florida – Techdirt (original) (raw)

Florida Health Dept. Lawyer: I Quit Rather Than Carry Out DeSantis’ Censorship Threats

from the yes,-the-governor-is-trying-to-censor-speech dept

I’m not sure I’ve ever seen a government official go from sending a clearly censorial First Amendment-violating threat letter to quitting his job to telling a court, “I was pressured to do that and I resigned so that I wouldn’t do that again” so quickly.

Last week, we wrote about the fairly notable ruling in Florida, where federal judge Mark Walker included the classic line: “To keep it simple for the State of Florida: it’s the First Amendment, stupid.”

A group was purchasing airtime for TV commercials in support of a Florida ballot initiative that would protect women’s autonomy in dealing with issues related to pregnancy. Florida’s Department of Health sent a letter, signed by its General Counsel John Wilson, to the TV stations, claiming that airing the commercial could violate the state’s “sanitary nuisance” laws, normally used for getting property owners to clean up a leaking septic tank. At least one TV station then refused to air the ad in question in response to the letter.

The non-profit that bought the ad time sued, and the judge noted (quite easily) that this was about as obvious and blatant a violation of the First Amendment as anyone could remember.

We noted in our original article that Wilson (whose signature appeared on the letter) had already resigned a day after the letter was sent. He told the media that his “conscience” couldn’t allow him to stay.

Late last week, he went a step further and filed an affidavit with the court saying that Ron DeSantis’ office had drafted the letter and told him to send it, which he did. But he resigned when they asked him to follow through with more such letters and to retain lawyers to go after the TV stations who still ran the ad.

On October 3, 2024, in my official capacity as General Counsel, | sent the letters referenced in paragraph 4 of Plaintifl’s complaint.

I received drafts of the letters directly from Sam Elliot, Assistant General Counsel for the Executive Office of the Governor, earlier that day.

I did not draft the letters or participate in any discussions about the letters prior to October 3, 2024.

Ryan Newman, General Counsel for the Executive Office of the Governor, and Jed Doty, Deputy General Counsel for the Executive Office of the Governor, directed me to send them under my name and on the behalf of the Florida Department of Health.

On October 10, 2024, I resigned from my position as General Counsel in lieu of complying with directives from Newman and Doty to send out further correspondence to the media outlets, similar to the October 3, 2024 letters.

On October 10, 2024, prior to my resignation, I was directed by Mr. Newman to execute contracts for outside counsel to be retained by the Department to assist with enforcement proceedings pursuant to the October 3, 2024 letters.

This should be a huge fucking scandal. This is from the very same party that has falsely accused the Biden White House of “censorship” for simply sending reports of possible misinformation to social media companies and asking them if it violated their policies. This is from the very same party that passed laws to force social media companies to host speech, which they claimed was necessary to “support free speech.”

Yet, here they are issuing literally direct threats to TV stations, demanding they not air political ads from their political opponents. It’s one of the most blatant attacks on the First Amendment we’ve seen by government officials in some time. And it’s getting very little attention.

Anyway, kudos to Wilson for at least being willing to admit that this was bad and refusing to follow through on further actions here. It would have been nice if he’d never agreed to send the original letters at all.

Either way, with his affidavit, Floridians Protecting Freedom (the plaintiff in the case and the purchaser of the ads) has now dismissed its claims against Wilson directly. However, it will continue to move forward with the case against State Surgeon General Joseph Ladapo.

In light of the affidavit of former Florida Department of Health General Counsel John Wilson attached as Exhibit A to this notice, which explains the circumstances in which Mr. Wilson was directed to sign his name on the October 3 letter at issue in this case, Plaintiff has determined that it is unnecessary to pursue individual capacity claims against Defendant Wilson.

Filed Under: 1st amendment, abortion, abortion rights, florida, free speech, john wilson, political advertising, resignation, ron desantis
Companies: floridians protecting freedom

‘To Keep It Simple… It’s the First Amendment, Stupid’: Judge Slams Florida’s Attempt To Censor Abortion Initiative Ads

from the judicial-clarity dept

It’s not unheard of for us, or other publications, to paraphrase what a court ruling says at times. This time, however, the quote in the headline is actually 100% a direct quote from Judge Mark Walker, the Chief Judge of the Northern District of Florida federal court in a ruling against the state of Florida.

Here’s the full quote:

To keep it simple for the State of Florida: it’s the First Amendment, stupid.

To be clear, Florida’s legislature and Ron DeSantis — despite claiming to be big “free speech” supporters — have shown themselves to be somewhat confused about how the First Amendment works. Over the last few years, we’ve covered multiple things done by the governor and the legislature that required courts to step in and explain the First Amendment.

And here we are again.

The background here is pretty straightforward. This year, in Florida, there’s a ballot initiative in the state that would amend the state’s Constitution to say that no law can restrict abortion “before viability” or when a healthcare provider deems it necessary. The group backing the ballot, Floridians Protecting Freedom, created some 30-second commercials and bought some airtime on TV networks promoting the initiative.

Then, John Wilson, the general counsel of Florida’s Department of Health, sent a fucked up letter to the stations running the ads. The letter claimed that the ads violated the state’s “sanitary nuisance” laws, which normally are used to deal with things like overflowing septic tanks or improper garbage disposals.

Claiming that a political ad violates that law is so obviously thuggish, censorial bullshit that (1) the lawyer who sent it, John Wilson, then resigned and admitted that his conscience couldn’t let him continue in that job after sending such a threat letter and (2) FCC Chair Jessica Rosenworcel issued a reminder that broadcasters have a First Amendment right to air what they want, and “threats against broadcast stations for airing content that conflicts with the government’s views are dangerous and undermine the fundamental principle of free speech.”

Floridians Protecting Freedom went to court on Wednesday with a complaint calling out how egregious the threats are. The complaint asked for a declaratory judgment that the letters violate the First Amendment, and for an injunction against the government to stop such letters from being sent going forward.

Just one day later, the court did exactly that. Here’s the longer version of the quote above:

Plaintiff’s argument is correct. While Defendant Ladapo refuses to even agree with this simple fact, Plaintiff’s political advertisement is political speech—speech at the core of the First Amendment. And just this year, the United States Supreme Court reaffirmed the bedrock principle that the government cannot do indirectly what it cannot do directly by threatening third parties with legal sanctions to censor speech it disfavors. The government cannot excuse its indirect censorship of political speech simply by declaring the disfavored speech is “false.” “The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion.” Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring). “In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.” Id. To keep it simple for the State of Florida: it’s the First Amendment, stupid.

It then goes through a full explanation of just how stupid all this is. Florida’s argument is dismissed as “nonsense.”

At the hearing, Defendant led with the argument that laws of general applicability are immune from First Amendment challenge. Nonsense. The line of cases Defendant cites to support this dubious argument are readily distinguishable from this case. Defendant’s cases addressed a different issue—namely, whether enforcement of a law of general applicability against the press, which incidentally affects the press’s ability to gather and report the news, offends the First Amendment. See, e.g., Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991); Villieux v. Nat’l Broad. Co., 206 F.3d 92 (1st Cir. 2000); Food Lion v. Cap. Cities/ABC, 194 F.3d 505 (4th Cir. 1999). That is not this case. The issue here is whether the State can censor core political speech under the guise that the speech is false and implicates public health concerns. When state action “burdens a fundamental right such as the First Amendment, rational basis yields to more exacting review.” NAACP v. City of Philadelphia, 834 F.3d 435, 443 (3d Cir. 2016). With limited exceptions not applicable here,4 a government restriction on speech is subject to strict scrutiny if it is content based. Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).

Footnote 4 also does a good job explaining how there are limited exceptions to the First Amendment, but there’s no way that these ads fit into those categories:

A few “limited categories of speech are traditionally unprotected—obscenity, fighting words, incitement, and the like.” Honeyfund.com, Inc. v. Governor, 94 F.4th 1272, 1277 (11th Cir. 2024) (quoting Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 791 (2011)). “But what counts as unprotected speech starts and ends with tradition—‘new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.’ ” Id. But Defendant has not demonstrated that the political speech at issue falls within any of these categories. It is not commercial speech subject to a more relaxed standard permitting some government regulation, nor is it obscene, nor is it inciting speech that will imminently lead to harm to the government or the commission of a crime.

Defendant argues this is dangerous and misleading speech that could cause pregnant women harm in Florida. But there is no “general exception to the First Amendment for false statements.” United States v. Alvarez, 567 U.S. 709, 718 (2012) (plurality opinion). Falsity alone does not bring speech outside the First Amendment absent some other traditionally recognized, legally cognizable harm. Id. at 718–722. That is because “it is perilous to permit the state to be the arbiter of truth.” Alvarez, 567 U.S. at 752 (Alito, J., dissenting).

Defendant seeks to fit a square peg into a round hole by suggesting that Plaintiff’s speech is unprotected because it poses an “imminent threat” to public health. But this argument fails too. Speech is unprotected as an “imminent threat” when it incites or produces imminent lawless action, or poses a clear and present danger by bringing about the “substantive evils” that the government has a right to prevent, like obstacles to military efforts, obscenity, acts of violence, and charges to overthrow the government. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931). But there is no suggestion that Plaintiff’s ad would bring about the “substantive evils” that the Supreme Court has recognized, nor is there any suggestion that Plaintiff’s ad would cause individuals to take any imminent lawless action.

The court then explains how this law doesn’t come even remotely close to passing the high bar for strict scrutiny. Again, some of the meatiest bits are in the footnotes. Florida tried to claim that the recently decided Vullo case (in which a unanimous Supreme Court rejected efforts by government officials to coerce third parties into punishing people for their speech) didn’t apply because the speech here wasn’t protected by the First Amendment. The court explains that this is not how this works:

When asked why this case was not governed by Vullo, Defendant’s response was that Vullo concerned the state exercising its regulatory authority “in an effort to stop the NRA from engaging in constitutionally protected speech.” But “the difference here,” he argued, is that “the specific words being expressed” in this case don’t fall “within the ambit of the First Amendment.” ECF No. 23 at 36–37. But that is beside the point. In Bantam Books, on which Vullo relied, the state threatened enforcement on the basis that the speech was allegedly obscene—which the Supreme Court acknowledged was “not within the area of constitutionally protected speech or press.” 372 U.S. at 59, 65. Here, as discussed above, Defendant has not even shown that the speech falls within one of the “traditionally unprotected” categories, let alone that such a distinction would remove this case from the ambit of Vullo and Bantam Books.

Furthermore, the court notes that these threats from the Florida government are unconstitutional under two separate analyses: for both being an unconstitutional coercion in an attempt to suppress speech and for viewpoint discrimination, both of which are forbidden under the First Amendment.

The judge points out that if this was allowed to stand, the state could just deem any speech it dislikes a “sanitary nuisance” and threaten criminal charges if it wasn’t removed:

It is no answer to suggest that the Department of Health is merely flexing its traditional police powers to protect health and safety by prosecuting “false advertising”—if the State can rebrand rank viewpoint discriminatory suppression of political speech as a “sanitary nuisance,” then any political viewpoint with which the State disagrees is fair game for censorship. Moreover, the record demonstrates that Defendant has ample, constitutional alternatives to mitigate any harm caused by an injunction in this case. The State of Florida has actively undertaken its own anti-Amendment 4 campaign to educate the public about its view of Florida’s abortion laws and to correct the record, as it sees fit, concerning pro-Amendment 4 speech. The State can continue to combat what it believes to be “false advertising” by meeting Plaintiff’s speech with its own

And thus, Florida is “enjoined from taking any further actions to coerce, threaten, or intimate repercussions directly or indirectly to television stations, broadcasters, or other parties for airing Plaintiff’s speech, or undertaking enforcement action against Plaintiff for running political advertisements….”

This is a good, strong outcome, but it remains absolutely ridiculous that this situation happened in the first place. Again, the idea that the modern GOP supports “free speech” is laughable given continued actions like this one.

The modern GOP needs to be reminded time and time again, “it’s the First Amendment, stupid,” but they have made it clear that they don’t care. They will continue to take every action they can to suppress views they dislike, because shutting up critics and “owning the libs” is way more important to them than actually upholding the Constitution.

Filed Under: 1st amendment, abortion, ballot initiative, coercion, florida, florida department of health, john wilson, mark walker, political advertising, ron desantis

Florida Judge Blocks Paper From Publishing Video Showing Deputies Killing An Inmate

from the keeping-the-public-blissfully-ignorant dept

Call a right “enshrined” all you want, but if a judge decides it’s better to protect law enforcement officers from their own actions than to allow the public to view killings performed in the name of “public safety,” the public gets nothing. Neither do the people serving the public and providing them with information, like the Ocala Gazette, which was recently hit with an order forbidding them from publishing a jailhouse video it had legally obtained.

In 2022, Marion County (Florida) deputies killed Scott Whitley, a mentally ill inmate, during a furious bout of excessive force deployment.

Here’s how the Ocala Gazette described what reporters saw on the jailhouse video:

The guards managed to get him face down on the ground, get a hold of his arms and legs, and continue to tase him. Whitley was no longer resisting them, but continued to scream “please,” and asked the guards to stop tasing him.

About two minutes passed and the guards continued to attempt to put Whitley into handcuffs while they deployed tasers. Four guards had their body weight on top of Whitley’s back as they held him down. He was being tased simultaneously by at least two guards who were standing at his head and feet.

The pepper foam deployed caused Whitley and the guards to cough throughout the entirety of the incident. Whitley continuously screamed in pain and pleaded with the guards and asked them to stop.

At about 7:07 a.m., Whitley could be heard screaming, “Please, somebody help me.” At this point, the tasing stopped as both of his arms were handcuffed about 30 seconds later. A guard outside the cell offered the deputies another taser, which they declined.

But that wasn’t the end of it, as Reason’s C.J. Ciaramella notes in his coverage of the ruling:

The guards put Whitley in handcuffs and leg irons, shoved a spit mask over his head, and continued to hold him down for several minutes until he stopped breathing. When they discovered he was unconscious, they dragged him out of his cell and waited six minutes to call 911.

So far, it’s pretty much any “death in custody,” as law enforcement officials refer to these killings as. But the Ocala Gazette wanted to publish the video it had obtained because it undercut the narrative provided by Marion County Jail officials. Officials claimed Whitley refused to “comply” with guards’ orders, but the recording shows Whitley sitting as ordered to before being rushed by guards who proceeded to brutalize him for the next several minutes.

Multiple journalists attempted to obtain the jailhouse recording of this incident (including Reason and the Ocala Gazette). Their requests were rejected by the Marion County Sheriff’s Office (MCSO), which claimed the recording was exempt from disclosure because it might “reveal” the jail’s “safety vulnerabilities.”

That’s a pretty weird claim to make, considering the MCSO is charged with ensuring the jail doesn’t actually have “safety vulnerabilities.” In addition, the MCSO claimed the footage was protected under another law — one that wasn’t written with the intent of shielding law enforcement officers from the consequences of their actions. Back to Ciaramella:

The Marion County Sheriff’s Office also invoked Marsy’s Law, a statute intended to protect the privacy of crime victims, to hide the identities of six of the jail deputies involved in Whitley’s death. The MCSO claimed the deputies were in fact victims of crimes Whitley had inflicted on them.

The supposed crime? “Resisting an officer with violence” — a claim the MSCO could only make as long as no one but law enforcement remained privy to the contents of the recording. But that excuse to keep the public in the dark would seem doomed to fail because the state’s Supreme Court ruled last December this law could not be used to protect cops from accountability. Of course, the MSCO raised this argument roughly a year before this ruling, so there’s a chance this court could find it applied at that date (even though the state court ruling suggests the application of its decision should be retroactive).

Not that it matters here. The ruling [PDF] doesn’t even discuss the invocation of the state’s Marsy’s Law. Instead, it simply decides the MSCO is justified in declaring the footage off limits because it may or may not reveal some sort of jailhouse security vulnerability. Judge James Baxley says the law favors the paper in terms of a presumption of disclosure under the First Amendment, but then says the jail’s presumptive security concerns are more important than the paper’s enshrined rights.

This Court is cognizant of the security concerns of Defendants, and disclosure of the footage could be used to exploit weaknesses within the Marion County Jail’s security systems. However, this Court is also cognizant of the constitutional commitment to open government, and the scales are weighed heavily in favor of disclosure. This Court finds that the Plaintiff has established good cause, and the exception applies here. Nonetheless, the security concerns must be considered even when good cause is show to reach a desirable equilibrium. This Court finds, based on the good cause exception, that Plaintiff’s interests would be met by the inspection of the footage. On the other hand, taking Defendants’ security concerns into account, disclosure to the public at large would be inappropriate.

This is not a “desirable equilibrium.” This is a ruling that allows the Sheriff’s Office to continue to control the narrative, at least to a certain degree. The Ocala Gazette can describe the footage, but without being given the opportunity to share that footage with readers, the MSCO can continue to claim the footage doesn’t depict what the reporters have described. And since it can’t be forced to disclose the footage to the public itself, it can spend the rest of forever claiming the recording the public isn’t allowed to see has been misinterpreted.

The correct ruling would be one that allows disclosure to the public. If the MSCO wants to continue to claim this killing is justified, it should be legally forced to support its argument by publicly releasing the footage. As for the paper, it still has the option of publishing the recording and dealing with any contempt rulings that might arise from that action. But, as it stands now, the jail has secured an unearned win simply by claiming footage of an attack on an inmate that occurred in a single cell somehow would compromise the overall security of the facility.

Filed Under: 1st amendment, florida, jailhouse recording, marion county jail, marion county sheriff, public records, scott whitley

Settlement In Florida Book Ban Lawsuit Means A Bunch Of Books Are Headed Back To School Libraries

from the unburning-books dept

Florida’s legislative antipathy towards free speech and general overall bigotry has generated plenty of bad laws and plenty of fully justified lawsuits. Earlier this month, the state’s quasi-book bans became the defendant in a federal lawsuit filed by multiple big-name publishers. But that was just the latest lawsuit, and the first to actually sue the state itself.

Plenty of other litigation is underway, targeting individual counties that have removed books from schools due to book challenges (over-)enabled by the state’s anti-speech laws. But there’s finally a little bit of good news to report. A lawsuit filed on behalf of two authors and two parents against Nassau County and its school board has resulted in a win for the plaintiffs. As Politico reports, lots of books that should have been removed under the (extremely loose) standards of the law are being placed back on the shelves of school libraries.

A northeast Florida school district this week agreed to restore 36 books that were challenged and previously pulled from campus libraries in a settlement of a federal lawsuit fighting how local officials carried out the state’s policies for shielding students from obscene content.

The settlement reached by Nassau County school officials and a group of parents, students and the authors of the removed children’s book “And Tango Makes Three” marks a significant twist in the ongoing legal battles surrounding Florida’s K-12 book restrictions, which have been derided as “book bans” by opponents. Under the agreement, that book and others such as the “The Bluest Eye” by Toni Morrison and the “The Clan of the Cave Bear” by Jean Auel will once again be available to students after being removed last year.

None of these fit the legal standards for obscenity. If they did, they would have been removed under existing obscenity laws, rather than only recently removed because some bigoted jackasses, enabled by the new law, applied the pressure needed to remove content they don’t like.

Nope, this is just codified hatred that allows people to decide no one should have access to books they don’t personally care for. The dumbest part of this is probably the removal of “And Tango Makes Three,” which contains nothing even remotely resembling “obscene” material. This is from law firm Selendy Gay’s statement on the lawsuit settlement:

Significantly, the Board acknowledges in the settlement that Tango has pedagogical value, is appropriate for students of all ages, and contains no “obscene” material—facts that another Florida School Board—in Escambia County—is still contesting. The Board’s acknowledgement makes good sense: since its publication in 2005, Tango has been a highly awarded children’s book and has been lauded by educators and childhood development experts. Tango, which tells the true story of a same sex penguin couple who form a lasting pair bond and together adopt, hatch, and raise a happy and healthy chick, conveys important themes about family responsibility, adoption, LGBTQIA+ families, and natural science to which all students should have access.

Just the same old bigotry, but with a new law to abuse. No one contesting this book truly believed the material was “obscene.” They just don’t believe any student of any age should have access to a book that contains a positive depiction of a same-sex relationship.

And it’s just blatant racism driving some of the other book removals:

These 35 [challenged] books include significant works by Toni Morrison, Jonathan Safran Foer, Alice Sebold, Jodi Picoult and Erika Sanchez, which address racism in America, as well as the life experiences of immigrants, first-generation Americans, trans Americans and other underrepresented communities and individuals.

It’s also the same old bigots. The statement from the law firm points out that all 35 of the books removed were challenged by a of collective censorial asshats calling themselves “Citizens Defending Freedom.” Of course, there’s little about the group that indicates any actual desire to defend freedoms.

Citizens Defending Freedom (CDF) is the latest organization to establish a spoke-and-wheel structure to centrally manage local politicking on a range of hot button conservative issues. Its promise to “PROVIDE materials for home school families” is what first drew my attention, but CDF also claims that chapters in 100 counties will address corruption, school curricula, and “breaches of constitutional liberty.” It’s at 20 active chapters, so it’s got a way to go.

Nevertheless, the organization — just a couple of years old at this point — already takes credit for Nueces County, TX ending its sex education classes, Miami-Dade County introducing a Day of Prayer in public schools, and Lake Wales, FL for creating “Responsible Fatherhood Month.” Its chief opponents, not surprisingly, seem to be the NAACP, George Soros, and Walt Disney.

Yes, nothing says “defending freedom” like removing books from school libraries and forcing public schools to host days of prayer. Or, you know, implicitly threatening Nassau County school officials with arrest for agreeing to return these books to school libraries, as CDF does in its statement in response to the lawsuit settlement:

In response to this settlement, CDF has also made the Nassau County Sheriff aware, highlighting the district’s own admission of the presence of obscene materials in schools and shared the district’s own findings as evidence that they are distributing materials in violation of Florida’s child obscenity laws. “By their own words, the Nassau School District has determined these books violate state law. Yet, rather than take corrective action, they’ve chosen to put them back in the hands of our children. We intend to hold them accountable,” said Sarah Calamunci, CDF Florida State Director.

Keep crying, haters. People who actually care about freedom will continue to combat efforts like these, as well as the unconstitutional laws that enable them. Here’s wishing you loss after loss after loss in the coming months, as federal judges (for the most part) continue to recognize these efforts for what they are: government-enabled censorship of views those in power don’t agree with.

Filed Under: 1st amendment, book ban, censorship, florida, free speech, justin richardson, lawsuit, peter parnell, sara moerman, toby lentz
Companies: selendy gay

Florida Gov’t Sending Cops To Voter’s Houses To Intimidate Pro-Choice Ballot Measure Petition Supporters

from the fiefdom-intensifies dept

Well, here’s even more ugliness from America’s penis. The state of Florida — currently presided over by a bootlicker wearing boot lifts — has decided the best way to protect its war on women is to harass and intimidate residents who support reproductive rights.

Florida is reportedly sending police officers to the homes of people who signed a petition supporting an abortion rights ballot initiative.

Florida Governor Ron DeSantis’s administration has begun investigating thousands of verified signatures that helped to put a state constitutional amendment protecting the right to abortion on the ballot in November. The amendment would overturn Florida’s current six-week abortion ban.

[…]

Multiple residents in Lee County have reported being visited by law enforcement following up on their petition signatures.

This is a bold [read: fascist] response to suspected petition fraud. Suspected fraud like this has almost always been handled in far less invasive fashion. At worst, it’s usually just a handful of subpoenas. In most cases, the state approaches the court to ask it to invalidate the ballot measure.

But in Florida, the new thing is sending investigators to people’s houses with a folder full of ballot supporters’ personal information. Here’s what Florida resident Isaac Menasche observed when a law enforcement officer showed up at his house to question him about his ballot measure signature.

“The experience left me shaken. What troubled me was he had a folder on me containing my personal information—about 10 pages. I saw a copy of my drivers license and copy of the petition I signed. It was obvious to me that a significant effort was exerted to determine if indeed I had signed the petition.”

If this seems melodramatic, ask yourself how you would respond if a law enforcement officer showed up at your house and started asking questions about your support for political issues and candidates — especially while flipping through some sort of dossier you’d rightfully be surprised to find the state had compiled on you.

This is definitely not normal behavior. State governments generally don’t handle questionable ballot initiatives this way. But Ron DeSantis doesn’t want his anti-abortion law undone by the will of the people. And that means the people supporting this measure must be oppressed, if not actually suppressed.

The petition for the ballot measure supporting abortion until viability cleared the 900,000 signature mark by over 100,000 signatures. With his petty fiefdom threatened, Governor DeSantis has weaponized the state’s law enforcement agencies to quell this particular dissent, as the Tampa Bay Times reports.

The officer’s visit appears to be part of a broad — and unusual — effort by Gov. Ron DeSantis’ administration to inspect thousands of already verified and validated petitions for Amendment 4 in the final two months before Election Day. The amendment would overturn Florida’s six-week abortion ban by proposing to protect abortion access in Florida until viability.

Since last week, DeSantis’ secretary of state has ordered elections supervisors in at least four counties to send to Tallahassee at least 36,000 petition forms already deemed to have been signed by real people.

Additionally, a spokesperson for the governor’s office said it would be referring this to the state’s Department of Law Enforcement. Whether or not that has happened yet is unclear. The DLE has so far refused to comment on this highly unusual move by the state government.

DeSantis and his supporters in the legislature aren’t willing to engage in fair fights. When opposition arises, DeSantis and his enablers are quick to suppress it. Case in point: the governor’s firing of district attorneys who opposed his unconstitutional mandates and tough-on-crime antics. Now, there’s this: blatant voter intimidation to salvage an abortion ban that a considerable number of state residents don’t support.

This isn’t outlier behavior. This is the Republican party in its current form. Donald Trump spent the weekend inciting violence if the election didn’t go his way and promising bloodshed to enforce his mass deportation plans. And we all know DeSantis and his office would never engage in tactics like these if the alleged fraudulent activity involved ballot measures or candidates DeSantis supports. This is just bog-standard evil. Unfortunately, it’s the banal evils that open the door for the more horrific evils — you know, things like genocide and mass imprisonment of the government’s enemies. This is just another Overton Window being opened to see what the masses are willing to tolerate from their government.

Filed Under: 1st amendment, democracy, florida, intimidation, police state, ron desantis

Florida The Latest State To Be Sued By Big Name Publishers Over Unconstitutional Book Bans

from the do-they-still-have-a-1st-amendment-in-florida? dept

Far too many states have decided to engage in censorship, urged on by an alarmingly large voting bloc that truly appears to be on the side of fascism, so long as that fascism appears to be on their side.

Since this is, for the moment, still the United States of America, home of several enshrined rights, most of these efforts have been scaled back, dismantled, or blocked completely following challenges in federal courts. Most, but not all. Some laws have survived, and those that have are likely going to be reviewed by a Supreme Court that has been deliberately stocked with the sort of people who think rights should be subservient to their favorite flavor of “conservatism.”

Fortunately, the burden of displacing these laws hasn’t been placed solely on residents of states run by bigoted lawmakers. Major publishers have stepped into the judicial breach. But this time, they’re using their litigation powers for good, rather than attempting to control access to literature by wielding their copyright law cudgels.

Multiple publishers have banded together once again to sue Florida over its censorial book-targeting laws. While not technically a book ban, the law accomplishes the same ends through slightly different means. But, at the end of the day, it’s still just censorship. And it’s still just as unconstitutional. Here’s Richard Luscombe, reporting for The Guardian from Miami, Florida.

“Florida HB 1069’s complex and overbroad provisions have created chaos and turmoil across the state, resulting in thousands of historic and modern classics, works we are proud to publish, being unlawfully labeled obscene and removed from shelves,” Dan Novack, vice-president and associate general counsel of Penguin Random House (PRH), said in a statement.

[…]

PRH is joined in the action by Hachette Book Group, HarperCollins Publishers, Macmillan Publishers, Simon & Schuster and Sourcebooks. The 94-page lawsuit, which also features as plaintiffs the Authors Guild and a number of individual writers, was filed in federal court in Orlando on Thursday.

The suit contends the book removal provisions violate previous supreme court decisions relating to reviewing works for their literary, artistic, political and scientific value as a whole while considering any potential obscenity; and seeks to restore the discretion “of trained educators to evaluate books holistically to avoid harm to students who will otherwise lose access to a wide range of viewpoints”.

The lawsuit targets “book removal provisions” that mainly target books kept in classes by teachers for access by their students, rather than school or other public libraries. Not that those entities aren’t affected. Books present in school libraries are also subject to challenges by state residents. But that’s the pretense that allows state government spokespeople to claim “book removal” mandates are not the same as “book bans.” After all, it’s not the government ordering removal. It’s simply schools and teachers responding to book challenges from other citizens.

“This is a stunt,” Florida Department of Education spokesperson Sydney Booker said in an email to The Hill. “There are no books banned in Florida. Sexually explicit material and instruction are not suitable for schools.”

In retrospect, I’m being far too fair to this government official. He doesn’t really respond to the lawsuit’s allegations. Instead, he crafts a new narrative that suggests the new law changes nothing about the long-held status quo. Sexually explicit material has never been suitable for schools. Therefore, the law being sued over is just… a redundancy?

Except that if it was the same as everything that’s come before it, librarians wouldn’t be pulling tons of books they’ve almost always felt comfortable giving students access to. And teachers wouldn’t be purging their classroom bookshelves of titles they’ve historically used for assigned reading or classroom instruction.

Since it went into effect last July, countless titles have been removed from elementary, middle and high school libraries, including American classics such as Brave New World by Aldous Huxley, For Whom the Bell Tolls by Ernest Hemingway and The Adventures of Tom Sawyer by Mark Twain.

Contemporary novels by bestselling authors such as Margaret Atwood, Judy Blume and Stephen King have also been removed, as well as The Diary of a Young Girl, Anne Frank’s gripping account of the Holocaust, according to the publishers.

The law prohibits books that “describe sexual content” from being made accessible to any student, whether they’re five or eighteen (the law regulates everything from kindergarten to 12th grade). It does not define the term “sexual content” with any specificity and the wording makes it clear that the context of the sexual content does not matter. Then it goes on to equate “sexual content descriptions” with pornography, which is already regulated and forbidden to be distributed to minors. And it goes without saying, no classroom or school library contains any actual pornography.

The first part of the law is so vague as to allow something as innocuous as the phrase “made love” to trigger the book removal process. The second part is redundant in the most stupid way — making something already illegal more illegal?

That’s the basis of the legal challenge [PDF] raised by the publishers, who note the poorly written, purely censorial law has already resulted in the removal of books long considered to be acceptable for most school-age readers. The plaintiffs want these two sections invalidated.

And they should be. They were clearly written by people blinded by their own bigotry — legislators who hope to purge the state’s schools of anything they don’t personally agree with. And they appear to be completely fine with the collateral damage caused by the badly written, unconstitutionally vague law — the disappearance of classic literature they’ve possibly even read and enjoyed themselves — so long as it definitely harms the stuff they hate.

Filed Under: 1st amendment, book ban, censorship, florida, free speech, lawsuit, ron desantis
Companies: harpercollins, hatchette, macmillan publishers, penguin random house, simon & schuster, sourcebooks

Florida College Throws Out A Bunch Of LGBTQ+ Books Just Because

from the licking-Ron-DeSantis'-elfin-boots dept

No doubt encouraged by the governor and state legislature’s hatred of anything not aligned with their hetero-first principles, a Florida college not only shuttered its Gender and Diversity Center, but threw out hundreds of books dealing with, you know, gender and/or diversity.

The Stop WOKE Act is likely to blame here, even if it’s not explicitly referenced by any of the college reps quoted in Steven Walker’s Sarasota Herald-Tribune article. The part of the law that tells private companies what they can and can’t discuss with their employees is completely dead, but the part covering publicly-funded schools is only mostly dead. And the state will continue blowing money defending the unconstitutional law because (1) it’s other people’s money, and (2) it really, really wants any small piece of this law to survive because legislators really, really want to keep making LGBTQ+ feel miserable and unwelcome in the Sunshine State.

The Gender and Diversity Center was shut down shortly after the school board obtained a conservative majority. The hundreds of books owned by the center were considered so valueless they were tossed en masse into the nearest dumpster.

A dumpster in the parking lot of Jane Bancroft Cook Library on the campus of New College overflowed with books and collections from the now-defunct Gender and Diversity Center on Tuesday afternoon. Video captured in the afternoon showed a vehicle driving away with the books before students were notified. In the past, students were given an opportunity to purchase books that were leaving the college’s library collection.

As always, the cruelty is the point. At any point prior to their removal, students, teachers, and other interested parties could have been told these books were going to be removed. But rather than do that, the books were thrown away as quickly and unceremoniously as possible. Some were rescued, but the footage embedded in the Herald-Tribune shows most of the books were hauled off to the nearest dump.

When contacted by the paper, college reps pretended this was just a routine “weeding” of the school library’s shelves. Even if this were true (and it clearly isn’t), the college could have informed students, teachers, and others so these books could find new homes and readers. But the college didn’t want anyone to have any access to content its board no longer considers worth reading.

College spokesperson Nathan March also claimed it was against the law to give away or sell the books to students or other interested parties. Reporter Steven Walker points out the falseness of this claim:

March referenced Florida Statute 273 as the reason books could not be donated or sold. However, FS 273 states that New College could dispose of state-funded personal property by “selling or transferring the property to any other governmental entity … private nonprofit agency … (and) through a sale open to the public.”

That makes it clear it was handled the way the majority of the board wanted it handled: a “weeding” that was anything but routine — one that mainly targeted gender and race-related books, all without giving anyone any notice this purge of unwanted content was going to be happening. It could have been handled in a way that didn’t give the appearance of a bunch of censorial asshats sitting around wishing they could have burnt them instead. But the school and its conservative board wanted to make it clear they thought these works literature were literally nothing more than trash.

Filed Under: book bans, florida, free speech, library, new college of florida, stop woke act

Judges Green-Light Trump’s Speech-Chilling SLAPP Suits

from the slappity-slapp-slapp dept

Donald Trump is no stranger to filing vexatious, speech-chilling SLAPP suits. For a guy whose supporters pretend he is a big “free speech” supporter, it’s kind of astounding how frequently Trump sues people and companies over speech he dislikes.

Unfortunately, judges have allowed the cases to move forward in two separate recent SLAPP suits. It doesn’t mean that Trump will win. In the end, he’s almost assured of losing both cases. But, the lack of a robust, strong set of anti-SLAPP laws means that Trump gets to run up the legal bills of defendants in pursuing these vexatious lawsuits.

To understand the issues in both cases (and why both should have been dismissed), it’s helpful to know about two separate Supreme Court cases from the early 1990s: Milkovich v. Lorain Journal and Masson v. New Yorker Magazine. Both of these cases remain key cases in First Amendment/defamation law today, and it feels like the judges in these cases misunderstood (or ignored) them.

In Milkovich, which (surprisingly and oddly) rejected the premise that opinion is automatically protected by the First Amendment, the Supreme Court may have (accidentally) established more useful standards for what can and (more importantly) what cannot be subject to defamation claims. It setup the idea that for something to be provably false, it had to be capable of being proven true or false. It also established that “rhetorical hyperbole” and “loose, figurative language” did not qualify as defamatory.

And thus, since then, it’s common for defamation defendants to point to “rhetorical hyperbole,” “loose figurative language,” and how the statements at issue are incapable of being proven true or false. This is also where the importance of disclosing the facts that are the basis of an opinion becomes important. Because courts have said that if you give an opinion that implies some undisclosed facts, that can be defamatory. But if the basis of your opinion is disclosed, then it’s not defamatory.

The Court said in Masson that if someone gets something technically false, but the overall gist of it is “substantially” true, then it is also not defamation. The court noted that having to face defamation claims of “minor inaccuracies” would create real problems, and open up a flood of vexatious lawsuits.

Now, on to the Trump cases. In the first case, in Florida state court, Trump had sued the Pulitzer Prize board for awarding Pulitzer Prizes to the Washington Post and the NY Times in 2018 for their reporting on attempted Russian interference in the 2016 Presidential election. Trump and friends have long insisted that this was all a “hoax.”

Of course, the reality is a lot more complicated. Today, lots of people recognize that there is tremendous evidence that Russia attempted to influence the election in multiple ways. There is also evidence that those in Trump’s orbit were happy to accept that help.

It is true that there was the Steele dossier that made the rounds and was basically full of unproven and highly questionable rumors, many of which seem unlikely to be true. Some Trump haters were quick to jump on the confirmation bias bandwagon and assume every awful claim must have been true, or that some grand conspiracy would be revealed. Finally, Trumpworld has focused on the supposed lack of “collusion” (a non-legal term) because the Robert Mueller report (which did find the other facts above) did not say there was “collusion” between the Russians and Trump.

Trump and his orbit have portrayed a few Democrats being a bit too credulous about the details (and the false claim that everyone said there was “collusion”) as proof that everything was a “hoax.” But that’s not what the evidence shows at all, and none of the underlying reporting that won the Pulitzer Prize appears to be based on those exaggerated claims.

Either way, Trump threatened to sue the Pulitzers multiple times for not taking away the awards. Finally, he did sue in a Florida state court after the Pulitzer Board posted a statement saying that they had gone through a “formal process” to review the winners of the award from 2018:

The Pulitzer Prize Board has an established, formal process by which complaints against winning entries are carefully reviewed. In the last three years, the Pulitzer Board has received inquiries, including from former President Donald Trump, about submissions from The New York Times and The Washington Post on Russian interference in the U.S. election and its connections to the Trump campaign–submissions that jointly won the 2018 National Reporting prize.

These inquiries prompted the Pulitzer Board to commission two independent reviews of the work submitted by those organizations to our National Reporting competition. Both reviews were conducted by individuals with no connection to the institutions whose work was under examination, nor any connection to each other. The separate reviews converged in their conclusions: that no passages or headlines, contentions or assertions in any of the winning submissions were discredited by facts that emerged subsequent to the conferral of the prizes.

The 2018 Pulitzer Prizes in National Reporting stand.

Trump sued not over the failure to rescind the award, but over that statement, which he claimed was defamatory. You can read that statement multiple times and struggle with what could possibly be defamatory in it, but it goes back to the issue discussed above: the Pulitzer Board talks about the “two independent reviews” which implies some undisclosed facts that could be defamatory. Probably aren’t. But, the court says that at this stage of the game, that’s enough to allow the case to move forward.

The court lists out seven (?!?) facts that went undisclosed in that statement, such as what the “established formal process” was, the identity of the “independent reviewers,” the vagueness of what the reviews actually found or what they relied on, and more.

Of course, it’s difficult to see how any of this could possibly be defamatory. The board claims they did an investigation and found nothing wrong. That’s the factual statement. It seems like an easy case for the court to dismiss, but the judge says that because of all those undisclosed facts, the case should move forward.

But, it also means that the case could still be dismissed later in the process. But this is why SLAPP suits succeed. Courts will often allow vexatious lawsuits like this to keep moving forward and get super expensive.

The other case, in a Florida federal court, was filed earlier this year, against ABC and George Stephanopoulos over an interview he conducted with Rep. Nancy Mace. Stephanopoulos presses her on her support for Donald Trump, claiming that the juries in the E. Jean Carroll cases had “found him liable for rape.”

If you remember the details of the case, you’ll recall that the jury had found him guilty of sexual assault, but had not gone so far as to say he had been found guilty of rape under NY’s law. When I first saw the case, I actually thought this one might be stronger than usual. Except, in looking at the details, you realize that it should be easily dismissible as “substantially true.” That’s because even the judge in the E. Jean Carroll case had noted that the failure of the jury to find him guilty of “rape” in the legal sense rested on the apparently bizarrely narrow definition of rape in New York.

As Judge Lewis Kaplan wrote in response to Trump claiming that Carroll defamed him in continuing to say that Trump “raped” her after the jury verdict, it was substantially true that in a colloquial sense, he did:

The only point on which Ms. Carroll did not prevail was whether she had proved that Mr. Trump had “raped” her within the narrow, technical meaning of a particular section of the New York Penal Law – a section that provides that the label “rape” as used in criminal prosecutions in New York applies only to vaginal penetration by a penis. Forcible, unconsented-to penetration of the vagina or of other bodily orifices by fingers, other body parts, or other articles or materials is not called “rape” under the New York Penal Law. It instead is labeled “sexual abuse.”

As is shown in the following notes, the definition of rape in the New York Penal Law is far narrower than the meaning of “rape” in common modern parlance, its definition in some dictionaries,2 in some federal and state criminal statutes,3 and elsewhere.4 The finding that Ms. Carroll failed to prove that she was “raped” within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump “raped” her as many people commonly understand the word “rape.” Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.

Given those details, it seems like a “substantially true” argument should have gotten the case dismissed.

But, the judge has refused to dismiss the case at this stage. Judge Cecilia Altonaga is well aware of what Judge Kaplan said. Indeed, a big part of the ruling is about whether or not this case is barred due to Judge Kaplan’s ruling in NY on basically the similar facts. But here, Judge Altonaga says it’s not actually the same facts (which probably makes some amount of sense).

From there, she finds the “substantial truth” argument lacking, specifically because Stephanopoulos was directly referring to the jury’s findings, rather than using the term colloquially.

Here, of course, New York has opted to separate out a crime of rape; and Stephanopoulos’s statements dealt not with the public’s usage of that term, but the jury’s consideration of it during a formal legal proceeding. Thus, while Defendants’ cited cases are compelling, they are not directly responsive to the issue of whether it is substantially true to say a jury (or juries) found Plaintiff liable for rape by a jury despite the jury’s verdict expressly finding he was not liable for rape under New York Penal Law.

And thus, she says the case should move forward and have a factfinder (i.e., a jury) determine whether or not the statements are defamatory.

While Judge Altonaga admits that Judge Kaplan’s statement bolsters the argument from Stephanopoulos, it would only matter here if he had presented what the jury actually found and then noted in his interview with Mace that Judge Kaplan had said that this was the equivalent of what most people think of as rape.

And thus the case moves forward.

I think both decisions are wrong, but they’re not so blatantly, obviously wrong as some other cases. In both cases, it’s still quite likely that Trump loses the suits (if they reach conclusion, which they very well might not). But, of course, these kinds of rulings only encourage more vexatious SLAPP suits. Getting past a motion to dismiss is often the goal of SLAPP suits, because the cost to the defendants starts to go up massively at that stage. And if the goal is just to burden the speaker with massive legal fees, getting this far succeeds.

These two cases, yet again, show why we need strong anti-SLAPP laws both at the state and federal levels. The usual point of vexatious defamation suits is to run up the costs for defendants and to create chilling effects to stop others from speaking. Getting past the motion to dismiss stage almost certainly succeeds in those goals.

Filed Under: anti-slapp, defamation, disclosed facts, donald trump, florida, george stephanopoulos, pulitzer prizes, russia, slapp, slapp suits, substantial truth
Companies: abc, pulitzer committee

One Part Of Florida’s Asinine ‘Stop WOKE’ Act Has Been Permanently Killed By A Federal Court

from the just-keep-losing,-losers dept

Good news for free speech enthusiasts. And that should be everyone in this nation, especially those living in Florida. And that goes for everyone who supports Governor Ron DeSantis and dumbass legislation like the “Stop WOKE Act.” Whether you like it or not, the First Amendment protects speech you disagree with, not just the stuff you like. And with part of the law permanently enjoined, perhaps your state will spend a little less of your money defending obviously unconstitutional laws.

Here’s more on the subject from David Harris of Law & Crime:

Judge Mark Walker of the U.S. District Court for the Northern District of Florida issued a permanent injunction, saying the law that bans diversity training in private workplaces “violates free speech rights under the First and Fourteenth Amendments to the U.S. Constitution.” The ruling follows a three-judge appeals court panel’s March decision that upheld Walker’s original injunction. The State of Florida did not oppose the motion to make the ruling permanent.

The order [PDF] putting the permanent injunction in place only runs two pages. Since the motion was unopposed, no further arguments were heard. At least this indicates the state can be taught, having lost twice in a row in its attempt to insert itself into conversations between private businesses and their employees.

The Eleventh Circuit Appeals Court had this to say about the law when it upheld the lower court’s decision in this lawsuit:

The State of Florida seeks to bar employers from holding mandatory meetings for their employees if those meetings endorse viewpoints the state finds offensive. But meetings on those same topics are allowed if speakers endorse viewpoints the state agrees with, or at least does not object to. This law, as Florida concedes, draws its distinctions based on viewpoint—the most pernicious of dividing lines under the First Amendment.

Apparently, the state realized it had no chance to impose its will on private businesses to control what topics they’re permitted to talk about. This followed a string of losses in the lower court — both in this lawsuit, which concerns private businesses and a similar constitutional challenge against the law’s application to public universities.

The lower court doesn’t like that lawsuit either and has already issued an injunction. That one is still being appealed by the state. Even though that lawsuit deals with a bit more gray-ish area of First Amendment law (the government placing speech restrictions on government employees), it seems likely this too will meet a similar fate when the Eleventh Circuit Appeals Court reviews it.

After all, the restrictions imposed here are similar to those targeting private companies. It’s going to take some very creative arguing to get around the point made by the district court in this devastating summary of that part of the law:

“It was a bright cold day in April, and the clocks were striking thirteen,” and the powers in charge of Florida’s public university system have declared the State has unfettered authority to muzzle its professors in the name of “freedom.” To confront certain viewpoints that offend the powers that be, the State of Florida passed the so-called “Stop W.O.K.E.” Act in 2022—redubbed (in line with the State’s doublespeak) the “Individual Freedom Act.” The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints.

The good news is the law is 50% dead. Hopefully, the Stop WOKE Act will be completely buried in the near future.

Filed Under: 1st amendment, florida, free speech, ron desantis, stop woke act
Companies: honeyfund

from the which-way-the-wind-blows dept

The Supreme Court’s opinions in the NetChoice/CCIA cases have been leading to some bizarre interpretations, as many people try to read into it things they wanted to see but just aren’t there. Cathy already covered some of the oddities of Justice Alito’s concurrence (which Justices Thomas and Gorsuch signed onto), but I wanted to dig in a little more to his concurrence, pointing out a few things that show just how much Alito is willing to decide on an ideological basis, rather than one based on principles.

First up is a point raised by Daphne Keller at Stanford. She notes that Alito cites to the Packingham ruling:

As the Court has recognized, social-media platforms have become the “modern public square.” Packingham v. North Carolina, 582 U. S. 98, 107 (2017). In just a few years, they have transformed the way in which millions of Americans communicate with family and friends, perform daily chores, conduct business, and learn about and comment on current events.

But, as Keller points out, in the Packingham case, Alito wrote a concurrence whining incessantly about the “dicta” in the Packingham ruling (not unlike what he did in this case) and specifically whined about the whole “public square” line, claiming it was “undisciplined” and would be interpreted dangerously by future courts. Here he is in Packingham:

I cannot join the opinion of the Court, however, because of its undisciplined dicta. The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks.

He later notes:

I am troubled by the implications of the Court’s unnecessary rhetoric.

So it’s pretty rich for him to be now leaning on that “public square” dicta that he ridiculed in that very case. He is now arguing that states should absolutely be able to force websites to host content.

But we don’t even need to go back to that 2017 decision to see Alito seemingly changing his tune. (We still believe Packingham was correctly decided, and that people misunderstand the “public square” line, though for different reasons than Alito.)

Just last week in the Murthy v. Missouri ruling, Alito’s dissent explained why social media websites have the right to moderate as they see fit. He noted that websites are like newspapers and can publish or “decline to publish whatever they wish.”

Of course, purely private entities like newspapers are not subject to the First Amendment, and as a result, they may publish or decline to publish whatever they wish.

Yet, in the NetChoice ruling, he more or less argues that the states can block that right that he just admitted last week is protected by the First Amendment. He claims that perhaps the sites could be considered common carriers (which only makes sense if you don’t understand what a common carrier is).

Most notable is the majority’s conspicuous failure to address the States’ contention that platforms like YouTube and Facebook—which constitute the 21st century equivalent of the old “public square”—should be viewed as common carriers

The majority didn’t address it because (1) it’s stupid and (2) both the Fifth and Eleventh Circuits effectively rejected that argument. (Judge Oldham’s decision does talk about it, but neither of the two other Judges on the panel signed onto it, so it doesn’t count as binding in any way.)

Alito tries to get around this distinction by arguing that websites are somehow different than newspapers:

Instead of seriously engaging with this and other arguments, the majority rests on NetChoice’s dubious assertion that there is no constitutionally significant difference between what newspaper editors did more than a half-century ago at the time of Tornillo and what Facebook and YouTube do today.

Maybe that is right—but maybe it is not. Before mechanically accepting this analogy, perhaps we should take a closer look.

He later argues that there is some sort of distinction between algorithms making editorial decisions and humans (though, it’s not clear what constitutional relevance that has):

Now consider how newspapers and social-media platforms edit content. Newspaper editors are real human beings, and when the Court decided Tornillo (the case that the majority finds most instructive), editors assigned articles to particular reporters, and copyeditors went over typescript with a blue pencil. The platforms, by contrast, play no role in selecting the billions of texts and videos that users try to convey to each other. And the vast bulk of the “curation” and “content moderation” carried out by platforms is not done by human beings. Instead, algorithms remove a small fraction of nonconforming posts post hoc and prioritize content based on factors that the platforms have not revealed and may not even know. After all, many of the biggest platforms are beginning to use AI algorithms to help them moderate content. And when AI algorithms make a decision, “even the researchers and programmers creating them don’t really understand why the models they have built make the decisions they make.”56 Are such decisions equally expressive as the decisions made by humans? Should we at least think about this?

But, if it were actually true that algorithmic decisions were not protected under the First Amendment (and, again, he’s wrong, and we have precedent to say he’s wrong), then why would he even bring up their rights to moderate in the Murthy decision a week ago?

It seems that Alito, like so many others, has a very flexible view of the First Amendment based on whether his political allies or enemies are making the argument. There is no consistency beyond “the Republicans should get what they want.”

Filed Under: 1st amendment, florida, packingham, samuel alito, social media, texas