The First Amendment: Freedom of Speech, Religion, & Assembly

[Crafty_Dog]

second

https://www.ca5.uscourts.gov/opinions/pub/21/21-51178-CV1.pdf

[ccp]

not sure where I sit on this "issue"

but if a liberal Democrat operative is against the decision I would start with the position I am for it:
https://www.theatlantic.com/ideas/archive/2022/09/netchoice-paxton-first-amendment-social-media-content-moderation/671574/

[Crafty_Dog]

IMHO the article raises some deep and fair questions, but utterly blows off the reality of political censorship, as well as the relevance of common carrier doctrine.

The passage about the law now being different in Texas blah blah misses the point that this is what allows happens when a circuit court rules-- its decision is controlling only in its circuit-- duh!

[Crafty_Dog]

New York State Wants to Conscript Me to Violate the Constitution
A new law requires me to post a policy for dealing with ‘hate speech’ in comments on my blog.
By Eugene Volokh
Dec. 1, 2022 6:54 pm ET


New York politicians are slapping a badge on my chest. A law going into effect Saturday requires social-media networks, including any site that allows comments, to publish a plan for responding to alleged hate speech by users.

The law blog I run fits the bill, so the law will mandate that I post publicly my policy for responding to comments that “vilify, humiliate, or incite violence against a group” based on “race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.” It also requires that I give readers a way to complain about my blog’s content and obligates me to respond directly.

I don’t want to moderate such content and I don’t endorse the state’s definition of hate speech. I do sometimes delete comments, but I do it based on my own editorial judgment, not state command. Still, I’m being conscripted. By obligating me to do the state’s bidding with regard to viewpoints that New York condemns, the law violates the First Amendment.

The Supreme Court has carved out several narrow categories of unprotected speech, but hate speech isn’t one of them. Speech is protected except in the case of fighting words, true threats, defamation or incitement, and these exceptions are applied without regard to whether the speech in question is hateful. The court has wisely recognized that each of us has a different idea of what constitutes good or bad speech—and we can’t trust the government to decide which viewpoints are too hateful to merit legal protection.


But that’s not stopping New York from trying. The new law would force me to act on the state’s disdain for online speech that someone, somewhere believes can “vilify, humiliate, or incite violence against” groups based on protected class, even if that speech is protected by the First Amendment.

Does speech by Richard Dawkins comparing George W. Bush’s faith to that of Osama bin Laden’s vilify conservative Christians? Does speech condemning trans athletes who join women’s sports teams vilify or humiliate based on gender identity? Do harsh criticisms of Israelis or Palestinians vilify those groups? Do some feminist comments criticizing patriarchy humiliate men? Can your comment on any of the blogs, news sites or social-media platforms swept up in New York’s law be defined as hateful conduct?

Nobody knows. But New York is imposing legal obligations on me and other platforms to pressure us to censor such speech. And though the New York law doesn’t itself require the removal of such speech, that may be the ultimate goal. Such censorship fits neatly within Attorney General Letitia James’s recent report that calls for sweeping regulations compelling further restrictions on speech the state considers hateful.


This is wrong, regardless of the viewpoint the state wants to eradicate. A law mandating a mechanism to report comments that vilify or humiliate the police, military or ordinary civilians would be similarly unconstitutional. Politicians can’t conscript private individuals into a state-mandated, viewpoint-based complaint system, especially for protected speech.

That’s why I am joining with the Foundation for Individual Rights and Expression to sue New York and defend our right to speak freely online. Online platforms Rumble and Locals are also joining the lawsuit.

The law was passed in response to the Buffalo white-supremacist mass shooting. It’s understandable to want to do something—anything—to prevent another horrific crime, but solutions must be effective and constitutionally valid. This law fails on both counts.

I started the Volokh Conspiracy to share interesting and important legal stories, not to police readers’ speech at the government’s behest. By challenging this law, I hope I can put down the badge and go back to my keyboard—because legislators can fight crime and respond to hate without violating the First Amendment or drafting me into the speech police.

Mr. Volokh is a co-founder of the Volokh Conspiracy blog and a law professor at the University of California, Los Angeles.

[Crafty_Dog]

Democrats Propose Constitutional Amendment to Overturn First Amendment Decision
By Chase Smith
January 19, 2023Updated: January 20, 2023


Democrats in the House of Representatives have introduced a constitutional amendment to overturn the Supreme Court’s controversial Citizens United v. FEC decision made in 2010.

The court ruled 5–4 that the free speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by corporations and overruled an earlier decision that banned corporations from making “electioneering communications.”

Rep. Adam Schiff (D-Calif). said in a press release he and Democrat colleagues introduced the “Democracy For All Amendment” to “overturn legal precedents that have allowed unrestrained campaign spending and dark money to corrupt American democracy.” He has introduced the constitutional amendment every year since 2013, according to the release.

“The flow of unrestricted corporate and dark money into our elections has dangerously eroded the American people’s faith in our democracy, and in our government’s ability to deliver for them and their families,” Schiff said in a press release. “Citizens United was one of the most egregious enablers of special interest money, but it was only the latest in a long line of Supreme Court cases that opened the floodgates. To truly rein in dark money, we must amend our Constitution.”

Schiff said the amendment would close “legal loopholes” that he said allows “wealthy megadonors, corporations, and special interest groups” to exploit the political system.

Citizens United v. Federal Election Commission
Schiff said the move comes before the 13th anniversary of the decision on Jan. 21, which the Associated Press said came from a “bitterly divided U.S. Supreme Court.”

The AP said the decision “vastly increased the power of big business and labor unions to influence government decisions by freeing them to spend their millions directly to sway elections for president and Congress.”

The Federal Election Campaign Act prohibited corporations and labor unions from using general funds to make election communications or speech that expressly advocated for a candidate in a federal election, including broadcasts, cable or satellite communication that is publicly distributed within 30 days of a primary or 60 days of a general election, according to the FEC.

Epoch Times Photo
Demonstrators march in the snow through Lafayette Park, outside the White House, during a rally against the Supreme Court’s decision in 2010 favor of Citizens United, which allows private citizens and corporations to make unlimited donations for political campaigns, in Washington, DC on Jan. 21, 2015. (Nicholas Kamm/AFP via Getty Images)
In January 2008, Citizens United, a non-profit organization, released a film about then-Senator Hillary Clinton, prior to the Democratic Party’s 2008 primary elections.

The group wanted to pay cable companies to make the film available for free through video-on-demand services. It planned to make the film available within 30 days of the primaries, but feared it would be covered by the Act’s ban, according to the FEC, which could have subjected them to civil and criminal penalties.

The group sought declaratory and injunctive relief against the FEC arguing the Act was unconstitutional. The District Court denied the preliminary injunction and granted the Commission’s motion for summary judgment.

The Supreme Court noted jurisdiction and found that they were “required to consider the facial validity” of the Act’s ban in regard to freedom of speech.

The Court held the Act was a ban on speech and “political speech must prevail against laws that would suppress it, whether by design or inadvertence.”

It held disclaimer and disclosure requirements are “constitutional as applied to both the broadcast of the film and the ads promoting the film itself, since the ads qualify as electioneering communications.”

Additional Democrat Support
Schiff proposed the amendment alongside Rep. Dean Phillips (D-Minn.), Pramila Jayapal (D-Wash.), and Jim McGovern (D-Mass.).

A press release said the amendment would also “address the fundamental flaws underlying the Court’s reasoning in that and an entire line of cases dating back to the 1976 Buckley v. Valeo decision, which prevented meaningful regulation of campaign expenditures by corporations and special interest groups.”

“Thirteen years after the Supreme Court handed down the Citizens United decision, we are still feeling its disastrous effects–and they’re getting worse,” said Tiffany Muller, President of End Citizens United/Let America Vote Action Fund. “Each year, we see more and more dark corporate money pouring into our elections, letting billionaires and corporate America buy influence and power in Washington.”

[ccp]

https://thehill.com/opinion/judiciary/3843751-congress-is-set-to-expose-what-may-be-the-largest-censorship-system-in-u-s-history/

[Crafty_Dog]

Good to have Prof Turley weighing in on this.

[Crafty_Dog]

https://www.nytimes.com/2023/02/10/us/politics/ron-desantis-news-media.html?unlocked_article_code=D6W3_EwVcUzvW8d5bGmsUn_6w1QyZy9S3qCe3AXepSjtiE1dZ37I5o8-jlDydGbA6zZeuJVFLgyy1R6wk_ZkgxZUNzhtLWjxOlxY7QvfGlEPPLTgnvuot-rq8iNqpKNl4jV3_3UwEpZebGYnaZkS9-B-74kxVWe8YM3VmTkq3z6tqYOVEwmOVB9-wtaFn9TWBTJSL3WmUyPFOZ_tIcDNQHn2u7n3hoKxOCp7msEd-5VgQ4cLygI262nwkbmCtILI9FYA0NrBXE728clZMSpy8kVIEwdT6HG8KH4aBH7nIjzve1qUjWensR-9Lss9Ee9gcFzePBLTtU08c9meZNfnkgXD9lYb&smid=nytcore-ios-share&referringSource=articleShare

[ccp]

https://www.newsmax.com/newsfront/supreme-court-social-media/2023/02/19/id/1109238/

[ccp]

for the Democrat Party only :

https://www.breitbart.com/politics/2023/02/21/far-left-aclu-encouraging-illegal-aliens-to-stay-in-u-s-plainly-protected-by-first-amendment/

ok to encourage people to commit crimes

[Crafty_Dog]

https://www.zerohedge.com/political/we-are-restricting-freedom-common-good-irish-green-party-calls-limiting-free-speech?utm_source=&utm_medium=email&utm_campaign=1587

[Crafty_Dog]

https://www.zerohedge.com/political/wearing-shirt-saying-there-are-only-two-genders-not-protected-speech-rules-obama?utm_source=&utm_medium=email&utm_campaign=1591

[G M]

Land of the free!

https://www.zerohedge.com/political/wearing-shirt-saying-there-are-only-two-genders-not-protected-speech-rules-obama?utm_source=&utm_medium=email&utm_campaign=1591

[Crafty_Dog]

https://www.washingtontimes.com/news/2023/jun/30/supreme-court-rules-designer-who-doesnt-want-make-/?utm_source=Boomtrain&utm_medium=subscriber&utm_campaign=newsalert&utm_content=newsalert&utm_term=newsalert&bt_ee=fd%2B7Jl3QGIjo%2BPDRjKaz9AQsSwRE1ftPLcQBB0AJV%2Fu%2ByoaDWEuFM%2BoJXC%2BnfFDD&bt_ts=1688135048043

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NRO

Supreme Court Rules in Favor of Designer Who Refuses to Make Same-Sex Wedding Websites
By JEFF ZYMERI
June 30, 2023 10:12 AM

The Supreme Court ruled Friday that an evangelical Christian web designer cannot be compelled to create a wedding website for a gay couple.

Lorie Smith, a graphic designer who wanted to expand into wedding websites, sought a ruling that Colorado could not enforce its anti-discrimination law against her. Smith opposes same-sex marriage on religious grounds and wanted to post a message on her page indicating that she would not design websites for same-sex couples.

“The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees,” Justice Gorsuch wrote for the 6-3 majority in 303 Creative LLC v. Elenis.

The Court held that the web designer’s work constitutes speech and the state of Colorado cannot force her to express herself in a way that violates her deeply held beliefs.

“Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience,” Gorsuch wrote.


“Colorado is trying to force me to promote ideas inconsistent with my faith and the core of who I am,” Smith said on the steps of the Supreme Court following Friday’s announcement.

Meanwhile, Justice Sonia Sotomayor, writing for the dissent, strongly disagreed with the majority opinion arguing that the ruling was part of a broader pattern witnessed undermining minority rights.

“Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities.”

“New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims,” Sotomayor wrote.

The glaring gap between the majority and dissenting opinions was even highlighted by Justice Gorsuch in his closing remarks.

“It is difficult to read the dissent and conclude we are looking at the same case. Much of it focuses on the evolution of public accommodations laws,” Gorsuch writes, “and the strides gay Americans have made towards securing equal justice.”

“And, no doubt, there is much to applaud here. But none of this answers the question we face today: Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?”

“When the dissent finally gets around to that question— more than halfway into its opinion—it reimagines the facts of this case from top to bottom,” Gorsuch wrote.

The website designer lost in both district and circuit court before petitioning the Supreme Court. While the Tenth Circuit Court of Appeals found that Smith’s craft was “pure speech” and that Colorado was compelling speech through its anti-discrimination law, the judges in the majority argued that granting Smith an exemption “would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere.”

While Smith asked the justices to consider both a free speech claim and a free exercise claim, only the former was reviewed by the high court. The Biden administration sided with Colorado in an amicus brief, arguing Smith’s case does not belong in the same category as other cases involving compelled speech.

The facts of the case bear a close resemblance to Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the Supreme Court ruled in favor of a baker, Jack Phillips, who had objected to making custom cakes for same-sex couples.

In a 7-2 opinion penned by then-justice Anthony Kennedy, the Court held that by punishing Phillips, Colorado had violated his free exercise of religion. Kennedy explained that the commission had engaged in overt hostility towards Phillips’s religious beliefs in the process. The narrow ruling left major free-speech questions unanswered.

[G M]

If you don't have the freedom of association, then do any of the other freedoms even matter?

https://www.washingtontimes.com/news/2023/jun/30/supreme-court-rules-designer-who-doesnt-want-make-/?utm_source=Boomtrain&utm_medium=subscriber&utm_campaign=newsalert&utm_content=newsalert&utm_term=newsalert&bt_ee=fd%2B7Jl3QGIjo%2BPDRjKaz9AQsSwRE1ftPLcQBB0AJV%2Fu%2ByoaDWEuFM%2BoJXC%2BnfFDD&bt_ts=1688135048043

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NRO

Supreme Court Rules in Favor of Designer Who Refuses to Make Same-Sex Wedding Websites
By JEFF ZYMERI
June 30, 2023 10:12 AM

The Supreme Court ruled Friday that an evangelical Christian web designer cannot be compelled to create a wedding website for a gay couple.

Lorie Smith, a graphic designer who wanted to expand into wedding websites, sought a ruling that Colorado could not enforce its anti-discrimination law against her. Smith opposes same-sex marriage on religious grounds and wanted to post a message on her page indicating that she would not design websites for same-sex couples.

“The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees,” Justice Gorsuch wrote for the 6-3 majority in 303 Creative LLC v. Elenis.

The Court held that the web designer’s work constitutes speech and the state of Colorado cannot force her to express herself in a way that violates her deeply held beliefs.

“Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience,” Gorsuch wrote.


“Colorado is trying to force me to promote ideas inconsistent with my faith and the core of who I am,” Smith said on the steps of the Supreme Court following Friday’s announcement.

Meanwhile, Justice Sonia Sotomayor, writing for the dissent, strongly disagreed with the majority opinion arguing that the ruling was part of a broader pattern witnessed undermining minority rights.

“Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities.”

“New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims,” Sotomayor wrote.

The glaring gap between the majority and dissenting opinions was even highlighted by Justice Gorsuch in his closing remarks.

“It is difficult to read the dissent and conclude we are looking at the same case. Much of it focuses on the evolution of public accommodations laws,” Gorsuch writes, “and the strides gay Americans have made towards securing equal justice.”

“And, no doubt, there is much to applaud here. But none of this answers the question we face today: Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?”

“When the dissent finally gets around to that question— more than halfway into its opinion—it reimagines the facts of this case from top to bottom,” Gorsuch wrote.

The website designer lost in both district and circuit court before petitioning the Supreme Court. While the Tenth Circuit Court of Appeals found that Smith’s craft was “pure speech” and that Colorado was compelling speech through its anti-discrimination law, the judges in the majority argued that granting Smith an exemption “would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere.”

While Smith asked the justices to consider both a free speech claim and a free exercise claim, only the former was reviewed by the high court. The Biden administration sided with Colorado in an amicus brief, arguing Smith’s case does not belong in the same category as other cases involving compelled speech.

The facts of the case bear a close resemblance to Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the Supreme Court ruled in favor of a baker, Jack Phillips, who had objected to making custom cakes for same-sex couples.

In a 7-2 opinion penned by then-justice Anthony Kennedy, the Court held that by punishing Phillips, Colorado had violated his free exercise of religion. Kennedy explained that the commission had engaged in overt hostility towards Phillips’s religious beliefs in the process. The narrow ruling left major free-speech questions unanswered.

[Crafty_Dog]

"If you don't have the freedom of association, then do any of the other freedoms even matter?"

Christopher Caldwell has a book that dives deep into the tensions between anti-discrimination laws and the freedom of association.

https://en.wikipedia.org/wiki/The_Age_of_Entitlement:_America_Since_the_Sixties

[G M]

You can only have a constitutional republic/first world standard of living when you have an educated population with an IQ that averages around 100 or more.

"If you don't have the freedom of association, then do any of the other freedoms even matter?"

Christopher Caldwell has a book that dives deep into the tensions between anti-discrimination laws and the freedom of association.

https://en.wikipedia.org/wiki/The_Age_of_Entitlement:_America_Since_the_Sixties

[ccp]

the gay couple may not have existed!!!

[BS

of course they did]

https://www.yahoo.com/news/gay-couple-cited-by-christian-web-designer-who-won-supreme-court-case-may-not-exist-164940986.html

oh the lying left will stop on nothing.

[Crafty_Dog]

https://www.theepochtimes.com/judge-delivers-major-blow-to-biden-admin-in-social-media-censorship-case_5373891.html?utm_source=News&src_src=News&utm_campaign=rtbreaking-2023-07-04-1&src_cmp=rtbreaking-2023-07-04-1&utm_medium=email&est=DbENSGDaSXqu0cRgQCOdZ52dUYYAp0rQDhQupk8D2QN2ZILpc7WCywqYRRqHKE0aWK2%2B

https://www.nationalreview.com/news/federal-judge-blocks-biden-officials-from-coordinating-censorship-with-social-media-companies/?utm_source=email&utm_medium=breaking&utm_campaign=newstrack&utm_term=31990572

[Crafty_Dog]

https://fee.org/articles/why-the-paradox-of-tolerance-is-no-excuse-for-attacking-free-speech/?fbclid=IwAR2A67DVIVwKgzsweiUk9S6Yqzty4LxJEVoe4UMvQWQinDpxS63rlVgSOvQ 

[Crafty_Dog]

In Blow to Academic Freedom, Court Rules Universities Can Punish Faculty for ‘Lack of Collegiality’

On the campus of North Carolina State in Raleigh, N.C., August 7, 2020(Jonathan Drake/Reuters)
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By JEFF ZYMERI
July 7, 2023 8:33 PM
The Fourth Circuit Court of Appeals ruled Thursday that a public-university faculty member can be punished for the “lack of collegiality” he purportedly showed when he criticized a higher-ed-degree program for prioritizing social justice over scholarship.

To academic-freedom advocates, the decision is a blow, and there are fears the “collegiality” rationale could chill unpopular speech at universities throughout the country.

By a vote of 2-1 in Porter v. Board of Trustees of North Carolina State University, the court ruled against professor Stephen Porter of NCSU, who had been removed from a degree program for complaints he made during a 2016 department meeting, in a spring 2018 email to colleagues, and in a personal blog post written that fall.

According to Porter, “the field of higher education study is abandoning rigorous methodological analysis in favor of results-driven work aimed at furthering a highly dogmatic view of ‘diversity,’ ‘equity,’ and ‘inclusion.’” He also called an academic conference in his field a “woke joke.”

Porter was accused of “bullying” his colleagues, and it was suggested he leave the degree program in question. The professor was soon forcibly removed. Porter also claimed his colleagues were making it impossible for him to recruit new doctoral advisees, jeopardizing his tenure.

In Garcetti v. Ceballos, the Supreme Court held that “when public employees speak pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” However, the Court made the exception for public-faculty speech “related to scholarship or teaching.”

The Fourth Circuit held on Thursday that comments and critiques of shared institutional governance and decision-making are not protected under the First Amendment.

Judge Julius Richardson dissented, writing: “Contrary to the majority’s terse conclusions, each one of Porter’s three speech instances . . . constitutes protected speech. That is because, in each instance, he was speaking as a citizen on a matter of public concern.”

Richardson wrote that there has unquestionably been a growing and wide-ranging public debate about how colleges ought to emphasize diversity, equity, and inclusion.

The judge also found it was clear that Porter’s colleagues had retaliated against him.

“For those who disagree with Stephen Porter’s message, he might indeed sound like an unpleasant agitator, disturbing the peace. But transgressions of tone tend to ring loudest when we disagree with the speaker’s views,” wrote Richardson, adding that the majority should have recognized that this case was not a “close call.”

“[Professors] saying unpopular things at department meetings could be severely sanctioned or even fired. Write that ‘dear colleague’ email at your own peril,” Princeton University politics professor Keith Whittington wrote on Twitter.

[Crafty_Dog]

https://ij.org/press-release/louisiana-man-arrested-for-making-a-joke-about-covid-19-and-zombies-wins-appeal/

[Crafty_Dog]

https://lists.youmaker.com/archive/1Gencyql26/5kdG8QBtO/kMkRvdu2ns4m

[Crafty_Dog]

second

A Rebuke to Biden-Tech Censorship
The Fifth Circuit issues a landmark on collusion against free speech.
By
The Editorial Board
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Sept. 11, 2023 6:38 pm ET




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The Fifth Circuit Court of Appeals ruled Friday against federal officials for colluding with tech platforms to suppress speech, but you’d hardly know it from the limited press coverage. The decision in Missouri v. Biden deserves more attention because it defines the constitutional limits to coordination between government and private actors and may be headed to the Supreme Court.

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Missouri and Louisiana—joined by individuals whose posts opposing government views on Covid were censored—sued various federal officials for violating their First Amendment rights. Federal Judge Terry Doughty ruled against the government on nearly all points. The three-judge Fifth Circuit panel largely upheld his findings of fact and law while narrowing his injunction.

The unsigned 74-page opinion begins by detailing the unprecedented coordination during the pandemic between government agencies and social-media platforms. Tech employees “attended regular meetings” with government officials and “seemingly stepped-up their efforts” to remove content to appease them, the decision explains.

Platforms “gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed users,” the opinion says. And they “changed their internal policies to capture more flagged content and sent steady reports on their moderation activities to the officials.”

The Biden Administration argued that the tech platforms acted independently, and that communications by federal officials are protected “government speech.” The Fifth Circuit disagreed, holding that officials crossed the First Amendment line by coercing platforms with threats of antitrust action and legal liability for user content under Section 230.

A private party “is ‘not ordinarily constrained by the First Amendment,’” the Fifth Circuit explains. “That changes, though, when a private party is coerced or significantly encouraged by the government to such a degree that its ‘choice’” if “made by the government would be unconstitutional.” The court calls this the “close nexus test.”

Its decision analyzes in depth how government actions violate the First Amendment under this test. “Significant encouragement requires ‘omething more’ than uninvolved oversight from the government,” the ruling says, citing the Supreme Court’s Blum (1982) precedent. Yet federal officials were far from “uninvolved” in content decisions.

The Fifth Circuit distinguishes the complaints in Missouri from Robert F. Kennedy Jr.’s lawsuit against Sen. Elizabeth Warren for asking Amazon to modify its algorithms to make his book harder to find. The Ninth Circuit Court of Appeals rejected that suit this year. Unlike the facts in this case, Ms. Warren’s letter was framed as a “request rather than a command” and she “lacked regulatory authority” over Amazon. The Senator’s letter also “contain[ed] no explicit reference” to “adverse consequences,” and “there was no indication that Amazon perceived the message as a threat.”

The nuanced opinion dismisses complaints against Anthony Fauci and other National Institutes of Health officials because they had merely “promoted the government’s scientific and policy views and attempted to discredit opposing ones—quintessential examples of government speech that do not run afoul of the First Amendment.”

The Fifth Circuit also narrows Judge Doughty’s injunction by spelling out how government officials can communicate with platforms without violating the First Amendment. For instance, they could ask social media companies to “Be on The Lookout” for certain posts provided there’s no intimidation.

The careful, detailed opinion sets the case up well for a Supreme Court appeal if the Biden Administration has the nerve. It may prefer to quit while it’s behind. In either case the ruling is a landmark that protects free speech from the government’s current method of laundering its censorship through private platforms.

[Crafty_Dog]

https://www.dailymail.co.uk/news/article-12655433/Supreme-Court-lifts-restrictions-Joe-Bidens-administration-pushing-removal-controversial-Facebook-X-posts-COVID-election-security.html

[DougMacG]

I thought we were tying to avoid a (second) civil war.

[Body-by-Guinness]

Turley explores the free speech of disallowing Trump to speak of Justice Department weaponization during trials many think wouldn’t occur if not for said weaponization, among other issues:

https://jonathanturley.org/2023/10/20/the-trump-gag-order-should-be-struck-down/

[Crafty_Dog]

https://americanwirenews.com/alito-blisters-scotus-over-highly-disturbing-ruling-allowing-biden-regimes-social-media-censorship/?utm_campaign=james&utm_content=10-24-23%20Daily%20AM&utm_medium=newsletter&utm_source=Get%20response&utm_term=email 

[Crafty_Dog]

https://www.youtube.com/watch?v=shHYzSZp9Qc

[Crafty_Dog]

Josh Hawley’s Unoriginal Constitution
The Missouri Senator wants to rewrite Citizens United and the First Amendment.
By
The Editorial Board
Follow
Nov. 6, 2023 6:24 pm ET


Since the Supreme Court unleashed independent political spending in 2010’s Citizens United v. FEC, progressives have forecast the ruin of American politics by corporate spending. More than a decade on, elections are competitive and no doom has come to pass, but the same false alarm is now making the rounds on the political right.


Missouri Republican Sen. Josh Hawley has introduced legislation to reverse Citizens United as a way to punish corporations whose progressive politics he dislikes. He told RealClearPolitics that his “goal is to get corporate money out of our politics,” and to stop companies from “controlling our elections.”

So big government to the rescue. The Ending Corporate Influence on Elections Act would ban contributions or donations by publicly traded corporations. That includes donations to political committees, independent expenditures and any “disbursement for an electioneering communication.”

The bill proposes no changes to the political activities of labor unions, which also had their speech rights affirmed by Citizens United. That’s a telling omission that suggests Mr. Hawley is looking for allies on the left. Mr. Hawley knows the bill has little chance of becoming law in the current Congress and that the Supreme Court wouldn’t look fondly on this rewrite of the First Amendment. But the current Court majority may not last, as Justices Samuel Alito and Clarence Thomas are both in their 70s.

Mr. Hawley’s exercise aligns with the progressive notion that money is corrupting and that too much of it rigs elections and leads hapless voters to the wrong decision. In April 2022, Sen. Sheldon Whitehouse (D., R.I.) tweeted that Citizens United “super-charged the schemes of big corporate and right-wing donors to rig our government in their favor.”

The Supreme Court addressed that conceit directly in Citizens United. In his majority opinion, Justice Anthony Kennedy wrote that “when Government seeks to use its full power . . . to command where a person may get his or her information, or what distrusted source he or she may not hear, it uses censorship to control thought.” That’s “unlawful” because the First Amendment “confirms the freedom to think for ourselves.”

Mr. Hawley says he’s the real constitutional “originalist” because he believes there is no independent personhood for corporations. That was the argument made in the Citizens United partial dissent by liberal Justice John Paul Stevens. He wrote that corporations “have no consciences, no beliefs, no feelings, no thoughts, no desires” and that corporate personhood is a “legal fiction.”

It’s not that simple. Corporations are made up of citizens, as Justice Antonin Scalia noted in his Citizens United concurrence. The Framers guaranteed free speech for individuals, Justice Scalia wrote, but “the individual person’s right to speak includes the right to speak in association with other individual persons,” and that is as true for a corporation as for a political party. Corporations are assemblies of employees and shareholders who share an interest in political decisions that could harm their business.

Mr. Hawley knows this, but he is picking up the issue because he also knows corporations are unpopular these days. Some corporations have rightly earned conservative disdain, but there are other ways to pick a fight with woke America than by selling out basic conservative values such as free speech and the First Amendment’s explicit right to “petition the government for a redress of grievances.”

Mr. Hawley wants to deny corporations their right to influence laws or regulations that affect them. Bernie Sanders goes to sleep at night dreaming of such a political world.

Campaign spending is a form of political speech, as the Supreme Court has ruled in multiple cases. The left wants to rewrite the First Amendment so it can limit who can speak. “If speech can be prohibited because, in the view of the Government, it leads to ‘moral decay’ or does not serve ‘public ends,’” Justice Scalia wrote, “then there is no limit to the Government’s censorship power.”

This is the philosophy that Josh Hawley now embraces.

[Crafty_Dog]

Emails Show Surgeon General and Facebook Coordinating Covid Censorship



We received 14 pages of emails between U.S. Surgeon General Vivek Murthy and top Facebook executives in 2021 regarding the censorship of user posts about Covid controversies. The emails show Facebook leadership seeking to “better understand the scope of what the White House expects from us on misinformation going forward.”

These emails confirm that Facebook censored Americans at the direction of the Biden White House and Biden’s Surgeon General’s political operation. This is a massive violation of the First Amendment.

We received these emails in response to our January 13, 2023, FOIA lawsuit (Judicial Watch, Inc. v. U.S. Department of Health and Human Services (No. 1:23-cv-00113)) for:
All records, including, but not limited to, electronic mail, texts, memoranda, and handwritten notes, of, regarding, referring, or relating to any efforts of Vice Admiral Vivek H. Murthy, MD, MBA, U.S. Surgeon General, to contact any employee of Facebook, Twitter, TikTok, Instagram, Snapchat, Reddit, YouTube, LinkedIn, Tumblr, and Pinterest concerning COVID-19 or COVID-19 vaccines.

On July 15, 2021, Murthy issued “Confronting Health Misinformation,” a 22-page document addressing his concerns in multiple areas. These included social media, for which it offered a number of suggestions to address misinformation:
[M]ake meaningful long-term investments … including product changes. Redesign recommendation algorithms to avoid amplifying misinformation, build in “frictions”—such as suggestions and warnings—to reduce the sharing of misinformation, and make it easier for users to report misinformation.

***
Platforms should also address misinformation in live streams, which are more difficult to moderate due to their temporary nature and use of audio and video.

***
Prioritize early detection of misinformation “super-spreaders” and repeat offenders. Impose clear consequences for accounts that repeatedly violate platform policies.

***
Amplify communications from trusted messengers and subject matter experts. For example, work with health and medical professionals to reach target audiences. Direct users to a broader range of credible sources, including community organizations.

The newly obtained records show that on July 16, 2021, the next day, Nick Clegg, vice president of Communications and Global Affairs at Facebook, emails Murthy:
Dear Vivek,

Reaching out after what has transpired over the past few days following the publication of the misinformation advisory, and culminating today in the President's remarks about us. I know our teams met today to better understand the scope of what the White House expects from us on misinformation going forward.

In our previous conversations I've appreciated the way you and your team have approached our engagement, and we have worked hard to meet the moment - we've dedicated enormous time and resources to fighting this pandemic and consider ourselves to be partners in fighting the same battle. Certainly we understand (and have understood for some time) that there is disagreement on some of the policies governing our approach and how they are being enforced - even as your team has acknowledged the unprecedented scale of our efforts to provide authoritative information to millions of Americans and to help them get vaccinated. But I thought the way we were singled out over the past few days has been both surprising and misleading, and I believe unproductive to our joint efforts too.

I would appreciate the opportunity to speak directly to discuss a path forward with you and how we can continue to work toward what I sincerely believe are shared goals.

Murthy responds on July 19:
Thanks for reaching out and for sharing your concerns. I know the last few days have been challenging. I'd be happy to speak directly about how we move forward. Let me know the best way to schedule some time later this week and we'll make it happen.

On July 23, Brian Rice, director of public policy for Facebook, emails Clegg and Murthy:
Including this week's updated report here. Look forward to scheduling our next working session. As always please let us know if you have any questions.

Also on July 23, Clegg writes to Murthy:
Dear Vivek (if I may),

Thanks again for taking the time to meet earlier today. It was very helpful to take stock after the past week and hear directly from you and your team, and to establish our next steps.

We talked about the speed at which we are all having to iterate as the pandemic progresses. I wanted to make sure you saw the steps we took just this past week to adjust policies on what we are removing with respect to misinformation, as well as steps taken to further address the “disinfo dozen”: we removed 17 additional Pages, Groups, and Instagram accounts tied to the disinfo dozen (so a total of 39 Profiles, Pages, Groups, and IG accounts deleted thus far, resulting in every member of the disinfo dozen having had at least one such entity removed).

We are also continuing to make 4 other Pages and Profiles, which have not yet met their removal thresholds, more difficult to find on our platform. We also expanded the group of false claims that we remove, to keep up with recent trends of misinformation that we are seeing.

We hear your call for us to do more and, as I said on the call, we're committed to working toward our shared goal of helping America get on top of this pandemic. We will reach out directly to DJ to schedule the deeper dive on how to best measure Covid related content and how to proceed with respect to the question around data. We'd also like to begin a regular cadence of meetings with your team so that we can continue to update you on our progress. You have identified 4 specific recommendations for improvement and we want to make sure to keep you informed of our work on each.

I want to again stress how critical it is that we establish criteria for measuring what's happening on an industry-wide basis, not least to reflect the way platforms are used interchangeably by users themselves. We believe that we have provided more transparency, both through CrowdTangle (the flaws of which we discussed in some detail) and through our Top 100 report, than others and that any further analysis should include a comprehensive look at what's happening across all platforms--ours and others - if we are going to make progress in a consistent and sustained manner.

Finally, we will be sending you the latest version of our Top 100 report later today, per our regular schedule. Brian will do the honors this week as it will likely be completed at our end later today East Coast time. We really do hope that we can discuss our approach to this data set in greater detail during our next session with DJ, as we genuinely believe it is an effective way of understanding what people are actually seeing on the platform.

Once again, I want to thank you for setting such a constructive tone at the beginning of the call. We too believe that we have a strong shared interest to work together, and that we will strive to do all we can to meet our shared goals.

On October 28, 2021, Clegg writes to Murthy with the subject line “Our announcement:”
Dear General Murthy,

I hope you are well. It's been a while since we connected. I know our teams have remained in close contact with respect to our work to provide authoritative information about the vaccine and we are working on how we can partner in this next push to vaccinate children. We appreciate the opportunity to partner with your team.

***
I also recognize the intense debate that's been prompted by the documents that have been disclosed by a former employee. You and I have touched on the subject of wellbeing in our previous conversations and I know it's an area of concern for you and for the White House. I would welcome the opportunity to meet again to hear from you and to address the claims that have been made against the company.

This is an apparent reference to France Haugen, a pro-censorship former Facebook product manager.

On March 3, 2022, Max Lesko, the surgeon general’s chief of staff, emails Clegg and others, “Please see the attached letter from the U.S. Surgeon General for Mark Zuckerberg.” The letter is not included in the documents Judicial Watch received. He continues by asking Clegg and Rice to let him know how he can be helpful with respect to the “Request for Information” which had been sent to the Federal Register.

Some of the subject matter in these documents is discussed in the Fifth Circuit Court of Appeals case Missouri v. Biden, Murthy, et al. (No. 23-30445), which the Biden administration lost. The case is now before the U.S. Supreme Court as Murthy, et al. v. Missouri, et al. (No. 23A243).

In April 2023, we filed two lawsuits against the U.S. Department of Justice and other federal agencies for communications between the agencies and Facebook and Twitter regarding the government’s involvement in content moderation and censorship on the social media platforms.

In June 2023, we sued DHS for all records of communications tied to the Election Integrity Partnership. Based on representations from the EIP (see here and here), the federal government, social media companies, the EIP, the Center for Internet Security (a non-profit organization funded partly by DHS and the Defense Department) and numerous other leftist groups communicated privately via the Jira software platform developed by Atlassian.

In February 2023, we sued the U.S. Department Homeland Security (DHS) for records showing cooperation between the Cybersecurity and Information Security Agency (CISA) and social media platforms to censor and suppress free speech.

In January 2023 we sued the DOJ for records of communications between the Federal Bureau of Investigation (FBI) and social media sites regarding foreign influence in elections, as well as the Hunter Biden laptop story.

In September 2022, we sued the Secretary of State of the State of California for having YouTube censor a Judicial Watch election integrity video.

In May 2022, YouTube censored a Judicial Watch video about Biden corruption and election integrity issues in the 2020 election. The video, titled “Impeach? Biden Corruption Threatens National Security,” was falsely determined to be “election misinformation” and removed by YouTube, and Judicial Watch’s YouTube account was suspended for a week. Judicial Watch continues to post its video content on its Rumble channel (https://rumble.com/vz7aof-fitton-impeach-biden-corruption-threatens-national-security.html).

In July 2021, we uncovered records from the Centers for Disease Control and Prevention (CDC), which revealed that Facebook coordinated closely with the CDC to control the Covid narrative and “misinformation” and that over $3.5 million in free advertising given to the CDC by social media companies.

In May 2021, we revealed documents showing that Iowa state officials pressured social media companies Twitter and Facebook to censor posts about the 2020 election.

More documents on this dangerous censorship are being processed now by Judicial Watch so expect more revelations soon!

[Crafty_Dog]

https://notthebee.com/article/liberal-media-is-shocked-because-speaker-mike-johnson-actually-understands-what-separation-of-church-and-state-means?utm_source=Not+The+Bee+Newsletter&utm_medium=email&utm_campaign=11162023

[ccp]

https://www.washingtonexaminer.com/opinion/nikki-haleys-dangerous-idea

[Crafty_Dog]

IIRC from law school (over 40 years ago)  the C'l standard is imminence of the words turning to deeds.

It would seem Haley is missing this by quite a bit.

[Crafty_Dog]

https://dailycaller.com/2023/11/18/this-supreme-court-term-will-have-big-implications-for-the-first-amendment/?utm_source=piano&utm_medium=email&utm_campaign=29912&pnespid=sbRpFidFaKlBhePL_T_1DZeHpwixD4dpLLanm_hjt0Jm5KoQZqRV8vKauFuQR0ERfStmRNiR

[Body-by-Guinness]

Volokh does a fine job of threading this needle:

https://reason.com/volokh/2023/12/06/should-universities-ban-advocacy-of-genocide/

[Body-by-Guinness]

2nd post.

I confess I’m enjoying the opprobrium and resulting squirming occurring in the wake sundry vile anti-Israeli & Semitic protests on college campuses and the resulting rush by university administrators up to and including their presidents to throw shade to their DEI fellow travelers, with much of that shade and the “protests” themselves glaringly antithetical to the rumored ideals of higher ed.

With that said, as fun as it is to watch inconsistent nitwits twist in the wind as all given hoist by their petard rains down on them, at the end of the day, as this piece argues an institutional commitment to free expression ought to be the end:

https://reason.com/volokh/2023/12/07/this-will-not-end-well-fire-on-penn-presidents-backtracking-on-free-speech/

[Body-by-Guinness]

And a 3rd.

Some great writing and thinking is emerging from the current college speech debates:

https://davidlat.substack.com/p/against-free-speech-hypocrisy

[Crafty_Dog]

Some quick off the cuff thoughts:

a) Mein Kampf should not be banned from bookstores, nor should Adolph Hitler or his equivalent be hired to teach by American Universities.

b) Universities, especially elite ones, select their students and have standards they must meet.  Advocating genocide should be a no-no.

c) Threats and ideas are not the same thing, even though the former may contain the latter.  Mobs chanting for genocide have an inherently intimidating effect upon those in the vecinity whose demise is advocated. 

[Crafty_Dog]

https://dailycaller.com/2023/12/09/opinion-can-universities-facing-antisemitism-lawsuits-hide-behind-the-first-amendment-alan-dershowitz/?utm_source=piano&utm_medium=email&utm_campaign=29912&pnespid=56V6AnlCOKoAy6CcpCu0Q5XVsxC3CoZlIOigwrRmoBBmgsmWsaHdcm4glOzEQuo7kJKCYpGk

[Body-by-Guinness]

Accustomed to being able to parrot the Progressive position without undue opprobrium, colleges find themselves between a rock and a hard place where the “river to the sea” sentiment is concerned and thus spout wholly inconsistent free speech BS.

https://thehill.com/opinion/education/4321195-universities-must-quit-with-the-bs/

[Crafty_Dog]

https://greglukianoff.substack.com/p/yes-the-last-10-years-really-have

HT BBG

[Crafty_Dog]

A pleasant  surprise to see that this prof is from Columbia.

Is There Any Remedy When You’re Censored?
The Supreme Court has three opportunities this term to give teeth to the First Amendment.
By Philip Hamburger
Feb. 25, 2024 3:33 pm ETA


It’s said that for every right there’s a remedy. Three cases before the Supreme Court will test whether that’s true for the freedom of speech.

In National Rifle Association v. Vullo, a New York state official took aim at gun advocacy by threatening regulatory hassle for bankers and insurers that continued to do business with the NRA. Recognizing the threat, they dumped the organization. Now that the official, Maria Vullo, is being sued, she claims that under the qualified-immunity doctrine, she can’t be ordered to pay damages.

Qualified immunity broadly protects officials from liability, so most plaintiffs who are censored don’t bother seeking damages for past suppression. Instead they seek injunctions against future censorship. In Murthy v. Missouri, however, the Biden administration is trying to foreclose that remedy, too.

Although the government pressured social-media platforms to censor users, it now claims the plaintiffs shouldn’t get an injunction because they can’t show that they are likely to be censored again. They also want injunctive protection for their ability to read other authors, but again the government objects. More seriously, even if the court sustains the injunction in Murthy, it won’t be sufficient, as it doesn’t bar the full breadth of the current censorship. Injunctions will always be inadequate in the face of secret suppression. In this case, because the government kept its role secret, it has taken more than half a decade to get an injunction against the censorship.

Americans are thus in a strange predicament. Under Supreme Court doctrine, they can’t be confident of getting either damages for past censorship or a prompt and effective injunction against future censorship. And it gets worse. In NetChoice v. Paxton, in which the justices hear oral arguments on Monday, there’s a danger the court will strike down Texas’ free-speech statute. That law treats the dominant social-media platforms as common carriers and bars them from discriminating on the basis of viewpoint.

This sort of antidiscrimination law is the only effective remedy for the current regime of government censorship. It’s unlikely that federal law will adequately limit federal censorship, so state law is structurally essential to stop it. And only when common-carrier antidiscrimination rules are applied to the platforms will the federal government be fully precluded from imposing censorship through them.

A decision that state common-carrier laws can’t be used to stop federal censorship through the platforms would render such censorship all but irremediable. Damages are generally unavailable for past censorship, and injunctions are too slow and otherwise inadequate against future censorship—so a decision against an antidiscrimination rule would make it a trifecta against free speech.

This risk is especially startling because it’s only recently that Americans have needed a remedy against censorship. The government once couldn’t actually suppress speech; it could only punish the speaker, and for this it had to go to court. The government once had to go to court to charge a particular defendant with seditious libel or some other offense and prove its accusation. Now, the government can simply pressure or induce the dominant social-media platforms to suppress speech en masse. That approach doesn’t merely punish speakers; it snuffs out speech. And it places the onus of going to court on the censored individuals.

Whereas the censored once merely had to defend themselves when prosecuted, they now need to persuade a court to stop the censorship. The current federal censorship thus silences Americans and puts the burden of proof on those who wish to speak. And even when they meet that burden, as in the current cases, they usually can’t get damages or a timely and effective injunction.

Mr. Hamburger teaches at Columbia Law School and is CEO of the New Civil Liberties Alliance, which represents the individual plaintiffs in Murthy v. Missouri. He is author of “Courting Censorship.”

[Crafty_Dog]

(1) SCOTUS SIGNALS IT WILL ALLOW BIDEN SOCIAL MEDIA CENSORSHIP: The Supreme Court of the United States (SCOTUS) heard oral arguments in Murthy v. Missouri yesterday, a lawsuit brought by Louisiana and Missouri against the Biden administration over communications between federal agencies and social media companies.
Louisiana Federal District Chief Judge Terry Doughty issued an injunction on 4 July 2023 against the Biden administration, which he called “the most massive attack against free speech in United States’ history.”
Justice Brett Kavanaugh said, “In my experience, the United States in all its manifestations has regular communications with the media to talk about things they don’t like, or don’t want to see, or complaining about factual inaccuracies.”
“My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods,” Justice Ketanji Brown Jackson said.
Why It Matters: SCOTUS is signaling it is likely to side with the Biden administration, allowing federal agencies to restart what is effectively government censorship of online political speech just in time for the 2024 election. – R.C.

[Body-by-Guinness]

An elegant formulation of what is at stake where Missouri v. Biden in concerned:

Liberals Fret They Have Lost The Disinformation Wars

We don’t need no thought control.

TIPPINSIGHTS EDITORIAL BOARD
March 19, 2024 . 7:30 AM  4 min read

On Sunday, the New York Times published an agonizingly long 4,200-word article on how former President Trump's allies are winning the war over disinformation.
"Waged in the courts, in Congress and in the seething precincts of the internet," the counteroffensive over censorship waged by Trump and his allies "has eviscerated attempts to shield elections from disinformation in the social media era."

The piece was a list of familiar liberal grievances around a central question: "In a world of unlimited online communications, in which anyone can reach huge numbers of people with unverified and false information, where is the line between protecting democracy and trampling on the right to free speech?"

The article's timing was to help influence the Supreme Court, which heard oral arguments on Monday in a lawsuit filed by the attorneys general of Missouri and Louisiana about how federal officials force social media platforms to limit speech critical of the government.

As ardent believers of free speech, we have repeatedly stressed in these pages that there should be no line as long as the speech is legal. Social media platforms have already established terms of use prohibiting any expression of criminal speech -one can't plan a drug deal or architect a crime.

The majority of speech on the Internet is civil, meaning it is not criminal. People may not be civil to each other, but this often happens during a vigorous debate. There are no legal contracts between people on a social media platform, so they are free to dispute facts and opinions all they want. The benefits of vibrant interactions in the public sphere thwart any harm resulting from disinformation.

Indeed, some people may express opinions that most others may find distasteful. In the 1988 Supreme Court case, People vs. Larry Flynt, attorney Alan Isaacman argued that Hustler magazine's parody depiction of the Rev. Jerry Falwell having sex with his mother, distasteful as it may have been, was permitted under the constitution: "This country is founded, at least in part, on the firm belief that unpopular speech is vital to the health of our nation." In an 8–0 decision, the Court agreed and held that the ad's infliction of emotional distress on Falwell was insufficient to deny the First Amendment protection of Hustler magazine to criticize public officials and figures.

Unfortunately, the modern establishments’ battle to constantly control the narrative has taken us far from the righteous path that the Supreme Court laid out for us in Flynt. Until Elon Musk took over Twitter and brought free speech back to one of the largest social media platforms, anything that did not meet the establishments’ speech code was immediately deemed as disinformation and harmful. The code was always under extraordinarily broad and laudable yet ambiguous terms, such as trust, safety, and concern for the public.

On October 14, 2020, the New York Post published a damaging story about then-candidate Biden asserting that Hunter Biden's abandoned laptop carried proof he sold influence while his father served as vice president and the elder Biden knew it. The story sought to sow doubts about Biden's prior statements that he never discussed Ukraine with his son. The Biden campaign immediately squashed the story, saying that it was a product of Russian disinformation.

Within hours of the Post's article appearing on Facebook, the platform had limited the story's distribution. The old Twitter went even further and blocked the article altogether. The reason? The report was based on "unverified material from Trump allies."

On October 19, Politico reported that more than 50 former intelligence officials signed a letter supporting the Biden campaign. In the letter, the signatories said, "If we are right, this is Russia trying to influence how Americans vote in this election, and we strongly believe that Americans need to be aware of this." The letter gave additional justification for Facebook and Twitter to keep the story off their platforms.
Two weeks later, America voted. Four days after the general election, the AP called the race for Biden.

Almost 11 months later, Politico found evidence that some of the purported Hunter Biden laptop material was genuine after all, including "two emails at the center of last October's controversy." On May 16, 2023, the Times conceded in a shocker: "Three years later, no concrete evidence has emerged to confirm the assertion that the laptop contained Russian disinformation and portions of its contents have been verified as authentic." This meant that the letter signed by 50 apolitical intelligence officials - a fact that Biden touted at a presidential debate to ridicule Trump - was nonsense.

The Hunter Biden story exemplifies what happens when central teams at the social media platforms block a story's distribution to prevent "disinformation."

Thanks to Elon Musk, Americans now know what a vibrant social media platform can do to citizen debate. All views are now permitted on X, formally Twitter, without prejudice or bias. Musk's definition of free speech is to allow someone we don't like to say something we don't like, as long as what is said is legal.

Suppose Facebook and Twitter had allowed the New York Post story to spread three weeks before the election? Numerous media outlets would have investigated the story to discover if the "October surprise" was genuine. Even if the facts were not dispositive, sufficient numbers of voters may have developed doubts not to cast a vote for Biden. "Just 44,000 votes in Georgia, Arizona, and Wisconsin separated Biden and Trump from a tie in the Electoral College," NPR reported. We calculated the 44,000 votes to be about a margin of 0.6% in each of these states - a small enough sample that could have swung the election. 

It is not a stretch to say that Facebook and Twitter placed a thumb on the scale and probably tilted the 2020 election to Biden. Their disinformation effort, meant to protect democracy, had the opposite effect—wilfully withholding relevant information from voters that may have influenced their choice.

The remedy for wrong speech is not censorship or controlling disinformation but more right speech - a concept Musk has implemented through "Community Notes," when the original post stays and experts who disagree with the author provide information that users can see for themselves.

We fail to understand why the Left does not embrace this simple and elegant solution.

https://tippinsights.com/liberals-fret-they-have-lost-the-disinformation-wars/

[Crafty_Dog]

https://townhall.com/tipsheet/katiepavlich/2024/03/18/justice-jacksons-description-of-the-first-amendment-is-raising-eyebrows-n2636651

[DougMacG]

Justice Ketanji Brown Jackson expressed concern that the First Amendment is “hamstringing the government in significant ways, in the most important time periods.” 

https://www.americanthinker.com/articles/2024/03/censorship_is_a_deadend_road.html

"Reserving free expression and vigorous public debate for times of civil peace and relative social unity is like protecting a person’s Second Amendment right to own a gun only when his life is not threatened. "

[DougMacG]

https://m.youtube.com/watch?v=HkoAn9x4-JM&embeds_referring_euri=https%3A%2F%2Fwww.powerlineblog.com%2F&source_ve_path=OTY3MTQ&feature=emb_imp_woyt

Column on video avoids the pay wall.

Government is the most dangerous form of misinformation.

Matt Taibbi discusses the Murthy case and his experience with government misinformation and government quashed dissent speech.

Unless I'm missing something, I can't believe this case isn't an easy call for every constitution based Justice.

[Crafty_Dog]

https://washingtontimes-dc.newsmemory.com/?token=de33d68bec3b7bcb085648c16327bd7f_66699c6e_6d25b5f&selDate=20240612

[Crafty_Dog]

Supreme Majority: Today Is Just Not the Day to Defend Free Speech
Americans will have to wait for another case to affirm First Amendment limits on federal power.
James Freeman
By
James Freeman
Follow
June 26, 2024 3:49 pm ET





Nearly a year ago this column celebrated the beautiful birthday gift that U.S. District Judge Terry Doughty gave to America in slapping down the Biden administration’s rank abuse of First Amendment rights in pressuring social media companies to censor speech. Now the Supreme Court hasn’t exactly forced a complete return of the gift but has raised the question of whether America will ever be able to accept it.

After taking the important case, a 6-3 majority fronted by Justice Amy Coney Barrett—and including the Court’s three leftists plus Chief Justice John Roberts and Justice Brett Kavanaugh—has essentially avoided addressing all the fundamental questions by making a tortured argument that the particular plaintiffs involved didn’t have the standing to serve as plaintiffs.

Jan Wolfe reports for the Journal:

The Supreme Court on Wednesday rejected a lawsuit alleging that Biden administration officials unlawfully pressured social-media platforms to remove content flagged as disinformation, ruling that neither the two states nor five private parties who brought the claim had any right to get their allegations before a judge.

The lawsuit, spearheaded by Republican state attorneys general in Missouri and Louisiana, had fared well in the lower courts, at one point resulting in an unprecedented injunction that blocked top government officials from communicating with social-media companies about removing “content containing protected free speech” from their platforms.

The majority opinion reads like an argument reverse-engineered to allow justices to dodge their fundamental duty to defend our most precious liberties—and the open debate on which our society and the advance of human knowledge and civilization depend. The justices appear to be resting much of their restraint in defending our rights on an assumption that the most aggressive government efforts to lean on tech platforms during the Covid era have eased and are unlikely to be repeated. But of course they will be repeated if such abuses are not punished. Ilya Shapiro writes on X:

In the term’s much-anticipated social-media-regulation case, the Court took the easy way out by not deciding the key issue. Instead of updating the rules on jawboning—government pressure on businesses to do its bidding—for the digital age, a 6-justice majority simply kicked the case on standing grounds…

That’s a disappointing cop-out: the public deserves to know that their elected officials aren’t doing an end-run around the Constitution by having private actors do its bidding. But also note that this 6-3 vote involved three conservatives joining three liberals—so again attacks on the Court as being a bunch of partisan hacks fall flat.
Instead it looks like six justices acting as a bunch of bipartisan hacks to avoid disrupting the media relations activities of the federal government. The case featured a voluminous record of the White House privately pressuring social media executives to suppress controversial speech. And who can forget the public accusation from President Joe Biden that Facebook was killing people by not censoring as aggressively as he wanted (an outrageous claim that he took days to retract)?

Let’s hope this is one of those Supreme Court cases where the dissent ends up being much more influential with the passage of time than the Court’s actual decision. Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, wisely describes not only how Facebook did indeed respond to the White House pressure but also how a private plaintiff named Jill Hines was harmed because her speech was suppressed. The dissent reads:

For months in 2021 and 2022, a coterie of officials at the highest levels of the Federal Government continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not comply with their wishes about the suppression of certain COVID–19-related speech. Not surprisingly, Facebook repeatedly yielded. As a result Hines was indisputably injured, and due to the officials’ continuing efforts, she was threatened with more of the same when she brought suit.

These past and threatened future injuries were caused by and traceable to censorship that the officials coerced, and the injunctive relief she sought was an available and suitable remedy. This evidence was more than sufficient to establish Hines’s standing to sue… and consequently, we are obligated to tackle the free speech issue that the case presents. The Court, however, shirks that duty and thus permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think.

The dissent concludes that the government’s censorship “was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so.”

Much of this country already does.