First Amendment & Social Media Censorship: Breaking Down NetChoice, LLC v. Paxton

First Amendment & Social Media Censorship: Breaking Down NetChoice, LLC v. Paxton

Social media platforms have become some of the most prominent arenas for debates over freedom of speech in recent years. While the First Amendment is intended to protect citizens from the government’s infringement of our rights to freedom of speech, the law is less clear about what role the First Amendment plays in protecting speech expressed on web-based platforms owned and operated by private companies like Meta (Facebook/Instagram), Twitter, TikTok, and the like. 

Recent rulings from the nation’s highest court may offer some insights on how the justices interpret the First Amendment as it applies to censorship on social media platforms.

On May 31, the Supreme Court granted an emergency stay request to tech industry companies that petitioned against the Texas Legislature’s House Bill 20. The bill, originally passed in September of 2021, would prohibit social media platforms from blocking, removing or somehow discriminating against users’ posts on the basis of political views. Notably, the Supreme Court implementation of this bill was blocked in a 5-4 decision by a surprising blend of liberal and conservative justices: Chief Justice John Roberts and Justices Breyer, Sotomayor, Kavanaugh, and Barrett (you can read Justice Alito’s reasons for dissenting here). 

While the question of the law’s constitutionality remains unresolved for now, the high court’s ruling means that the law will not be able to take effect while the case—NetChoice, LLC v. Paxton—continues through the Fifth U.S. Circuit of Court of Appeals.

Given the significance of this case for freedom of speech, let’s dive deeper into some* of the arguments presented by both sides to understand the potential implications for both the First Amendment and social media censorship.

*Note: This blog post covers only a fraction of the hundreds of documents filed for this case so far. It is not intended to be a comprehensive assessment of all arguments involved, but rather an overview of First Amendment-related arguments both for and against government regulation of social media companies, as well as the potential implications this case could have for freedom of speech.

Arguments Presented Against H.B. 20 

In the initial application to block the implementation of H.B. 20 filed on May 13, 2022, the applicants (NetChoice, LLC and the Computer and Communications Industry Association) presented several arguments related to three central claims about how H.B. 20 would. The first claim was that the bill would negatively impact business. The applicants explained this by saying, “because there is no ‘off-switch’ to platforms’ current operations, the cost of revamping the websites’ operations would undo years of work and billions of dollars spent on developing some platforms’ current systems” (p. 3). 

Their second claim was that H.B. 20 would lead to the proliferation of “objectionable viewpoints.” The applicants cited several high-profile examples from recent years including Russian propaganda about the invasion of Ukraine, ISIS propaganda, pro-Holocaust content and posts encouraging disordered eating among children and adolescents.

Finally, the applicants claimed that this bill would infringe on editorial freedom of the platforms. They explained this saying the bill would, “impose] related burdensome operational and disclosure requirements designed to chill the millions of expressive editorial choices that platforms make each day” (p. 1).” Their supporting arguments for this claim repeatedly cited the Supreme Court precedent established by Reno v. ACLU (1997) to justify their arguments about social media companies’ editorial control over content published and disseminated on their websites. The applicants pointed out that all platforms have their own hate speech policies, and also “engage in speech they author themselves, through warning labels, disclaimers, links to related sources, and other commentary they deem important” (p. 8).

Amongst the many direct references to the First Amendment, the applicants cited Supreme Court precedents set by Tornillo, PG&E and Hurley to argue that the First Amendment “[protects] the rights of private entities (a newspaper with market power, a monopoly public utility, and parade organizers) not to disseminate speech generated by others (candidates, customers, and parade participants)” (p.19).

After the initial application was filed, multiple parties submitted additional supporting documents in the middle of May. In one such filing submitted on May 17, the summary of the applicants’ argument was as follows:

“HB20 will have an unprecedented detrimental effect on online platforms as we know them. It will transform social media platforms into online repositories of vile, graphic, harmful, hateful, and fraudulent content, of no utility to the individuals who currently engage in those communities. And it will flood otherwise useful web services with wasteful and irrelevant content. A single-sentence, unreasoned order is an unwarranted way to mandate this devolution.”

There were dozens of pages of documents filed on behalf of the applicants prior to the Supreme Court’s decision to issue the emergency stay order. For more detailed information on the applicants’ arguments, you can find them here.

Arguments in Favor of H.B. 20

On May 18, Attorney General of Texas Ken Paxton filed a response to the applicants. Some of the key arguments brought up by the respondent included: 

  • Citizens ought to be guaranteed access to the “modern public square” . The argument here is that removing content or blocking users on the basis of their expressed viewpoints may constitute an exclusion from the digital public sphere.
  • The “Hosting Rule” in H.B. 20 does not prohibit social media platforms from removing entire categories of content. For example, the respondent argued that these companies could ban all foreign government speech if they don’t want to host Russian propaganda about the invasion in Ukraine (as long as the content bans are applied equally). Furthermore, Paxton argued, H.B. 20 only applied to expressions shared or received in Texas specifically.
  • The “Hosting Rule” does not implicate the First Amendment because it “regulates conduct, not speech—specifically, the platforms’ discriminatory refusal to provide, or discriminatory reduction of, service to classes of customers based on viewpoint” (p. 21). The respondent also argued that, even if the First Amendment is implicated by H.B. 20, social media companies may be viewed as “common carriers” for communications because they “hold themselves open as willing to do business with all comers on equal terms; they are communications enterprises; they are demonstrably affected with a ‘public interest’; and they enjoy statutory limitations on liability” (p. 26). 
  • Social media companies have repeatedly claimed that they do not publish nor edit content (which offers them some legal immunity under Section 230 of the Communications Decency Act of 1996), but they allegedly contradicted themselves when arguing that “HB 20 limits their editorial discretion over user content in violation of the First Amendment” (p. 14).

First Amendment Issues to Consider in Wake of NetChoice, LLC v. Paxton

As mentioned at the beginning of this post, the Supreme Court has not determined whether H.B. 20 infringes upon the First Amendment rights of social media companies. By granting the emergency stay request, the justices effectively blocked the law from taking effect while the lower courts continue to assess its constitutionality. This process could take several months to resolve, so in the meantime, we ask you to reflect on the following questions related to arguments presented by each side in NetChoice, LLC v. Paxton:

  1. If large social media platforms may be considered “common carriers” for public discourse, should they be required to host [what may be considered] hate speech and/or graphic content on their platforms? 
  2. By what standards should social media companies determine the acceptability of content published and/or disseminated on their platforms? In other words, how could these platforms realistically determine what is merely an expression of speech versus potentially/actually harmful content?
  3. Should internet-based, user-generated content platforms be held to the same rules and standards as print based news platforms? Should Supreme Court precedent arising from the unanimous decision in Miami Herald Publishing Co. v. Tornillo (1974) apply?
  4. Should we consider repealing Section 230 of the Communications Decency Act and hold social media companies liable for what their users publish or disseminate on their platforms? 

We welcome you to share your thoughts, insights or additional questions you have about this case in the comments section below this post!

Russia’s Invasion of Ukraine: Implications for Essential Democratic Freedoms Worldwide

Russia’s Invasion of Ukraine: Implications for Essential Democratic Freedoms Worldwide

If you’ve watched or read the news lately, then you know it’s next to impossible to check on what’s happening in the world without coming across a story or video about Russia’s recent invasion of Ukraine. As many as 6.5 million Ukrainians have been displaced so far in the conflict, and the brutal suppression of key freedoms like free speech, free press and peaceful assembly goes completely against the principles of democracy.

But amidst the chaos, conflict, uncertainty and tragedy, there is also hope. There have been numerous stories of brave Ukrainians standing their ground, fighting for their independence from Russia in the face of incredible danger. At First Amendment Voice, we believe that these core democratic freedoms are of utmost importance to protect; not just in the U.S. but abroad as well. In this special blog post, we will examine how the freedoms of speech, the press, and assembly have been impacted since the start of Russia’s invasion in Ukraine. 

Freedom of Speech

Sunflowers, the Symbols of Resistance: One of the most common symbols of peace in Ukraine’s history is the sunflower, which also represents the unofficial national flower of Ukraine. On February 24 of this year, sunflowers became a widely-recognized symbol of resistance against Russia’s invasion of Ukraine, thanks to a viral video of a Ukrainian woman telling a Russian soldier to “Take these seeds and put them in your pockets, so at least sunflowers will grow when you all lie down here.” Since then, sunflowers have appeared everywhere from emojis and beautiful artwork shared by artists on social media to fundraisers for Ukraine humanitarian aid, like these recent fundraising campaigns in Canada.

How Russia’s Invasion Could Impact Free Expression in Democracies Worldwide: In a fascinating interview with John M. Owen, professor of politics at the University of Virginia, Owen explained how freedom of expression and tolerance of dissenting views are essential ingredients for a healthy democracy. When asked what lessons that Americans and other citizens of democratic countries could learn from the events in Ukraine and Russia, Owen responded:

“Such events drive home to us that individual liberty is a precious achievement that can be taken away or weakened, even in the 21st century….As tensions with Russia mount in our own country, one thing to guard against is the tendency to do, in mirror-image fashion, what Russia is doing – to censor dissent, particularly dissent that favors Russia. Democracies must remain democratic, even under stress.”

Elon Musk Refuses to Block Russian Media from Starlink: Speaking of censorship, Elon Musk has made headlines multiple times during the conflict; at first, for providing Starlink satellite internet access for some parts of Ukraine, and later, for refusing to block Russian state media on the Starlink platform. Musk referred to himself as a “free speech absolutist” when tweeting about the decision, though some sources pointed out that Musk doesn’t seem to have the best track record when it comes to critiques from journalists and his own employees. 

Freedom of the Press

Social Media Companies’ Responses to the Russia Invasion of Ukraine: A recent Q&A report from Human Rights Watch conducts an in-depth exploration of the roles in which social media platforms and messaging apps have played in mitigating misinformation about the present conflict. One of the many important findings from HRW’s report stated:

“Since February 24, companies providing social media and messaging services have taken many steps in response to the war in Ukraine, most of them aimed at countering harmful disinformation, adding labels to or blocking state-sponsored or state-affiliated media, or introducing extra safety measures. Some of these measures apply to either Ukraine or Russia, some apply in the EU only, and some apply globally. Some decisions were made in response to government requests, some in defiance of government requests, and others in response to public pressure, or at the companies’ own initiative.”

For more information on global perspectives about social media and disinformation, view HRW’s full-length report linked above and don’t miss this 2021 report from the United Nations as well. 

Putin Threatens 15 Years’ Imprisonment for Publishing or Broadcasting “False Information” About the Invasion: A March report from NPR described a new law Putin recently signed that would impose a 15-year prison sentence on those convicted of publishing or broadcasting information deemed “false” by the Russian government. Concerningly, the law outlaws the use of words like “invasion” or “war” in media, which would effectively silence dissent from critics in Russia. 

Bravery of Journalists in Conflict Zones: An eye-opening feature from Nieman Reports reviewed several instances of Ukrainian journalists reporting under incredibly challenging and life-threatening circumstances, despite the post-Soviet era instability in press freedoms and severely limited funding that have impacted their work for years. As Nieman Reports pointed out, “The Russian invasion of Ukraine is a powerful reminder of the vital work these journalists and their newsrooms do — and how precarious press freedoms are in the face of aggression from Putin and other authoritarian leaders around the world.”

Freedom of Assembly

Global Peace Protests in Support of Ukraine: From the sunflower-adorned BELIEVE sign gathering in Reno, Nevada to the courageous Russians protesting within their own country (and being detained, in many cases), there are countless examples of people coming together to support Ukraine and speak out against Russia’s military invasion. As these photos from Global Citizen demonstrate, people all over the world are engaging in peaceful assembly to call for an end to Russia’s aggressions in Ukraine. 

Anti-Protest Crackdowns in Kyrgyzstan: Although the Kyrgyzstani Constitution and Civil Code presumably protect freedom of assembly and protest, the government has recently cracked down on protestors coming together in support of Ukraine. As The Diplomat points out, Kyrgyzstan is reliant on Russia’s economic and security resources, hence the reason why Kyrgyzstani government leaders appear to be striving for neutrality in the present conflict. Since the conflict began, protestors have been subject to fines and even arrested for peacefully protesting, which prompted Human Rights Watch to issue a statement demanding the end of anti-protest restrictions.

Final Thoughts on the Freedoms of Speech, Press and Assembly

As of this moment, we do not know how or when Russia will end its invasion of Ukraine. What we do know is that we must fight harder than ever to preserve our democratic liberties like freedom of speech, freedom of the press, freedom of assembly, and other freedoms enshrined in our First Amendment. Ukraine may be thousands of miles away from the U.S., but it’s clear that these freedoms must be protected and fought for globally.

Want to learn more about the impacts of foreign policy on First Amendment freedoms? Be sure to check out this captivating conversation from First Amendment Voice’s 2020 National Symposium.

The State of Free Speech in 2022

The State of Free Speech in 2022

Happy New Year, First Amendment Voice blog readers! The year 2021 was quite a rollercoaster of a sequel to 2020, and 2022 is looking like another action-packed year with the ongoing global pandemic, several major cases on the Supreme Court’s docket, the upcoming Olympics in China, and the November midterm elections, to name a few. The First Amendment’s role in our lives continues to evolve year after year, and there are some intriguing possibilities on the horizon in regards to freedom of speech specifically. In this post, we’ll explore three free speech cases that will be decided by the Supreme Court this year, in addition to the latest research on Americans’ perceptions and feelings about the state of freedom of speech in the U.S. What’s on the Supreme Court’s Docket This Spring? The Supreme Court will review four cases related to the First Amendment in its 2021/2022 session, which began in October of last year. Those cases include: Three of the above cases relate to freedom of speech, while Shurtleff v. Boston primarily concerns religious freedom (whether a city is violating a private religious group’s First Amendment rights by refusing to fly their flag on the city’s flagpole). Egbert v. Boule will determine whether plaintiffs can sue federal officers for First Amendment retaliation while performing their job duties (in this case specifically, a U.S. Customs and Border Patrol agent was involved). The Federal Election Commission v. Ted Cruz for Senate will determine whether Section 304 of the Bipartisan Campaign Reform Act poses an unjustified burden for political speech. Finally, Houston Community College System v. Wilson will determine whether an elected body (in this case, the Board of Trustees for the HCC system) has the authority to censure a member in response to their speech. Knight Foundation’s ‘Free Expression in America Post-2020’ Report Knight Foundation and Ipsos recently conducted a survey of 4,000 American adults (including 1,000 undergraduate college students) and released the results in a fascinating report you can access by clicking here. Perhaps unsurprisingly, the study found significant partisan differences concerning what may be considered a legitimate expression of one’s First Amendment rights, particularly in regards to politicized topics like the 2020 election or protests for racial justice. In spite of these differences however, one remarkable highlight was that respondents ranked freedom of speech as one of the most important rights to Americans 
63% of Americans agreed that free speech was an “extremely important” right and another 28% agreed it was a “very important” right
The Knight Foundation’s report contains many more eye-opening findings about freedom of speech in the U.S., so it’s well worth exploring further on your own by clicking the link above. Morning Consult: More Regulations for Social Media in 2022? Research from the international data intelligence firm Morning Consult indicates there may be greater emphasis from lawmakers on regulating social media companies this year. Morning Consult’s December 2021 poll found 56% of U.S. adults are in favor of the government regulating social media companies in some way; when partisan affiliations were taken into account, 68% of Democrats and 51% of Republicans support the regulation of social media platforms. There are several potential reasons as to why there has been fairly limited government regulation of sites like Facebook, Instagram, Youtube, Twitter, Reddit and others. For one, the tech industry evolves at an incredibly fast pace, while Congress is comparatively sluggish at proposing and enacting legislation to keep up with new technological developments. Additionally, younger generations tend to be more tech-savvy than their elders, but the average age of members in the 117th Congress is 58.4 years for House Representatives and 64.3 years for Senators (the eldest members in each chamber of Congress are both 87 years old). Social media companies and the tech industry in general are also astoundingly complex. As we explored in the First Amendment Voice white paper, “Pandemic of Polarization” (which you can access by clicking here), social media companies are uniquely designed to be addictive for users. Consequently, the lack of government regulation enables them to leverage ethically questionable means of attracting and captivating hundreds of millions of users worldwide, while our offline lives continue to be negatively impacted by the misinformation and polarization radiating from these platforms. Fortunately, the regulation of social media companies appears to be at least a somewhat bipartisan issue, which means there’s hope for meaningful change this year. Until our lawmakers are willing and able to enact policies to mitigate the negative implications of social media, individuals like us can become forces for positive change by developing greater mindfulness about the effects of social media in our own lives, remaining committed to constructive dialogues with those whom we disagree, and spending less time online and more time outside or helping others through fulfilling volunteer opportunities.

Announcing the Ed Lowry Memorial Award for Citizenship

We at FAV are pleased to announce that we will be awarding the Ed Lowry Memorial Award for Citizenship starting this year.

Purpose

Honor the life and legacy of Edward D. Lowry by recognizing outstanding civic engagement and encouraging citizens to serve others and engage on issues of importance in their communities.

Criteria/Qualities

  • Relentless service to others
  • Able to work across ideological differences for the common good
  • Fearless advocate of the First Amendment and its champions
  • Overcomes setbacks; strives on in the face of adversity
  • Exhibits strategic thinking but able to translate that into results
  • Inspirational: encourages others to give of time, talent or resources
  • Consummate networking to connect organizations & people for community impact

Submissions Deadline: March 1st, 2021

Format: email info@firstamendmentvoice.org one page writeup on why the nominee best exemplifies the qualities above. Submissions will be considered for award and recognition during the annual Symposium. Self-nominations are not encouraged. We will consider nominations that best emulate the life and legacy of Ed Lowry whose tireless work benefited countless individuals and organizations within his community.

Nominators should provide their name, relationship to the nominee & contact information

Restrictions: FAV board and staff not eligible.

Timeline

March 2020 – award announcement

1 March 2021 – nomination deadline

15 March 2021 – nomination committee selects top candidates

15 April 2021 – FAV announces 2021 Lowry Award Recipient

TBD May 2021 – Lowry Award Reception

First Amendment Voice Statement on Post-election Political Violence

January 15, 2021

SAN CLEMENTE, CA — First Amendment Voice stands with the many voices raised against the political violence at the Capitol building and other areas around the country on January 6th. While we steadfastly champion freedoms of expression, assembly and the ability to petition the government for grievance, we denounce those who would use violence as a weapon against the pillars of democracy due to an election outcome. As the Joint Chiefs of Staff recently announced, “We witnessed actions inside the Capitol building that were inconsistent with the rule of law. The rights of freedom of speech and assembly do not give anyone the right to resort to violence, sedition and insurrection.” The rioters, due to ignorance, arrogance, or some combination, have endangered the very rights they professed to defend. The First Amendment allows citizens to express themselves, assemble and petition the government for grievance. It does not afford the right to push through barricades, loot and destroy property, or endanger the lives of others. 

We mourn the loss of life, including police officers in the line of duty and others, due to violence and call on leaders to settle grievances at the ballot box and through legal means. The country faces myriad health and economic challenges without need for self-inflicted losses from illegal mob actions. 

We celebrate the thousands of heroes across the country who monitored the election, volunteered at the polls, served in the courts during legal challenges, and many other civic functions. These unsung citizens stepped forward during an international health crisis, despite the risks, to play their role in shepherding our democratic processes. Civic engagement is daily work, not something that occurs only  during elections. Thank you for leading by example.

We express gratitude to our elected leaders, military, first responders, and countless others involved in safeguarding our democratic process and our citizens. Stay resilient and keep moving our country inexorably toward the aspirations outlined in the Constitution. 

First Amendment Voice (FAV) is a non-profit, nonpartisan movement created to bring awareness, provide education and promote advocacy for citizens to exercise their First Amendment freedoms of religion, expression, press, assembly, and petition while encouraging citizens to understand, protect, and exercise those rights through ongoing programs and partnerships. Our board consists of veterans, lawyers, clergy, different ethnicities, genders, faiths, and three different generations.

Learn more about FAV at www.firstamendmentvoice.org. Subscribe to our free newsletter or YouTube channel to see previous programming. Inquire to info@firstamendmentvoice.org 

Citizenship is not a spectator sport!

4th Annual Symposium Held in Washington D.C.

4th Annual Symposium Held in Washington D.C.

ANNUAL FIRST AMENDMENT SYMPOSIUM ADDRESSES THE IMPACT OF POLARIZATION IN THE PUBLIC SQUARE

WASHINGTON DC—The fourth annual national symposium held by First Amendment Voice (FAV) was hosted at the National Union Building on September 21 under the theme, “Polarization and the Public Square.”

Convened around the anniversary of Constitution Day and Citizenship Day (September 17), the symposium gathered civic leaders, veterans, and students to re-affirm the importance of the First Amendment; its promises and protections for all citizens and address the impact of polarization in our public square.

Keynote speaker, Bonnie Carroll, is a retired Major of the Air Force Reserves and is the widow of an Army general who died along with seven other soldiers in a National Guard plane crash in 1992. Out of that loss, she founded the Tragedy Assistance Program for Survivors, which is today the national program providing comfort and care for all who are grieving the death of a military loved one.

“I believe strongly in connection and dialogue,” said Ms. Carroll. Describing the importance of peer support and creating shared spaces to build a network to help families experiencing loss, Ms. Carroll likened the process of building bridges to connecting people across all aisles, whether political, ideological, geographical or otherwise, experiencing it herself through her work around the world, including Yemen and Ukraine. “We are here today to be in the place where talking, listening, and institutions and civil society results in problem-solving. I believe there is magic waiting for us all in the middle ground where there is room for peaceful, non-threatening exchange.”

Ms. Carroll was joined by colleagues with backgrounds in public policy, law, veteran affairs, nonprofit and peacebuilding, and more to be a part of the discussion on social divisions and the impact of polarization as it all relates to the First Amendment. Moderating a panel on “Polarization—a Survey,” Chelsea Langston Bombino from the Institutional Religious Freedom Alliance introduced journalist and author Lu Hanessian to discuss trends in press freedom. She was joined by fellow panelists Dr. Lisa Schirch who covered trends in technology and Ross Irwin, a student at UC Berkley who brought a perspective on freedom of speech on campus who encouraged students and community leaders to participate in discussions that open the dialogue across political affiliation. Mr. Irwin even pointed to the responsibility of parents in educating children and themselves to distinguish bias in the media.

Referred by Ms. Hanessian as an ambiguous umbrella term, media as a whole has become a colossal source of information in which the responsibility relies on the consumer to distinguish and obtain differing perspectives. Directing attention to the instances in which the media has oftentimes—even unintentionally—taken away the humanity of opposing views, she warned, “Polarization goes hand-in-hand with dehumanization. By the time we’re polarized, we don’t much care for the other person.”

A working lunch equipped the forum’s participants with the necessary tools to engage in the public square with an interactive “Difficult Conversations” workshop by Kern Beare from Pop the Bubble and Pete Swanson, Director for the Office of Conflict Management and Prevention at the Federal Mediation and Conciliation.

The afternoon featured a special Town Hall forum that highlighted pioneers in forging civic consensus within their organizations moderated by Larry Rosenberg, a trial, appellate and Supreme Court litigator at Jones Day in Washington, D.C. Speakers included Janessa Gans-Wilder, Founder and Chief Executive Officer of The Euphrates Institute and Larry D. Hall, the Secretary for the North Carolina Department of Military & Veterans Affairs.

First Amendment Voice (FAV) is a non-profit, nonpartisan movement created to bring awareness, provide education and promote advocacy for citizens to exercise their First Amendment freedoms of expression, religion, press, petition, and assembly while encouraging citizens to understand, protect, and exercise those rights through ongoing programs like the annual symposium. The fourth annual FAV National Symposium was convened in partnership with Global Peace Foundation, Nation’s Mosque, Glass River Media, Veterans for American Ideals, Vale UMC, the Inman Foundation Inc, and SLC Consulting.