve to know that, and be able to prove that they were harmed,” Rubio told Benz.

This is what Beattie—and Benz—have long called for. Many of the names and keywords he included in his request reflect conspiracy theories and grievances promoted by Revolver News—which Beattie founded after being fired from his job as a speechwriter during the first Trump administration when CNN reported that he had spoken at a conference with white nationalists.

Ultimately, the State Department staffers say they fear that a selective disclosure of documents, taken out of context, could be distorted to fit any kind of narrative Beattie, Rubio, or others create.

Actual people with knowledge of what’s going on or how this works will have two choices:

1. Put in the ridiculous amount of work and effort to debunk the misleading narratives that will come out of this, while at a disadvantage of not having all of the details or documents
2. Just shut up and let the narrative overwhelm the wider ecosystem, even breaking out of MAGA confines into the general public

Neither is a great situation — and that’s by design. The Muskian/MAGA world knows that manufacturing bullshit takes minutes, while properly debunking it takes days or weeks of painstaking work. The asymmetry is the point.

Tom Nichols wrote about this at The Atlantic, suggesting that this whole thing is “strange” given that the Twitter files “revealed very little” and assumes that it’s more about creating a kind of blacklist of “bad people” in the government or that he’s trying to “chill any contact between his office and people or organizations who have not passed the administration’s political purity tests.”

That might have something to do with it, but I think it misreads the MAGA world’s steadfast belief that the Twitter Files actually “revealed” a vast, horrendous, “censorship industrial complex” in which the “Biden Crime Family” would direct Twitter to delete patriotic posts of people revealing “the truth” about COVID and the 2020 election. That it did literally none of that doesn’t matter. The narrative is all that matters, and Beattie is looking for scraps to feed the narrative.

I think a different piece at The Atlantic, by Charlie Warzel, gets this part more correct:

The Twitter Files did show that the company made editorial decisions—for example, limiting reach on posts from several large accounts that had flaunted Twitter’s rules, including those of the Stanford doctor (and current National Institutes of Health head) Jay Bhattacharya, the right-wing activists Dan Bongino and Charlie Kirk, and Chaya Raichik, who operates the Libs of TikTok account. Not exactly breaking news to anyone who’d paid attention. But they also showed that, in some cases, Twitter employees and even Democratic lawmakers were opposed to or pushed back on government requests to take down content. Representative Ro Khanna, for example, reached out to Twitter’s executive leadership to express his frustration that Twitter was suppressing speech during its handling of the New York Post’s story about Hunter Biden’s laptop.

Of course, none of this stopped Musk from portraying the project as a Pentagon Papers–esque exercise in transparency. Teasing out the document dump back in December 2022, Musk argued that the series was proof of large-scale “violation of the Constitution’s First Amendment,” but then later admitted he had not read most of the files. This was fitting: For the Twitter Files’ target audience, the archives and their broader contexts were of secondary importance. What mattered more was the mere existence of a dump of primary-source documents—a collection of once-private information that they could cast as nefarious in order to justify what they believed all along. As I wrote in 2022, Twitter had been quite public about its de-amplification policies for accounts that violated its rules, but the screenshots of internal company documents included in the Twitter Files were interpreted by already aggrieved influencers and posters as evidence of malfeasance. This gave them ammunition to portray themselves as victims of a sophisticated, coordinated censorship effort.

For many, the Twitter Files were just another ephemeral culture-war skirmish. But for the MAGA sympathetic and right-leaning free-speech-warrior crowds, the files remain a canonical, even radicalizing event. RFK Jr. has argued on prime-time television that “I don’t think we’d have free speech in this country if it wasn’t for Elon Musk” opening up Twitter’s archives. Similarly, individuals mentioned in the files, such as the researcher and Atlantic contributor Renée DiResta, have become objects of obsession to MAGA conspiracy theorists. (“One post on X credited the imaginary me with ‘brainwashing all of the local elections officials’ to facilitate the theft of the 2020 election from Donald Trump,” DiResta wrote last year.) Simply put, the Twitter Files may have largely been full of sensationalistic claims and old news, but the gambit worked: Their release fleshed out a conspiratorial cinematic universe for devotees to glom on to.

So, as Warzel points out, Beattie’s efforts are “an attempt to add new characters and updated lore to this universe.”

The MAGA cinematic universe is about as connected to reality as the Marvel or Star Wars cinematic universes, yet they’re taken as true by a huge segment of the population. And, worse, even as it’s a matter of religious faith among the true MAGA cultists, the ideas behind them get laundered through so many people that they often breach that barrier.

To this day, I still hear from otherwise normal non-MAGA people, who think that the Twitter Files actually revealed “something bad” happening between Twitter and the government, they just think it probably wasn’t “as bad” as MAGA made it out to be. The reality that it revealed… basically nothing of interest, just doesn’t seem possible.

Beattie is trying to extend that to other parts of the government as well, and using that plan to protect his friends, and to attack and diminish the work of those who called out their bullshit.

Again, Warzel is directly on point:

Perhaps the records request could dredge up something concerning. It’s not out of the realm of possibility that there could be examples of bias or worse in a large tranche of private conversations between a government agency and outside organizations on a host of polarizing topics. But Beattie’s effort, as far as MIT described it, bears none of the hallmarks of an earnest push for transparency. Instead, it reeks of cynical politicking and using one’s privileged government position to access private information for political gain.

The point is not necessarily to find anything real, though that would be a nice bonus. The point is _the act of “revealing_” something which can then be weaponized to support prior claims, even if the actual evidence doesn’t support the claim. It’s not the evidence, but the structures that suggest evidence. Because these are “internal” communications that have been “revealed,” they must contain important valuable secrets, otherwise why would they be leaked.

It’s all part of the show, the kayfabe — a carefully choreographed performance where the trappings of revelation matter more than the substance. Beattie is following the Twitter Files playbook to the letter: gather documents, prep friendly media, and get ready for the spectacle. It’s a vibes-based narrative designed to work whether anything noteworthy is found or not. And if history is any guide, it will work again.

Filed Under: chilling effects, darren beattie, disinformation, fishing expedition, marco rubio, misinformation, narrative, state department, twitter files, witch hunt

Trump’s Latest Weapon Against Critics: Destroying Their Lawyers

from the first-they-came-for-the-lawyers dept

When a president uses executive power to not just blacklist but effectively destroy a major law firm, solely for representing political opponents, it means he’s given up any pretense that he’s not an authoritarian hellbent on destroying anyone who opposes him through any means necessary. Donald Trump’s executive order targeting Perkins Coie isn’t just an attack on one firm — it’s a blueprint for how authoritarian leaders can grossly abuse government power to chill speech and discourage legal challenges to a vast campaign of abuses of their authority.

There are so many things happening with the current ruling junta that it’s impossible to cover all the craziness. But some moments stand out as so far outside the normal realm of things that they need to be described plainly. Donald Trump’s executive order about the law firm Perkins Coie is one of those things. Even if you are a true believer in the MAGA movement, this is one of those things that should cause you to question how much Trump is focused on punishing his perceived enemies, rather than leading the country.

Perkins Coie represents a who’s who of major tech (and other) companies, handles crucial cybersecurity work requiring security clearances, and yes, sometimes represents Democratic politicians and causes. That last bit — a small fraction of their overall practice — is apparently enough for Trump to try to destroy them. The firm’s thousand-plus lawyers handle everything from patent litigation to privacy compliance to national security matters. But none of that matters to an administration focused solely on punishing perceived enemies.

This isn’t just about politics — it’s about whether a president can use executive power to cut off legal representation for any entity that opposes him. Today it’s a firm that represented Democrats. Tomorrow it could be lawyers representing tech companies challenging government surveillance, or defending platforms’ content moderation rights, or fighting against political pressure to unmask anonymous users.

The executive order itself reads like a political hit piece rather than a legitimate exercise of presidential power. And while executive orders have increasingly been used by presidents to push policy agendas without Congress, they’re at least supposed to maintain a veneer of legitimate government purpose. Even Trump’s previous controversial orders attempted (however poorly) to make them look like they were about national security or somehow in the public interest.

But this order barely even pretends. It mentions national security, but with no actual explanation, and it’s clearly there as a fig leaf. This order is nakedly using executive power to punish political opponents — exactly the kind of abuse that critics of executive orders have warned about in the past.

Sen. Rand Paul (R-KY) tweeted, “Mr. President we are a nation of laws & we are supposed to follow our #Constitution. You do not get to ‘act alone.'”

Sen. Ted Cruz (R-TX) said, “Over and over again this president has disregarded the law, has disregarded the Constitution and has asserted presidential power that simply doesn’t exist and that ought to worry regardless of whether you agree with his policies or not.”

Of course, those were about relatively mild executive orders from President Obama. Where are Senators Paul and Cruz regarding Trump’s abuse of executive orders?

The order’s text reads like a Trump campaign speech. Rather than even attempting to articulate a legitimate government purpose, it launches directly into partisan grievances:

The dishonest and dangerous activity of the law firm Perkins Coie LLP (“Perkins Coie”) has affected this country for decades. Notably, in 2016 while representing failed Presidential candidate Hillary Clinton, Perkins Coie hired Fusion GPS, which then manufactured a false “dossier” designed to steal an election. This egregious activity is part of a pattern. Perkins Coie has worked with activist donors including George Soros to judicially overturn popular, necessary, and democratically enacted election laws, including those requiring voter identification.

This is a president using the power of his office to punish lawyers for representing clients he doesn’t like. If that doesn’t terrify you, imagine how this precedent could be used against any law firm that helps fight government overreach. Imagine what it means for firms considering whether to help challenge unconstitutional surveillance programs, or defend whistleblowers, or protect platforms’ rights to moderate content as they see fit.

The order doesn’t just attack Perkins Coie for representing Democrats — it explicitly attacks them for challenging laws in court. Think about that: the White House is using executive power to punish lawyers for filing legitimate court challenges to potentially unconstitutional laws. That’s not just an attack on free speech — it’s an attack on the very concept of constitutional checks and balances.

The order’s punitive measures are carefully crafted to effectively destroy the firm’s ability to operate. First, it effectively strips security clearances from everyone at Perkins Coie — a move that doesn’t just impact their political work, but devastates their ability to handle cybersecurity matters, represent defense contractors, or work on sensitive tech policy issues. This isn’t collateral damage — it’s a deliberate attempt to cut off the firm’s ability to represent clients in some of their core practice areas.

Even more dangerous is the contractor ban. Any company with a federal contract — which includes most major tech companies and countless smaller ones — must now “disclose any business they do with Perkins Coie.” This creates an impossible choice for these companies: either cut ties with a trusted legal advisor or risk their government contracts. It’s a move straight out of an authoritarian playbook — using government contracts as leverage to force private companies to blacklist political enemies.

But perhaps the most chilling aspect of the order is its attempt to bar Perkins Coie personnel from “federal government buildings.” The language is deliberately broad and vague:

The heads of all agencies shall, to the extent permitted by law, provide guidance limiting official access from Federal Government buildings to employees of Perkins Coie when such access would threaten the national security of or otherwise be inconsistent with the interests of the United States.

Let’s be crystal clear about what this means: federal government buildings include courthouses. This order could be used to physically prevent Perkins Coie lawyers from entering federal courts to represent their clients. It’s a direct assault on the fundamental right to legal representation and due process.

Think about the precedent this sets. A president who doesn’t like how a law firm is defending anyone against government overreach could simply bar that firm from federal buildings. Don’t like how lawyers are challenging surveillance programs? Ban them from the courthouse. Fighting too hard against government attempts to weaken encryption? Sorry, you’re now a “national security threat.”

This order shows exactly how far he’s willing to go to silence legal opposition to his agenda.

The order’s chilling effects were immediate and exactly as intended. Just days after Trump declared he had “brought free speech back to the White House,” major law firms are already self-censoring out of fear:

In private conversations, partners at some of the nation’s leading firms have expressed outrage at the president’s actions. What they haven’t been willing to do is say so publicly. Back-channel efforts to persuade major law firms to sign public statements criticizing Trump’s actions thus far have foundered, in part because of retaliation fears, people familiar with the matter said.

Advocacy groups and smaller law firms say it has been more difficult to recruit larger firms to help with cases against Trump, which now number more than 100.

This isn’t just about silencing criticism. It’s about cutting off access to legal representation for anyone challenging government power. And Trump made it explicit over the weekend — this is just the beginning:

Anyone wondering whether law firms might face similar threats or actions didn’t have long to find out. In an interview on Sunday morning, Trump suggested to Maria Bartiromo of Fox News that he isn’t done yet. “We have a lot of law firms that we’re going to be going after, because they were very dishonest people,” he said. “It was so bad for our country.”

That Williams & Connolly has stepped up to represent Perkins Coie is both admirable and telling. As the NY Times reports, many feared no major firm would risk Trump’s wrath:

There were concerns in the legal community that no firm would step forward to represent Perkins Coie. But now Mr. Trump’s Justice Department will be forced to face off against some of the top litigators in the country to defend what legal experts consider one of his most direct attacks on his perceived enemies, and the American legal system.

This is the reality of Trump’s America: law firms must now weigh whether defending basic constitutional rights is worth risking their own destruction. And while it’s easy to get numb to the daily assaults on democratic norms, this attack on the legal profession represents something fundamentally different and more dangerous.

This isn’t just about Perkins Coie or partisan politics. It’s about whether anyone will be able to find lawyers willing to challenge government overreach. It’s about whether tech companies can defend their rights to moderate content or protect user privacy. It’s about whether anyone will dare to represent whistleblowers or privacy advocates or civil rights organizations when the government comes calling.

Even those who supported Trump’s previous attacks on those he hates should recognize this for what it is: a blueprint for using government power to silence any effective opposition to authoritarianism. Today it’s lawyers who represented Democrats. Tomorrow it could be anyone who dares to stand up for individual rights against government power.

Filed Under: chilling effects, donald trump, free speech, lawyers, right to representation, security clearance
Companies: perkins coie

Ctrl-Alt-Speech: This Episode Has Masculine Energy

from the ctrl-alt-speech dept

Ctrl-Alt-Speech is a weekly podcast about the latest news in online speech, from Mike Masnick and Everything in Moderation‘s Ben Whitelaw.

Subscribe now on Apple Podcasts, Overcast, Spotify, Pocket Casts, YouTube, or your podcast app of choice — or go straight to the RSS feed.

In this week’s roundup of the latest news in online speech, content moderation and internet regulation, Mike is joined by guest host Renee DiResta, associate research professor at the McCourt School of Public Policy at Georgetown University. They cover:

• The new free speech crisis hiding in plain sight (MSNBC)
• ‘Free Speech’ Warrior RFK Jr. Has Been Trying To Censor a Blogger for Years (Who What Why)
• In motion to dismiss, chatbot platform Character AI claims it is protected by the First Amendment (TechCrunch)
• Trump Signs Agreement Calling for Meta to Pay $25 Million to Settle Suit (WSJ)
• Meta’s Free-Speech Shift Made It Clear to Advertisers: ‘Brand Safety’ Is Out of Vogue (WSJ)
• X refuses to remove stabbing video watched by Southport killer (Financial Times)

This episode is brought to you with financial support from the Future of Online Trust & Safety Fund.

Filed Under: chilling effects, content moderation, donald trump, first amendment, free speech, renee diresta, rfk jr.
Companies: character.ai, meta, twitter, x

What Free Speech? Trump Ramps Up Threats To Sue Publishers Over Their Speech

from the presidential-chilling-effects dept

We just warned folks that Donald Trump would be one of the most anti-free speech Presidents in history, and he seems to have no qualms living down to that reputation.

Donald Trump’s history of frivolous lawsuits against media outlets shows his disdain for free speech, and he shows no signs of stopping. The Columbia Journalism Review has an article exploring a bunch of other legal threats Trump and those around him have been flinging at news and book publishers over their speech.

These threats are part of a disturbing pattern of Trump trying to silence and intimidate his critics:

The letter, addressed to lawyers at the New York Times and Penguin Random House, arrived a week before the election. Attached was a discursive ten-page legal threat from an attorney for Donald Trump that demanded $10 billion in damages over “false and defamatory statements” contained in articles by Peter Baker, Michael S. Schmidt, Susanne Craig, and Russ Buettner.

It singles out two stories coauthored by Buettner and Craig that related to their book on Trump and his financial dealings, Lucky Loser: How Donald Trump Squandered His Father’s Fortune and Created the Illusion of Success, released on September 17. It also highlighted an October 20 story headlined “For Trump, a Lifetime of Scandals Heads Toward a Moment of Judgment” by Baker and an October 22 piece by Schmidt, “As Election Nears, Kelly Warns Trump Would Rule Like a Dictator.”

“There was a time, long ago, when the New York Times was considered the ‘newspaper of record,’” the letter, a copy of which was reviewed by CJR, reads. “Those halcyon days have passed.” It accuses the Times of being “a full-throated mouthpiece of the Democratic Party” that employs “industrial-scale libel against political opponents.”

Of course, none of this is new. Donald Trump has a long history of threatening and suing news organizations for their factual reporting. The point is not that many of these lawsuits eventually get tossed out of court. The real goal is to harass and punish media outlets for daring to criticize or investigate him.

Even when these lawsuits are eventually dismissed, the process is the punishment. The punishment is the process. News organizations are forced to divert time and money defending against frivolous claims, while journalists may think twice about pursuing tough stories out of fear of ending up in court. It’s an insidious form of soft censorship that undermines the media’s vital watchdog role.

This is especially galling given how frequently I saw people say that in the election they supported Donald Trump because “he stood for free speech” while simultaneously claiming that Kamala Harris “wanted censorship.” This was a key line that JD Vance used, without ever backing it up, because it wasn’t ever true.

Harris hasn’t sued the media for critical reporting. Trump has, over and over and over again and continues to threaten more such lawsuits.

Free speech actually means something, and the idea that Trump supports it is laughable. But, of course, his fans won’t care because they don’t actually care about free speech. That was just a convenient excuse. They’re happy to support speech suppression lawfare when they see it aimed at their perceived “enemies” in the media.

And all of this is why we need a federal anti-SLAPP law, but it seems quite unlikely Donald Trump will sign one while he’s the President.

Filed Under: 1st amendment, anti-slapp, chilling effects, defamation, donald trump, free speech, slapp suits
Companies: ny times, penguin random house

Threatened With A Ban In India, Wikimedia Agrees To Hand Over Personal Information About Wikipedians To Delhi High Court

from the chilling-effects dept

As Techdirt stories attest, Wikipedia has been attacked in the past for publishing true information that somebody doesn’t like. As well as wanting articles to be censored, those behind such attacks often also demand the names of those who worked on the article. Something similar is now happening in India, where the Indian news agency Asian News International (ANI) has filed a lawsuit against Wikimedia Foundation in the Delhi High Court, claiming to have been defamed in an article on Wikipedia, and seeking 20 million Indian Rupees (about US$240,000) in damages. The Wikipedia article on ANI explains the background:

At the time of the suit’s filing, the Wikipedia article about ANI said the news agency had, “been accused of having served as a propaganda tool for the incumbent central government, distributing materials from a vast network of fake news websites, and misreporting events on multiple occasions”. The filing accused Wikipedia of publishing, “false and defamatory content with the malicious intent of tarnishing the news agency’s reputation, and aimed to discredit its goodwill”.

On 5 September, the Court threatened to hold Wikimedia guilty of contempt for failing to disclose information about the editors who had made changes to the article and warned that Wikipedia might be blocked in India upon further non-compliance.

More recently, an article on the Indian site Scroll.in reported that:

Buckling under the court’s pressure, Wikimedia agreed to submit data of the editors of ANI’s Wikipedia page to the High Court in a sealed cover. However, it proposed redacting personal details of these Wikipedians from public court records and serving notice in the case to them, to ensure confidentiality.

Wikimedia’s decision to share user information with the court may lead to users who edited the ANI page getting involved in the suit. This is a matter of concern for Wikipedia editors, who see this as an infringment of their freedom of speech. “Disclosure of the identities of contributors without an offence being established first will have a chilling effect on the community,” researcher, technologist and Wikipedian Rohini Lakshané explained to Scroll

There is a lively discussion about the case and its implications on the Wikipedia Community pages, a very detailed explanation of what has happened in a Wikipedia Signpost article, and a petition to the Wikimedia Foundation. The latter’s signees say that they are “profoundly concerned at the suggestion that the Foundation is considering disclosing identifying private information about volunteer editors to the Delhi High Court”, and they call upon the Foundation to “prioritize the safety and well being of volunteers, even if it comes with a risk of legal action against the Foundation, or other costs.” The petition concludes:

Any other action risks having a chilling effect on the work of volunteers across the project, and only makes it more likely that such pressure will be exerted in future. In short, it jeopardizes the future of our shared project.

That applies not just to the Wikipedia project in India, but elsewhere. Giving in to demands to reveal the identity of people working on articles in India is likely to embolden those in other countries who would like to make awkward facts disappear and to punish those who dare to reveal them.

Follow me @glynmoody on Bluesky and on Mastodon.

Filed Under: chilling effects, defamation, delhi, fake news, india, petition, propaganda, wikimedia, wikipedia
Companies: Asian News International, wikimedia foundation

Judge Slams Ken Paxton’s Attack On Media Matters’ Free Speech Rights

from the absolute-free-speech-suppressor dept

The First Amendment has won again, this time against another pretend “free speech absolutist” (Texas Attorney General Ken Paxton) in his attempt to punish someone for their free speech. Perhaps Ken Paxton will have to learn about the First Amendment in these remedial legal ethics education classes he’s required to take as part of closing out the criminal charges he was facing for years.

You may recall that after fake free speech absolutist Elon Musk got all pissy at Media Matters’ use of its own free speech rights to point out the fact that they were able to find ads on ExTwitter from giant companies appearing next to the accounts of literal neo-Nazis, a couple of pandering state Attorneys General decided they’d use the power of their states to punish Media Matters.

The whole thing is incredibly stupid, but just to set the stage, Musk started whining about how unfair it was that Media Matters found and wrote about the ads. Trump advisor Stephen Miller tweeted that he thought state AGs should investigate Media Matters for their article, and both Paxton and Missouri’s Andrew Bailey jumped up to do so.

Paxton sent a civil investigatory demand (CID) as a sort of fishing expedition, demanding Media Matters hand over a ton of internal documents. Media Matters responded by going to court, initially in Maryland, but then quickly moved to DC (after the judge in Maryland suggested that was the proper venue) and asked the court to protect it from this obviously ridiculous, retaliatory attack. The attack was clearly designed to create chilling effects to stop any sort of investigatory reporting on what was happening to ExTwitter.

On Friday, Judge Amit Mehta did a complete and total takedown of Paxton’s bullshit censorial attack on Media Matters’ speech. The whole thing is worth a read. Paxton argued that the DC court has no jurisdiction over his Texas-based investigation. This is a bit ironic, given that Paxton is at the same time claiming jurisdiction over Media Matters despite it being in DC, not Texas.

Turns out, Paxton screwed himself here (such a good lawyer, huh?) by hiring a process server to deliver the CID in DC, thereby making the jurisdiction question a lot easier:

First, the court finds that Defendant invoked the benefits and protections of the District’s laws when he “caused” service of the CID in the District of Columbia “through a professional process service.” Def.’s Opp’n, Decl. of Ass’t Att’y Gen. Levi Fuller, Ex. 1, ECF No. 26-1, ¶ 3 [hereinafter Fuller Decl.]. Courts have found that the hiring of a process server creates an agency relationship between the attorney and process server, and that relationship establishes the attorney’s presence in the jurisdiction to satisfy the “minimum contacts” requirement. See Schleit v. Warren, 693 F. Supp. 416, 419–20 (E.D. Va. 1988) (so holding under Virginia law); Balsly v. W. Michigan Debt Collections, Inc., No. 11-cv-642-DJN, 2012 WL 628490, at *5–7 (E.D. Va. Feb. 27, 2012) (same); Hamilton, Miller, Hudson & Fayne Travel Corp. v. Hori, 520 F. Supp. 67, 70 (E.D. Mich. 1981) (so holding under Michigan law). Courts also have held that a person who arranges for personal delivery of process in a State “purposely avail[s] themselves of the privilege of serving process in [the State].” Hori, 520 F. Supp. at 70. As one court has put it: “it [is] reasonable to conclude that a lawyer who knowingly serves abusive process in a jurisdiction . . . is ‘purposely avail[ing] himself of the privilege of conducting activities within the forum State.’” Schleit, 693 F. Supp. at 422–23 (quoting Luke v. Dalow Indus., Inc., 566 F. Supp. 1470, 1472 (E.D. Va. 1983)). Defendant’s hiring of a process server in the District of Columbia to effect service on Media Matters therefore created the requisite jurisdictional contacts with the District. See Smith v. Jenkins, 452 A.2d 333, 335 (D.C. 1982) (“Generally an agency relationship results when one person authorizes another to act on his behalf subject to his control, and the other consents to do so.”) (citations omitted).

Maybe they can teach that in Paxton’s remedial classes as well.

The judge also notes the irony of Paxton claiming to be able to enforce Texas law in DC but then not to be subject to a DC court himself:

Defendant promised to “vigorously enforce” the Texas DTPA against Media Matters for “fraudulent acts” with no apparent connection to Texas. Branch Decl., Ex. B at 13. His issuance of the CID had the effect of chilling Plaintiffs’ expressive activities nationwide, which deprived D.C. residents access to Plaintiffs’ reporting. The national implications of Defendant’s actions were compounded by his calling upon other Attorneys General to investigate Media Matters. See id., Ex. C, at 17. Thus, like the New Jersey Attorney General in Grewal, Defendant “projected himself across state lines and asserted a pseudo-national executive authority” that makes exercising jurisdiction over him reasonable and does not offend principles of federalism.

Having shown that Paxton has done enough that the DC Court has jurisdiction over him, the court takes on Paxton’s claim that his CID presents no injury to Media Matters (try not to laugh). Judge Mehta points out how ridiculous this claim is by basically saying, “dude, do you even know how the First Amendment works?”

Where, as here, a plaintiff brings a claim of First Amendment retaliation, “the injury-infact element is commonly satisfied by a sufficient showing of self-censorship, which occurs when a claimant is chilled from exercising his right to free expression.” Edgar v. Haines, 2 F.4th 298, 310 (4th Cir. 2021), cert. denied, 142 S. Ct. 2737 (2022) (quoting Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013)) (internal quotation marks omitted); see also Twitter, 56 F.4th at 1174 (citing Edgar, 2 F.4th at 310); Cooksey, 721 F.3d at 236 (finding justiciable injury where a state official informed plaintiff that she had “statutory authority” to seek an injunction against him if he did not edit his diet-advice website and plaintiff alleged “speech-chilling uncertainty about the legality of private conversations and correspondence”). The chill must be “objectively reasonable.” Edgar, 2 F.4th at 310 (quoting Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011)).

Through sworn affidavits, Plaintiffs have demonstrated the profound chilling impact that the CID has had on its news operations and journalistic mission. Media Matters’ Editor-in-Chief, Benjamin Dimiero, declares that the CID has “dramatically changed [his] team’s editorial processes[.]” Pls.’ Mot., Decl. of Benjamin Dimiero in Supp. of Pls.’ Mot., Ex. 4, ECF No. 4-4, ¶ 16 [hereinafter Dimiero Decl.]. Dimiero describes a “new culture of fear” amongst Media Matters staff about research and reporting. Id. For example, he avers that the editorial team and leadership now engage in “greater internal scrutiny and risk calculation” when approaching stories that they otherwise would have published after their normal vetting process, such as stories about media coverage of the Defendant’s anti-abortion actions in Texas. Id. Dimiero further states that other stories, such as one concerning content moderation decisions made by X, “may go unreported on entirely.” Id. “There is,” he says, “a general sense among our team and organization that we must tread very lightly[] and be careful not to cross lines that would jeopardize our work or our employees’ safety . . . because of concern that certain reporting could make us a target for further retaliation.”

According to Dimiero, since Defendant announced the investigation, “Media Matters’s editorial leaders have pared back reporting and publishing, particularly on any topics that could be perceived as relating to the Paxton investigation.” Id. ¶ 17. Absent the CID, Media Matters would have coordinated follow up research and reporting on Hananoki’s November 16 Article, as well as the one that appeared the next day. Id. ¶ 18. Media Matters, for instance, “received several tips from people who have seen advertisements for prominent brands placed alongside extremist content,” but has limited the scope of its reporting on the subject “for fear of additional retaliation.” Id. Furthermore, Media Matters otherwise would have published at least two additional articles on the topics of Hananoki’s reporting, but his team withheld them due to concerns of further legal action. Id. ¶ 19. Writers have expressed concerns that their investigations could serve as the basis for retaliatory legal action and that their work product might be subject to investigative demands. Id. ¶ 22; see also Padera Decl. ¶¶ 23–24 (same). Media Matters’ leadership and editorial team have since assumed a more significant role in publishing decisions, which “has significantly slowed down [their] editorial and publication process.” Dimiero Decl. ¶ 21. Media Matters has been taking these steps out of fear of retaliation, not out of legitimate concerns about fairness or accuracy

I can relate, having been sued for my accurate reporting myself. The mental toll that such a lawsuit has on your reporting is very real, even when (arguably especially when) you know that your reporting was 100% solid. It’s incredibly chilling that you can still end up in court, facing ruinous liability, even when you do everything right.

From there, Judge Mehta moves on to the likelihood of success for Media Matters. He notes he only needs to do so for the First Amendment issue, which are pretty obvious and very easy.

Defendant’s investigation of Media Matters is “retaliatory action sufficient to deter a person of ordinary firmness in plaintiff’s position from speaking again[.]” Aref, 833 F.3d at 258. Defendant makes no contrary argument, Def.’s Opp’n at 23, so the court treats as conceded the sufficiency of Plaintiffs’ proof as to this element, see Day v. D.C. Dep’t of Consumer & Regul. Affs., 191 F. Supp. 2d 154, 159 (D.D.C. 2002) (“If a party fails to counter an argument that the opposing party makes in a motion, the court may treat that argument as conceded.”); see also Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014) (“[I]f a party files an opposition to a motion and therein addresses only some of the movant’s arguments, the court may treat the unaddressed arguments as conceded.”)

Still, the court explains why Plaintiffs prevail regardless. “[T]he threat of invoking legal sanctions” is sufficient to deter protected speech. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963). So, too, is the “threat of administrative and judicial intrusion into newsgathering and editorial process” that arises from official process and its possible enforcement. United States v. LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988) (internal quotation marks omitted). The Texas Code authorizes the Attorney General to seek restraint of future conduct and the imposition of civil penalties of up to $10,000 per violation in a Texas state court if he has “reason to believe” Plaintiffs violated the DTPA. Tex. Bus. & Com. Code § 17.47(a), (c). He also can seek to have Plaintiffs held in contempt in Texas state court for not complying with the CID. Id. § 17.62(c). These potential punitive consequences, as well as possible judicial intervention to enforce the CID, make Plaintiffs’ claim of chilled expression objectively reasonable.

There is more. “The compelled production of a reporter’s resource materials can constitute a significant intrusion . . . [that] may substantially undercut the public policy in favor of the free flow of information to the public[.]” United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980). The CID seeks such records. It demands “internal and external communications . . . regarding Elon Musk’s purchase of X,” X’s CEO “Linda Yaccarino,” and Hananoki’s November 16 Article, as well as external communications with “employees and representatives of X” and the various companies that were the subject of the November 16 Article for a three-week period. Branch Decl., Ex. A, at 11. The compelled disclosure of such “research materials poses a serious threat to the vitality of the newsgathering process.” Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995). And, of course, Plaintiffs’ actual self-censorship in response to the announced investigation and the CID “provides some evidence of the tendency of [Defendant’s] conduct to chill First Amendment activity.” Hartley v. Wilfert, 918 F. Supp. 2d 45, 54 (D.D.C. 2013) (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005)). The court need not repeat that uncontested evidence here.

Also, Paxton apparently didn’t even try to defend non-censorial reasons for opening the investigation:

To establish causal link, “[i]t is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured—the motive must cause the injury. Specifically, it must be a ‘but-for’ cause, meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019). Defendant’s initial press release establishes that Defendant opened an investigation of Media Matters in response to its protected media activities. Branch Decl., Ex. B, at 13. Also, Defendant’s description of Media Matters as a “radical anti-free speech” and “radical left-wing organization” and his encouraging of other Attorneys General to look into Media Matters’ reporting is evidence of retaliatory intent….

Defendant has not responded to Plaintiffs’ causation evidence. See Def.’s Opp’n at 22–23. Notably, he has not submitted a sworn declaration that explains his reasons for opening the investigation. By remaining silent, he has conceded the requisite causal link

It seems quite possible that Ken Paxton is a terrible lawyer.

Paxton also claimed that Media Matters’ voice wasn’t chilled because the org had continued to speak out in defense of its reporting. But, as the court notes, that’s not how any of this works. At all.

Defendant also contends that it is “factually untrue” that Media Matters has had its expression chilled, citing television appearances by Media Matters’ President, in which he has defended the organization’s reporting and “doubled down” on the accuracy of the X images contained the November 16 Article. Def.’s Opp’n at 24; Fuller Decl., Exs. E & F, at 24–39. But this argument asks too much of Plaintiffs. They “need not show that the government action led them to stop speaking ‘altogether,’” only that it would be “likely to deter a person of ordinary firmness from the exercise of First Amendment rights.” Edgar, 2 F.4th at 310 (quoting Benham 635 F.3d at 135). Therefore, the fact that Media Matters’ President has publicly defended its work does not mean that Plaintiffs have not suffered irreparable harm.

End result: preliminary injunction barring Paxton from enforcing his CID.

Of course, now we’ll have to see what happens in Missouri, where AG Andrew Bailey (who also pretends to be a free speech warrior while trying to suppress the speech of others) not only sent a CID, but immediately sued Media Matters in Missouri. He claims that Media Matters’ decision to go to court to block Paxton’s CID meant that they would refuse to bow down to his demands as well. That, of course, puts that case in a local Missouri court. But one hopes that this ruling will help clarify the First Amendment issues for that court as well.

Still, chalk one up for actual free speech and the First Amendment: Ken Paxton has had his attempt to retaliate against Media Matters for its speech smacked down, as was richly deserved.

Filed Under: 1st amendment, andrew bailey, chilling effects, cid, dc, elon musk, free speech, ken paxton, retaliation, texas
Companies: media matters