If good intentions created good laws, there would be no need for congressional debate.

I have no doubt the authors of this bill genuinely want to protect children, but the bill they've written promises to be a Pandora's box of unintended consequences.

The Kids Online Safety Act, known as KOSA, would impose an unprecedented duty of care on internet platforms to mitigate certain harms associated with mental health, such as anxiety, depression, and eating disorders.

While proponents of the bill claim that the bill is not designed to regulate content, imposing a duty of care on internet platforms associated with mental health can only lead to one outcome: the stifling of First Amendment–protected speech.

Today's children live in a world far different from the one I grew up in and I'm the first in line to tell kids to go outside and "touch grass."

With the internet, today's children have the world at their fingertips. That can be a good thing—just about any question can be answered by finding a scholarly article or how-to video with a simple search.

While doctors' and therapists' offices close at night and on weekends, support groups are available 24 hours a day, 7 days a week, for people who share similar concerns or have had the same health problems. People can connect, share information, and help each other more easily than ever before. That is the beauty of technological progress.

But the world can also be an ugly place. Like any other tool, the internet can be misused, and parents must be vigilant in protecting their kids online.

It is perhaps understandable that those in the Senate might seek a government solution to protect children from any harms that may result from spending too much time on the internet. But before we impose a drastic, first-of-its-kind legal duty on online platforms, we should ensure that the positive aspects of the internet are preserved. That means we have to ensure that First Amendment rights are protected and that these platforms are provided with clear rules so that they can comply with the law.

Unfortunately, this bill fails to do that in almost every respect.

As currently written, the bill is far too vague, and many of its key provisions are completely undefined.

The bill effectively empowers the Federal Trade Commission (FTC) to regulate content that might affect mental health, yet KOSA does not explicitly define the term "mental health disorder." Instead, it references the fifth edition of the Diagnostic and Statistical Manual of Mental Health Disorders…or "the most current successor edition."

Written that way, not only would someone looking at the law not know what the definition is, but even more concerning, the definition could change without any input from Congress whatsoever.

The scope of one of the most expansive pieces of federal tech legislation could drastically change overnight, and Congress may not even realize it until after it already happened. None of the people's representatives should be comfortable with a definition that effectively delegates Congress's legislative authority to an unaccountable third party.

Second, the bill would impose an unprecedented duty of care on internet platforms to mitigate certain harms, such as anxiety, depression, and eating disorders. But the legislation does not define what is considered harmful to minors, and everyone will have a different belief as to what causes harm, much less how online platforms should go about protecting minors from that harm.

The sponsors of this bill will tell you that they have no desire to regulate content. But the requirement that platforms mitigate undefined harms belies the bill's effect to regulate online content. Imposing a "duty of care" on online platforms to mitigate harms associated with mental health can only lead to one outcome: the stifling of constitutionally protected speech.

For example, if an online service uses infinite scrolling to promote Shakespeare's works, or algebra problems, or the history of the Roman Empire, would any lawmaker consider that harmful?

I doubt it. And that is because website design does not cause harm. It is content, not design, that this bill will regulate.

Last year, Harvard Medical School's magazine published a story entitled "Climate Anxiety; The Existential Threat Posed by Climate Change is Deeply Troubling to Many Young People." That article mentioned that among a "cohort of more than 10,000 people between the ages of 16 and 25, 60 percent described themselves as very worried about the climate and nearly half said the anxiety affects their daily functioning."

The world's most well-known climate activist, Greta Thunberg, famously suffers from climate anxiety. Should platforms stop her from seeing climate-related content because of that?

Under this bill, Greta Thunberg would have been considered a minor and she could have been deprived from engaging online in the debates that made her famous.

Anxiety and eating disorders are two of the undefined harms that this bill expects internet platforms to prevent and mitigate. Are those sites going to allow discussion and debate about the climate? Are they even going to allow discussion about a person's story overcoming an eating disorder? No. Instead, they are going to censor themselves, and users, rather than risk liability.

Would pictures of thin models be tolerated, lest it result in eating disorders for people who see them? What about violent images from war? Should we silence discussions about gun rights because it might cause some people anxiety?

What of online discussion of sexuality? Would pro-gay or anti-gay discussion cause anxiety in teenagers?

What about pro-life messaging? Could pro-life discussions cause anxiety in teenage mothers considering abortion?

In truth, this bill opens the door to nearly limitless content regulation, as people can and will argue that almost any piece of content could contribute to some form of mental health disorder.

In addition, financial concerns may cause online forums to eliminate anxiety-inducing content for all users, regardless of age, if the expense of policing teenage users is prohibitive.

This bill does not merely regulate the internet; it threatens to silence important and diverse discussions that are essential to a free society.

And who is empowered to help make these decisions? That task is entrusted to a newly established speech police. This bill would create a Kids Online Safety Council to help the government decide what constitutes harm to minors and what platforms should have to do to address that harm. These are the types of decisions that should be made by parents and families, not unelected bureaucrats serving as a Censorship Committee.

Those are not the only deficiencies of this bill. The bill seeks to protect minors from beer and gambling ads on certain online platforms, such as Facebook or Hulu. But if those same minors watch the Super Bowl or the PGA tour on TV, they would see those exact same ads.

Does that make any sense? Should we prevent online platforms from showing kids the same content they can and do see on TV every day? Should sports viewership be effectively relegated to the pre-internet age?

And even if it were possible to shield minors from every piece of content that might cause anxiety, depression, or eating disorders, that is still not enough to comply with the KOSA. That is because KOSA requires websites to treat differently individuals that the platform knows or should know are minors.

That means that media platforms who earnestly try to comply with the law could be punished because the government thinks it "should" have known a user was a minor.

This bill, then, does not just apply to minors. A should-have-known standard means that KOSA is an internet-wide regulation, which effectively means that the only way to comply with the law is for platforms to verify ages.

So adults and minors alike better get comfortable with providing a form of ID every time they go online. This knowledge standard destroys the notion of internet privacy.

I've raised several questions about this bill. But no one, not even the sponsors of the legislation, can answer those questions honestly, because they do not know the answer. They do not know how overzealous regulators or state attorneys general will enforce the provisions in this bill. They do not know what rules the FTC may come up with to enforce its provisions.

The inability to answer those questions is the result of several vague provisions of this bill, and once enacted into law, those questions will not be answered by the elected representatives in Congress, they will be answered by bureaucrats who are likely to empower themselves at the expense of our First Amendment rights.

There are good reasons to think that the courts will strike down this bill. They would have a host of reasons to do so. Vagueness pervades this bill. The most meaningful terms are undefined, making compliance with the bill nearly impossible. Even if we discount the many and obvious First Amendment violations inherent in this bill, the courts will likely find this bill void for vagueness.

But we should not rely on the courts to save America from this poorly drafted bill. The Senate should have rejected KOSA and forced the sponsors to at least provide greater clarity in their bill. The Senate, however, was dedicated to passing a KOSA despite its deficiencies.

KOSA contains too many flaws for any one amendment to fix the legislation entirely. But the Senate should have tackled the most glaring problem with KOSA—that it will silence political, social, and religious speech.

My amendment merely stated that no regulations made under KOSA shall apply to political, social, or religious speech. My amendment was intended to address the legitimate concern that this bill threatens free speech online. If the supporters of this legislation really do want to leave content alone, they would have welcomed and supported my amendment to protect political, social, and religious speech.

But that is not what happened. The sponsors of the bill blocked my amendment from consideration and the Senate was prohibited from taking a vote to protect speech.

That should be a lesson about KOSA. The sponsors did not just silence debate in the Senate. Their bill will silence the American people.

KOSA is a Trojan horse. It purports to protect our children by claiming limitless ability to regulate speech and depriving them of the benefits of the internet, which include engaging with like-minded individuals, expressing themselves freely, as well as participating in debates among others with different opinions.

Opposition to this bill is bipartisan, from advocates on the right to the left.

A pro-life organization, Students for Life Action, commented on KOSA, stating, "Once again, a piece of federal legislation with broad powers and vague definitions threatens pro-life speech…those targeted by a weaponized federal government will almost always include pro-life Americans, defending mothers and their children—born and preborn."

Student for Life Action concluded its statement by stating: "Already the pro-life generation faces discrimination, de-platforming, and short and long term bans on social media on the whims of others. Students for Life Action calls for a No vote on KOSA to prevent viewpoint discrimination from becoming federal policy at the FTC."

The ACLU brought more than 300 high school students to Capitol Hill to urge Congress to vote no on KOSA because, to quote the ACLU, "it would give the government the power to decide what content is dangerous to young people, enabling censorship and endangering access to important resources, like gender identity support, mental health materials, and reproductive healthcare."

Government mandates and censorship will not protect children online. The internet may pose new problems, but there is an age-old solution to this issue. Free minds and parental guidance are the best means to protect our children online.

The post Censoring the Internet Won't Protect Kids appeared first on Reason.com.

More than half of Americans believe the First Amendment can go too far in the rights it guarantees, according to a new survey from the Foundation for Individual Rights and Expression (FIRE), a First Amendment–focused nonprofit.

The survey, released on Thursday, asked 1,000 American adults a range of questions about the First Amendment, free speech, and the security of those rights. Fifty-three percent of respondents agreed with the statement "The First Amendment goes too far in the rights it guarantees" to at least some degree, with 28 percent reporting that it "mostly" or "completely" describes their thoughts.

Americans were further divided along partisan lines. Over 60 percent of Democrats thought the First Amendment could go too far, compared to 52 percent of Republicans.

"Evidently, one out of every two Americans wishes they had fewer civil liberties," Sean Stevens, FIRE's chief research adviser, said on Thursday. "Many of them reject the right to assemble, to have a free press, and to petition the government. This is a dictator's fantasy."

Further, 1 in 5 respondents said they were "somewhat" or "very" worried about losing their job if someone complains about something they said. Eighty-three percent reported self-censoring in the past month, with 23 percent doing so "fairly" or "very" often.

Just 22 percent of respondents said they believed the right to free speech was "very" or "completely" secure. But despite these concerns, over a third said they trusted the government "somewhat," "very much," or "completely" to make fair decisions about what speech is deemed "intimidating," "threatening," "harassing," and "indecent," among other labels.

In all, almost 7 out of every 10 respondents agreed that America is going in the wrong direction when it comes to free speech—though it's not clear whether respondents think our culture and government are becoming too tolerant, or not tolerant enough, of controversial speech.

This latest survey indicates that many Americans are concerned about the security of free speech rights, yet also eager to censor speech they personally find distasteful.

"Americans have little tolerance for certain forms of protected speech and a lot of tolerance for unprotected conduct, when it should be the other way around," Stevens said. "This poll reveals that the state of free speech in America is dire."

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After black-clad demonstrators protested Donald Trump's inauguration in an "Anti-Capitalist/Anti-Fascist Bloc" march on January 20, 2017, federal prosecutors in Washington, D.C., charged more than 200 of them with rioting. While 21 defendants pleaded guilty, all of the other cases ended in acquittals, mistrials, or charges dismissed with prejudice. One reason for that fiasco, according to recently filed disciplinary charges, was the discovery that the federal prosecutor who oversaw the cases persistently withheld exculpatory evidence and repeatedly lied about it to judges and defense attorneys.

In a "specification of charges" filed with the D.C. Court of Appeals Board of Professional Responsibility last month, Disciplinary Counsel Hamilton P. Fox III alleges that Jennifer Kerkhoff Muyskens, who is now a federal prosecutor in Utah but previously worked at the U.S. Attorney's Office for the District of Columbia, violated six rules of professional conduct while trying to convict "DisruptJ20" protesters, including many who had not participated in vandalism or violence. Muyskens "knew that most defendants did not commit violent acts themselves," Fox notes, but "she argued that these defendants were still liable for felony rioting and felony property destruction because they joined a criminal conspiracy to use the protest march to further the violence and destruction that occurred."

To support that theory, Muyskens presented video of a DisruptJ20 planning meeting that had been clandestinely recorded by an "operative" from Project Veritas, a conservative group that frequently has been accused of using misleadingly edited videos to portray progressive and leftist organizations in a negative light. Although Muyskens "understood Project Veritas had a reputation for editing videos in a misleading way," Fox says, she initially concealed the source of the video, saying in court that "who provided it is irrelevant." And although Muyskens "knew that Project Veritas had omitted and edited some of its videos" before releasing them, Fox adds, she "did not request or obtain Project Veritas's missing videos or unedited footage."

According to Fox, Muyskens and Metropolitan Police Department (MPD) Detective Greggory Pemberton edited the meeting footage in ways that bolstered the prosecution's case, and Muyskens covered up the extent of those edits. Fox says Muyskens also withheld Project Veritas videos of other DisruptJ20 meetings that would have been helpful to the defense, pretending that they did not exist. And she allegedly concealed the fact that Pemberton, in testimony to a grand jury, had erroneously identified one of the DisruptJ20 defendants as a woman who appears in the video of the planning meeting.

According to the Supreme Court's 1963 ruling in Brady v. Maryland, due process requires prosecutors to share potentially exculpatory evidence with the defense. Fox says Muyskens violated that rule by excising footage and withholding videos that could have been useful in rebutting the prosecution's case.

The material that Muyskens and Pemberton excised from the planning meeting video included footage that would have revealed its provenance. They also cut footage of a phone call in which a Project Veritas infiltrator told a colleague, "I don't think they know anything about the upper echelon stuff."

The excised footage "revealed that the video was filmed as part of Project Veritas's infiltration of DisruptJ20, which tended to undermine the credibility and reliability of the government's evidence," Fox writes. "In addition, the operative's post-meeting report indicated that some DisruptJ20 protest organizers did not know anything about plans or decisions that were being made by an 'upper echelon.' This lack of knowledge supported the non-violent defendants' theory that, assuming a plan to riot existed at all, only a small group was involved, which they knew nothing about. Alternatively, if the operative was discussing protest organizers being unaware of Project Veritas's 'upper echelon' plans, the statements supported…claims that Project Veritas conspired to frame DisruptJ20 defendants for third-party violence, including by possibly inciting violence themselves. Both judges who later considered the issue…found that the complete, unedited footage was exculpatory."

The videos that Muyskens withheld included evidence that, contrary to the prosecution's narrative, the DisruptJ20 protest was supposed to be peaceful. Those videos "were exculpatory," Fox explains, "because they showed that DisruptJ20 planning meetings consistently involved training and instructing protesters how to participate in its unpermitted 'Actions,' including the anti-capitalist march, as non-violent protests, using nonviolence and de-escalation techniques, which supported the non-violent defendants' claim that their intent was merely to peacefully protest."

The undisclosed videos also "showed Project Veritas operatives discussing their infiltration operation of DisruptJ20, which supported the defense's theory that Project Veritas conspired to blame DisruptJ20 for others' misconduct," Fox notes. "For example, the undisclosed videos showed Project Veritas operatives discussing—before the Inauguration protests—how they were providing information on DisruptJ20 to the FBI, how there was likely to be violence from 'outside influencers,' and how DisruptJ20 would 'catch the blame' for outsiders' misconduct because the FBI was 'going to say' that they incited it."

In court, Fox says, Muyskens "falsely said that the government had made only two edits, which were both to redact the identity of the videographer and an undercover officer," and "that, other than the two redactions, the defense had the same videos as the government." She "falsely told the court that she had provided defense counsel with 'the full entirety of those videos from that day.'"

According to Fox, "Pemberton testified falsely that Project Veritas had produced only the four disclosed video segments of the [planning meeting video]" and that "the only editing the government did was to combine the first three video segments into one exhibit to be played at trial." Muyskens and Pemberton "did not disclose how they had edited the original videos they received from Project Veritas," and they did not "disclose that they had omitted from discovery many other videos Project Veritas videos of DisruptJ20's planning meetings."

Muyskens told a judge that Project Veritas had "provided unedited video" at Pemberton's request and that "we posted the video" to the discovery portal. Those statements, Fox says, "were false and misleading." Muyskens also "falsely said that other than redacting the identities of the Project Veritas operative and [the undercover officer], 'the defense has the exact video we have.'" The judge "later found that [Muyskens] 'left a clear impression' that she had disclosed everything that Project Veritas had produced."

Muyskens told another judge that "the government had 'provided the clips as we have them'" and that "'the only editing' by the government 'was to combine the three clips' of the anti-capitalist 'breakout' into a single video exhibit for trial." Those statements also "were false and misleading," Fox says.

Muyskens eventually "acknowledged that the government had additional, undisclosed Project Veritas videos of DisruptJ20's planning meetings." But she "mischaracterized them and falsely suggested that they were irrelevant."

During the investigation of her conduct, Fox says, Muyskens "repeated her false statements and material omissions" regarding the video edits, the withheld videos, her suppression of "relevant information and evidence," her failure to produce grand jury transcripts from the misidentified defendant's case, her "misrepresentations and omissions to the grand jury, the defense, and the court," and her failure to "correct known misrepresentations to the court." She also "made additional false statements and material omissions to falsely explain her conduct." She claimed, for example, that the undisclosed videos "were irrelevant and did not discuss the anti-capitalist march."

Fox says Muyskens' actions violated the District of Columbia's Rules of Professional Conduct in half a dozen ways:

1. She allegedly violated Rule 3.3(a) by "knowingly making false statements, offering false evidence, and failing to correct material false statements to the court."

2. She allegedly violated three sections of Rule 3.4 by "obstructing the defense's access to evidence and altering or concealing evidence, or assisting another person to do so when she reasonably should have known that the evidence was or may have been subject to discovery; knowingly disobeying the court's direct orders to produce information in the government's possession without openly asserting that no valid obligation existed; and/or failing to make reasonably diligent efforts to comply with the defense's discovery requests."

3. She allegedly violated two sections of Rule 3.8 by "intentionally avoiding pursuit of evidence and information because it may have damaged the prosecution's case or aided the defense; and by intentionally failing to disclose to the defense, upon request and at a time when use by the defense was reasonably feasible, evidence and information that she knew or reasonably should have known tended to negate the guilt of the accused or mitigate the offense."

4. She allegedly violated Rule 8.4(a) by "knowingly assisting or inducing another to violate the Rules of Professional Conduct and/or doing so through the acts of another."

5. She allegedly violated Rule 8.4(c) by "engaging in conduct that involved reckless or intentional dishonesty, misrepresentations, deceit, and fraud, which misled the grand jury, the defense, the court, the government, and disciplinary authorities about the
evidence in the government's possession and the government's conduct."

6. She allegedly violated Rule 8.4(d) by "engaging in conduct that seriously interfered with the administration of justice."

Possible sanctions against Muyskens range from "temporary suspension of her law license to full disbarment," Washington City Paper notes. The Washington Post reports that lawyers for Muyskens did not respond to requests for comment and that "Pemberton also did not respond to an inquiry." The U.S. attorney's offices in D.C. and Utah "declined to comment." So did the MPD, which "would not say whether the department has opened an investigation of Pemberton, who now chairs the police labor union."

The failed prosecutions and the disciplinary charges against Muyskens are not the only embarrassments stemming from the Inauguration Day march. In 2021, the Post notes, "the D.C. government agreed to pay $1.6 million to settle two lawsuits" by protesters who argued that the police response to the DisruptJ20 march violated their First Amendment rights.

"It speaks volumes that the District has chosen to settle rather than defend MPD's obviously unconstitutional actions in court," Jeffrey Light, one of the protesters' attorneys, said when the settlement was announced. Scott Michelman, legal director at the American Civil Liberties Union of the District of Columbia, added that "MPD's unconstitutional guilt-by-association policing and excessive force, including the use of chemical weapons, not only injured our clients physically but also chilled their speech and the speech of countless others who wished to exercise their First Amendment rights but feared an unwarranted assault by D.C. police."

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Seven out of 10 college students say that speech can be just as damaging as physical violence, according to a new survey from the Knight Foundation, a journalism and free speech nonprofit. The survey, which polled more than 1,600 college students, also found that since 2016, college students' faith in the security of free speech rights has declined.

"2024 marks a crisis for free speech on college campuses as international conflicts, like the war in Gaza, and domestic strife come to a head, bringing urgent political and personal issues to center stage," the report states. "With campuses cracking down on protests, political leaders casting a questioning eye on the decisions of university administrators, and emerging technology making disinformation easier and faster to produce, the position of higher education as a forum for open discussion has never been more crucial or imperiled."

The Knight Foundation's survey asked students a wide range of questions on campus free speech and the First Amendment in general. The survey also asked students to identify their race, household income, and political affiliation. 

Sixty percent of students agreed with the statement "the climate at my school or on my campus prevents some people from saying things they believe, because others might find it offensive." The figure is up from 54 percent in 2016, but down from a high of 65 percent in 2021. Additionally, more than 1 in 4 agreed that it was more important for schools to "protect students by prohibiting speech they may find offensive or biased," rather than prioritizing allowing students to hear a wide range of viewpoints, including possibly offensive ones. Students were sharply divided by political opinion on this question, with 70 percent of Republicans, 53 percent of Independents, and 45 percent of Democrats supporting allowing offensive speech.

Why do so many students support censorship? It's not exactly clear, but the rest of the survey offers some clues. For example, 70 percent of students, including 82 percent of Democrats and 59 percent of Republicans, agreed that speech can be just as damaging as physical violence. Forty-four percent reported feeling uncomfortable in college because of "something someone said in reference to your race, ethnicity, religion, gender, or sexual orientation—whether or not it was directed at you," up from 25 percent in 2016. It's not clear, however, whether this increase is due to an uptick in genuinely offensive statements or increasing student intolerance towards mild political disagreements. 

On the bright side, increasing numbers of students opposed instituting policies like restrictive speech codes or providing safe spaces. Since 2017, support for speech codes has declined 23 percentage points, and support for safe spaces declined 15 percentage points. Support for disinviting potentially offensive speakers stayed roughly the same since 2017, declining by just three percentage points, to 25 percent after a brief jump to 42 percent in 2019.

"American society continues to be at a crossroads over how to apply First Amendment rights in the 21st century, particularly on college campuses," the report reads. "That is why it is essential that thought leaders, administrators, professors, and the public listen to the voices of college students as they grapple with issues of free speech in America and on campus."

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A Texas public library can't remove books simply because they discuss topics like "butts and farts," a federal court ruled last week. 

The case is one of the more bizarre instances of library censorship in recent years, but it nonetheless led to a decisive option from the majority, who found that it is unconstitutional to remove library books out of a "desire to limit access to ideas with which they [disagree]."

The legal battle began after Llano County Judge Ron Cunningham received complaints in 2021 concerning "pornographic and overtly sexual books in the library's children's section." The complainants were particularly upset about children's books about "butts and farts."

One of the aggrieved citizens, Llano resident Rochelle Wells, "had been checking out those books continuously for months to prevent others from accessing them."

Following the complaint, Cunningham told the library's director, Amber Milum, to remove the books from library shelves. After more complaints were lodged, Cunningham told the library director to also remove several other books that "depict any type of sexual activity or questionable nudity."

Milum later testified that she would not have removed the books as part of typical curation activities—she only removed them because of directions from county officials. 

Making matters worse, in January 2022, the county's library board was dissolved and replaced with new board members. Two of the complainers who successfully pressured Cunningham to order books removed were placed on the new board.

According to the opinion, the new board "implemented several policy changes, including prohibiting Milum from attending their meetings and requiring her to seek approval before purchasing any new books."

Seven library patrons brought a suit in 2022, arguing that the removal of the book was unconstitutional viewpoint discrimination. Eventually, a lower court agreed, granting a preliminary injunction requiring defendants to return the removed books. However, the county appealed. Just this week, a panel of judges from the 5th Circuit Court of Appeals sided with the plaintiffs.

Referencing other cases surrounding attempted library censorship, the majority opinion constructed a series of "rules" about how books can be removed from library collections. "Librarians may consider books' contents in making curation decisions," Judge Jaques Weiner Jr. wrote in the majority opinion. "Their discretion, however, must be balanced against patrons' First Amendment rights…a book may not be removed for the sole—or a substantial—reason that the decision-maker does not wish patrons to be able to access the book's viewpoint or message."

The motivation for removing targeted books from Llamo public libraries doesn't meet this test. The opinion notes that censors wanted the books gone simply because they didn't like their content. 

"Government actors may not remove books from a public library with the intent to deprive patrons of access to ideas with which they disagree," the opinion concludes. "Because that is apparently what occurred in Llano County, Plaintiffs have demonstrated a likelihood of success on the merits of their First Amendment claim."

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The creators behind BASEDPolitics are suing over a measure meant to either ban TikTok or force its divestiture.

President Joe Biden signed the (highly unconstitutional) bill in April, and it already faces several legal challenges, including one filed by TikTok and one filed by eight TikTok content creators. Like those efforts, the BASEDPolitics suit focuses on the law's affront to free speech.

"We wanted to file a lawsuit that was specifically focused on free speech and the First Amendment from the creators' perspective, rather than some of the other, business-related concerns in other lawsuits," Brad Polumbo of BASEDPolitics tells me. "We also wanted to emphasize the political speech aspect, rather than other creators who are more in the mold of everyday 'influencers,' and show that right-leaning/non-liberal voices are being impacted by this as well."

Polumbo hopes the lawsuit will "help Republicans and conservatives see why this ban is inconsistent with the free speech values they say they care about."

TikTok Ban: Not Just Bad for Lifestyle Influencers or Leftists

BASEDPolitics is a nonprofit media organization run by Polumbo, Hannah Cox, and Jack Hunter. Its goal is to introduce young people "to the ideas of free market capitalism and individual liberty."

TikTok helps them reach audiences they likely wouldn't reach on other platforms, says Cox. "Both Brad and I have large platforms across social media, but TikTok offers a unique audience that can't be found elsewhere," she tells me. "Most on TikTok loathe Meta and X, so if they weren't on TikTok it's unlikely they'd engage meaningfully elsewhere. Their algorithm is also more open, and it enables us to reach many people who would never encounter us otherwise."

There's a popular perception that TikTok either isn't a place for political speech or is an asset only for left-leaning political speakers. But the BASEDPolitics team hasn't found this to be true at all.

"Anyone who thinks TikTok is all just frivolous content is probably not a user," says Polumbo. "There's substantive conversation happening on there on every issue under the sun, from religion to dating to politics." And while "TikTok is dominated by left-leaning content," it's also "a much more politically diverse ecosystem than many might think."

Their suit focuses not just on how a ban would negatively affect BASEDPolitics but on its larger repurcussions for civil liberties.

"We felt the need to stand up as individuals who are using TikTok to effectively fight back against the government and educate others on the principles of free market capitalism, individual rights, and limited government," says Cox, who sees all sorts of "incredible work being done on TikTok—both politically and non politically."

"People are pushing back on war…they're questioning our monetary system, they're highlighting injustices carried out by our government," she says. "Outside of politics, TikTok is now the top search engine for young people. They're getting mental health resources from therapists, DIY help from retired grandpas, nutrition information they can't get from their health insurance and pharmaceutical companies. The list is endless."

Propaganda Is Free Speech

BASEDPolitics is being represented by the Liberty Justice Center. The suit seeks a declaration that the anti-TikTok law—officially known as the Foreign Adversary Controlled Applications Act—is unconstitutional and a block on the U.S. Attorney General enforcing it.

The law makes it illegal for Americans to "access, maintain, or update" apps linked to "foreign adversaries," a category that the measure defines to include TikTok. TikTok will be banned if TikTok parent company ByteDance does not sell it by January 19, 2025. The law also allows the president to declare other apps off limits (or force their sale) if they're based out of any country declared a foreign adversary or if anyone based in these countries owns a fifth or more of the app.

"The Act violates the First Amendment because it bans all speech on TikTok—even though all, or nearly all, of that speech is constitutionally protected," the Liberty Justice Center states in a press release. "The lawsuit also argues that lawmakers' justifications for the ban—national security and protecting Americans from propaganda—cannot justify the infringement on users' First Amendment rights, because there is no evidence that TikTok threatens national security or that a complete ban is necessary to address whatever threat it might pose. Furthermore, the lawsuit argues, the First Amendment does not allow the government to suppress 'propaganda,' which is simply speech."

Cox elaborates on this point in a video about the lawsuit, noting that people act like TikTok is unique because it could be linked to the Chinese Communist Party. Yet "you have tons of state-owned media that is available in the U.S.," points out Cox, citing the BBC and Russia today as two examples.

In the U.S., we don't ban speech merely because another government—even one we find alarming—might endorse it. So even if some of the more speculative fears about China and TikTok are true, that should be no reason to ban it entirely.

Cox says this sort of thing is more befitting of "communist dystopias" such as North Korea.

There's been some (overhyped) concern about TikTok suppressing content that could offend Chinese authorities. But even if that's true, it wouldn't justify a ban either.

"As First Amendment supporters, we also support the legal right of TikTok as a private platform to ban or restrict whatever kinds of content it wants even if we personally resent their choices or think it's unfair," Polumbo adds.

Larger Anti-Speech and Anti-Tech Trends 

"If enacted, this would constitute one of the most egregious acts of censorship in modern American history," Cox and Polumbo write, placing the TikTok ban in the midst of larger anti-speech and anti-tech trends:

In the federal and state governments, both Republicans and Democrats have become increasingly anti-free speech in recent years. We've seen a plethora of bills that have sought to strip Americans and their businesses of their right to free expression, many of them presented as necessary to rein in "Big Tech." The TikTok ban is merely the latest iteration of this trend.

The truth is that government actors who want to preserve and expand their own power have a vital interest in taking over the tech industry. Of course the government has yet to see a thriving free market industry it doesn't want to get its hands on. But social media in particular poses a unique threat to the government—which has for decades been able to control the flow of information and the narrative on political issues via its cozy relationship with many in the mainstream media.

We've seen the Biden Administration seek to lasso social media in a similar fashion numerous times over the past couple of years thanks to the bombshell reports released under both the Twitter Files and the Facebook Files—not to mention the government-wide conspiracy to shadowban information on our own government's funding of the Wuhan lab….

The obvious point is that government officials do not want the American people to be able to freely share information, especially information that makes them look bad.

The bottom line, they suggest, is that "if they can control the flow of information, they can control you."

"Social media poses a unique threat to politicians and the government, and that's because for decades…the government could control the narrative, and they could control the narrative because they mostly control the mainstream media," says Cox in her video. "As social media has grown, they have lost more and more control of the narrative, because they are no longer the gatekeepers, and they don't control the gatekeepers anymore."

"Ultimately the war on Big Tech is a war on free speech and the government desperately trying to regain control of the narrative the [mainstream media] granted them for decades," she tells me.

The BASEDPolitics team also pushes back on the idea that this isn't really a ban because it gives ByteDance the option to sell. "In effect, the legislation is an outright ban on the app, because Bytedance, TikTok's parent company, is likely legally prohibited from selling the TikTok algorithm by China's export control laws," write Cox and Polumbo. "And, TikTok without its algorithm is not really TikTok at all."

You can read their full complaint here.

More Sex & Tech News

• Supreme Court decisions are coming soon—possibly this week—in two major cases concerning abortion. One of these cases prescriptions of the abortion-inducing drug mifepristone amd another concerns a Biden administration declaration regarding abortions as emergency care.

• Kaytlin Bailey and Yasmin Vafa debate whether it's OK to pay for sex.

• Antitrust warriors come for AI: The Federal Trade Commission is subpoenaing Microsoft over its deal with the artificial intelligence startup Inflection. Meanwhile, the Justice Departments "is poised to investigate Nvidia and its leading position in supplying the high-end semiconductors underpinning AI computing," Politico reports.

• "When a new technology arises, it matters greatly whether technocrats align themselves with dynamists or with reactionaries," Virginia Postrel tells Miller's Book Review. "We were lucky in the 1990s that both political parties included people with positive views of the emerging internet, including people with a dynamist understanding of its potential. The opposite is true today. Reactionaries are in ascendance in both parties, and technocrats are listening to them. Plus there are always businesses seeking to use regulation to hinder their competitors. The result is that instead of regarding AI as an exciting potential tool for enhancing human creativity and fostering prosperity, our public discourse tends to frame it as at best a job-destroyer and at worst the Terminator."

• A federal judge has rejected North Carolina's attempt to mandate that abortion pills must be taken in a doctor's office and that their prescription requires an in-person followup visit 72 hours after the medication is taken. The ruling means that women "can again take the medicine mifepristone at home and can obtain the medication from a pharmacy or by mail," WUNC reports.

• "Because 'misinformation' is overwhelmingly identified by focusing on information that contradicts the consensus judgements of experts and elites within society's leading knowledge-generating institutions, the focus on misinformation ignores how such institutions can themselves be deeply dysfunctional and problematic," writes Dan Williams in a very good (and lengthy) post at Conspicuous Cognition. "This includes science, intelligence agencies, mainstream media, and so on."

Today's Image

The post 'If They Can Control the Flow of Information, They Can Control You': BASEDPolitics Sues To Stop TikTok Ban appeared first on Reason.com.

Louisiana Gov. Jeff Landry last week signed a law that criminalizes approaching police officers within 25 feet, provided that the officer tells any would-be approachers to stand back, effectively creating a legal force field that law enforcement can activate at their discretion.

"No person shall knowingly or intentionally approach within twenty-five feet of a peace officer who is lawfully engaged in the execution of his official duties after the peace officer has ordered the person to stop approaching or to retreat," the law states. Offenders could receive a $500 fine and be jailed for up to 60 days.

The bill was authored by state Reps. Bryan Fontenot (R–Thibodaux), Michael T. Johnson (R–Pineville), and Roger Wilder (R–Denham Springs). Fontenot argued that the legislation would give law enforcement officials "peace of mind" as they carry out their duties. That's the same argument Florida Gov. Ron DeSantis made to justify signing Senate Bill 184 in April, which criminalizes approaching within 25 feet of a first responder with the intent to threaten, harass, or interfere with the official.

But some opponents of these laws believe they are overly broad and unnecessary.

"Requiring a 25-foot distance from a police officer may not be a practical or effective approach in many situations," state Rep. Delisha Boyd (D–New Orleans) tells Reason. "Policing situations vary widely, and a blanket requirement for a 25-foot distance may not account for the diverse scenarios officers encounter. Who on the scene will determine what exactly is 25 feet away? What happens if within that 25 feet is on my personal property?"

Louisiana already has a law outlawing "interfering with a law enforcement investigation." Critics of the new law say that an additional law proscribing the simple act of approaching police is superfluous.

One such critic is Meghan Garvey, the legislative chair and former president of the Louisiana Association of Criminal Defense Lawyers. Police work "is already protected from interference by current law," she tells Reason. "The measure criminalizes citizens for engaging in constitutionally protected activity and discourages citizen oversight of law enforcement."

The law, "like many other bills brought this session, seeks to make Louisianans more subservient to government," Garvey concludes.

The Louisiana Legislature passed a similar bill, House Bill 85, in June 2023, but that measure was vetoed by former Gov. John Bel Edwards. "The effect of this bill were it to become law would be to chill exercise of First Amendment rights and prevent bystanders from observing and recording police action," Edwards said in a statement explaining his veto.

Though the Supreme Court has declined to address the issue, there is significant legal precedent in the circuit courts—including in the 5th Circuit, which contains Louisiana—that the First Amendment's press and speech clauses collectively safeguard a "right to record the police." Last year, a federal judge struck down an Arizona measure that outlawed filming police from within 8 feet after receiving a verbal warning because it "prohibits or chills a substantial amount of First Amendment protected activity and is unnecessary to prevent interference with police officers given other Arizona laws in effect."

In Louisiana, "an officer could be arresting someone in a manner indicating excessive force, have a bystander approach to record the arrest, and the bystander could then be immediately told by the officer 'to stop approaching or to retreat,' chilling the bystander's right to record," Louisiana attorney Philip Adams tells Reason. "Thus, the bystander could be placed in a position in which the First Amendment right to record could be functionally neutered." 

The post Louisiana's New 25-Foot Legal Forcefield for Police Threatens Accountability and Civil Liberties appeared first on Reason.com.

For nearly a decade, the transit authority in Washington, D.C., has faced controversy over restrictive guidelines governing advertisements in the city's subways and busses. Now, it might have to scrap some of them.

The controversial rules prohibit any ad that is "issues-oriented" or "intended to influence members of the public regarding an issue on which there are varying opinions." The guidelines also single out religious ads, prohibiting "advertisements that promote or oppose any religion, religious practice or belief."

Last month, a D.C. district court ruled in favor of a Christian group seeking to challenge the rules, placing a preliminary injunction on part of the guidelines that ban ads "intended to influence members of the public regarding an issue on which there are varying opinions."

The Washington Metropolitan Area Transit Authority (WMATA) first enacted the controversial rules after an anti-Islam activist attempted to buy an advertisement depicting Muhammad in 2015.

In 2017, the American Civil Liberties Union sued WMATA over the guidelines, joined by plaintiffs ranging from vegan group People for the Ethical Treatment of Animals (PETA) to right-wing provocateur Milo Yiannopoulos. That case is still ongoing. In 2018, however, a D.C. district court ruled against a request for a preliminary injunction against WMATA's rules.

But the ACLU has joined another lawsuit challenging the guidelines on First Amendment grounds—this time, to much better success. This latest lawsuit was filed in December 2023 by WallBuilders, an organization that aims to educate the public "concerning the Godly foundation of our country," according to legal records.

When WallBuilders attempted to purchase ads to go in WMATA busses, reading "Christian? To find out about the faith of our founders, go to wallbuilders.com." WMATA rejected the ads, citing their guidelines. When WallBuilders resubmitted the ads, omitting all text except "visit wallbuilders.com," they were still rejected.

WallBuilders sued. On May 21, Judge Beryl A. Howell of the District Court of D.C. granted WallBuilder's motion for a preliminary injunction, halting enforcement on the part of the guidelines that prohibited advertisements seeking "to influence members of the public regarding an issue on which there are varying opinions."

"WMATA is permitted to retain considerable discretion in evaluating the intent and purpose of an ad…but this discretion must be coupled with objective, workable standards," wrote Howell. "Put simply, the utterly undefined use of the phrase '[a]dvertisements intended to influence . . . regarding an issue on which there are varying opinions,' coupled with the lack of any definitions or official guidance and WMATA's inconsistent application of [the guideline], makes clear that [it] is not a reasonable restriction on speech."

The ruling is a major victory for a whole range of controversial groups who want to buy ads on D.C. buses and subways. It also sends a clear message to WMATA: While it can place some restrictions on the content of ads, its rules have to be well-defined and narrowly tailored. 

The post D.C.'s Rules for Subway Ads Are Blocked in Federal Court appeared first on Reason.com.

Enlarge (credit: Future Publishing / Contributor | Future Publishing)

TikTok is now disputing a Reuters report that claims the short-video app is cloning its algorithm to potentially offer a different version of the app, which might degrade over time, just for US users.

Sources "with direct knowledge" of the project—granted anonymity because they're not authorized to discuss it publicly—told Reuters that the TikTok effort began late last year. They said that the project will likely take a year to complete, requiring hundreds of engineers to separate millions of lines of code.

As these sources reported, TikTok's tremendous undertaking could potentially help prepare its China-based owner ByteDance to appease US lawmakers who passed a law in April forcing TikTok to sell its US-based operations by January 19 or face a ban. But TikTok has maintained that the "qualified divestiture" required by the law would be impossible, and on Thursday, TikTok denied the accuracy of Reuters' report while reiterating its stance that a sale is not in the cards.

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What do the National Rifle Association (NRA), the American Civil Liberties Union (ACLU), and nine U.S. Supreme Court justices from five presidential administrations all have in common? That list is likely relatively small. But at least one area of overlap was made evident Thursday when the Court published a unanimous ruling that a New York government official allegedly violated the First Amendment by pressuring insurers and banks to sever business ties with the NRA, which the ACLU is representing.

The decision resuscitates the gun advocacy group's lawsuit against Maria Vullo, the former head of New York's Department of Financial Services (DFS). The U.S. Court of Appeals for the 2nd Circuit had previously ruled in her favor.

At the core of the case is Vullo's advocacy following the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida. After that tragedy, in private meetings with insurance companies, Vullo allegedly expressed she would selectively apply enforcement action to groups that insisted on serving the NRA.

She didn't stop there. She also sent letters titled "Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations" to insurers and banks, in which she encouraged them to "continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations"; to "review any relationships they have with the NRA or similar gun promotion organizations"; and to "take prompt actions to manag[e] these risks and promote public health and safety." And in a press release with then-Gov. Andrew Cuomo, the two officials urged such companies to terminate their relationships with the gun advocacy group. Some took them up on the suggestion.

The constitutional issue at stake here is similar to the one the Court explored in Murthy v. Missouri, the case that asks if President Joe Biden's administration violated the First Amendment when it sought to convince social media companies to remove content it disliked. During those oral arguments in March, many justices appeared sympathetic to the view that government officials had not overstepped the bounds of their authority and had merely exercised their own free speech rights to persuade those companies to adopt their views, not unlike a White House press secretary promoting an ideological slant to the media. 

But in NRA v. Vullo, the Court ruled unanimously that Vullo's actions as alleged by the NRA had crossed the line from persuasion into coercion. "Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors," wrote Justice Sonia Sotomayor. The NRA, she said, "plausibly alleges that respondent Maria Vullo did just that."

The decision sends the case back to the 2nd Circuit, which could still give Vullo qualified immunity, the legal doctrine that shields government officials from suits like the NRA's if the misconduct alleged has not been "clearly established" in prior case law. That outcome is certainly probable, as the 2nd Circuit's original decision not only ruled that Vullo had not violated the Constitution—which the Supreme Court rejected today—but that even if she had, qualified immunity would insulate her from the NRA's claim.

It is difficult to imagine, however, a more obvious violation of the Constitution than the weaponization of government power to cripple advocacy disfavored by the state. The supposed reason for qualified immunity is that taxpayer-funded civil servants deserve fair notice that conduct is unlawful before a victim can seek recourse for those misdeeds. To argue that a government agent could not be expected to understand the contours of the First Amendment here is rather dire.

Many people may struggle to separate the constitutional question from the ideological backdrop. The NRA, after all, is one of the more polarizing lobbying organizations in the country, not least of which because its founding issue—gun rights—is not exactly a topic that elicits cool-headed responses. It has also become an advocacy group not just for firearms but for the Republican Party more broadly and the identity politics associated with it, alienating large swaths of people, to put it mildly.

There is another major group in the country that has followed a similar story arc, just on the other side of the political spectrum: the ACLU. Once a stalwart free speech group—so principled it defended the First Amendment rights of Nazis—it has, in modern times, sometimes actively advocated against civil liberties when those principles transgress progressive politics, an awkward move when considering the group's name. But no matter how much you dislike one or both of them, the NRA and the ACLU coming together here is all the more reflective of the fact that some things, like the First Amendment, really aren't partisan.

The post The NRA's Unanimous Supreme Court Victory Is Good for Free Speech—No Matter How You Feel About Guns appeared first on Reason.com.

Sylvia Gonzalez, a former Castle Hills, Texas, city council member, plausibly alleges that she was arrested on a trumped-up charge in retaliation for conduct protected by the First Amendment. So does Priscilla Villarreal, an independent journalist in Laredo, Texas. But in backing up that claim, Gonzalez, whose case will soon be decided by the Supreme Court, faces a problem that Villarreal does not: It is hard to say how often people engage in the conduct that police cited to justify her arrest, which involved putting a petition in her personal folder during a city council meeting. Villarreal, by contrast, was arrested for asking questions, something that journalists across the country do every day.

Last January, the U.S. Court of Appeals for the 5th Circuit nevertheless ruled, in an opinion by Judge Edith Jones that provoked four sharp dissents authored or joined by seven of her colleagues, that Villarreal's arrest was not "obviously unconstitutional." Thirteen briefs supporting Villarreal's petition for Supreme Court review—submitted by an ideologically diverse mix of groups and individuals, including organizations ranging from the Manhattan Institute to the Constitutional Accountability Center—underline the chilling implications of that astonishing conclusion.

"No right is more fundamental to the practice of journalism than the one the Fifth Circuit declined to recognize: the right to ask public officials for information," a brief submitted by the Reporters Committee for Freedom of the Press and 21 news organizations notes. They urge the Supreme Court to resolve the "chilling uncertainty" created by the appeals court's decision and "reaffirm the fundamental proposition that '[a] free press cannot be made to rely solely upon the sufferance of government to supply it with information.'"

Villarreal, who is represented by the Foundation for Individual Rights and Expression, is asking the Supreme Court to uphold that principle, which her arrest blatantly violated. Her alleged crime, the Institute for Justice notes, consisted of "peacefully asking a police officer to corroborate information for two developing stories—a routine due-diligence and newsgathering practice used by journalists across the country." The two stories, which Villarreal posted on her locally popular Facebook page, involved a public suicide and a fatal car crash. Villarreal asked a Laredo police officer to confirm information about those incidents that Villarreal had received from other sources. By doing that, police and prosecutors claimed, Villarreal committed two felonies.

To justify those charges, police cited Section 39.06(c) of the Texas Penal Code, an obscure, rarely invoked law that applies to someone who "solicits or receives from a public servant" information that "has not been made public" with the "intent to obtain a benefit." The claim that Villarreal had violated that law was absurd for several reasons.

First, Section 39.06(c), which deals with "misuse of official information," is part of a chapter addressing "abuse of office." Its roots go back to a 1973 law that applied to "a public servant" who "acquires or aids another to acquire a pecuniary interest in any property, transaction, or enterprise that may be affected by" information that "has not been made public" but to which "he has access in his official capacity." The statute also covered "a public servant" who "speculates or aids another to speculate on the basis of the information." Over the years, legislators broadened the definition of the offense, reclassified it as a felony, and expanded the law beyond government officials. But in light of its history and statutory context, Section 39.06(c) is clearly aimed at curtailing official corruption, not journalism.

Second, the Texas Penal Code defines "benefit" as "anything reasonably regarded as economic gain or advantage." What "economic gain or advantage" did Villarreal allegedly seek to obtain by asking a cop about a suicide and an accident? According to the arrest affidavits, it was an increase in her Facebook traffic. Jones' opinion, which drips with contempt for Villarreal's "journalistic style," notes that she "boasts over one hundred thousand Facebook followers and a well-cultivated reputation, which has engendered publicity in the New York Times, free meals 'from appreciative readers,' 'fees for promoting a local business,' and 'donations for new equipment necessary to her citizen journalism efforts.'" This sweeping definition of "benefit" would apply to any journalist who attracts readers and/or earns money by publishing information that previously "has not been made public."

Third, Section 39.06 defines "information that has not been made public" as "any information to which the public does not generally have access" that is also "prohibited from disclosure" under the Texas Public Information Act (TPIA). The arrest affidavits did not address the latter requirement at all. The 5th Circuit suggested the information that Villarreal obtained was covered by Section 552.108(a)(1) of the TPIA, which says government officials do not have to disclose information when doing so might compromise an ongoing investigation. While law enforcement agencies frequently invoke that vague provision, the information it covers is not "prohibited from disclosure." The TPIA explicitly gives agencies the discretion to release information even when they are not required to do so.

The MuckRock Foundation, which "has helped thousands of journalists, professionals, and ordinary citizens request, share, and understand public records," notes that Laredo's reading of Section 39.06(c) would lead to "the absurd result of imposing liability not only on those who seek 'confidential' information, but on those who request information that the government may, but need not, make public." Under that interpretation, anyone who asks for information that is deemed to be covered by a TPIA exception is committing a felony. As a brief from half a dozen journalists (including me) explains, Texas agencies that don't want to disclose information frequently seek support from the state attorney general's office, which in 2015 "issued over 7,000 rulings based on § 552.108(a)(1) alone." Yet the thousands of people whose TPIA requests are rejected each year have never been "arrested or prosecuted for their requests."

Laredo cops investigated Villarreal for months, so they had plenty of time to consider whether their interpretation of Section 39.06(c) was reasonable. So did the prosecutors who signed off on the case. Yet they did not even bother to present a plausible argument that Villarreal's conduct met the elements of this offense, and they were unfazed by the obvious First Amendment problems with criminalizing basic journalism. The charges were ultimately dismissed by a judge who deemed Section 39.06(c) unconstitutionally vague.

These cops and prosecutors—who, like Jones, were irked by Villarreal's "journalistic style"—were determined to pin charges on her without regard to statutory requirements or constitutional constraints. Yet according to the 5th Circuit, they cannot be held accountable for their vindictive lawlessness because it was not "clearly established" that arresting a journalist for practicing journalism was unconstitutional. Since they supposedly had no way of knowing that, they received qualified immunity.

The Supreme Court grafted qualified immunity onto 42 USC 1983, a federal law that authorizes people to sue government officials who violate their constitutional rights. The doctrine is supposedly designed to protect officials from unanticipated liability for "split-second" decisions in situations where they have little opportunity for careful reflection. That rationale, the Americans for Prosperity Foundation notes, does not apply to the sort of "intentional and slow-moving infringement of First Amendment rights" that Villarreal's case exemplifies. The protections offered by Section 1983, the brief says, "come to nothing where state actors may purposefully infringe First Amendment rights and then rely on prolix state law to trigger qualified immunity, claiming they did not know any better."

In this case, that claim is risible. "Villarreal's arrest obviously violated the Constitution," the Institute for Justice notes. "No reasonable government official would think the First Amendment permits criminalizing plain speech or routine journalism."

Contrary to what the 5th Circuit held, the Young America's Foundation and the Manhattan Institute say, it has been "clearly established for over 50 years" that "journalists and citizens" have a First Amendment right to "ask questions of their government officials." The Supreme Court has upheld that right in a line of decisions beginning with Branzburg v. Hayes in 1972. In that case, the Court rejected the idea that "news gathering does not qualify for First Amendment protection," without which "freedom of the press could be eviscerated."

Seven years later in Smith v. Daily Mail, the Court ruled that West Virginia violated the First Amendment when it prohibited newspapers from publishing the names of juvenile offenders without judicial permission. The justices held that the First Amendment protects "routine newspaper reporting techniques" and that the government may not "punish the truthful publication" of "lawfully obtained" information. As dissenting 5th Circuit Judge James E. Graves Jr. noted, the Supreme Court "has made clear that the First Amendment protects the publication of information obtained via 'routine newspaper reporting techniques'—which include asking for the name of a crime victim from government workers not clearly authorized to share such information."

These longstanding precedents are not the only reason the cops who arrested Villarreal should have known better. As the brief I joined points out, police officers across the country are accustomed to fielding questions from reporters, and department policies frequently encourage them to "work in cooperation with the media," as a general order to Washington, D.C., officers puts it. "Based on the TPIA, police department regulations, officer training on responding to press inquiries, and personal experience dealing with reporters," the brief says, "a reasonable officer would know that journalists are permitted to ask police officers the names of accident and suicide victims. A reasonable officer would know that reporters ask for such information every day."

You might think that Villarreal's arrest, which relied on a quirky reading of a little-used law, poses little realistic threat to journalists in Texas or elsewhere. But the briefs supporting Villarreal emphasize that police can always find an excuse to arrest journalists who annoy them. The brief I joined describes a couple of examples: the 2023 arrest of NewsNation reporter Evan Lambert for "trespassing" by covering a governor's press conference in Ohio and the 2020 arrest of radio reporter Josie Huang for "obstructing a peace officer" by using her phone to record an encounter between protesters and Los Angeles County sheriff's deputies.

"Retaliatory arrests have become an increasingly common occurrence," the Law Enforcement Action Partnership (LEAP) notes. "This trend is a byproduct of the ever-growing size of modern criminal codes." Thanks to those proliferating prohibitions, Justice Neil Gorsuch has observed, "almost anyone can be arrested for something." A cop "who may be inclined to punish a disfavored speaker—such as a journalist, as here—can therefore readily find a minor offense they committed and use that to justify an arrest," LEAP says. If police are emboldened to harass journalists this way, it warns, retaliatory arrests will become even more common.

That threat is especially acute for reporters who do not have the backing of a professional news outlet. Independent journalists Avi Adelman and Steven Monacelli, who "have been arrested or detained by police officers while reporting on law enforcement's public performance of their duties," note that increasingly strict police control of information may force a reporter to rely on the sort of "backchannel source" that Jones condemned Villarreal for using. "If using alternative sources exposes journalists to the risk of official retribution," Adelman and Monacelli warn, "journalists will become little more than conduits for government public relations copy."

Jones dismissed the idea that Villarreal is "a martyr for the sake of journalism." She seems to think independent reporters like Villarreal don't qualify as "real" journalists because they don't follow the rules that "mainstream, legitimate media outlets" do. In addition to criticizing Villarreal's use of a "backchannel source," a standard journalistic practice, Jones faulted her for "capitaliz[ing] on others' tragedies to propel her reputation and career," which is an apt, if cynical, description of what professional reporters routinely do. These criticisms make you wonder if Jones has ever watched the local news or noticed that "mainstream, legitimate media outlets" often carry stories that cite anonymous government sources.

Contrary to Jones' take, the critics who are urging the Supreme Court to overrule the decision she wrote include "mainstream, legitimate media outlets" such as ABC, NBC, The Atlantic, The Boston Globe, The New York Times, and The Washington Post. It is possible they know a little bit more about how journalism works than Jones does.

The post These Strange Bedfellows Want SCOTUS To Remind the 5th Circuit That Journalism Is Not a Crime appeared first on Reason.com.

Prosecutors in Texas last week dismissed the criminal case against a journalist who, in 2021, was arrested, strip-searched, and jailed for filming police. But his lengthy legal battle is in some sense just beginning and once again demands we probe the idea that real journalists are entitled to a different set of rights than the public.

That's because Justin Pulliam, the man in question, is a citizen journalist. He is not employed by an outlet. Rather, he publishes his reporting to his YouTube channel, Corruption Report, which, true to its name, is unapologetically skeptical of state power and supportive of transparency.

The Fort Bend County Sheriff's Office (FBSCO) has allegedly been vexed by his audacity. In July 2021, Pulliam was expelled by police from a press conference because they alleged he did not qualify as media, and in December of that same year, he was arrested for videoing police at a mental health call, despite that he had stationed himself about 130 feet away from the interaction. Officer Taylor Rollins demanded Pulliam move back even further, and he obliged, although he continued to film the deputy speaking to other bystanders at the scene (none of whom were arrested).

That didn't end well for Pulliam, who was charged with interfering with police duties. (According to his complaint, Officer Ricky Rodriguez, who assisted with the arrest, told another cop at the jail that the ordeal would teach Pulliam a lesson "for fucking with us.") In April 2023, a jury was not able to reach a verdict in the case, with five jurors wanting to acquit and one urging to convict. It took law enforcement more than a year to decide not to pursue the case further.

One wonders if the Fort Bend government is smartly allocating resources in support of public safety when it doggedly went after a case because someone filmed them. Yet at a deeper level, it's worth asking if law enforcement would have taken the case to trial at all had Pulliam worked for a formal media outlet. My guess is no.

It is difficult to reconcile those two things. Journalism is, after all, an activity, consisting of collecting information and reporting it to the public. That venture is not exclusively available to people working at a full-time newsgathering organization, and the strength of the First Amendment should not hinge on whether or not you are on a media outlet's payroll. Even if Pulliam didn't consider himself a journalist at all—citizen or otherwise—his right to film the government employees he pays with his taxes should remain intact. It certainly shouldn't come at the expense of his freedom.

Whether or not he will be able to make that case before a jury in civil court is yet to be determined. Last June, Judge David Hittner of the U.S. District Court for the Southern District of Texas allowed Pulliam's federal lawsuit to proceed, declining to award the defendants qualified immunity, the legal doctrine that shields state and local government actors from such claims if their alleged misconduct was not already "clearly established" in the law. 

"The Individual Defendants assert no case law to support their proposition that an indictment precludes a claim for first amendment infringement," wrote Hittner. "Indeed, based on the facts alleged in the complaint, it appears Pulliam was singled out and arrested for exercising his rights under the First Amendment."

Pulliam, however, is not in the clear. He will next have to convince the U.S. Court of Appeals for the 5th Circuit, which has considered a similar case in recent months: that of Priscilla Villarreal, the citizen journalist in Laredo, Texas, who police arrested in 2017 using an obscure statute criminalizing the solicitation of nonpublic information if there is the "intent to obtain a benefit." If that description sounds a lot like standard journalism—seeking information not yet public—that's because it is. But despite attracting some strange bedfellows in her defense, Villarreal has not fared well in court.

While her case is not identical to Pulliam's, they both raise very similar questions, particularly as it relates to the idea that a certain class of journalists should get more rights than others. "Villarreal and others portray her as a martyr for the sake of journalism," wrote Judge Edith Jones in her majority opinion dismissing Villarreal's suit and giving qualified immunity to the police. "That is inappropriate," according to Jones, because Villarreal, who posts her reporting to her popular Facebook page Lagordiloca, is not a "mainstream, legitimate media outlet." Her free speech rights are suffering as a result.

The post This Journalist Was Arrested, Strip-Searched, and Jailed for Filming Police. Will He Get Justice? appeared first on Reason.com.

Across the nation, college administrators are cracking down on pro-Palestenian speech. In Texas, police violently broke up peaceful protests, and one college even reportedly told students that they couldn't use the phrases "Israel," "Zionism," or chant in Arabic. At Brandeis University, police shut down a pro-Palestine protest because its president said it had "devolved into the invocation of hate speech."

While progressives have tended to support campus censorship efforts in recent years, an article in Vox by writer Eric Levitz argues that the left should embrace free speech—and that its push to censor speech in the name of inclusion and social justice was misguided. 

"Should students concerned with social justice rethink their previous skepticism of free speech norms, for the sake of better protecting radical dissent? I think the answer is yes." wrote Levitz. "There is reason to believe that progressives would be better equipped to resist the present crackdown on pro-Palestinian advocacy had social justice activists not previously popularized an expansive conception of harmful speech."

Levitz's article also argues that rejecting censorship could lead the left to find more allies when their ideas are on the chopping block.

"In a world where right-of-center intellectuals had more cause for believing that their defense of leftists' free expression would be reciprocated," Levitz wrote, "it seems plausible that opposition to the Antisemitism Awareness Act might be a bit more widespread and its prospects for clearing the Senate somewhat dimmer."

While Levitz's piece is refreshing, its support for free speech isn't about adopting a new appreciation for the principles of free expression, regardless of political viewpoint. It's about adopting the best policies to protect left-wing ideas.

Save several paragraphs reminding progressives that debate is necessary for finding the truth and that "the more insulated any ideological orthodoxy is from critique, the more vulnerable it will be to persistent errors," Levitz's argument is pragmatic in nature. He spends most of the piece—correctly—arguing that if progressives had been willing to take a stand against censorship of right-wing beliefs, the current norms allowing for the censorship of pro-Palestine activists would not have been set in place. 

However, if your reason to defend speech is purely practical and self-interested, it becomes much easier to indulge in exceptions to your free speech principles. Surely, allowing the censorship of the most offensive, unproductive viewpoints couldn't be used to justify the suppression of your own, much better, ideas, right?

Levitz even hints at such exceptions. "If adopting a permissive attitude toward campus speech entailed significant costs to progressive causes, then doing so might be unwise," he wrote, later adding, "Defending free speech and standing up for the disempowered may sometimes be competing objectives."

When your defense of free speech comes from a core, universal principle, calls for censorship are unthinkable. This is why, for example, it's so frustrating to see Levitz group the First Amendment nonprofit the Foundation for Individual Rights and Expression (FIRE) with a long list of "conservatives" who have spoken out against censorship of pro-Palestinian activism. 

FIRE—and everyone else smeared as "conservative" for standing up against censorship—doesn't begrudgingly defend left-wing speech so that right-wing speech will stay protected—they're a nonpartisan organization that defends First Amendment rights because they believe fiercely in the importance of free speech.

Perhaps the biggest flaw is that Levitz's piece still doesn't make the core realization that there can be true, principled, defenders of free speech—those who truly think a nation with more ideas and more voices, even offensive ones, is better than one with fewer. Instead, he sees speech protections as a kind of truce, a decision from both the left and right to leave each other alone so they can both best further their political goals.

We would have a better, more functional world if more people—left or right—were willing to passionately defend the free speech rights of those with whom they disagree. However, getting to that world requires that people let go of the idea that censorship is ever a good idea, not merely that it's impractical. 

The post <i>Vox</i> Wants Progressives To Support Free Speech for the Wrong Reasons appeared first on Reason.com.

The Los Angeles Press Club on Thursday announced the finalists for the 66th Annual Southern California Journalism Awards, recognizing the best work in print, online, and broadcast media published in 2023.

Reason, which is headquartered in L.A., is a finalist for 14 awards.

A sincere thanks to the judges who read and watched our submissions, as well as to the Reason readers, subscribers, and supporters, without whom we would not be able to produce impactful journalism.

Senior Editor Elizabeth Nolan Brown is a finalist for best technology reporting across all media platforms—print, radio, podcast, TV, and online—for her November 2023 print piece, "Do Social Media Algorithms Polarize Us? Maybe Not," in which she challenged what has become the traditional wisdom around the root of online toxicity:

For years, politicians have been proposing new regulations based on simple technological "solutions" to issues that stem from much more complex phenomena. But making Meta change its algorithms or shifting what people see in their Twitter feeds can't overcome deeper issues in American politics—including parties animated more by hate and fear of the other side than ideas of their own. This new set of studies should serve as a reminder that expecting tech companies to somehow fix our dysfunctional political culture won't work.

Science Reporter Ronald Bailey is a finalist for best medical/health reporting in print or online for "Take Nutrition Studies With a Grain of Salt," also from the November 2023 issue, where he meticulously dissected why the epidemiology of food and drink is, well, "a mess":

This doesn't mean you can eat an entire pizza, a quart of ice cream, and six beers tonight without some negative health effects. (Sorry.) It means nutritional epidemiology is a very uncertain guide for how to live your life and it certainly isn't fit for setting public policy.

In short, take nutrition research with a grain of salt. And don't worry: Even though the World Health Organization (WHO) says "too much salt can kill you," the Daily Mail noted in 2021 that "it's not as bad for health as you think."

Managing Editor Jason Russell is a finalist in print/online sports commentary for his August/September 2023 cover story, "Get Your Politics Out of My Pickleball," which explored the emerging fault lines as the government gets involved in America's weirdest, fastest-growing sport:

Pickleball will always have haters—and if its growth continues, local governments will still face public pressure to build more courts. Some critics think the sport is a fad, but strong growth continues for the time being, even as the COVID-19 pandemic ends and other activities compete for time and attention. There's no need to force nonplayers to support it with their tax dollars, especially when entrepreneurs seem eager to provide courts. If pickleball does end up as an odd footnote in sporting history, ideally it won't be taxpayers who are on the hook for converting courts to new uses.

Reporter C.J. Ciaramella is a finalist in magazine investigative reporting for his October 2023 cover story, "'I Knew They Were Scumbags,'" a nauseating piece on federal prison guards who confessed to rape—and got away with it:

Berman's daughter, Carleane, was one of at least a dozen women who were abused by corrupt correctional officers at FCC Coleman, a federal prison complex in Florida. In December, a Senate investigation revealed that those correctional officers had admitted in sworn interviews with internal affairs investigators that they had repeatedly raped women under their control.

Yet thanks to a little known Supreme Court precedent and a culture of corrupt self-protection inside the prison system, none of those guards were ever prosecuted—precisely because of the manner in which they confessed.

Senior Editor Jacob Sullum is a finalist in magazine commentary for "Biden's 'Marijuana Reform' Leaves Prohibition Untouched," from the January 2023 issue, in which he disputed the notion that President Joe Biden has fundamentally changed America's response to cannabis:

By himself, Biden does not have the authority to resolve the untenable conflict between state and federal marijuana laws. But despite his avowed transformation from an anti-drug zealot into a criminal justice reformer, he has stubbornly opposed efforts to repeal federal pot prohibition.

That position is contrary to the preferences expressed by more than two-thirds of Americans, including four-fifths of Democrats and half of Republicans. The most Biden is willing to offer them is his rhetorical support for decriminalizing cannabis consumption—a policy that was on the cutting edge of marijuana reform in the 1970s.

Editor in Chief Katherine Mangu-Ward is a finalist for best magazine columnist for "Is Chaos the Natural State of Congress?" from the December 2023 issue, "Don't Just Hire 'Better Cops.' Punish the Bad Ones," from the April 2023 issue, and (a personal favorite) "Bodies Against the State," from the February 2023 issue:

Governments do unconscionable things every day; it is in their nature. But not all transgressions are equal. In the wake of the Iran team's silent anthem protest, an Iranian journalist asked U.S. men's soccer captain Tyler Adams how he could play for a country that discriminates against black people like him. What makes the U.S. different, he replied, is that "we're continuing to make progress every day."

The most perfect and enduring image of a person weaponizing his body against the state was taken after the brutal suppression of protests in Tiananmen Square in 1989. The unknown Chinese man standing in front of a tank didn't have to hold a sign for the entire world to know exactly what the problem was.

Reporter Christian Britschgi is a finalist for best long-form magazine feature on business/government for "The Town Without Zoning," from the August/September 2023 issue, in which he reported on the fight over whether Caroline, New York, should impose its first-ever zoning code:

Whatever the outcome, the zoning debate raging in Caroline is revealing. It shows how even in a small community without major enterprises or serious growth pressures, planners can't adequately capture and account for everything people might want to do with their land.

There's a gap between what zoners can do and what they imagine they can design. That knowledge problem hasn't stopped cities far larger and more complex than Caroline from trying to scientifically sort themselves with zoning. They've developed quite large and complex problems as a result.

Associate Editor Billy Binion (hi, it's me) is a finalist for best activism journalism online for the web feature "They Fell Behind on Their Property Taxes. So the Government Sold Their Homes—and Kept the Profits," which explored an underreported form of legalized larceny: governments across the U.S. seizing people's homes over modest tax debts, selling the properties, and keeping the surplus equity.

Geraldine Tyler is a 94-year-old woman spending the twilight of her life in retirement, as 94-year-olds typically do. But there isn't much that's typical about it.

Tyler has spent the last several years fighting the government from an assisted living facility after falling $2,300 behind on her property taxes. No one disputes that she owed a debt. What is in dispute is if the government acted constitutionally when, to collect that debt, it seized her home, sold it, and kept the profit.

If that sounds like robbery, it's because, in some sense, it is. But it's currently legal in at least 12 states across the country, so long as the government is doing the robbing.

Senior Producer Austin Bragg, Director of Special Projects Meredith Bragg, Producer John Carter, and freelancer extraordinaire Andrew Heaton are finalists for best humor/satire writing across all broadcast mediums—TV, film, radio, or podcast—for the hilarious "Everything is political: board games," which "exposes" how Republicans and Democrats interpret everyone's favorite games from their partisan perspectives. (Spoiler: Everyone's going to lose.)

The Bragg brothers are nominated again in that same category—best humor/satire writing—along with Remy for "Look What You Made Me Do (Taylor Swift Parody)," in which lawmakers find culprits for the recent uptick in thefts—the victims.

Deputy Managing Editor of Video and Podcasts Natalie Dowzicky and Video Editor Regan Taylor are finalists in best commentary/analysis of TV across all media platforms for "What really happened at Waco," which explored a Netflix documentary on how the seeds of political polarization that roil our culture today were planted at Waco.

Editor at Large Matt Welch, Producer Justin Zuckerman, Motion Graphic Designer Adani Samat, and freelancer Paul Detrick are finalists in best activism journalism across any broadcast media for "The monumental free speech case the media ignored," which made the case that the legal odyssey and criminal prosecutions associated with Backpage were a direct assault on the First Amendment—despite receiving scant national attention from journalists and free speech advocates.

Associate Editor Liz Wolfe, Senior Producer Zach Weissmueller, Video Editor Danielle Thompson, Video Art Director Isaac Reese, and Producer Justin Zuckerman are finalists in best solutions journalism in any broadcast media for "Why homelessness is worse in California than Texas," which investigated why homelessness is almost five times as bad in the Golden State—and what can be done about it.

Finally, Senior Producer Zach Weissmueller, Video Editor Danielle Thompson, Video Art Director Isaac Reese, and Audio Engineer Ian Keyser are finalists in best documentary short for "The Supreme Court case that could upend the Clean Water Act," which did a deep dive into a Supreme Court case concerning a small-town Idaho couple that challenged how the Environmental Protection Agency defines a "wetland"—and what that means for property rights.

Winners will be announced on Sunday, June 23 at the Millennium Biltmore Hotel in downtown Los Angeles. Subscribe to Reason here, watch our video journalism here, and find our podcasts here.

The post <em>Reason</em> Is a Finalist for 14 Southern California Journalism Awards appeared first on Reason.com.

Following revelations about the extent of the federal government's pressure on social media companies to suppress dissenting opinions, the feds broke up with Meta, X (formerly Twitter), and YouTube. Cybersecurity experts now frequently complain about the lack of coordination between the government and the platforms, warning that social media users are vulnerable to misinformation about elections, foreign interference, and other woes.

But the platforms might be receiving late-night "you up?" texts from federal agents once again. Senate Intelligence Committee Chair Mark Warner (D–Va.) told reporters on Monday that communication between the federal government and social media sites is back on, according to Nextgov and The Federalist.

In fact, Warner said these communications had resumed in the midst of oral arguments for Murthy v. Missouri, the Supreme Court case that will decide whether the FBI, the Centers for Disease Control and Prevention (CDC), and the Biden White House had violated the First Amendment when they pushed social media sites to remove disfavored content. The justices seemed at least somewhat skeptical, viewing the government's actions as mere attempts at persuasion rather than coercion. That skepticism has apparently given the feds the green light, with Warner acknowledging that "there seemed to be a lot of sympathy that the government ought to have at least voluntary communications" with the platforms.

Whether social media companies ever viewed these communications as "voluntary" is an open question. For instance, when then–White House Communications Director Kate Bedingfield suggested tinkering with Section 230—the federal law that protects online platforms from some liability—in order to punish Facebook, CEO Mark Zuckerberg might have wondered whether he had much of a choice but to comply.

In any case, it seems clear that federal agencies will continue to interact with social media companies in ways that trouble many libertarians—until and unless they are explicitly forbidden from doing so.

This Week on Free Media

The Spectator's Amber Athey is back to discuss waning liberal anxiety about Donald Trump's potential return to power, Jen Psaki's advice for President Joe Biden's comms team, and South Dakota Gov. Kristi Noem's doggone media tour.

Worth Watching

Now this is podracing: It's the 25th anniversary of Star Wars: Episode I — The Phantom Menace, and the much-maligned first prequel film has returned to theaters. This is as good a time as any for me to reiterate my once-controversial, now increasingly accepted opinion that the Star Wars prequels are OK. (It's truly heretical to say that they are better than the original films; that is my view, though I won't try to defend it here.) They are certainly way, way better than the new films, which are dull, joyless, and derivative.

The best thing about the prequels is Palpatine's manipulations, and those only come into full focus later on. Phantom Menace is thus the least appealing of the three, as it's the one most obviously aimed at children. But there's nothing wrong with that; I was 9 years old when I first saw the film, and like virtually every other kid at that time, I thought Darth Maul's appearance and climactic duel with Obi-Wan Kenobi and Qui-Gon Jinn was pretty much the coolest thing I'd ever watched. And it still holds up!

The post The Feds Are Talking to Social Media Companies Again appeared first on Reason.com.

Raucous pro-Palestine protests have taken over college campuses across the country for the past several days. At UCLA, protesters declared areas of campus off-limits to pro-Israel students and blocked them from entering certain spaces, even just to get to class. At night, masked counter-protesters attacked the pro-Palestine encampment, tearing down barricades and shooting fireworks at the protesters.

At the University of Texas at Austin, police brutally dispersed student protesters. Green Party presidential candidate Jill Stein was among those arrested at Washington University in St. Louis. Administrators at Brown University persuaded protesters to disband their encampment peacefully after agreeing to discuss their demands for financial divestiture from companies that do business with the Israeli military.

Events at Columbia University came to a head after the authorities finally tired of the occupation of Hamilton Hall. Protesters had smashed the windows of the administrative building, entered it, taken over, held a janitor hostage, and demanded humanitarian aid—not for Gaza, but for themselves. (I.e., they wanted snacks.)

Reporter grills Columbia student after she demands the university help feed protestors occupying Hamilton Hall:

"It seems like you're saying, 'we want to be revolutionaries, we want to take over this building, now would you please bring us some food'." pic.twitter.com/vNczSAM4T1

— The Post Millennial (@TPostMillennial) April 30, 2024

It is easy to make fun of these protesters, many of whom seem to know very little about why they are even protesting. And some of their antics deserve not just mockery, but condemnation: Statements in support of terrorist violence and exhortations for "Zionists" to be killed "or worse" are contemptible, as are tactics that involve preventing other students from moving about campus and pursuing their education.

But critics of the campus left should not lose sight of the much greater threat, which is that campus authority figures, members of law enforcement, and even national legislators will act in a manner that gravely threatens the free speech rights of everyone. Indeed, in response to the protests, identity-obsessed busybodies are already working overtime to criminalize protests on the grounds that offensive speech is a threat to the safety of Jewish students.

Safe Space Reprise

These are not new arguments; for years, university bureaucrats have subtly chipped away at their institutions' stated protections for free speech by invoking dubious safety concerns. You might remember the concept of the safe space: A very real notion, frequently invoked by progressive student activists, that being forced to confront speech with which they disagree is a form of physical violence.

In my first book, Panic Attack: Young Radicals in the Age of Trump, I traveled to college campuses and interviewed activists. What I learned was that for a variety of reasons—their upbringing, their ideology, their social circles—they did not want free and unfettered debate. They thought that outside speakers, professors, and even other students should be silenced for expressing nonprogressive views. In fact, they viewed the university administration's role as that of a parent, shielding them from painful speech. Administrators were all too happy to comply, and school after school took steps to shield their most unreasonable students from emotional vulnerability. Not all of these efforts are explicitly contrary to free speech principles, even though they were universally silly: In 2016, for instance, the University of Pennsylvania created a safe space so that students spooked by former President Donald Trump's rise to the presidency could take time to breathe, play with coloring books, and pet some puppies. Duke University's 2016-era safe space—a production of the campus's diversity, equity, and inclusion bureaucracy—included the presence of a social worker.

More perniciously, hundreds of campuses created bias incident reporting systems, whereby students were instructed to call the campus authorities—in some cases, the literal cops—if they overheard anyone say something that could offend another person on the basis of a protected class, such as race, gender, sexuality, or ability status. At Colby College, someone filed a bias incident report when they overheard the phrase "on the other hand," with no explanation given, though I gather the ever-vigilant person worried that a one-handed person might take offense.

These developments on campuses produced widespread mockery from many Democrats as well as Republicans. Aside from a minority of extremely difficult young people, and the administrators who coddle them, most people do not think the university's job is to protect students from having their feelings hurt.

Enter Congress

Unfortunately, many elected officials are hypocrites, and during a perceived crisis—like the one unfolding on college campuses right now—they are all too eager to pass bad laws. Case in point: On Wednesday, the U.S. House of Representatives passed the Antisemitism Awareness Act by a margin of 320–91. This bill empowers the Education Department to take action against educational institutions that do not sufficiently combat antisemitic speech on campus. It also defines antisemitism incredibly broadly; Rep. Thomas Massie (R–Ky.), who voted against the bill, pointed out on X that political statements about Israel would be effectively criminalized if the bill became law.

Do you agree with all of these examples of antisemitism? Should people in America be prosecuted for saying these things in all contexts? I think not. This is a poorly conceived unconstitutional bill and I will vote no. pic.twitter.com/L3AI5MCFGw

— Thomas Massie (@RepThomasMassie) May 1, 2024

Some of the statements deemed impermissible antisemitism include "denying the Jewish people their right to self-determination" with respect to a Jewish state and "applying a double standard" to the state of Israel. It should go without saying, but the First Amendment robustly protects the right to disagree with the political project of Israel. This bill is obviously unconstitutional, and moreover, a clear violation of the idea that college students don't need protection from uncomfortable speech. Universities must protect their campuses from violence and harassment, whether motivated by antisemitism, some other political animus, or any other cause. It's the action that should count, not the content of the belief.

The collective national media are obsessed with campus protests, and understandably so—the spectacle of disproportionately elite, privileged young people resorting to histrionics is frequently amusing to general audiences. People should feel free to mock them, but let's not forget that Congress is using them as a pretext to grant vast new powers to federal bureaucrats, with the explicit goal of enshrining into law a new right not to be offended: one giant safe space.

This Week on Free Media

Reason's Emma Camp and I mocked Drew Barrymore's cringeworthy interview with Vice President Kamala "Momala" Harris, surveyed media coverage of the campus protests, criticized the Biden campaign's youth outreach strategy, and argued about RFK Jr.'s appeal.

Worth Watching

Famed satire website The Onion was recently acquired by Ben Collins, a former disinformation beat reporter for NBC News. (Regular readers will know Collins and I have clashed before.)

That said, I have to give him props for his plan to revive The Onion's TV department. I am particularly eager to the see return of Today Now, the site's mock morning show. The entire archive is available here; the humor has only become more relevant for me over time, now that I, too, host a morning show. It's hard to pick a favorite, but here's one.

The post The Antisemitism Awareness Act Will Make It Illegal To Criticize Israel on Campus appeared first on Reason.com.

The Supreme Court won't intervene to stop an anti-porn law from taking effect in Texas.

The law—H.B. 1181—pertains to websites publishing "sexual material harmful to minors," a category defined to include virtually all depictions of nudity or sexual activity. Sites where more than one-third of the material falls into this category must make visitors provide government-issued identification or verify visitor ages in some other way.

Under H.B. 1181, such platforms must also display a litany of absurd and unscientific messages. These include telling visitors—in 14-point font or larger—that porn can be "biologically addictive," that it's "proven to harm human brain development," and that it "weakens brain function." Such sites must also tell visitors that exposure to porn "is associated with low self-esteem and body image, eating disorders, impaired brain development, and other emotional and mental illnesses," and that "pornography increases the demand for prostitution, child exploitation, and child pornography."

Compelled Speech and Court Rulings

Unsurprisingly, adult-industry trade group the Free Speech Coalition (FSC) and Pornhub's parent company sued over the law. And a day before it was scheduled to take effect last fall, a U.S. district court put a halt to enforcement.

But the U.S. Court of Appeals for the 5th Circuit then reversed course. (And Texas Attorney General Ken Paxton has since started enforcing it.)

The 5th Circuit ultimately kept the lower court's injunction on enforcing the public health warning portion of the law but vacated the injunction against the age verification mandate.

"The district court properly…ruled that H.B. 1181 unconstitutionally compelled plaintiffs' speech," held the 5th Circuit in an opinion authored by Judge Jerry E. Smith. But "the age-verification requirement does not violate the First Amendment….So, the district court erred by enjoining the age-verification requirement."

In April, the Free Speech Coalition asked the Supreme Court to take up the case, and to issue a stay of the 5th Circuit's judgment in the meantime.

Yesterday, the Supreme Court denied the stay request.

"No reason was given. No justices noted their dissent or even issued a statement respecting or concurring with the denial to explain the basis for the action," noted Law Dork's Chris Geidner. "And yet, the silence spoke volumes about the freedom that the Fifth Circuit has to ignore Supreme Court precedent when it wishes."

Ignoring Porn-Law Precedent 

Supreme Court precedent should prohibit the Texas age-verification law, argues Geidner.

In the 2004 ruling Ashcroft v. ACLU (known as Ashcroft II), the Court considered the Child Online Protection Act (COPA), which criminalized websites publishing content "harmful to minors" but provided an affirmative defense for platforms that took steps (like requiring a credit card) to verify that visitors were adults. Applying the legal standard known as strict scrutiny, SCOTUS decided COPA was not narrowly tailored enough to pass constitutional muster.

In the 5th Circuit's recent ruling on the Texas law, Smith noted the Court's Ashcroft decision—but dismissed it. "Though Ashcroft II concluded that COPA would fail strict scrutiny, it contains startling omissions," writes Smith, concluding that the Supreme Court "did not rule on the appropriate tier of scrutiny for COPA."

In other words, the 5th Circuit basically decided the Supreme Court was wrong and so it would ignore its precedent here.

And in declining to issue a stay of the 5th Circuit's ruling, the Supreme Court seems to be OK with this. It's wild.

Of course, this isn't the first time in recent years that the Court has allowed a very constitutionally questionable Texas law to take effect rather than pressing pause as the full case played out. But at least in the other cases, the Court attempted justification.

More from Geidner:

Back in 2021 when the Supreme Court allowed Texas's S.B. 8 vigilante enforcement six-week abortion ban to go into effect, the court twisted itself in knots to claim that the particulars of the law ("complex and novel antecedent procedural questions") made the high court's intervention at that stage in the litigation too questionable.

When the Supreme Court briefly allowed Texas's S.B. 4 immigration criminal enforcement law to go into effect earlier this year, some members of the court claimed procedural peculiarities counseled restraint from the high court to allow the Fifth Circuit to act ("an exercise of its docket management authority," Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, wrote).

In the current case, however, the high Court didn't offer a reason for its refusal to stay enforcement.

"Likely because a law regulating porn was at issue," writes Geidner, "the Supreme Court decided it didn't even need to put up the pretense of an excuse for allowing the Fifth Circuit to proceed with a ruling that explicitly disclaimed adherence to Supreme Court precedent."

What's Next for H.B. 1181?

There's still a chance that the Supreme Court could step in here. The Free Speech Coalition's petition for a full merits review by the Court is still pending.

"We look forward to continuing this challenge, and others like it, in the federal courts," the Free Speech Coalition commented. "The ruling by the Fifth Circuit remains in direct opposition to decades of Supreme Court precedent, and we remain hopeful that the Supreme Court will grant our petition for certiorari and reaffirm its lengthy line of cases applying strict scrutiny to content-based restrictions on speech like those in the Texas statute we've challenged. We will continue to fight for the right to access the internet without intrusive government oversight."

Meanwhile, Texas has sued Pornhub's parent company and other adult websites, alleging that they are failing to comply with the age verification component of the law.

More Sex & Tech News

• An "abortion trafficking" bill passed by the Tennessee Legislature "harms young people's ability to access the support of those they trust when they need it most and is an unprecedented attack on the First Amendment right to free speech and expression," according to American Civil Liberties Union of Tennessee Policy Director Bryan Davidson.

• A divorce case in Virginia is drudging up a debate about whether embryos can count as "property."

• The U.S. Court of Appeals for the 5th Circuit on Monday heard oral arguments in a case concerning Texas A&M University canceling drag performances."Whether it's a drag show, a political debate, or a Bible study, public university officials cannot silence protected expression based on their personal views," said J.T. Morris, a senior attorney with the Foundation for Individual Rights and Expression (FIRE), in an emailed statement.

• A piece of paper scribbled with "Buy Bitcoin" sold for $1 million in an auction. Christian Langalis—then an intern at the Cato Institute—held the note up behind then-Federal Reserve chair Janet Yellen during a 2017 Congressional hearing.

Today's Image

The post Supreme Court Won't Stop Texas Porn Law From Taking Effect appeared first on Reason.com.

WikiLeaks founder Julian Assange has been imprisoned in London for five years, while Texas journalist Priscilla Villarreal was only briefly detained at the Webb County Jail. But both were arrested for publishing information that government officials wanted to conceal.

Assange and Villarreal argue that criminalizing such conduct violates the First Amendment. In both cases, the merits of that claim have been obscured by the constitutionally irrelevant question of who qualifies as a "real" journalist.

Assange, an Australian citizen, is fighting extradition to the United States based on a federal indictment that charges him with violating the Espionage Act by obtaining and publishing classified documents that former U.S. Army intelligence analyst Chelsea Manning leaked in 2010. He has already spent about as much time behind bars as federal prosecutors say he would be likely to serve if convicted.

President Joe Biden says he is "considering" the Australian government's request to drop the case against Assange. But mollifying a U.S. ally is not the only reason to reconsider this prosecution, which poses a grave threat to freedom of the press by treating common journalistic practices as crimes.

All but one of the 17 charges against Assange relate to obtaining or disclosing "national defense information," which is punishable by up to 10 years in prison. Yet all the news organizations that published stories based on the confidential State Department cables and military files that Manning leaked are guilty of the same crimes.

More generally, obtaining and publishing classified information is the bread and butter of reporters who cover national security. John Demers, then head of the Justice Department's National Security Division, implicitly acknowledged that reality in 2019, when he assured reporters they needn't worry about the precedent set by this case because Assange is "no journalist."

The U.S. Court of Appeals for the 5th Circuit took a similarly dim view of Villarreal in January, when it dismissed her lawsuit against the Laredo prosecutors and police officers who engineered her 2017 arrest. They claimed she had violated Section 39.06(c) of the Texas Penal Code, an obscure law that makes it a felony to solicit or obtain nonpublic information from a government official with "intent to obtain a benefit."

The cops said Villarreal committed that crime by asking Laredo police officer Barbara Goodman to confirm information about a public suicide and a fatal car crash. As interpreted by the Laredo Police Department, Section 39.06(c) sweeps even more broadly than the Espionage Act, making a felon out of any reporter who seeks information that is deemed exempt from disclosure under the Texas Public Information Act.

Gliding over the alarming implications of making it a crime for reporters to ask questions, the 5th Circuit dismissed the idea that Villarreal is "a martyr for the sake of journalism." The majority opinion by Judge Edith Jones dripped with contempt for Villarreal, an independent, uncredentialed journalist who posts her unfiltered reports on Facebook instead of publishing vetted and edited stories in a "mainstream, legitimate" news outlet.

Seemingly oblivious to what quotidian news reporting across the country entails, Jones faulted Villarreal for relying on a "backchannel source" and for "capitaliz[ing] on others' tragedies to propel her reputation and career." But like the judgment that Assange is "no journalist," such criticism fundamentally misconstrues freedom of the press, which applies to anyone who engages in mass communication.

The 5th Circuit's decision provoked four dissents authored or joined by seven judges, and it is not hard to see why. "If the First Amendment means anything," Judge James C. Ho wrote, "surely it means that citizens have the right to question or criticize public officials without fear of imprisonment."

In a petition it filed on Villarreal's behalf last week, the Foundation for Individual Rights and Expression urges the U.S. Supreme Court to vindicate that right. "Villarreal went to jail for basic journalism," it notes. "Whatever one may make of Villarreal's journalistic ethics, they are of no constitutional significance."

© Copyright 2024 by Creators Syndicate Inc.

The post Journalism Is Not a Crime, Even When It Offends the Government appeared first on Reason.com.

Enlarge (credit: Sheldon Coope | SOPA Images | LightRocket | Getty Images)

TikTok is gearing up for a long legal battle to fight legislation in the US that threatens to ban the app in its largest market if its Chinese owner, ByteDance, refuses to sell the viral video platform.

The US House of Representatives on Saturday passed a package of national security bills that included legislation that would result in TikTok being banned in the country if Chinese parent company ByteDance does not divest the app.

Michael Beckerman, TikTok’s public policy head in the US, told staff in response that if the bill became law, the company would “move to the courts for a legal challenge.”

Read 12 remaining paragraphs | Comments

Is TikTok's time finally up? On Saturday, the House of Representatives passed a measure that would require a change in the app's ownership or ban it if that doesn't happen.

Called the Protecting Americans from Foreign Adversary Controlled Applications Act, it's essentially the same divestiture-or-ban bill I wrote about in this newsletter back in March, now tucked into a larger bill (H.R. 8038, the insanely named 21st Century Peace through Strength Act) that deals with everything from fentanyl trafficking to Russian sanctions, Iranian petroleum, Hamas, and boatloads of foreign aid.

The most talked-about part of the Protecting Americans from Foreign Adversary Controlled Applications Act would ban TikTok unless it completely breaks ties with its Chinese parent-company, ByteDance, within 270 days.

But the bill goes far beyond TikTok, and could be used to justify a ban on all sorts of popular apps tied to China, Russia, Iran, or any other country that gets deemed a foreign adversary.

Specifically, the bill makes it illegal "to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application." And the bill's definition of "foreign adversary controlled application" is really broad.

It specifically defines TikTok, ByteDance, and subsidiaries or successors thereof as foreign adversary controlled applications.

The definition would also apply to an array of websites, apps, and "augmented or immersive technology" (with a focus on large social media entities), if they are headquartered in, principally based in, or organized under the laws of a foreign adversary country or if any person or entity with at least a 20 percent stake is based there.

And it would grant the president broad power to determine who meets this bill, opening the measure up for all sorts of potential abuse.

There are multiple ways in which this legislation likely violates the Constitution.

The most obvious constitutional problem is the First Amendment. The bill suppresses the free speech rights of Americans who post to TikTok and of those who consume TIkTok content.

It may also amount to a bill of attainder—a law punishing a specific person or entity, without a trial—and those are unconstitutional.

And it may also violate the 5th Amendment, as Sen. Rand Paul (R–Ky.) noted in a Reason article last week.

Paul thinks the Supreme Court "will ultimately rule it unconstitutional because it would violate the First Amendment rights of over 100 million Americans who use TikTok to express themselves," and "rule that the forced sale violates the Fifth Amendment. Under the Constitution, the government cannot take your property without accusing and convicting you of a crime—in short, without due process. Since Americans are part of TikTok's ownership, they will eventually get their day in court."

Paul's point brings up an important—and often overlooked—factor in all of this: No one has produced evidence of any specific legal infractions committed by TikTok, let alone proven such offenses took place. There's a ton of speculation about what TikTok could be doing, but that's it. A lot of people seem sure that TikTok is a tool of the Chinese Communist Party and you're a fool if you think otherwise. And maybe it is! But that still doesn't mean we can simply sanction the company with no due process, as Paul points out.

Speculation about what the app's ties to China mean may be a good reason for certain people to approach TikTok with caution. But they cannot justify legal action against TikTok.

More Sex & Tech News

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• Colorado activists failed to collect enough signatures to get an anti-abortion constitutional amendment on the state's ballot this fall.

• Laura LeMoon writes about fighting financial discrimination against sex workers.

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The post TikTok Measure Passed by House Is Unconstitutional in Multiple Ways appeared first on Reason.com.

The censors who abound in Congress will likely vote to ban TikTok or force a change in ownership. It will likely soon be law. I think the Supreme Court will ultimately rule it unconstitutional, because it would violate the First Amendment rights of over 100 million Americans who use TikTok to express themselves.

In addition, I believe the Court will rule that the forced sale violates the Fifth Amendment. Under the Constitution, the government cannot take your property without accusing and convicting you of a crime—in short, without due process. Since Americans are part of TikTok's ownership, they will eventually get their day in court.

The Court could also conclude that naming and forcing the sale of a specific company amounts to a bill of attainder, legislation that targets a single entity.

These are three significant constitutional arguments against Congress' forced sale/ban legislation. In fact, three different federal courts have already invalidated legislative and executive attempts to ban TikTok.

If the damage to one company weren't enough, there is a very real danger this ham-fisted assault on TikTok may actually give the government the power to force the sale of other companies.

Take, for example, Apple. As The New York Times reported in 2021, "In response to a 2017 Chinese law, Apple agreed to move its Chinese customers' data to China and onto computers owned and run by a Chinese state-owned company."

Sound familiar? The legislators who want to censor and/or ban TikTok point to this same law to argue that TikTok could (someday) be commanded to turn over American users' data to the Chinese government.

Note that more careful speakers don't allege that this has happened, but rather that it might. The banners of TikTok don't want to be troubled by anything inconvenient like proving in a court of law that this is occurring. No, the allegation is enough for them to believe they have the right to force the sale of or ban TikTok.

But back to Apple. It's not theoretical that it might turn over data to the Chinese Communist government. It already has (albeit, Chinese users' information). Nevertheless, it could be argued that Apple, by their actions, could fall under the TikTok ban language that forces the sale of an entity: under the influence of a foreign adversary.

(Now, of course, I think such legislation is absurdly wrong and would never want it applied to Apple, but I worry the language is vague enough to apply to many entities.)

As The New York Times explains: "Chinese government workers physically control and operate the data center. Apple agreed to store the digital keys that unlock its Chinese customers' information in those data centers. And Apple abandoned the encryption technology it uses in other data centers after China wouldn't allow it."

This sounds exactly like what the TikTok censors describe in their bill, except so far as we know, only Americans who live in China might be affected by Apple's adherence to China's law. TikTok actually has spent a billion dollars agreeing to house all American data with Oracle in Texas.

Are there other companies that might be affected by the TikTok ban? Commentary by Kash Patel in The Washington Times argues that Temu, an online marketplace operated by a Chinese company, is even worse than TikTok and should be banned. He makes the argument that Temu, in contrast with TikTok, "does not employ any data security personnel in the United States."

And what of the global publishing enterprise Springer Nature? It has admitted that it censors its scientific articles at the request of the Chinese Communist government. Will the TikTok bill force its sale as well?

Before Congress rushes to begin banning and punishing every international company that does business in China, perhaps they should pause, take a breath, and ponder the ramifications of rapid, legislative isolationism with regard to China.

The impulse to populism is giving birth to the abandonment of international trade. I fear, in the hysteria of the moment, that ending trade between China and the U.S. will not only cost American consumers dearly but ultimately lead to more tension and perhaps even war.

No one in Congress has more strongly condemned the historical famines and genocides of Communist China. I wrote a book, The Case Against Socialism, describing the horrors and inevitability of state-sponsored violence in the pursuit of complete socialism. I just recently wrote another book called Deception, condemning Communist China for covering up the Wuhan lab origins of COVID-19.

And yet, even with those searing critiques, I believe the isolationism of the China hysterics is a mistake and will not end well if Congress insists on going down this path.

The post If They Ban TikTok, Is Apple Next? appeared first on Reason.com.

Tech companies and First Amendment groups are calling attention to a provision in a domestic spying bill that they say would significantly expand the federal government's power to snoop on Americans' digital communications—potentially by forcing employees of private businesses to become informants.

The Information Technology Industry Council (ITI), a global trade group that represents major tech companies including Google and Microsoft, is calling for last-minute changes to the Reforming Intelligence and Securing America Act (RISAA), which could get a final vote in the Senate on Friday. The bill's primary purpose is to extend Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows U.S. intelligence agencies to scoop up communications between Americans and individuals abroad.

But the bill also includes a provision that "vastly expands the U.S. government's warrantless surveillance capabilities, damaging the competitiveness of U.S. technology companies large and small, and arguably imperiling the continued global free flow of data between the U.S. and its allies," the ITI said in a statement this week.

As Reason reported in December, that provision means that nearly any business or entity with access to telecom or internet equipment could be forced to participate in the federal government's digital spying regime. The big target, as Wired noted this week, is likely to be the owners and operators of data centers.

Under the current FISA law, Section 702 only applies to telecommunications companies and internet service providers. But the amendment included in the RISAA would expand that definition to cover "any service provider" with "access to equipment that is being or may be used to transmit or store" electronic communications.

"The practical impact of the revised definition is significant and means any company, vendor, or any of their employees who touch the physical infrastructure of the internet could now be swept under FISA's scope and compelled to assist with FISA surveillance," the ITI warns. "If this amendment were to become law, any electronic communications service equipment provider or others with access to that equipment, including their employees or the employees of their service providers, would be subject to compelled FISA disclosure or assistance."

In short, even someone like a custodian could be legally compelled to assist in the federal government's spying efforts.

Marc Zwillinger, an attorney who has experience arguing before the Foreign Intelligence Surveillance Court (FISC), wrote this week on his personal blog that the RISAA would "permit the government to compel the assistance of a wide range of additional entities and persons in conducting surveillance under FISA 702."

The newest version is less broad than what was initially proposed in December—for example, gathering places like hotels and coffee shops have been specifically excluded from the law. But, as Zwillinger writes, the revised definition would cover "the owners and operators of facilities that house equipment used to store or carry data, such as data centers and buildings owned by commercial landlords, who merely have access to communications equipment in their physical space," as well as "other persons with access to such facilities and equipment, including delivery personnel, cleaning contractors, and utility providers."

Because newsrooms and other places where journalists work are not specifically exempted, some First Amendment groups are also worried about how the expansion of digital spying authority could affect journalism.

"This bill would basically allow the government to institute a spy draft," Seth Stern, director of advocacy at Freedom of the Press Foundation (FPF), said in a statement on Thursday. "If this bill becomes law, sources will rightly suspect that American newsrooms are bugged by the government. And journalists won't be able to reassure them that they're not, because, for all they know, the building maintenance worker is an involuntary government spy."

The reactions from tech companies, legal experts, and free press advocates come on the heels of objections raised by various civil libertarian groups. As Reason's J.D. Tuccille covered earlier this week, some opponents of the FISA reauthorization bill have taken to calling it "the 'Everyone Is a Spy' provision, since potentially anybody with access to a laptop or WiFi router could be compelled to help the government conduct surveillance."

If the RISAA is approved by the Senate on Friday, as expected, and signed by President Joe Biden, Americans will have little recourse except to hope that the Justice Department is telling the truth when it says it won't use the broad authority contained in the bill. In a letter to senators on Thursday, Attorney General Merrick Garland wrote that his department "commits to applying" the new definition of electronic communications service providers in a narrow fashion. "The number of technology companies" covered by the new provision, he wrote, "is extremely small."

Of course, anyone with a working knowledge of the history of federal surveillance programs—or any government initiative, for that matter—is probably right to be skeptical of that assurance.

"Even if the bill is intended to target data centers, it doesn't say that," Stern said in a statement. "And, even if one trusts the Biden administration to honor its pinky swears, they're not binding on any future administrations."

The post How the FISA Reauthorization Bill Could Force Maintenance Workers and Custodians To Become Government Spies appeared first on Reason.com.

Gabriel Shipton, the brother of jailed leaker Julian Assange, will attend President Joe Biden's State of the Union address on Thursday at the invitation of Rep. Thomas Massie (R–Ky.).

The invitation is meant as a pointed message to the Biden administration, which has been trying to extradite Assange from Britain to try him for his role in publishing classified information through his website WikiLeaks.

Massie signed a bipartisan letter calling for Assange's release on February 20.

"The prosecution of Julian Assange is a direct attack on the 1st amendment and the freedom of the press to publish information in the public interest," Shipton said in a statement released by Massie's office. "Rep. Massie is a fierce defender of these rights having introduced legislation that would protect my brother Julian and put an end to the espionage act being weaponised against publishers."

In July 2022, Massie proposed the Espionage Act Reform Act alongside Rep. Ro Khanna (D–Calif.) in order to protect journalists from being prosecuted as spies. Sen. Ron Wyden (D–Ore.) proposed a companion bill in the Senate.

The Espionage Act punishes anyone who transmits classified data. The reform bills would limit prosecutions to government employees who violate their security clearances, as well as foreign agents and others who try to buy or trade classified documents.

Assange, an Australian publisher, attracted the ire of the U.S. government in the early 2010s for publishing classified data provided by former Army intelligence analyst Chelsea Manning, including a database of U.S. diplomatic cables and a video of a U.S. Army helicopter gunning down a news crew in Iraq.

The Obama administration initially concluded that it could not charge Assange because of the "New York Times problem": If WikiLeaks could be prosecuted, so could mainstream newspapers that dealt with government sources and published the classified information.

The Trump administration, however, charged Assange with computer hacking, which it later upgraded to Espionage Act violations. (Mike Pompeo, then the CIA director, also reportedly considered kidnapping or murdering Assange.) The Biden administration has continued trying to extradite Assange from Britain, where he was arrested in April 2019 after his political asylum was revoked. He has remained in a high-security prison in southeast London since.

"The U.S. government's ongoing effort to prosecute Julian Assange threatens the First Amendment rights of Americans and should be opposed," Massie said in his statement. "During his term in office, I asked President Trump to pardon Mr. Assange, and I was disappointed by his failure to do so. President Biden should drop the criminal charges currently being pursued by the Department of Justice."

The post Julian Assange's Brother Will Attend the State of the Union Address as Rep. Thomas Massie's Guest appeared first on Reason.com.

For the price of $77 to $224, Pennsylvania residents can get a personalized license plate that "contain[s] a combination of up to seven letters and/or numbers," per the state's Department of Transportation (PennDOT). 

That is unless your application for a vanity plate is among the 2,872 rejected over the years.

The department keeps a "Do Not Issue" list, effectively banning thousands of "unacceptable configurations" that they interpret as euphemisms, epithets, or obstructions to law enforcement.

These restrictions are backed by PennDot's loosely defined list of 16 criteria, which the department's staff strictly adheres to, using internet slang dictionaries to check if the acronyms pass.

To be fair, it's not the entire list that raises eyebrows. Restrictions on libel or slander—as well as text that meddles with the license plates' primary purpose "to provide a State-issued, visible, and unique alpha-numeric identification mark for display in a uniform manner"—make sense.

But then you have "words which inflict injury or tend to incite an immediate breach of the peace." What does that include, exactly? It includes what the department staff says it includes. 

Also not allowed are acronyms that suggest sexual innuendo, like BLOWME, or contain profane or obscene intent, like DZZNUTZ. Don't even think about references to excretory functions.

Pennsylvania is far from the only state that has banned acronyms from vanity plates. New York doesn't allow NOTPOLCE or, for whatever reason, AY000000. Tennessee banned ILVTOFU back in 2014 for a vegan application. In 2017, Georgia banned Donald Trump's infamous COVFEFE gaffe. Kentucky said no to KARMA.

The examples don't end there; a list of banned personalized plates is commonplace across the U.S. But the constitutionality of the matter is not necessarily settled.

In 2015, a Texas nonprofit argued that displaying the Confederate flag on the organization's special license plate was their First Amendment right. In a 5-4 vote, the court disagreed. 

"In our view, specialty license plates issued pursuant to Texas's statutory scheme convey government speech," former Justice Stephen Breyer wrote for the majority. "Were the Free Speech Clause interpreted otherwise, government would not work."

The dissent argued that most people do not recognize speech on a license plate as government policy. "The Court's decision passes off private speech as government speech," wrote Justice Samuel Alito, "and, in doing so, establishes a precedent that threatens private speech that government finds displeasing." 

The Court's ruling, however, applied to special plates with names and logos, not personalized plates. There is thus no official ruling at a national level as to whether vanity plates are private or government speech. This leaves plenty of room for state officials to interpret the propriety of applications for approval, and even to rescind vanity plates to address complaints.

Without an official distinction, however, there have been many instances of successful lawsuits to reverse rejections, from striking down Kentucky's rejection of IM GOD to stopping California's crackdown against messages "offensive to good taste and decency."

Eugene Volokh, a professor of law at the University of California Los Angeles School of Law, wrote that lower courts, upon petition, have typically recognized the design of the plate as government speech, but not the text itself. But until there's an official distinction by the Supreme Court, rejected applicants who are upset can try suing. Otherwise, the next-best option is taking it up to the department.

And though PennDOT is willing to discuss rejections with applicants, they have a disclaimer: "PennDOT reserves the right to limit or reject certain requests."

The post Your Local DMV May Have No Sense of Humor appeared first on Reason.com.

Is a painting of a giant burger a sign or a mural? The answer to that question could determine whether Steve Howard can keep some half-finished burger art on the side of his restaurant or be forced to take it down.

Howard is the owner of The Cozy Inn in Salina, Kansas—a restaurant known for the sliders it serves with a generous helping of aromatic onions.

Back in November, Howard commissioned a local artist to decorate the side of The Cozy Inn with a large burger mural, some smaller slider-shaped UFOs, and a caption reading, "Don't fear the smell! The fun is inside!!"

Within a few days, a Salina official was telling Howard to halt the paint job. The city reasoned that because Howard's wall art would depict a product his restaurant also sold, it was not a mural (which the city doesn't regulate), but rather a sign (for which it has extensive rules).

Under Salina's sign code, Howard's business could only post signs totaling 62 square feet in size and he'd already used up 52 of those feet with existing signage. His planned burger wall art would take up 528 square feet. Downtown businesses' signs also need approval from the city's Design Review Board.

Since being told to stop work on his burger painting, Howard has been going back and forth with the city over whether he'll be able to complete the work. Earlier this month, the city sent him a letter telling him to hold off on the painting while it "reviewed" its signage regulations.

Rather than wait, Howard filed a federal lawsuit arguing that because the legality of his mural turns on the particular images it depicts, his free speech rights are being violated. If he had commissioned wall art of car parts or some other product his business didn't sell, he'd be well within his rights to proceed with the mural.

"In our view, this is a clear content-based restriction on speech," says Sam MacRoberts of the Kansas Justice Institute, which is representing Howard.

The U.S. Supreme Court theoretically put limits on this kind of sign regulation with its decision in the 2015 case Reed v. Gilbert, which struck down an Arizona town's regulations on temporary signs that applied stricter rules to nonpolitical signage.

"The town definitely was drawing lines based on what messages the signs conveyed," says Betsy Sanz, an attorney with the Institute for Justice (which is not affiliated with the Kansas Justice Institute). "The court said that was not allowed."

Nevertheless, cities post-Reed continue to enforce restrictions on business murals that include images of what the business sells.

The Institute for Justice has litigated multiple mural cases, pre- and post-Reed. It is currently representing business owner Sean Young in a First Amendment lawsuit against Conway, New Hampshire, which has told him a donut mural painted by local art students on his bakery violates the town's sign code.

Despite the likely unconstitutionality of many towns' sign restrictions, business owners are often reluctant to challenge them.

That means businesses will often just paint over their murals or change them so that they're no longer showing products the business sells.

In 2012, The Washington Post reported on a smoke shop in Arlington, Virginia (a hotspot of mural censorship), that changed its mural of a man smoking a cigar to a man holding a whale to comply with county regulations.

Sanz urges the Supreme Court to take up the issue of towns' regulation of business murals, saying, "There are still government bodies that wish to control speech. The Supreme Court is going to need to take signs up again to help clarify things for individuals."

The post Town Says Burger Joint's Mural Can't Show Any Burgers appeared first on Reason.com.

Earlier this week, protestors at the University of California, Berkeley, violently shut down an event organized by a Jewish student group, which featured Israeli attorney Ran Bar-Yoshafat. Protestors organized by the student group Bears for Palestine prevented students from entering the building where the talk was supposed to take place, chanted "Long live the intifada," and broke glass doors.

Several students who attempted to attend the event claim they were physically assaulted by the protestors. One attendee claims she was grabbed by the neck and another says he was spit on.

"It was an extremely frightening experience," Berkeley student Veda Keyvanfar told Fox News on Wednesday. "The door to the venue was ripped out of my hand by a mob of protesters and my hand was injured in the process…we are allowed as students to host any type of speaker, and to attend any event we want to, we are not in the wrong at all."

The disruption wasn't simply a protest that got out of hand—it was a pre-planned attempt to prevent the event from going forward. An Instagram post from Bears for Palestine about the event said "We are 'combatting the lies' by SHUTTING IT DOWN," adding that Bar-Yoshafat "is a genocide denier, and we will not allow for this event to go on."

The event was canceled after university officials determined that they couldn't guarantee student safety "given the size of the crowd and the threat of violence," according to a university statement. Students attending the event had to be escorted out the back of the building. According to the Associated Press, the local police department received multiple calls over the event, and a university spokesperson confirmed that the school was opening a criminal investigation into students' behavior.

So far, the Berkeley administration has taken a strong stance against the students who disrupted Monday's event. 

"We deeply respect the right to protest as intrinsic to the values of a democracy and an institution of higher education," reads a Tuesday statement from Chancellor Carol Christ and Executive Vice Chancellor and Provost Benjamin Hermalin. "Yet, we cannot ignore protest activity that interferes with the rights of others to hear and/or express perspectives of their choosing. We cannot allow the use or threat of force to violate the First Amendment rights of a speaker, no matter how much we might disagree with their views."

Videos of the protestors have received significant social media attention, leading to calls to expel or discipline students who engaged in the disruption.

"Everyone has a right to due process. But violent rioters have no place at any institution devoted to the fearless pursuit of truth. Certainly not at Berkeley, home of the Free Speech Movement," Foundation for Individual Rights and Expression (FIRE) President Greg Lukianoff and FIRE senior writer Angel Eduardo wrote in a recent column in The Free Press."Violence is not extreme speech, but the antithesis of speech—and the antithesis of what higher education is supposed to be all about."

Lukianoff and Eduardo are right—if you care about securing university students' free speech rights, punishing disruptive and violent protestors is absolutely necessary. While students have the right to peacefully protest an event, preventing individuals from hearing a speaker, damaging a building, and physically assaulting attendees obviously crosses a line into unprotected conduct. 

The only way to prevent speaker disruptions is for administrators to take a clear stand against them, and punish those responsible. When universities crack down on disruptive or violent protest tactics, they set a precedent, and send a clear message to student activists who are planning on protesting an event: that disruptive, speech-quashing conduct won't be tolerated.

The post Berkeley Students Violently Shut Down Event Featuring Israeli Attorney appeared first on Reason.com.

Adam Rubenstein is a journalist and former opinion editor at The New York Times. As a person of right-leaning political sensibilities—Rubenstein previously worked for The Wall Street Journal and The Weekly Standard—he was brought to the Times opinion pages with a mandate to help diversify its ideological offerings. His bosses said they expected him to use his contacts in conservative media to solicit, research, and improve op-eds that would advance contrarian arguments and challenge the paper's editorial point of view, as well as its readers.

This mandate resulted in the now-infamous publication of an editorial by Sen. Tom Cotton (R–Ark.) on June 3, 2020—amid the nationwide protests following the death of George Floyd—headlined "Send In the Troops." In the op-ed, Cotton called for the federal government to deploy the military to end the rioting and looting in U.S. cities.

While one can raise a number of practical, philosophical, and even legal objections to such a proposal, it was not exactly a controversial suggestion, at least as far as public opinion was concerned: Polls showed that more than half of American voters wanted the feds to mount a more aggressive response to all the lawbreaking. But among The New York Times' staff, the op-ed proved to be radioactive. Times journalists went ballistic, publicly attacking their organization for daring to run such a piece. A characteristic response came from the Times' Nikole Hannah-Jones, the 1619 Project originator, who wrote on Twitter, "As a black woman, as a journalist, as an American, I am deeply ashamed that we ran this."

There's nothing inherently wrong with opinion journalists criticizing the thoughts of a U.S. senator, of course, but many on staff did not stop there. On the contrary, they argued the Times never should have published the op-ed—that platforming such an opinion was an act of violence against black people and would cause them harm. These staff members became organized, and soon enough, many of them started tweeting nearly identical statements that the op-ed had put black writers in danger. Eventually, more than a thousand Times employees signed a letter to top NYT bosses accusing them of jeopardizing "our reporters' ability to work safely and effectively."

With hindsight, it's very clear what they were doing: appropriating the language of human resources—hostile environment, workplace safety, etc.—for the ideological project of shutting down an opinion that clashed with theirs. And the gambit worked. In an attempt to mollify the staffers, the Times published a groveling apology in the form of a self-flagellating editor's note that is still appended to the op-ed to this day. A.G. Sulzberger, the publisher of the Times, forced James Bennet, the editor of the opinion pages, to resign, and he did so. Other personnel involved with the Cotton op-ed were reassigned, and Rubenstein left the paper some months later.

This sorry episode is currently being re-litigated, four years later, in light of a revelatory article published in The Atlantic earlier this week. Rubenstein is finally telling his side of the story, and he has persuasively argued that the Times threw him, Bennet, and Cotton under the bus to appease a woke mob. He debunked several criticisms of the op-ed—namely, that it had included obvious factual errors—and pointed out that Times op-eds penned by literal authoritarian dictators such as Moammar Gadhafi, Recep Tayyip Erdogan, and Vladimir Putin had not produced any internal fury whatsoever. It's very telling whose words are described as literal violence, and whose are not.

"Last year, the page published an essay by the Hamas-appointed mayor of Gaza City, and few seemed to mind," wrote Rubenstein in The Atlantic. "But whether the paper is willing to publish conservative views on divisive political issues, such as abortion rights and the Second Amendment, remains an open question."

His article certainly appears to confirm suspicions that the paper of record is, at least at times, in thrall to its liberal staffers.

Since the publication of Rubenstein's record-straightening account, an interesting criticism of it has appeared on social media. This criticism takes aim at a fascinating anecdote related by Rubenstein in the article's opening paragraphs.

According to Rubenstein, he participated in an orientation activity upon first joining the Times: An HR representative asked new employees to each answer a question about themselves. Rubenstein was told to describe his favorite sandwich, and volunteered the spicy chicken from Chick-fil-A. The HR person chided him for citing Chick-fil-A, a fast food chain with a socially conservative founder. "We don't do that here, they hate gay people," was the response—a self-parody of woke shibboleths, if ever there was one.

In fact, this response by a Times HR figure is so embarrassing that some liberals have decided it simply cannot be true. Enter Hannah-Jones, who opined on X (formerly Twitter) that the anecdote in question "never happened." She was hardly alone in accusing Rubenstein of making it up; writer Michael Hobbes said the anecdote was "egregiously fake."

Never mind that over the years, Rubenstein has told a number of other journalists—including yours truly—about the incident. The Atlantic actually verified it. The writer Jesse Singal reached out to the publication, and Atlantic editors said that Times employees with "contemporaneous knowledge" of the orientation session confirmed it happened.

Atlantic spokeswoman on the Chick-fil-A incident that Nikole Hannah-Jones and many others claimed must have been fabcricated: "the details were confirmed by New York Times employees who had contemporaneous knowledge of the incident in question." pic.twitter.com/KL0cptFB6B

— Jesse Singal (@jessesingal) February 27, 2024

So the next time conservative, libertarian, or independent thinkers are accused of spreading misinformation or reflexively distrusting the media, it might be helpful to remind the accusers in the mainstream press that we're all in good company.

The post <em>New York Times</em> Staffers Bullied a Conservative Writer appeared first on Reason.com.

Justice Samuel Alito believes the First Amendment gives bigots the right to serve on juries.

Supreme something or other, Justice Alito protested the court's refusal to take up a case wherein people with an admitted bias against a litigant were denied seats on a jury. — Read the rest

The post Justice Alito thinks bigots belong on juries appeared first on Boing Boing.

WikiLeaks founder Julian Assange has been imprisoned in London for nearly five years, pending extradition to the United States so he can be prosecuted for violating the Espionage Act by publishing classified information. Since that amount of time behind bars is about the same as the four-to-six-year prison term that Justice Department lawyers have said Assange would be likely to serve if convicted, you might think the Biden administration would be ready to reconsider this case, especially since it poses an alarming threat to freedom of the press. Instead, the U.S. government's lawyers are back in London for yet another hearing, which Assange's attorneys describe as a last-ditch attempt to block his extradition.

Recognizing the First Amendment implications, the Obama administration declined to prosecute Assange for obtaining and disclosing confidential State Department cables and military files leaked by former Army intelligence analyst Chelsea Manning in 2010. After all, leading news organizations in the United States and around the world had published stories based on the same documents, and those acts of journalism likewise could be construed as felonies once this precedent was established. So could the routine practices of reporters who cover national security, which commonly involves divulging information that the government prefers to keep secret.

Despite those concerns, the Trump administration decided that Assange should be locked up for doing things that The New York Times et al. do on a regular basis. All but one of the 17 counts in Assange's latest federal indictment relate to obtaining or disclosing "national defense information," which is punishable by up to 10 years in prison. Theoretically, Assange could face 160 years in prison for those counts alone, although the government's lawyers say it probably would be more like the amount of time he already has served in the United Kingdom. Manning herself—who, unlike Assange, violated the terms of her government employment—received a 35-year sentence but was released after seven years thanks to Barack Obama's commutation.

"Some say that Assange is a journalist and that he should be immune from prosecution for these actions," John Demers, then the head of the Justice Department's National Security Division, told reporters after the Assange indictment was announced in May 2019. "The department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the department's policy to target them for reporting." There is no need to worry, Demers suggested, because Assange is "no journalist."

This line of argument misconstrues the "freedom…of the press" guaranteed by the First Amendment, which applies to mass communication generally, not just the speech of people whom the government deigns to recognize as journalists. Demers' assurance is similar to the reasoning that the U.S. Court of Appeals for the 5th Circuit recently applied in counterintuitively concluding that treating journalism as a crime is not "obviously unconstitutional."

That case involved Priscilla Villarreal, a Laredo, Texas, gadfly and citizen journalist who was arrested in 2017 for violating Section 39.06(c) of the Texas Penal Code. Under that previously obscure law, a person who "solicits or receives" information that "has not been made public" from a government official "with intent to obtain a benefit" commits a third-degree felony, punishable by two to 10 years in prison.

Texas defines "benefit" as "anything reasonably regarded as economic gain or advantage." According to the arrest affidavits, the "benefit" that Villarreal sought was a boost in Facebook traffic. Section 39.06(c) defines "information that has not been made public" as "any information to which the public does not generally have access" that is also "prohibited from disclosure" under the Texas Public Information Act. The arrest affidavits did not address the latter requirement at all.

Like the Espionage Act, Section 39.06(c) purportedly criminalizes common reporting practices—in this case, obtaining information about a public suicide and a fatal car accident from a "backchannel source" at the local police department. Writing for the 5th Circuit majority in Villarreal v. Laredo, Judge Edith Jones did not try to hide her disdain for Villarreal, an independent, uncredentialed journalist who files her unfiltered reports on Facebook instead of publishing vetted and edited stories in a "mainstream, legitimate" news outlet.

"Villarreal and others portray her as a martyr for the sake of journalism," Jones wrote. "That is inappropriate. She could have followed Texas law, or challenged that law in court, before reporting nonpublic information from the backchannel source. By skirting Texas law, Villarreal revealed information that could have severely emotionally harmed the families of decedents and interfered with ongoing investigations. Mainstream, legitimate media outlets routinely withhold the identity of accident victims or those who committed suicide until public officials or family members release that information publicly. Villarreal sought to capitalize on others' tragedies to propel her reputation and career."

Although Jones implies that Villarreal's arrest was prompted by concern for "the families of decedents," Villarreal plausibly argued that it was actually punishment for her outspoken criticism of local law enforcement agencies. In any case, there is no First Amendment exception for reporting that might offend or disturb people. And Jones' characterization of Villarreal's work as "capitaliz[ing] on others' tragedies to propel her reputation and career" is an apt, if cynical, description of what many journalists do, even when they work for "mainstream, legitimate media outlets." Jones apparently is unfamiliar with the bread and butter of local news organizations and has never heard the expression, "If it bleeds, it leads."

The seven dissenting judges saw the situation differently. "If the First Amendment means anything," Judge James C. Ho wrote in a dissent joined by five of his colleagues, "surely it means that citizens have the right to question or criticize public officials without fear of imprisonment." Judge James E. Graves Jr. likewise complained that "the majority opinion will permit government officials to retaliate against speech while hiding behind cherry-picked state statutes."

Judge Stephen A. Higginson noted that Thomas Paine, who wrote "the pro-independence pamphlet that historian Gordon Wood describes as 'the most incendiary and popular pamphlet of the entire revolutionary era,'" was, like Villarreal, a "citizen-journalist." Upholding "the text of the Constitution, as well as the values and history that it reflects," he said, "the Supreme Court guarantees the First Amendment right of engaged citizen-journalists, like Paine, to interrogate the government." Jones, by contrast, presumably would view Paine as disreputable, since he did not work for a "mainstream, legitimate media outlet."

Assange's critics, including some professional journalists, have proposed a similar distinction, arguing that he does not deserve the First Amendment's protection because he is not a "real" journalist. But whatever you might think of Assange's opinions, his tactics, or the care he exercised in publishing classified material, that distinction is not grounded in the Constitution and will not hold in practice.

The editors and publishers of The New York Times, The Guardian, Le Monde, Der Spiegel, and El País recognized as much in 2022, when they urged the Justice Department to drop the case against Assange. In ignoring that advice, the Biden administration seems bent on establishing a dangerous precedent that replaces the First Amendment's guarantee with the whims of prosecutors.

The post The Biden Administration Is Bent on Setting an Alarming Precedent by Prosecuting Julian Assange appeared first on Reason.com.