David Enrich in NYT Magazine.
Category Archives: First Amendment theory
Elon Musk Says “60 Minutes” Journalists “Deserve a Long Prison Sentence” after Airing Critical Report; Where are the Free Speech Organizations on the Right Condemning this Intimidation of Journalists by Government Official?
“Supreme Court Signals That Landmark Libel Ruling Is Secure”
Adam Liptak for the NYT:
Starting in 2019, Justice Clarence Thomas has repeatedly called for the Supreme Court to reconsider New York Times v. Sullivan, the landmark First Amendment decision that made it hard for public officials to prevail in libel suits.
That project gained momentum in 2021, when Justice Neil M. Gorsuch said the decision “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
So it was notable that just five days before President Trump took office last month, the Supreme Court seemed to go out of its way to signal that it is not ready to embrace one of his most dearly held goals: to “open up our libel laws” and overrule the Sullivan decision.
The signal, faint but unmistakable, came in a routine case on whether sales representatives were entitled to overtime. Justice Brett M. Kavanaugh cited the Sullivan decision with seeming approval, noting that it had held that the Constitution insists that public officials suing for libel must prove their cases with clear and convincing evidence….
The positive reference to the Sullivan decision last month was not a fluke. In 2023, Justice Elena Kagan, writing for five justices in a 7-to-2 decision, relied on Sullivan to rule that the First Amendment imposes limits on laws that make it a crime to issue threats on the internet….
All of this suggests that there remain only two votes to overturn the Sullivan decision, well short of the four it takes to add a case to the court’s docket, much less the five required to prevail on the merits.
Still, the attacks from Justices Thomas and Gorsuch have not gone unnoticed. Their dissents have been cited in 25 court decisions, according to a database search….
“TikTok Case Before Supreme Court Pits National Security Against Free Speech”
When the Supreme Court hears arguments on Friday over whether protecting national security requires TikTok to be sold or closed, the justices will be working in the shadow of three First Amendment precedents, all influenced by the climate of their times and by how much the justices trusted the government.
During the Cold War and in the Vietnam era, the court refused to credit the government’s assertions that national security required limiting what newspapers could publish and what Americans could read. More recently, though, the court deferred to Congress’s judgment that combating terrorism justified making some kinds of speech a crime.
The court will most likely act quickly, as TikTok faces a Jan. 19 deadline under a law enacted in April by bipartisan majorities. The law’s sponsors said the app’s parent company, ByteDance, is controlled by China and could use it to harvest Americans’ private data and to spread covert disinformation.
The court’s decision will determine the fate of a powerful and pervasive cultural phenomenon that uses a sophisticated algorithm to feed a personalized array of short videos to its 170 million users in the United States. For many of them, and particularly younger ones, TikTok has become a leading source of information and entertainment….
“Experts: Trump’s use of consumer fraud law to sue Des Moines Register unlikely to succeed”
Legal experts representing different ends of the political spectrum say the recent lawsuit by President-elect Donald Trump against the Des Moines Register is based on a strained interpretation of Iowa law and is unlikely to find success in court.
Trump filed suit Dec. 16 against the Register, its parent company Gannett and longtime Iowa pollster Ann Selzer, alleging violations of the Iowa Consumer Fraud Act. The complaint centers on a poll published by the Register in early November that understated Trump’s support, showing Vice President Kamala Harris with a 3-point lead over Trump in Iowa just days before Trump went on to win the state by 13 points.
Trump’s suit alleges the poll was fraudulent and an attempt at election interference. The Register has said it stands by its work.
Several experts who have reviewed Trump’s petition say his legal theory is a stretch. Samantha Barbas, a professor and First Amendment expert with the University of Iowa College of Law, said Iowa’s consumer fraud law is a poor fit for Trump’s complaint.
The Iowa Consumer Fraud Act “is meant to protect people who buy goods or services, not people who consume news and other sorts of information,” Barbas said. “So this is completely far-fetched, in my opinion, and other than Trump’s lawsuit here, and he has a similar case going on in Texas, I’m not aware of parties that have used a consumer fraud statute to punish or sue newspapers for information they don’t like.”…
Eugene Volokh, a UCLA professor and fellow with the free market-oriented Hoover Institution, wrote Dec. 18 for the libertarian-leaning publication Reason that “the First Amendment generally bars states from imposing liability for misleading or even outright false political speech, including in commercially distributed newspapers — and especially for predictive and evaluative judgments of the sort inherent in estimating public sentiment about a candidate.”
Volokh cited a 2020 case from Washington state courts, where a group sued Fox News alleging that its statements by its show hosts, including Sean Hannity, dismissing or minimizing the COVID-19 pandemic violated that state’s consumer protection laws. Both the district judge and appellate courts in Washington rejected that claim, finding that statements of opinion on a topic of public concern are core First Amendment-protected speech.“There are some historically recognized exceptions to First Amendment protection for knowing falsehoods, such as for defamation, fraud, and perjury. But those are deliberately exceptions,” Volokh wrote. “Defamation is limited to knowing (or sometimes negligent) falsehoods that damage a particular person’s reputation. Fraud is limited to statements that themselves request money or other tangibly valuable items. Perjury is limited to lies under oath in governmental proceedings. There is no general government power to punish political falsehoods outside these narrow exceptions.”…
“This company rates news sites’ credibility. The right wants it stopped.”
WaPo:
When veteran newsmen L. Gordon Crovitz and Steven Brill started their news site rating company, they were prepared for the inevitable cries of bias from both sides.
What they didn’t anticipate was that NewsGuard, their company of some 50 employees, would become the target of congressional investigations and accusations from federal regulators that it was at the vanguard of a vast conspiracy to censor conservative views.
Since 2018, NewsGuard has built a business offering advertisers nonpartisan assessments of online publishers — backed by a team of journalists who assess which sites are reputable and which can’t be trusted. It uses a slate of nine standard criteria, such as whether a site corrects errors or discloses its ownership and financing, to produce a zero to 100 percent rating.
Crovitz, a former publisher of the Wall Street Journal and a Republican, and Brill, a left-tending independent who founded Court TV and the American Lawyer magazine, engaged with publishers wanting to understand subpar ratings, sometimes wrangling for hours by phone over the details of a site’s correction policy.
But conservatives now question the company’s premise. Brendan Carr, President-elect Donald Trump’s pick to lead the Federal Communications Commission, accused the company of facilitating a “censorship cartel,” in a November letter to leading tech platforms. Noting that key legal protections depend on tech executives operating “in good faith,” Carr continued: “It is in this context that I am writing to obtain information about your work with one specific organization — the Orwellian named NewsGuard.”…
NewsGuard, backed by legal experts, argues that Carr’s letter may violate the First Amendment by threatening the speech rights of private companies.
“The only attempt to censor going on here is by Brendan Carr,” Crovitz said in an interview.
“Trump signals plans to use all levers of power against the media”
WaPo:
For many years, Donald Trump repeatedly threatened to sue the press but often didn’t follow through. When he did, he almost always lost.
But Trump’s recent settlement with ABC News and a cascade of lawsuits and other complaints against media entities from him and his allies signal a ramped-up campaign from the president-elect. Together, the action has spurred concerns that his efforts could drastically undermine the institutions tasked with reporting on his coming administration, which Trump has promised will take revenge on those he perceives as having wronged him….
The pressure from Trump and his allies on the media is already growingand willcontinue to intensify, according to two Trump aides who spoke on the condition of anonymity to share sensitive internal deliberations.
In the two months before the presidential election, Trump attacked the media more than 100 times in public speeches or other remarks. The week before Election Day, Trump threatened to sue the New York Times, his campaign lodged a Federal Election Commission complaint against The Washington Post and he sued CBS News for editing a “60 Minutes” interview with Vice President Kamala Harris in a way he said was deceptive. Those media outlets have defended their work.
On Monday, he filed a consumer fraud suit against pollster J. Ann Selzer and the Des Moines Register over an outlier poll it ran showing Trump trailing Harris in the presidential race in Iowa, a conservative state that he went on to win by 13 percentage points. The complaint does not hinge on a defamation claim — public figures must cross a high legal threshold to prove that they’ve been libeled — but rather a perceived violation of the state’s consumer protection statute….
“The concern here is that we might be seeing a confluence of forces — legal, political and social — that work together to erode the confidence we once had in the vibrancy of the American press,” said RonNell Andersen Jones, a First Amendment expert and law professor at the University of Utah. “Settlement decisions aren’t made in a vacuum. Each major decision to settle sends a signal about the broader climate for the press. It can spur other public figures to sue over perceived slights and pressure other media outlets to self-censor.”…
As Supreme Court Sets TikTok Case for Oral Argument, Senator McConnell, Champion of First Amendment in Citizens United, Files Amicus Brief Saying Government Can Shut Down Platform to stop “deployment of subversive enemy propaganda through algorithmic curation.”
Quite the amicus brief from the purportedly free-speech Senator McConnell.
The Supreme Court set a very expedited schedule for oral argument in the TikTok case (unlike its dilatory tactics in the Trump immunity case).
Watch Video of My Conversation With MSNBC’s Alex Wagner on the First Amendment and Trump’s Lawsuits Against Media Including the Des Moines Register
“Trump and His Picks Threaten More Lawsuits Over Critical Coverage”
The legal threats have arrived in various forms. One aired on CNN. Another came over the phone. More arrived in letters or emails.
All of them appeared aimed at intimidating news outlets and others who have criticized or questioned President-elect Donald J. Trump and his nominees to run the Pentagon and F.B.I.
The small flurry of threatened defamation lawsuits is the latest sign that the incoming Trump administration appears poised to do what it can to crack down on unfavorable media coverage. Before and after the election, Mr. Trump and his allies have discussed subpoenaing news organizations, prosecuting journalists and their sources, revoking networks’ broadcast licenses and eliminating funding for public radio and television.
Actual or threatened libel lawsuits are another weapon at their disposal — and they are being deployed even before Mr. Trump moves back into the White House.
It is notoriously difficult for public figures like Mr. Trump to win defamation lawsuits. Under longstanding Supreme Court precedent — which Mr. Trump and some of his allies want to see weakened or overturned — plaintiffs must prove that a publisher knew a defamatory statement was false or acted with reckless disregard for its accuracy.
But that high bar has not stopped a wide range of politicians, business leaders and others from threatening or filing such suits — a strategy that often seems tailored to cause news outlets and individuals to rein in aggressive coverage of the public figures.
The strategy can pay other dividends as well….
Jaffer & Lakier: “The Supreme Court Must Intervene in the TikTok Case”
Jameel Jaffer and Genevieve Lakier NYT oped:
Last week, the Court of Appeals for the District of Columbia Circuit upheld a federal law that threatens to shut down TikTok in the United States. The court’s most consequential conclusion: The First Amendment permits the government to protect Americans from covert foreign manipulation by restricting their access to foreign-controlled media — even when that means Americans’ speech is restricted, too.
The ruling is bad news for TikTok, its China-based parent, ByteDance, and its approximately 170 million American users. It also seriously weakens the First Amendment, and by extension our democracy, at an exceptionally perilous time.
Governments around the world are using the threat of foreign interference to justify the closure and harassment of media organizations and advocacy groups, and to impose new limitations on citizens’ access to information from abroad. Our next president has made clear he will exploit any legal authority he can to suppress what he deems to be “fake news.”
In this political landscape, the court’s opinion is an invitation to abuse. TikTok has said it will ask the Supreme Court to intervene in the case. It should….
The Parallels in the TikTok Ban Case and Regulation of Campaign Spending by Foreign Nationals
The DC Circuit has held that the U.S. government can force the sale or shutting down of TikTok because of concerns about the influence of the Chinese government over the actions of the platform’s parent company. Among other things, the court rejected an argument that shutting down the platform violated TikTok’s First Amendment rights. The D.C. court wrote: “In this case, a foreign government threatens to distort free speech on an important medium of communication.”
So while under the Supreme Court’s NetChoice case, government content moderation control violates the First Amendment, when it comes to foreign controlled platforms under the TikTok case, government content moderation control prevents distortion and promotes First Amendment values.
In reading the DC Circuit opinion , I was reminded of a parallel dispute in the campaign finance arena over limiting spending by foreign nationals. In Citizens United, the Court held that domestic corporations cannot be limited in how much they can spend to influence federal elections. Citizens United rejected the argument, previously accepted in cases such as Austin v. Michigan Chamber of Commerce, that preventing distortion of the political marketplace could justify such a ban.
And yet the Court in Bluman v. FEC soon after Citizens United allowed a complete ban on spending by foreign nationals, citing the interest in preserving democratic self-government. As I’ve explained, this too is an anti-distortion rationale.
In Bluman and TikTok, the courts reached divergent conclusions because of the foreign identity of the speaker. But they don’t recognize the tension.
The D.C. Circuit did not cite Bluman in TikTok but it might as well have. When the case makes its way to SCOTUS, I expect the Bluman parallel will get some play.
