*This interview has been edited for length and clarity.

Aji Fama Jobe is a digital creator, IT consultant, blogger, and tech community leader from The Gambia. She helps run Women TechMakers Banjul, an organization that provides visibility, mentorship, and resources to women and girls in tech. She also serves as an Information Technology Assistant with the World Bank Group where she focuses on resolving IT issues and enhancing digital infrastructure. Aji Fama is a dedicated advocate working to leverage technology to enhance the lives and opportunities of women and girls in Gambia and across Africa.

Greene: Why don’t you start off by introducing yourself? 

My name is Aji Fama Jobe. I’m from Gambia and I run an organization called Women TechMakers Banjul that provides resources to women and girls in Gambia, particularly in the Greater Banjul area. I also work with other organizations that focus on STEM and digital literacy and aim to impact more regions and more people in the world. Gambia is made up of six different regions and we have host organizations in each region. So we go to train young people, especially women, in those communities on digital literacy. And that’s what I’ve been doing for the past four or five years. 

Greene: So this series focuses on freedom of expression. What does freedom of expression mean to you personally? 

For me it means being able to express myself without being judged. Because most of the time—and especially on the internet because of a lot of cyber bullying—I tend to think a lot before posting something. It’s all about, what will other people think? Will there be backlash? And I just want to speak freely. So for me it means to speak freely without being judged. 

Greene: Do you feel like free speech means different things for women in the Gambia than for men? And how do you see this play out in the work that you do? 

In the Gambia we have freedom of expression, the laws are there, but the culture is the opposite of the laws. Society still frowns on women who speak out, not just in the workspace but even in homes. Sometimes men say a woman shouldn’t speak loud or there’s a certain way women should express. It’s the culture itself that makes women not speak up in certain situations. In our culture it’s widely accepted that you let the man or the head of the family—who’s normally a man, of course—speak. I feel like freedom of speech is really important when it comes to the work we do. Because women should be able to speak freely. And when you speak freely it gives you that confidence that you can do something. So it’s a larger issue. What our organization does on free speech is address the unconscious bias in the tech space that impacts working women. I work as an IT consultant and sometimes when we’re trying to do something technical people always assume IT specialists are men. So sometimes we just want to speak up and say, “It’s IT woman, not IT guy.” 

Greene: We could say that maybe socially we need to figure this out, but now let me ask you this. Do you think the government has a role in regulating online speech? 

Those in charge of policy enforcement don’t understand how to navigate these online pieces. It’s not just about putting the policies in place. They need to train people how to navigate this thing or how to update these policies in specific situations. It’s not just about what the culture says. The policy is the policy and people should follow the rules, not just as civilians but also as policy enforcers and law enforcement. They need to follow the rules, too. 

Greene: What about the big companies that run these platforms? What’s their role in regulating online speech? 

With cyber-bullying I feel like the big companies need to play a bigger role in trying to bring down content sometimes. Take Facebook for example. They don’t have many people that work in Africa and understand Africa with its complexities and its different languages. For instance, in the Gambia we have 2.4 million people but six or seven languages. On the internet people use local languages to do certain things. So it’s hard to moderate on the platform’s end, but also they need to do more work. 

Greene: So six local languages in the Gambia? Do you feel there’s any platform that has the capability to moderate that? 

In the Gambia? No. We have some civil society that tries to report content, but it’s just civil society and most of them do it on a voluntary basis, so it’s not that strong. The only thing you can do is report it to Facebook. But Facebook has bigger countries and bigger issues to deal with, and you end up waiting in a lineup of those issues and then the damage has already been done. 

Greene: Okay, let’s shift gears. Do you consider the current government of the Gambia to be democratic? 

I think it is pretty democratic because you can speak freely after 2016 unlike with our last president. I was born in an era when people were not able to speak up. So I can only compare the last regime and the current one. I think now it’s more democratic because people are able to speak out online. I can remember back before the elections of 2016 that if you said certain things online you had to move out of the country. Before 2016 people who were abroad would not come back to Gambia for fear of facing reprisal for content they had posted online. Since 2016 we have seen people we hadn’t seen for like ten or fifteen years. They were finally able to come back. 

Greene: So you lived in the country under a non-democratic regime with the prior administration. Do you have any personal stories you could tell about life before 2016 and feeling like you were censored? Or having to go outside of the country to write something? 

Technically it was a democracy but the fact was you couldn’t speak freely. What you said could get you in trouble—I don’t consider that a democracy. 

During the last regime I was in high school. One thing I realized was that there were certain political things teachers wouldn’t discuss because they had to protect themselves. At some point I realized things changed because before 2016 we didn’t say the president’s name. We would give him nicknames, but the moment the guy left power we felt free to say his name directly. I experienced censorship from not being able to say his name or talk about him. I realized there was so much going on when the Truth, Reconciliation, and Reparations Commission (TRC) happened and people finally had the confidence to go on TV and speak about their stories. 

As a young person I learned that what you see is not everything that’s happening. There were a lot of things that were happening but we couldn’t see because the media was restricted. The media couldn’t publish certain things. When he left and through the TRC we learned about what happened. A lot of people lost their lives. Some had to flee. Some people lost their mom or dad or some got raped. I think that opened my world. Even though I’m not politically inclined or in the political space, what happened there impacted me. Because we had a political moment where the president didn’t accept the elections, and a lot of people fled and went to Senegal. I stayed like three or four months and the whole country was on lockdown. So that was my experience of what happens when things don’t go as planned when it comes to the electoral process. That was my personal experience. 

Greene: Was there news media during that time? Was it all government-controlled or was there any independent news media? 

We had some independent news media, but those were from Gambians outside of the country. The media that was inside the country couldn’t publish anything against the government. If you wanted to know what was really happening, you had to go online. At some point, WhatsApp was blocked so we had to move to Telegram and other social media. I also realized that at some point because my dad was in Iraq and I had to download a VPN so I could talk to him and tell him what was happening in the country because my mom and I were there. That’s why when people censor the internet I’m really keen on that aspect because I’ve experienced that. 

Greene: What made you start doing the work you’re doing now? 

First, when I started doing computer science—I have a computer science background—there was no one there to tell me what to do or how to do it. I had to navigate things for myself or look for people to guide me. I just thought, we don’t have to repeat the same thing for other people. That’s why we started Women TechMakers. We try to guide people and train them. We want employers to focus on skills instead of gender. So we get to train people, we have a lot of book plans and online resources that we share with people. If you want to go into a certain field we try to guide you and send you resources. That’s one of the things we do. Just for people to feel confident in their skills. And everyday people say to me, “Because of this program I was able to get this thing I wanted,” like a job or an event. And that keeps me going. Women get to feel confident in their skills and in the places they work, too. Companies are always looking for diversity and inclusion. Like, “oh I have two female developers.” At the end of the day you can say you have two developers and they’re very good developers. And yeah, they’re women. It’s not like they’re hired because they’re women, it’s because they’re skilled. That’s why I do what I do. 

Greene: Is there anything else you wanted to say about freedom of speech or about preserving online open spaces? 

I work with a lot of technical people who think freedom of speech is not their issue. But what I keep saying to people is that you think it’s not your issue until you experience it. But freedom of speech and digital rights are everybody’s issues. Because at the end of the day if you don’t have that freedom to speak freely online or if you are not protected online we are all vulnerable. It should be everybody’s responsibility. It should be a collective thing, not just government making policies. But also people need to be aware of what they’re posting online. The words you put out there can make or break someone, so it’s everybody’s business. That’s how I see digital rights and freedom of expression. As a collective responsibility. 

Greene: Okay, our last question that we ask everybody. Who is your free speech hero? 

My mom’s elder sister. She passed away in 2015, but her name is Mariama Jaw and she was in the political space even during the time when people were not able to speak. She was my hero because I went to political rallies with her and she would say what people were not willing to say. Not just in political spaces, but in general conversation, too. She’s somebody who would tell you the truth no matter what would happen, whether her life was in danger or not. I got so much inspiration from her because a lot of women don’t go into politics or do certain things and they just want to get a husband, but she went against all odds and she was a politician, a mother and sister to a lot of people, to a lot of women in her community.

*This interview took place in April 2024 at NetMundial+10 in São Paulo, Brazil. This interview has been edited for length and clarity. 

Anriette Esterhuysen is a human rights defender and computer networking trailblazer from South Africa. She has pioneered the use of Internet and Communications Technologies (ICTs) to promote social justice in South Africa and throughout the world, focusing on affordable Internet access. She was the executive director of Association for Progressive Communications from 2007 to 2017.  In November 2019 Anriette was appointed by the Secretary-General of the United Nations to chair the Internet Governance Forum’s Multistakeholder Advisory Group. 

Greene: Can you go ahead and introduce yourself for us?

Esterhuysen: My name is Anriette Esterhuysen, I am from South Africa and I’m currently sitting here with David in Sao Paulo, Brazil. My closest association remains with the Association for Progressive Communications where I was executive director from 2000 to 2017.  I continue to work for APC as a consultant in the capacity of Senior Advisor on Internet Governance and convenor of the annual African School on Internet Governance (AfriSIG).

Greene: Can you tell us more about the African School on Internet Governance (AfriSIG)?

AfriSIG is fabulous. It differs from internet governance capacity building provided by the technical community in that it aims to build critical thinking. It also does not gloss over the complex power dynamics that are inherent to multistakeholder internet governance. It tries to give participants a hands-on experience of how different interest groups and sectors approach internet governance issues.

AfriSIG started as a result of Titi Akinsanmi,  a young Nigerian doing postgraduate studies in South Africa, approaching APC and saying, “Look, you’ve got to do something. There’s a European School of Internet Governance, there’s one in Latin America, and where is there more need for capacity-building than in Africa?” She convinced me and my colleague Emilar Vushe Gandhi, APC Africa Policy Coordinator at the time, to organize an African internet governance school in 2013 and since then it has taken place every year. It has evolved over time into a partnership between APC and the African Union Commission and Research ICT Africa.

It is a residential leadership development and learning event that takes place over 5 days. We bring together people who are already working in internet or communications policy in some capacity. We create space for conversation between people from government, civil society, parliaments, regulators, the media, business and the technical community on what in Africa are often referred to as “sensitive topics”. This can be anything from LGBTQ rights to online freedom of expression, corruption, authoritarianism, and accountable governance. We try to create a safe space for deep diving the reasons for the dividing lines between, for example, government and civil society in Africa. It’s very delicate. I love doing it because I feel that it transforms people’s thinking and the way they see one another and one another’s roles. At the end of the process, it is common for a government official to say they now understand better why civil society demands media freedom, and how transparency can be useful in protecting the interests of public servants. And civil society activists have a better understanding of the constraints that state officials face in their day-to-day work. It can be quite a revelation for individuals from civil society to be confronted with the fact that in many respects they have greater freedom to act and speak than civil servants do.

Greene: That’s great. Okay now tell me, what does free speech mean to you?

I think of it as freedom of expression. It’s fundamental. I grew up under Apartheid in South Africa and was active in the struggle for democracy. There is something deeply wrong with being surrounded by injustice, cruelty and brutality and not being allowed to speak about it. Even more so when one's own privilege comes at the expense of the oppressed, as was the case for white South Africans like myself. For me, freedom of expression is the most profound part of being human. You cannot change anything, deconstruct it, or learn about it at a human level without the ability to speak freely about what it is that you see, or want to understand. The absence of freedom of expression entrenches misinformation, a lack of understanding of what is happening around you. It facilitates willful stupidity and selective knowledge. That’s why it’s so smart of repressive regimes to stifle freedom of expression. By stifling free speech you disempower the victims of injustice from voicing their reality, on the one hand, and, on the other, you entrench the unwillingness of those who are complicit with the injustice to confront that they’re part of it.

It is impossible to shift a state of repression and injustice without speaking out about it. That is why people who struggle for freedom and justice speak about it, even if doing so gets them imprisoned, assassinated or executed. Change starts through people, the media, communities, families, social movements, and unions, speaking about what needs to change. 

Greene: Having grown up in Apartheid, is there a single personal experience or a group of personal experiences that really shaped your views on freedom of expression?

I think I was fortunate in the sense that I grew up with a mother who—based on her Christian beliefs—came to see Apartheid as being wrong. She was working as a social worker for the main state church—the Dutch Reformed Church (DRC) —at the time of the Cottesloe Consultation convened in Johannesburg by the World Council of Churches (WCC) shortly after the Sharpeville Massacre.  An outcome statement from this consultation, and later deliberations by the WCC in Geneva, condemned the DRC for its racism. In response the DRC decided to leave the WCC.  At a church meeting my mother attended she listened to the debate and someone in the church hierarchy who spoke against this decision and challenged the church for its racist stance. His words made sense to her. She spoke to him after the meeting and soon joined the organization he had started to oppose Apartheid, the Christian Institute. His name was Beyers Naudé and he became an icon of the anti-Apartheid struggle and an enemy of the apartheid state. Apparently, my first protest march was in a pushchair at a rally in 1961 to oppose the rightwing National Party government's decision for South Africa to leave the Commonwealth.

There’s no single moment that shaped my view of freedom of expression. The thing about living in the context of that kind of racial segregation and repression is that you see it every day. It’s everywhere around you, but like Nazi Germany, people—white South Africans—chose not to see it, or if they did, to find ways of rationalizing it.

Censorship was both a consequence of and a building block of the Apartheid system. There was no real freedom of expression. But because we had courageous journalists, and a broad-based political movement—above ground and underground—that opposed the regime, there were spaces where one could speak/listen/learn.  The Congress of Democrats established in the 1950s after the Communist Party was banned was a social justice movement in which people of different faiths and political ideologies (Jewish, Christian and Muslim South Africans alongside agnostics and communists) fought for justice together. Later in the 1980s, when I was a student, this broad front approach was revived through the United Democratic Front. Journalists did amazing things. When censorship was at its height during the State of Emergency in the 1980s, newspapers would go to print with columns of blacked-out text—their way of telling the world that they were being censored.

I used to type up copy filed over the phone or cassettes by reporters for the Weekly Mail when I was a student. We had to be fast because everything had to be checked by the paper’s lawyers before going to print. Lack of freedom of expression was legislated. The courage of editors and individual journalists to defy this, and if they could not, to make it obvious made a huge impact on me.

Greene: Is there a time when you, looking back, would consider that you were personally censored? 

I was very much personally censored at school. I went to an Afrikaans secondary school. And I kind of have a memory of when, after going back after a vacation, my math teacher—who I had no personal relationship with —walked past me in class and asked me how my holiday on Robben Island was. I thought, why is he asking me that? A few days later I heard from a teacher I was friendly with that there was a special staff meeting about me. They felt I was very politically outspoken in class and the school hierarchy needed to take action. No actual action was taken... but I felt watched, and through that, censored, even if not silenced.

I felt that because for me, being white, it was easier to speak out than for black South Africans, it would be wrong not to do so. As a teenager, I had already made that choice. It was painful from a social point of view because I was very isolated, I didn’t have many friends, I saw the world so differently from my peers. In 1976 when the Soweto riots broke out I remember someone in my class saying, “This is exactly what we’ve been waiting for because now we can just kill them all.”  This is probably also why I feel a deep connection with Israel/Palestine. There are many dimensions to the Apartheid analogy. The one that stands out for me is how, as was the case in South Africa too, those with power—Jewish Israelis—dehumanize and villainize the oppressed - Palestinians.

Greene: At some point did you decide that you want human rights more broadly and freedom of expression to be a part of your career?

I don’t think it was a conscious decision. I think it was what I was living for. It was the raison d’etre of my life for a long time. After high school, I had secured places at two universities. At one for a science degree and at the other for a degree in journalism. But I ended up going to a different university making the choice based on the strength of its student movement. The struggle against Apartheid was expressed and conceptualized as a struggle for human rights. The Constitution of democratic South Africa was crafted by human rights lawyers and in many respects it is a localized interpretation of the Universal Declaration.

Later, in the late 1980s,  when I started working on access to information through the use of Information and Communication Technologies (ICTS) it felt like an extension of the political work I had done as a student and in my early working life. APC, which I joined as a member—not staff—in the 1990s, was made up of people from other parts of the world who had been fighting their own struggles for freedom—Latin America, Asia, and Central/ Eastern Europe. All with very similar hopes about how the use of these technologies can enable freedom and solidarity.

Greene: So fast forward to now, currently do you think the platforms promote freedom of expression for people or restrict freedom of expression?

Not a simple question. Still, I think the net effect is more freedom of expression. The extent of online freedom of expression is uneven and it’s distorted by the platforms in some contexts. Just look at the biased pro-Israel way in which several platforms moderate content. Enabling hate speech in contexts of conflict can definitely have a silencing effect. By not restricting hate in a consistent manner, they end up restricting freedom of expression.  But I think it’s disingenuous to say that overall the internet does not increase freedom of expression. And social media platforms, despite their problematic business models, do contribute. They could of course do it so much better, fairly and consistently, and for not doing that they need to be held accountable. 

Greene: We can talk about some of the problems and difficulties. Let’s start with hate speech. You said it’s a problem we have to tackle. How do we tackle it? 

You’re talking to a very cynical old person here. I think that social media amplifies hate speech. But I don’t think they create the impulse to hate. Social media business models are extractive and exploitative. But we can’t fix our societies by fixing social media. I think that we have to deal with hate in the offline world. Channeling energy and resources into trying to grow tolerance and respect for human rights in the online space is not enough. It’s just dealing with the symptoms of intolerance and populism. We need to work far harder to hold people, particularly those with power, accountable for encouraging hate (and disinformation). Why is it easy to get away with online hate in India? Because Modi likes hate. It’s convenient for him, it keeps him in political power. Trump is another example of a leader that thrives on hate. 

What’s so problematic about social media platforms is the monetization of this. That is absolutely wrong and should be stopped—I can say all kinds of things about it. We need to have a multi-pronged approach. We need market regulation, perhaps some form of content regulation, and new ways of regulating advertising online. We need access to data on what happens inside these platforms. Intervention is needed, but I do not believe that content control is the right way to do it.  It is the business model that is at the root of the problem. That’s why I get so frustrated with this huge global effort by governments (and others)  to ensure information integrity through content regulation. I would rather they spend the money on strengthening independent media and journalism.

Greene: We should note we are currently at an information integrity conference today. In terms of hate speech, are there hazards to having hate speech laws? 

South Africa has hate speech laws which I believe are necessary. Racial hate speech continues to be a problem in South Africa. So is xenophobic hate speech. We have an election coming on May 29 [2024] and I was listening to talk radio on election issues and hearing how political parties use xenophobic tropes in their campaigns was terrifying. “South Africa has to be for South Africans.” “Nigerians run organized crime.”  “All drugs come from Mozambique,” and so on. Dangerous speech needs to be called out.  Norms are important. But I think that establishing legalized content regulation is risky. In contexts without robust protection for freedom of expression, such regulation can easily be abused by states to stifle political speech.

Greene: Societal or legal norms?

Both.  Legal norms are necessary because social norms can be so inconsistent, volatile. But social norms shape people’s everyday experience and we have to strive to make them human rights aware. It is important to prevent the abuse of legal norms—and states are, sadly, pretty good at doing just that. In the case of South Africa hate speech regulation works relatively well because there are strong protections for freedom of expression. There are soft and hard law mechanisms. The South African Human Rights Commission developed a social media charter to counter harmful speech online as a kind of self-regulatory tool. All of this works—not perfectly of course—because we have a constitution that is grounded in human rights. Where we need to be more consistent is in holding politicians accountable for speech that incites hate. 

Greene: So do we want checks and balances built into the regulatory scheme or are you just wanting it existing within a government scheme that has checks and balances built in? 

I don’t think you need new global rule sets. I think the existing international human rights framework provides what we need and just needs to be strengthened and its application adapted to emerging tech. One of the reasons why I don’t think we should be obsessive about restricting hate speech online is because it is a canary in a coal mine. In societies where there’s a communal or religious conflict or racial hate,  removing its manifestation online could be a missed opportunity to prevent explosions of violence offline.  That is not to say that there should not be recourse and remedy for victims of hate speech online. Or that those who incite violence should not be held accountable. But I believe we need to keep the bar high in how we define hate speech—basically as speech that incites violence.  

South Africa is an interesting case because we have very progressive laws when it comes to same-sex marriage, same-sex adoption, relationships, insurance, spousal recognition, medical insurance and so on, but there’s still societal prejudice, particularly in poor communities.  That is why we need a strong rights-oriented legal framework.

Greene: So that would be another area where free speech can be restricted and not just from a legal sense but you think from a higher level principles sense. 

Right. Perhaps what I am trying to say is that there is speech that incites violence and it should be restricted. And then there is speech that is hateful and discriminatory, and this should be countered, called out, and challenged, but not censored.  When you’re talking about the restriction—or not even the restriction but the recognition and calling out of—harmful speech it’s important not just to do that online. In South Africa stopping xenophobic speech online or on public media platforms would be relatively simple. But it’s not going to stop xenophobia in the streets.  To do that we need other interventions. Education, public awareness campaigns, community building, and change in the underlying conditions in which hate thrives which in our case is primarily poverty and unemployment, lack of housing and security.

Greene: This morning someone who spoke at this event was speaking about misinformation said, “The vast majority of misinformation is online.” And certainly in the US, researchers say that’s not true, most of it is on cable news, but it struck me that someone who is considered an expert should know better. We have information ecosystems and online does not exist separately. 

It’s not separate. Agree. There’s such a strong tendency to look at online spaces as an alternative universe. Even in countries with low internet penetration, there’s a tendency to focus on the online components of these ecosystems. Another example would be child online protection. Most child abuse takes place in the physical world, and most child abusers are close family members, friends or teachers of their victims—but there is a global obsession with protecting children online.  It is a shortsighted and ‘cheap’ approach and it won’t work. Not for dealing with misinformation or for protecting children from abuse.

Greene: Okay, our last question we ask all of our guests. Who is your free speech hero? 

Desmond Tutu. I have many free speech heroes but Bishop Tutu is a standout because he could be so charming about speaking his truths. He was fearless in challenging the Apartheid regime. But he would also challenge his fellow Christians.  One of his best lines was, “If LGBT people are not welcome in heaven, I’d rather go to the other place.”  And then the person I care about and fear for every day is Egyptian blogger Alaa Abd el-Fattah. I remember walking at night through the streets of Cairo with him in 2012. People kept coming up to him, talking to him, and being so obviously proud to be able to do so. His activism is fearless. But it is also personal, grounded in love for his city, his country, his family, and the people who live in it. For Alaa freedom of speech, and freedom in general, was not an abstract or a political goal. It was about freedom to love, to create art, music, literature and ideas in a shared way that brings people joy and togetherness.

Greene: Well now I have a follow-up question. You said you think free speech is undervalued these days. In what ways and how do we see that? 

We see it manifested in the absence of tolerance, in the increase in people claiming that their freedoms are being violated by the expression of those they disagree with, or who criticize them. It’s as if we’re trying to establish these controlled environments where we don’t have to listen to things that we think are wrong, or that we disagree with. As you said earlier, information ecosystems have offline and online components. Getting to the “truth” requires a mix of different views, disagreement, fact-checking, and holding people who deliberately spread falsehoods accountable for doing so. We need people to have the right to free speech, and to counter-speech. We need research and evidence gathering, investigative journalism, and, most of all, critical thinking. I’m not saying there shouldn't be restrictions on speech in certain contexts, but do it because the speech is illegal or actively inciteful. Don’t do it because you think it will achieve so-called information integrity. And especially, don’t do it in ways that undermine the right to freedom of expression.

This interview has been edited for length and clarity.*

Marjorie Heins is a writer, former civil rights/civil liberties attorney, and past director of the Free Expression Policy Project (FEPP) and the American Civil Liberties Union's Arts Censorship Project. She is the author of "Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge," which won the Hugh M. Hefner First Amendment Award in Book Publishing in 2013, and "Not in Front of the Children: Indecency, Censorship, and the Innocence of Youth," which won the American Library Association's Eli Oboler Award for Best Published Work in the Field of Intellectual Freedom in 2002. 

Her most recent book is "Ironies and Complications of Free Speech: News and Commentary From the Free Expression Policy Project." She has written three other books and scores of popular and scholarly articles on free speech, censorship, constitutional law, copyright, and the arts. She has taught at New York University, the University of California - San Diego, Boston College Law School, and the American University of Paris. Since 2015, she has been a volunteer tour guide at the Metropolitan Museum of Art in New York City.

Greene: Can you introduce yourself and the work you’ve done on free speech and how you got there?

Heins: I’m Marjorie Heins, I’m a retired lawyer. I spent most of my career at the ACLU. I started in Boston, where we had a very small office, and we sort of did everything—some sex discrimination cases, a lot of police misconduct cases, occasionally First Amendment. Then, after doing some teaching and a stint at the Massachusetts Attorney General’s office, I found myself in the national office of the ACLU in New York, starting a project on art censorship. This was in response to the political brouhaha over the National Endowment for the Arts starting around 1989/ 1990.

Culture wars, attacks on some of the grants made by the NEA, became a big hot button issue. The ACLU was able to raise a little foundation money to hire a lawyer to work on some of these cases. And one case that was already filed when I got there was National Endowment for the Arts vs Finley. It was basically a challenge by four theater performance artists whose grants had been recommended by the peer panel but then ultimately vetoed by the director after a lot of political pressure because their work was very much “on the edge.” So I joined the legal team in that case, the Finley case, and it had a long and complicated history. Then, by the mid-1990s we were faced with the internet. And there were all these scares over pornography on the internet poisoning the minds of our children. So the ACLU got very involved in challenging censorship legislation that had been passed by Congress, and I worked on those cases.

I left the ACLU in 1998 to write a book about what I had learned about censorship. I was curious to find out more about the history primarily of obscenity legislation—the censorship of sexual communications. So it’s a scholarly book called “Not in front of the Children.” Among the things I discovered is that the origins of censorship of sexual content, sexual communications, come out of this notion that we need to protect children and other “vulnerable beings.” And initially that included women and uneducated people, but eventually it really boiled down to children—we need censorship basically of everybody in order to protect children. So that’s what Not in front of the Children was all about. 

And then I took my foundation contacts—because at the ACLU if you have a project you have to raise money—and started a little project, a little think tank which became affiliated with the National Coalition Against Censorship called the Free Expression Policy Project. And at that point we weren’t really doing litigation anymore, we were doing a lot of friend of the court briefs, a lot of policy reports and advocacy articles about some of the values and competing interests in the whole area of free expression. And one premise of this project, from the start, was that we are not absolutists. So we didn’t accept the notion that because the First Amendment says “Congress shall make no law abridging the freedom of speech,” then there’s some kind of absolute protection for something called free speech and there can’t be any exceptions. And, of course, there are many exceptions. 

So the basic premise of the Free Expression Policy Project was that some exceptions to the First Amendment, like obscenity laws, are not really justified because they are driven by different ideas about morality and a notion of moral or emotional harm rather than some tangible harm that you can identify like, for example, in the area of libel and slander or invasion of privacy or harassment. Yes, there are exceptions. The default, the presumption, is free speech, but there could be many reasons why free speech is curtailed in certain circumstances. 

The Free Expression Policy Project continued for about seven years. It moved to the Brennan Center for Justice at NYU Law School for a while, and, finally, I ran out of ideas and funding. I kept up the website for a little while longer, then ultimately ended the website. Then I thought, “okay, there’s a lot of good information on this website and it’s all going to disappear, so I’m going to put it into a book.” Oh, I left out the other book I worked on in the early 2000s – about academic freedom, the history of academic freedom, called “Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge.” This book goes back in history even before the 1940s and 1950s Red Scare and the effect that it had on teachers and universities. And then this last book is called “Ironies and Complications of Free Speech: News and Commentary From the Free Expression Policy Project,” which is basically an anthology of the best writings from the Free Expression Policy Project. 

And that’s me. That’s what I did.

Greene: So we have a ton to talk about because a lot of the things you’ve written about are either back in the news and regulatory cycle or never left it. So I want to start with your book “Not in Front of the Children” first. I have at least one copy and I’ve been referring to it a lot and suggesting it because we’ve just seen a ton of efforts to try and pass new child protection laws to protect kids from online harms. And so I’m curious, first there was a raft of efforts around Tik Tok being bad for kids, now we’re seeing a lot of efforts aimed at shielding kids from harmful material online. Do you think this a throughline from concerns back from mid-19th Century England. Is it still the same debate or is there something different about these online harms? 

Both are true I think. It’s the same and it’s different. What’s the same is that using the children as an argument for basically trying to suppress information, ideas, or expression that somebody disapproves of goes back to the beginning of censorship laws around sexuality. And the subject matters have changed, the targets have changed. I’m not too aware of new proposals for internet censorship of kids, but I’m certainly aware of what states—of course, Florida being the most prominent example—have done in terms of school books, school library books, public library books, and education from not only k-12 but also higher education in terms of limiting the subject matters that can be discussed. And the primary target seems to be anything to do with gay or lesbian sexuality and anything having to do with a frank acknowledgement of American slavery or Jim Crow racism. Because the argument in Florida, and this is explicit in the law, is because it would make white kids feel bad, so let’s not talk about it. So in that sense the two targets that I see now—we’ve got to protect the kids against information about gay and lesbian people and information about the true racial history of this country—are a little different from the 19th century and even much of the 20th century. 

Greene: One of the things I see is that the harms motivating the book bans and school restrictions are the same harms that are motivating at least some of the legislators who are trying to pass these laws. And notably a lot of the laws only address online harmful material without being specific about subject matter. We’re still seeing some that are specifically about sexual material, but a lot of them, including the Kids Online Safety Act really just focus on online harms more broadly. 

I haven’t followed that one, but it sounds like it might have a vagueness problem!

Greene: One of the things I get concerned about with the focus on design is that, like, a state Attorney General is not going to be upset if the design has kids reading a lot of bible verses or tomes about being respectful to your parents. But they will get upset and prosecute people if the design feature is recommending to kids gender-affirming care or whatever. I just don’t know if there’s a way of protecting against that in a law. 

Well, as we all know, when we’re dealing with commercial speech there’s a lot more leeway in terms of regulation, and especially if ads are directed at kids. So I don’t have a problem with government legislation in the area of restricting the kinds of advertising that can be directed at kids. But if you get out of the area of commercial speech and to something that’s kind of medical, could you have constitutional legislation that prohibited websites from directing kids to medically dangerous procedures? You’re sort of getting close to the borderline. If it’s just information then I think the legislation is probably going to be unconstitutional even if it’s related to kids. 

Greene: Let’s shift to academic freedom. Which is another fraught issue. What do you think of the current debates now over both restrictions on faculty and universities restricting student speech? 

Academic freedom is under the gun from both sides of the political spectrum. For example, Diversity, Equity, and Inclusion (DEI) initiatives, although they seem well-intentioned, have led to some pretty troubling outcomes. So that when those college presidents were being interrogated by the members of Congress (in December 2023), they were in a difficult position, among other reasons, because at least at Harvard and Penn it was pretty clear there were instances of really appalling applications of this idea of Diversity, Equity, and Inclusion – both to require a certain kind of ideological approach and to censor or punish people who didn’t go along with the party line, so to speak. 

The other example I’m thinking of, and I don’t know if Harvard and Penn do this – I know that the University of California system does it or at least it used to – everybody who applies for a faculty position has to sign a diversity statement, like a loyalty oath, saying that these are the principles they agree with and they will promise to promote. 

And you know you have examples, I mean I may sound very retrograde on this one, but I will not use the pronoun “they” for a singular person. And I know that would mean I couldn’t get a faculty job! And I’m not sure if my volunteer gig at the Met museum is going to be in trouble because they, very much like universities, have given us instructions, pages and pages of instructions, on proper terminology – what terminology is favored or disfavored or should never be used, and “they” is in there. You can have circumlocutions so you can identify a single individual without using he or she if that individual – I mean you can’t even know what the individual’s preference is. So that’s another example of academic freedom threats from I guess you could call the left or the DEI establishment. 

The right in American politics has a lot of material, a lot of ammunition to use when they criticize universities for being too politically correct and too “woke.” On the other hand, you have the anti-woke law in Florida which is really, as I said before, directed against education about the horrible racial history of this country. And some of those laws are just – whatever you may think about the ability of state government and state education departments to dictate curriculum and to dictate what viewpoints are going to be promoted in the curriculum – the Florida anti-woke law and don’t say gay law really go beyond I think any kind of discretion that the courts have said state and local governments have to determine curriculum. 

Greene: Are you surprised at all that we’re seeing that book bans are as big of a thing now as they were twenty years ago? 

Well, nothing surprises me. But yes, I would not have predicted that there were going to be the current incarnations of what you can remember from the old days, groups like the American Family Association, the Christian Coalition, the Eagle Forum, the groups that were “culture warriors” who were making a lot of headlines with their arguments forty years ago against even just having art that was done by gay people. We’ve come a long way from that, but now we have Moms for Liberty and present-day incarnations of the same groups. The homophobia agenda is a little more nuanced, it’s a little different from what we were seeing in the days of Jesse Helms in Congress. But the attacks on drag performances, this whole argument that children are going to be groomed to become drag queens or become gay—that’s a little bit of a different twist, but it’s basically the same kind of homophobia. So it’s not surprising that it’s being churned up again if this is something that politicians think they can get behind in order to get elected. Or, let me put it another way, if the Moms for Liberty type groups make enough noise and seem to have enough political potency, then politicians are going to cater to them. 

And so the answer has to be groups on the other side that are making the free expression argument or the intellectual freedom argument or the argument that teachers and professors and librarians are the ones who should decide what books are appropriate. Those groups have to be as vocal and as powerful in order to persuade politicians that they don’t have to start passing censorship legislation in order to get votes.

Greene: Going back to the college presidents and being grilled on the hill, you wrote that maybe there was, in response to the genocide question, which I think they were most sharply criticized there, that there was a better answer that they could have given. Could you talk about that? 

I think in that context, both for political reasons and for reasons of policy and free speech doctrine, the answer had to be that if students on campus are calling for genocide of Jews or any other ethnic or religious group that should not be permitted on campus and that amounts to racial harassment. Of course, I suppose you could imagine scenarios where two antisemitic kids in the privacy of their dorm room said this and nobody else heard it—okay, maybe it doesn’t amount to racial harassment. But private colleges are not bound by the First Amendment. They all have codes of civility. Public colleges are bound by the First Amendment, but not the same standards as the public square. So I took the position that in that circumstance the presidents had to answer, “Yes, that would violate our policies and subject a student to discipline.” But that’s not the same as calling for the intifada or calling for even the elimination of the state of Israel as having been a mistake 75 years ago. So I got a little pushback on that little blog post that I wrote. And somebody said, “I’m surprised a former ACLU lawyer is saying that calling for genocide could be punished on a college campus.” But you know, the ACLU has many different political opinions within both the staff and Board. There were often debates on different kinds of free speech issues and where certain lines are drawn. And certainly on issues of harassment and when hate speech becomes harassment—under what circumstances it becomes harassment. So, yes, I think that’s what they should have said. A lot of legal scholars, including David Cole of the ACLU, said they gave exactly the right answer, the legalistic answer, that it depends on the context. In that political situation that was not the right answer. 

Greene: It was awkward. They did answer as if they were having an academic discussion and not as if they were talking to members of Congress. 

Well they also answered as if they were programmed. I mean Claudine Gay repeated the exact same words that probably somebody had told her to say at least twice if not more. And that did not look very good. It didn’t look like she was even thinking for herself. 

Greene: I do think they were anticipating the followup question of, “Well isn’t saying ‘From the River to the Sea’ a call for genocide and how come you haven’t punished students for that?” But as you said, that would then lead into a discussion of how we determine what is or is not a call for genocide. 

Well they didn’t need a followup question because to Elise Stefanik, “Intifada” or “from the river to the sea” was equivalent to a call for genocide, period, end of discussion. Let me say one more thing about these college hearings. What these presidents needed to say is that it’s very scary when politicians start interrogating college faculty or college presidents about curriculum, governance, and certainly faculty hires. One of the things that was going on there was they didn’t think there were enough conservatives on college faculties, and that was their definition of diversity. You have to push back on that, and say it is a real threat to academic freedom and all of the values that we talk about that are important at a university education when politicians start getting their hands on this and using funding as a threat and so forth. They needed to say that. 

 Greene: Let’s pull back and talk about free speech principles more broadly. Why is, after many years of work in this area, why do you think free expression is important? 

What is the value of free expression more globally? [laughs] A lot of people have opined on that. 

Greene: Why is it important to you personally? 

Well I define it pretty broadly. So it doesn’t just include political debate and discussion and having all points of view represented in the public square, which used to be the narrower definition of what the First Amendment meant, certainly according to the Supreme Court. But the Court evolved. And so it’s now recognized, as it should be, that free expression includes art. The movies—it doesn’t even have to be verbal—it can be dance, it can be abstract painting. All of the arts, which feed the soul, are part of free expression. And that’s very important to me because I think it enriches us. It enriches our intellects, it enriches our spiritual lives, our emotional lives. And I think it goes without saying that political expression is crucial to having a democracy, however flawed it may be. 

Greene: You mentioned earlier that you don’t consider yourself to be a free speech absolutist. Do you consider yourself to be a maximalist or an enthusiast? What do you see as being sort of legitimate restrictions on any individual’s freedom of expression?

Well, we mentioned this at the beginning. There are a lot of exceptions to the First Amendment that are legitimate and certainly, when I started at the ACLU I thought that defamation laws and libel and slander laws violate the first amendment. Well, I’ve changed my opinion. Because there’s real harm that gets caused by libel and slander. As we know, the Supreme Court has put some First Amendment restrictions around those torts, but they’re important to have. Threats are a well-recognized exception to the freedom of speech, and the kind of harm caused by threats, even if they’re not followed through on, is pretty obvious. Incitement becomes a little trickier because where do you draw the lines? But at some point an incitement to violent action I think can be restricted for obvious reasons of public safety. And then we have restrictions on false advertising but, of course, if we’re not in the commercial context, the Supreme Court has told us that lies are protected by the First Amendment. That’s probably wise just in terms of not trying to get the government and the judicial process involved in deciding what is a lie and what isn’t. But of course that’s done all the time in the context of defamation and commercial speech. Hate speech is something, as we know, that’s prohibited in many parts of Europe but not here. At least not in the public square as opposed to employment contexts or educational contexts. Some people would say, “Well, that’s dictated by the First Amendment and they don’t have the First Amendment over there in Europe, so we’re better.” But having worked in this area for a long time and having read many Supreme Court decisions, it seems to me the First Amendment has been subjected to the same kind of balancing test that they use in Europe when they interpret their European Convention on Human Rights or their individual constitutions. They just have different policy choices. And the policy choice to prohibit hate speech given the history of Europe is understandable. Whether it is effective in terms of reducing racism, Islamophobia, antisemitism… is there more of that in Europe than there is here? Hard to know. It’s probably not that effective. You make martyrs out of people who are prosecuted for hate speech. But on the other hand, some of it is very troubling. In the United States Holocaust denial is protected. 

Greene: Can you talk a little bit about your experience being a woman advocating for first amendment rights for sexual expression during a time when there was at least some form of feminist movement saying that some types of sexualization of women was harmful to women? 

That drove a wedge right through the feminist movement for quite a number of years. There’s still some of that around, but I think less. The battle against pornography has been pretty much a losing battle. 

Greene: Are there lessons from that time? You were clearly on one side of it, are there lessons to be learned from that when we talk about sort of speech harms? 

One of the policy reports we did at the Free Expression Policy Project was on media literacy as an alternative to censorship. Media literacy can be expanded to encompass a lot of different kinds of education. So if you had decent sex education in this country and kids were able to think about the kinds of messages that you see in commercial pornography and amateur pornography, in R-rated movies, in advertising—I mean the kind of sexist messages and demeaning messages that you see throughout the culture—education is the best way of trying to combat some of that stuff. 

Greene: Okay, our final question that we ask everyone. Who is your free speech hero? 

When I started working on “Priests of our Democracy” the most important case, sort of the culmination of the litigation that took place challenging loyalty programs and loyalty oaths, was a case called Keyishian v. Board of Regents. This is a case in which Justice Brennan, writing for a very slim majority of five Justices, said academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” Harry Keyishian was one of the five plaintiffs in this case. He was one of five faculty members at the University of Buffalo who refused to sign what was called the Feinberg Certificate, which was essentially a loyalty oath. The certificate required all faculty to say “I’ve never been a member of the Communist Party and if I was, I told the President and the Dean all about it.” He was not a member of the Communist Party, but as Harry said much later in an interview – because he had gone to college in the 1950s and he saw some of the best professors being summarily fired for refusing to cooperate with some of these Congressional investigating committees – fast forward to the Feinberg Certificate loyalty oath: he said his refusal to sign was his “revenge on the 1950s.” And so he becomes the plaintiff in this case that challenges the whole Feinberg Law, this whole elaborate New York State law that basically required loyalty investigations of every teacher in the public system. So Harry became my hero. I start my book with Harry. The first line in my book is, “Harry Keyishian was a junior at Queen’s College in the Fall of 1952 when the Senate Internal Security Subcommittee came to town.” And he’s still around. I think he just had his 90th birthday!

 

*This interview took place in April 2024 at NetMundial+10 in São Paulo, Brazil and has been edited for length and clarity. 

Tanka Aryal is the President of Digital Rights Nepal. He is an attorney practicing at the Supreme Court of Nepal. He has long worked to promote digital rights, the right to information, freedom of expression, civic space, accountability, and internet freedom nationally for the last 15 years. Mr. Aryal holds two LLM degrees in International Human Rights Laws from Kathmandu School of Law and Central European University Hungary. Additionally, he completed different degrees from Oxford University UK and Tokiwa University Japan. Mr. Aryal has worked as a consultant and staff with different national international organizations including FHI 360, International Center for Not-for-profit Law (ICNL), UNESCO,  World Bank, ARTICLE 19, United Nations Development Programme (UNDP), ISOC, and the United Nations Department of Economic and Social Affairs (UNDESA/DPADM). Mr. Aryal led a right information campaign throughout the country for more than 4 years as the Executive Director of Citizens’ Campaign for Right to Information. 

Greene: Can you introduce yourself? And can you tell me what kind of work your organization does on freedom of speech in particular? 

I am Tanka Aryal, I’m from Nepal and I represent Digital Rights Nepal. Looking at my background of work, I have been working on freedom of expression for the last twenty years. Digital Rights Nepal is a new organization that started during COVID when a number of issues came up particularly around freedom of expression online and the use of different social media platforms expressing the ideas of every individual representing different classes, castes, and groups of society. The majority of work done by my organization is particularly advocating for freedom of expression online as well as data privacy and protection. This is the domain we work in mainly, but in the process of talking about and advocating for freedom of expression we also talk about access to information, online information integrity, misinformation, and disinformation. 

Greene: What does free speech mean to you personally?

It’s a very heavy question! I know it’s not an absolute right—it has limitations. But I feel like if I am not doing any harm to other individuals or it’s not a mass security type of thing, there should not be interference from the government, platforms, or big companies. At the same time, there are a number of direct and indirect undue influences from the political wings or the Party who is running the government, which I don’t like. No interference in my thoughts and expression—that is fundamental for me with freedom of expression. 

Greene: Do you consider yourself to be passionate about freedom of expression?

Oh yes. What I’ve realized is, if I consider the human life, existence starts once you start expressing yourself and dealing and communicating with others. So this is the very fundamental freedom for every human being. If this part of rights is taken away then your life, my life, as a human is totally incomplete. That’s why I’m so passionate about this right. Because this right has created a foundation for other rights as well. For example, if I speak out and demand my right to education or the right to food, if my right to speak freely is not protected, then those other rights are also at risk.

Greene: Do you have a personal experience that shaped how you feel about freedom of expression?

Yes. I don’t mean this in a legal sense, but my personal understanding is that if you are participating in any forum, unless you express your ideas and thoughts, then you are very hardly counted. This is the issue of existence and making yourself exist in society and in community. What I realized was that when you express your ideas with the people and the community, then the response is better and sometimes you get to engage further in the process. If I would like to express myself, if there are no barriers, then I feel comfortable. In a number of cases in my life and journey dealing with the government and media and different political groups, if I see some sort of barriers or external factors that limit me speaking, then that really hampers me. I realize that that really matters. 

Greene: In your opinion, what is the state of freedom of expression in Nepal right now? 

It’s really difficult. It’s not one of those absolute types of things. There are some indicators of where we stand. For instance, where we stand on the Corruption Index, where we stand on the Freedom of Expression Index. If I compare the state of freedom of expression in Nepal, it’s definitely better than the surrounding countries like India, Bangladesh, Pakistan, and China. But, learning from these countries, my government is trying to be more restrictive. Some laws and policies have been introduced that limit freedom of expression online. For instance, Tik Tok is banned by the government. We have considerably good conditions, but still there is room to improve in a way that you can have better protections for expression. 

Greene: What was the government’s thinking with banning TikTok?

There are a number of interpretations. Before banning TikTok the government was seen as pro-China. Once the government banned TikTok—India had already banned it—that decision supported a narrative that the government is leaning to India rather than China. You know, this sort of geopolitical interpretation. A number of other issues were there, too. Platforms were not taking measures even for some issues that shouldn’t have come through the platforms. So the government took the blanket approach in a way to try to promote social harmony and decency and morality. Some of the content published on TikTok was not acceptable, in my opinion, as a consumer myself. But the course of correction could have been different, maybe regulation or other things. But the government took the shortcut way by banning Tik Tok, eliminating the problem. 

Greene: So a combination of geopolitics and that they didn’t like what people were watching on TikTok? 

Actually there are a number of narratives told by the different blocks of people, people with different ideas and the different political wings. It was said that the government—the Maoist leader is the prime minister—considers the very rural people as their vote bank. The government sees them as less literate, brain-washed types of people. “Okay, this is my vote bank, no one can sort of toss it.” Then once TikTok became popular the TikTok users were the very rural people, women, marginalized people. So they started using Tik Tok asking questions to the government and things like that. It was said that the Maoist party was not happy with that. “Okay, now our vote bank is going out of our hands so we better block TikTok and keep them in our control.” So that is the narrative that was also discussed. 

Greene: It’s similar in the US, we’re dealing with this right now. Similarly, I think it’s a combination of the geopolitics just with a lot of anti-China sentiment in the US as well as a concern around, “We don’t like what the kids are doing on TikTok and China is going to use it to serve political propaganda and brainwash US users.”

In the case of the US and India, TikTok was banned for national security. But in our case, the government never said, “Okay, TikTok is banned for our national security.” Rather, they were focusing on content that the government wasn’t happy with. 

Greene: Right, and let me credit Nepal there for their candor, though I don’t like the decision. Because I personally don’t think the United States government’s national security excuse is very convincing either. But what types of speech or categories of content or topics are really targeted by regulators right now for restriction? 

To be honest, the elected leaders, maybe the President, the Prime Minister, the powerholders don’t like the questions being posed to them. That is a general thing. Maybe the Mayor, maybe the Prime Minister, maybe a Minister, maybe a Chief Minister of one province—the powerholders don’t like being questioned. That is one type of speech made by the people—asking questions, asking for accountability. So that is one set of targets. Similarly, some speech that’s for the protection of the rights of the individual in many cases—like hate speech against Dalit, and women, and the LGBTQIA community—so any sort of speech or comments, any type of content, related to this domain is an issue. People don’t have the capacity to listen to even very minor critical things. If anybody says, “Hey, Tanka, you have these things I would like to be changed from your behavior.” People can say these things to me. As a public position holder I should have that ability to listen and respond accordingly. But politicians say, “I don’t want to listen to any sort of criticism or critical thoughts about me.” Particularly the political nature of the speech which seeks accountability and raises transparency issues, that is mostly targeted. 

Greene: You said earlier that as long as your speech doesn’t harm someone there shouldn’t be interference. Are there certain harms that are caused by speech that you think are more serious or that really justify regulation or laws restricting them?

It’s a very tricky one. Even if regulation is justified, if one official can ban something blanketly, it should go through judicial scrutiny. We tend to not have adequate laws. There are a number of gray areas. Those gray areas have been manipulated and misused by the government. In many cases, misused by, for example, the police. What I understood is that our judiciary is sometimes very sensible and very sensitive about freedom of expression. However, in many cases, if the issue is related to the judiciary itself they are very conservative. Two days back I read in a newspaper that there was a sting operation around one judge engaging [in corruption] with a business. And some of the things came into the media. And the judiciary was so reactive! It was not blamed on the whole judiciary, but the judiciary asked online media to remove that content. There were a number of discussions. Like without further investigation or checking the facts, how can the judiciary give that order to remove that content? Okay, one official thought that this is wrong content, and if the judiciary has the power to take it down, that’s not right and that can be misused any time. I mean, the judiciary is really good if the issues are related to other parties, but if the issue is related to the judiciary itself, the judiciary is conservative. 

Greene: You mentioned gray areas and you mentioned some types of hate speech. Is that a gray area in Nepal? 

Yeah, actually, we don’t have that much confidence in law. What we have is the Electronic Transactions Act. Section 47 says that content online can not be published if the content harms others, and so on. It’s very abstract. So that law can be misused if the government really wanted to drag you into some sort of very difficult position. 

We have been working toward and have provided input on a new law that’s more comprehensive, that would define things in proper ways that have less of a chance of being misused by the police. But it could not move ahead. The bill was drafted in the past parliament. It took lots of time, we provided input, and then after five years it could not move ahead. Then parliament dissolved and the whole thing became null. The government is not that consultative. Unlike how here we are talking [at NetMundial+10] with multi stakeholder participation—the government doesn’t bother. They don’t see incentive for engaging civil society. Rather they consider if we can give them the other troublemakers, let’s keep them away and pass the law. That is the idea they are practicing. We don’t have very clear laws, and because we don’t have clear laws some people really violate fundamental principles. Say someone was attacking my privacy or I was facing defamation issues. The police are very shorthanded, they can’t arrest that person even if they’re doing something really bad. In the meantime, the police, if they have a good political nexus and they just want to drag somebody, they can misuse it. 

Greene: How do you feel about private corporations being gatekeepers of speech? 

It’s very difficult. Even during election time the Election Commission issued an Election Order of Conduct, you could see how foolish they are. They were giving the mandate to the ISPs that, “If there is a violation of this Order of Conduct, you can take it down.” That sort of blanket power given to them can be misused any time. So if you talk about our case, we don’t have that many giant corporations, of course Meta and all the  major companies are there. Particularly the government has given certain mandates to ISPs, and in many cases even the National Press Council was asking the ISP Association and the Nepal Telecommunications Authority (NTA) that regulates all ISPs. Without having a very clear mandate to the Press Council, without having a clear mandate to NTA, they are exercising power to instruct the ISPs, “Hey, take this down. Hey, don’t publish this.” So that’s the sort of mechanism and the practice out there. 

Greene: You said that Digital Rights Nepal was founded during the pandemic. What was the impetus for starting the organization? 

We were totally trapped at home, working from home, studying from home, everything from home. I had worked for a nonprofit organization in the past, advocating for freedom of expression and more, and when we were at home during COVID a number of issues came out about online platforms. Some people were able to exercise their rights because they have access to the internet, but some people didn’t have access to the internet and were unable to exercise freedom of expression. So we recognized there are a number of issues and there is a big digital divide. There are a number of regulatory gray areas in this sector. Looking at the number of kids who were compelled to do online school, their data protection and privacy was another issue. We were engaging in these e-commerce platforms to buy things and there aren’t proper regulations. So we thought there are a number of issues and nobody working on them, so let’s form this initiative. It didn’t come all of the sudden, but our working background was there and that situation really made us realize that we needed to focus our work on these issues. 

Greene: Okay, our final question. Who is your free speech hero? 

It depends. In my context, in Nepal, there are a couple of people that don’t hesitate to express their ideas even if it is controversial. There’s also Voltaire’s saying, “I defend your freedom of expression even if I don’t like the content.” He could be one of my free speech heroes. Because sometimes people are hypocrites. They say, “I try to advocate freedom of expression if it applies to you and the government and others, but if any issues come to harm me I don’t believe in the same principle.” Then people don’t defend freedom of expression. I have seen a number of people showing their hypocrisy once the time came where the speech is against them. But for me, like Voltaire says, even if I don’t like your speech I’ll defend it until the end because I believe in the idea of freedom of expression.  

EFF along with the ACLU of Northern California and the Center for Democracy & Technology filed an amicus brief in a federal trial court in California in support of a college professor who fears being sued by Meta for developing a tool that allows Facebook users to easily clear out their News Feed.

Ethan Zuckerman, a professor at the University of Massachusetts Amherst, is in the process of developing Unfollow Everything 2.0, a browser extension that would allow Facebook users to automate their ability to unfollow friends, groups, or pages, thereby limiting the content they see in their News Feed.

This type of tool would greatly benefit Facebook users who want more control over their Facebook experience. The unfollowing process is tedious: you must go profile by profile—but automation makes this process a breeze. Unfollowing all friends, groups, and pages makes the News Feed blank, but this allows you to curate your News Feed by refollowing people and organizations you want regular updates on. Importantly, unfollowing isn’t the same thing as unfriending—unfollowing takes your friends’ content out of your News Feed, but you’re still connected to them and can proactively navigate to their profiles.

As Louis Barclay, the developer of Unfollow Everything 1.0, explained:

I still remember the feeling of unfollowing everything for the first time. It was near-miraculous. I had lost nothing, since I could still see my favorite friends and groups by going to them directly. But I had gained a staggering amount of control. I was no longer tempted to scroll down an infinite feed of content. The time I spent on Facebook decreased dramatically. Overnight, my Facebook addiction became manageable.

Prof. Zuckerman fears being sued by Meta, Facebook’s parent company, because the company previously sent Louis Barclay a cease-and-desist letter. Prof. Zuckerman, with the help of the Knight First Amendment Institute at Columbia University, preemptively sued Meta, asking the court to conclude that he has immunity under Section 230(c)(2)(B), Section 230’s little-known third immunity for developers of user-empowerment tools.

In our amicus brief, we explained to the court that Section 230(c)(2)(B) is unique among the immunities of Section 230, and that Section 230’s legislative history supports granting immunity in this case.

The other two immunities—Section 230(c)(1) and Section 230(c)(2)(A)—provide direct protection for internet intermediaries that host user-generated content, moderate that content, and incorporate blocking and filtering software into their systems. As we’ve argued many times before, these immunities give legal breathing room to the online platforms we use every day and ensure that those companies continue to operate, to the benefit of all internet users. 

But it’s Section 230(c)(2)(B) that empowers people to have control over their online experiences outside of corporate or government oversight, by providing immunity to the developers of blocking and filtering tools that users can deploy in conjunction with the online platforms they already use.

Our brief further explained that the legislative history of Section 230 shows that Congress clearly intended to provide immunity for user-empowerment tools like Unfollow Everything 2.0.

Section 230(b)(3) states, for example, that the statute was meant to “encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services,” while Section 230(b)(4) states that the statute was intended to “remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material.” Rep. Chris Cox, a co-author of Section 230, noted prior to passage that new technology was “quickly becoming available” that would help enable people to “tailor what we see to our own tastes.”

Our brief also explained the more specific benefits of Section 230(c)(2)(B). The statute incentivizes the development of a wide variety of user-empowerment tools, from traditional content filtering to more modern social media tailoring. The law also helps people protect their privacy by incentivizing the tools that block methods of unwanted corporate tracking such as advertising cookies, and block stalkerware deployed by malicious actors.

We hope the district court will declare that Prof. Zuckerman has Section 230(c)(2)(B) immunity so that he can release Unfollow Everything 2.0 to the benefit of Facebook users who desire more control over how they experience the platform.

EFF is closely monitoring the situation in France in which Telegram’s CEO Pavel Durov was charged with having committed criminal offenses, most of them seemingly related to the operation of Telegram. This situation has the potential to pose a serious danger to security, privacy, and freedom of expression for Telegram’s 950 million users.  

On August 24th, French authorities detained Durov when his private plane landed in France. Since then, the French prosecutor has revealed that Durov’s detention was related to an ongoing investigation, begun in July, of an “unnamed person.” The investigation involves complicity in crimes presumably taking place on the Telegram platform, failure to cooperate with law enforcement requests for the interception of communications on the platform, and a variety of charges having to do with failure to comply with  French cryptography import regulations. On August 28, Durov was charged with each of those offenses, among others not related to Telegram, and then released on the condition that he check in regularly with French authorities and not leave France.  

We know very little about the Telegram-related charges, making it difficult to draw conclusions about how serious a threat this investigation poses to privacy, security, or freedom of expression on Telegram, or on online services more broadly. But it has the potential to be quite serious. EFF is monitoring the situation closely.  

There appear to be three categories of Telegram-related charges:  

• First is the charge based on “the refusal to communicate upon request from authorized authorities, the information or documents necessary for the implementation and operation of legally authorized interceptions.” This seems to indicate that the French authorities sought Telegram’s assistance to intercept communications on Telegram.  

• The second set of charges relate to “complicité” with crimes that were committed in some respect on or through Telegram. These charges specify “organized distribution of images of minors with a pedopornographic nature, drug trafficking, organized fraud, and conspiracy to commit crimes or offenses,” and “money laundering of crimes or offenses in an organized group.”  

• The third set of charges all relate to Telegram’s failure to file a declaration required of those who import a cryptographic system into France.  

Now we are left to speculate. 

It is possible that all of the charges derive from “the failure to communicate.” French authorities may be claiming that Durov is complicit with criminals because Telegram refused to facilitate the “legally authorized interceptions.” Similarly, the charges connected to the failure to file the encryption declaration likely also derive from the “legally authorized interceptions” being encrypted. France very likely knew for many years that Telegram had not filed the required declarations regarding their encryption, yet they were not previously charged for that omission. 

Refusal to cooperate with a valid legal order for assistance with an interception could be similarly prosecuted in most international legal systems, including the United States. EFF has frequently contested the validity of such orders and gag orders associated with them, and have urged services to contest them in courts and pursue all appeals. But once such orders have been finally validated by courts, they must be complied with. It is a more difficult situation in other situations such as where the nation lacks a properly functioning judiciary or there is an absence of due process, such as China or Saudi Arabia. 

In addition to the refusal to cooperate with the interception, it seems likely that the complicité charges also, or instead, relate to Telegram’s failure to remove posts advancing crimes upon request or knowledge. Specifically, the charges of complicity in “the administration of an online platform to facilitate an illegal transaction” and “organized distribution of images of minors with a pedopornographic nature, drug trafficking,[and] organized fraud,” could likely be based on not depublishing posts. An initial statement by Ofmin, the French agency established to investigate threats to child safety online, referred to “lack of moderation” as being at the heart of their investigation. Under French law, Article 323-3-2, it is a crime to knowingly allow the distribution of illegal content or provision of illegal services, or to facilitate payments for either. 

It is not yet clear whether Telegram users themselves, or those offering similar services to Telegram, should be concerned.

In particular, this potential “lack of moderation” liability bears watching. If Durov is prosecuted because Telegram simply inadequately removed offending content from the site that it is generally aware of, that could expose most every other online platform to similar liability. It would also be concerning, though more in line with existing law, if the charges relate to an affirmative refusal to address specific posts or accounts, rather than a generalized awareness. And both of these situations are much different from one in which France has evidence that Durov was more directly involved with those using Telegram for criminal purposes. Moreover, France will likely have to prove that Durov himself committed each of these offenses, and not Telegram itself or others at the company. 

EFF has raised serious concerns about Telegram’s behavior both as a social media platform and as a messaging app. In spite of its reputation as a “secure messenger,” only a very small subset of messages  on Telegram are encrypted in such a way that prevents the company from reading the contents of communications—end-to-end encryption. (Only one-to-one messages with the “secret messages” option enabled are end-to-end encrypted) And even so, cryptographers have questioned the effectiveness of Telegram’s homebrewed cryptography. If the French government’s charges have to do with Telegram’s refusal to moderate or intercept these messages, EFF will oppose this case in the strongest terms possible, just as we have opposed all government threats to end-to-end encryption all over the world. 

This arrest marks an alarming escalation by a state’s authorities. 

It is not yet clear whether Telegram users themselves, or those offering similar services to Telegram, should be concerned. French authorities may ask for technical measures that endanger the security and privacy of those users. Durov and Telegram may or may not comply. Those running similar services may not have anything to fear, or these charges may be the canary in the coalmine warning us all that French authorities intend to expand their inspection of messaging and social media platforms. It is simply too soon, and there is too little information for us to know for sure.  

It is not the first time Telegram’s laissez faire attitude towards content moderation has led to government reprisals. In 2022, the company was forced to pay a fine in Germany for not establishing a lawful way for reporting illegal content or naming an entity in Germany to receive official communication. Brazil fined the company in 2023 for failing to suspend accounts of supporters of former President Jair Bolsonaro. Nevertheless this arrest marks an alarming escalation by a state’s authorities.  We are monitoring the situation closely and will continue to do so.  

EFF, Access Now, and Article 19 have written to EU Commissioner for Internal Market Thierry Breton calling on him to clarify his understanding of “systemic risks” under the Digital Services Act, and to set a high standard for the protection of fundamental rights, including freedom of expression and of information. The letter was in response to Breton’s own letter addressed to X, in which he urged the platform to take action to ensure compliance with the DSA in the context of far-right riots in the UK as well as the conversation between US presidential candidate Donald Trump and X CEO Elon Musk, which was scheduled to be, and was in fact, live-streamed hours after his letter was posted on X. 

Clarification is necessary because Breton’s letter otherwise reads as a serious overreach of EU authority, and transforms the systemic risks-based approach into a generalized tool for censoring disfavored speech around the world. By specifically referencing the streaming event between Trump and Musk on X, Breton’s letter undermines one of the core principles of the DSA: to ensure fundamental rights protections, including freedom of expression and of information, a principle noted in Breton’s letter itself.

The DSA Must Not Become A Tool For Global Censorship

The letter plays into some of the worst fears of critics of the DSA that it would be used by EU regulators as a global censorship tool rather than addressing societal risks in the EU. 

The DSA requires very large online platforms (VLOPs) to assess the systemic risks that stem from “the functioning and use made of their services in the [European] Union.” VLOPs are then also required to adopt “reasonable, proportionate and effective mitigation measures,”“tailored to the systemic risks identified.” The emphasis on systemic risks was intended, at least in part, to alleviate concerns that the DSA would be used to address individual incidents of dissemination of legal, but concerning, online speech. It was one of the limitations that civil society groups concerned with preserving a free and open internet worked hard to incorporate. 

Breton’s letter troublingly states that he is currently monitoring “debates and interviews in the context of elections” for the “potential risks” they may pose in the EU. But such debates and interviews with electoral candidates, including the Trump-Musk interview, are clearly matters of public concern—the types of publication that are deserving of the highest levels of protection under the law. Even if one has concerns about a specific event, dissemination of information that is highly newsworthy, timely, and relevant to public discourse is not in itself a systemic risk.

People seeking information online about elections have a protected right to view it, even through VLOPs. The dissemination of this content should not be within the EU’s enforcement focus under the threat of non-compliance procedures, and risks associated with such events should be analyzed with care. Yet Breton’s letter asserts that such publications are actually under EU scrutiny. And it is entirely unclear what proactive measures a VLOP should take to address a future speech event without resorting to general monitoring and disproportionate content restrictions. 

Moreover, Breton’s letter fails to distinguish between “illegal” and “harmful content” and implies that the Commission favors content-specific restrictions of lawful speech. The European Commission has itself recognized that “harmful content should not be treated in the same way as illegal content.” Breton’s tweet that accompanies his letter refers to the “risk of amplification of potentially harmful content.” His letter seems to use the terms interchangeably. Importantly, this is not just a matter of differences in the legal protections for speech between the EU, the UK, the US, and other legal systems. The distinction, and the protection for legal but harmful speech, is a well-established global freedom of expression principle. 

Lastly, we are concerned that the Commission is reaching beyond its geographic mandate.  It is not clear how such events that occur outside the EU are linked to risks and societal harm to people who live and reside within the EU, as well as the expectation of the EU Commission about what actions VLOPs must take to address these risks. The letter itself admits that the assessment is still in process, and the harm merely a possibility. EFF and partners within the DSA Human Rights Alliance have advocated for a long time that there is a great need to follow a human rights-centered enforcement of the DSA that also considers the global effects of the DSA. It is time for the Commission to prioritize their enforcement actions accordingly. 

Read the full letter here.

The U.S. Supreme Court addressed government’s various roles with respect to speech on social media in five cases reviewed in its recently completed term. The through-line of these cases is a critically important principle that sets limits on government’s ability to control the online speech of people who use social media, as well as the social media sites themselves: internet users’ First Amendment rights to speak on social media—whether by posting or commenting—may be infringed by the government if it interferes with content moderation, but will not be infringed by the independent decisions of the platforms themselves.

As a general overview, the NetChoice cases, Moody v. NetChoice and NetChoice v. Paxton, looked at government’s role as a regulator of social media platforms. The issue was whether state laws in Texas and Florida that prevented certain online services from moderating content were constitutional in most of their possible applications. The Supreme Court did not rule on that question and instead sent the cases back to the lower courts to reexamine NetChoice’s claim that the statutes had few possible constitutional applications.

The court did, importantly and correctly, explain that at least Facebook’s Newsfeed and YouTube’s Homepage were examples of platforms exercising their own First Amendment rights on how to display and organize content, and the laws could not be constitutionally applied to Newsfeed and Homepage and similar sites, a preliminary step in determining whether the laws were facially unconstitutional.

Lindke v. Freed and Garnier v. O’Connor-Ratcliffe looked at the government’s role as a social media user who has an account and wants to use its full features, including blocking other users and deleting comments. The Supreme Court instructed the lower courts to first look to whether a government official has the authority to speak on behalf of the government, before looking at whether the official used their social media page for governmental purposes, conduct that would trigger First Amendment protections for the commenters.

Murthy v. Missouri, the jawboning case, looked at the government’s mixed role as a regulator and user, in which the government may be seeking to coerce platforms to engage in unconstitutional censorship or may also be a user simply flagging objectionable posts as any user might. The Supreme Court found that none of the plaintiffs had standing to bring the claims because they could not show that their harms were traceable to any action by the federal government defendants.

We’ve analyzed each of the Supreme Court decisions, Moody v. NetChoice (decided with NetChoice v. Paxton), Murthy v. Missouri, and Lindke v. Freed (decided with Garnier v. O’Connor Ratcliffe), in depth.

But some common themes emerge when all five cases are considered together.

• Internet users have a First Amendment right to speak on social media—whether by posting or commenting—and that right may be infringed when the government seeks to  interfere with content moderation, but it will not be infringed  by the independent decisions of the platforms themselves. This principle, which EFF has been advocating for many years, is evident in each of the rulings. In Lindke, the Supreme Court recognized that government officials, if vested with and exercising official authority, could violate the First Amendment by deleting a user’s comments or blocking them from commenting altogether. In Murthy, the Supreme Court found that users could not sue the government for violating their First Amendment rights unless they could show that government coercion lead to their content being taken down or obscured, rather than the social media platform’s own editorial decision. And in the NetChoice cases, the Supreme Court explained that social media platforms typically exercise their own protected First Amendment rights when they edit and curate which posts they show to their users, and the government may violate the First Amendment when it requires them to publish or amplify posts.
  
  
• Underlying these rulings is the Supreme Court’s long-awaited recognition that social media platforms routinely moderate users’ speech: they decide which posts each user sees and when and how they see it, they decide to amplify and recommend some posts and obscure others, and are often guided in this process by their own community standards or similar editorial policies. This is seen in the Supreme Court’s emphasis in Murthy that jawboning is not actionable if the content moderation was the independent decision of the platform rather than coerced by the government. And a similar recognition of independent decision-making underlies the Supreme Court’s First Amendment analysis in the NetChoice cases. The Supreme Court has now thankfully moved beyond the idea that content moderation is largely passive and indifferent, a concern that had been raised after the Supreme Court used that language to describe the process in last term’s case, Twitter v. Taamneh.
  
  
• This term’s cases also confirm that traditional First Amendment rules apply to social media. In Lindke, the Supreme Court recognized that when government controls the comments components of a social media page, it has the same First Amendment obligations to those who wish to speak in those spaces as it does in offline spaces it controls, such as parks, public auditoriums, or city council meetings. In the NetChoice cases, the Supreme Court found that platforms that edit and curate user speech according to their editorial standards have the same First Amendment rights as others who express themselves by selecting the speech of others, including art galleries, booksellers, newsstands, parade organizers, and editorial page editors.
  

Plenty of legal issues around social media remain to be decided. But the 2023-24 Supreme Court term has set out important speech-protective rules that will serve as the foundation for many future rulings. 

 

In a big win for free speech online, the U.S. Court of Appeals for the D.C. Circuit ruled that a federal agency violated the First Amendment when it blocked animal rights activists from commenting on the agency’s social media pages. We filed an amicus brief in the case, joined by the Foundation for Individual Rights and Expression (FIRE).

People for the Ethical Treatment of Animals (PETA) sued the National Institutes of Health (NIH) in 2021, arguing that the agency unconstitutionally blocked their comments opposing animal testing in scientific research on the agency’s Facebook and Instagram pages. (NIH provides funding for research that involves testing on animals.)

NIH argued it was simply implementing reasonable content guidelines that included a prohibition against public comments that are “off topic” to the agency’s social media posts. Yet the agency implemented the “off topic” rule by employing keyword filters that included words such as cruelty, revolting, tormenting, torture, hurt, kill, and stop to block PETA activists from posting comments that included these words.

NIH’s Social Media Pages Are Limited Public Forums

The D.C. Circuit first had to determine whether the comment sections of NIH’s social media pages are designated public forums or limited public forums. As the court explained, “comment threads of government social media pages are designated public forums when the pages are open for comment without restrictions and limited public forums when the government prospectively sets restrictions.”

The court concluded that the comment sections of NIH’s Facebook and Instagram pages are limited public forums: “because NIH attempted to remove a range of speech violating its policies … we find sufficient evidence that the government intended to limit the forum to only speech that meets its public guidelines.”

The nature of the government forum determines what First Amendment standard courts apply in evaluating the constitutionality of a speech restriction. Speech restrictions that define limited public forums must only be reasonable in light of the purposes of the forum, while speech restrictions in designated public forums must satisfy more demanding standards. In both forums, however, viewpoint discrimination is prohibited.

NIH’s Social Media Censorship Violated Animal Rights Activists’ First Amendment Rights

After holding that the comment sections of NIH’s Facebook and Instagram pages are limited public forums subject to a lower standard of reasonableness, the D.C. Circuit then nevertheless held that NIH’s “off topic” rule as implemented by keyword filters is unreasonable and thus violates the First Amendment.

The court explained that because the purpose of the forums (the comment sections of NIH’s social media pages) is directly related to speech, “reasonableness in this context is thus necessarily a more demanding test than in forums that have a primary purpose that is less compatible with expressive activity, like the football stadium.”

In rightly holding that NIH’s censorship was unreasonable, the court adopted several of the arguments we made in our amicus brief, in which we assumed that NIH’s social media pages are limited public forums but argued that the agency’s implementation of its “off topic” rule was unreasonable and thus unconstitutional.

Keyword Filters Can’t Discern Context

We argued, for example, that keyword filters are an “unreasonable form of automated content moderation because they are imprecise and preclude the necessary consideration of context and nuance.”

Similarly, the D.C. Circuit stated, “NIH’s off-topic policy, as implemented by the keywords, is further unreasonable because it is inflexible and unresponsive to context … The permanent and context-insensitive nature of NIH’s speech restriction reinforces its unreasonableness.”

Keyword Filters Are Overinclusive

We also argued, related to context, that keyword filters are unreasonable “because they are blunt tools that are overinclusive, censoring more speech than the ‘off topic’ rule was intended to block … NIH’s keyword filters assume that words related to animal testing will never be used in an on-topic comment to a particular NIH post. But this is false. Animal testing is certainly relevant to NIH’s work.”

The court acknowledged this, stating, “To say that comments related to animal testing are categorically off-topic when a significant portion of NIH’s posts are about research conducted on animals defies common sense.”

NIH’s Keyword Filters Reflect Viewpoint Discrimination

We also argued that NIH’s implementation of its “off topic” rule through keyword filters was unreasonable because those filters reflected a clear intent to censor speech critical of the government, that is, speech reflecting a viewpoint that the government did not like.

The court recognized this, stating, “NIH’s off-topic restriction is further compromised by the fact that NIH chose to moderate its comment threads in a way that skews sharply against the appellants’ viewpoint that the agency should stop funding animal testing by filtering terms such as ‘torture’ and ‘cruel,’ not to mention terms previously included such as ‘PETA’ and ‘#stopanimaltesting.’”

On this point, we further argued that “courts should consider the actual vocabulary or terminology used … Certain terminology may be used by those on only one side of the debate … Those in favor of animal testing in scientific research, for example, do not typically use words like cruelty, revolting, tormenting, torture, hurt, kill, and stop.”

Additionally, we argued that “a highly regulated social media comments section that censors Plaintiffs’ comments against animal testing gives the false impression that no member of the public disagrees with the agency on this issue.”

The court acknowledged both points, stating, “The right to ‘praise or criticize governmental agents’ lies at the heart of the First Amendment’s protections … and censoring speech that contains words more likely to be used by animal rights advocates has the potential to distort public discourse over NIH’s work.”

We are pleased that the D.C. Circuit took many of our arguments to heart in upholding the First Amendment rights of social media users in this important internet free speech case.

We don’t know a lot more about when government jawboning social media companies—that is, attempting to pressure them to censor users’ speech— violates the First Amendment; but we do know that lawsuits based on such actions will be hard to win. In Murthy v. Missouri, the U.S. Supreme Court did not answer the important First Amendment question before it—how does one distinguish permissible from impermissible government communications with social media platforms about the speech they publish? Rather, it dismissed the cases because none of the plaintiffs could show that any of the statements by the government they complained of were likely the cause of any specific actions taken by the social media platforms against them or that they would happen again.   

As we have written before, the First Amendment forbids the government from coercing a private entity to censor, whether the coercion is direct or subtle. This has been an important principle in countering efforts to threaten and pressure intermediaries like bookstores and credit card processors to limit others’ speech. But not every communication to an intermediary about users’ speech is unconstitutional; indeed, some are beneficial—for example, platforms often reach out to government actors they perceive as authoritative sources of information. And the distinction between proper and improper speech is often obscure. 

While the Supreme Court did not tell us more about coercion, it did remind us that it is very hard to win lawsuits alleging coercion. 

So, when do the government’s efforts to persuade one to censor another become coercion? This was a hard question prior to Murthy. And unfortunately, it remains so, though a different jawboning case also recently decided provides some clarity. 

Rather than provide guidance to courts about the line between permissible and impermissible government communications with platforms about publishing users’ speech, the Supreme Court dismissed Murthy, holding that every plaintiff lacked “standing” to bring the lawsuit. That is, none of the plaintiffs had presented sufficient facts to show that the government did in the past or would in the future coerce a social media platform to take down, deamplify, or otherwise obscure any of the plaintiffs’ specific social media posts. So, while the Supreme Court did not tell us more about coercion, it did remind us that it is very hard to win lawsuits alleging coercion. 

The through line between this case and Moody v. Netchoice, decided by the Supreme Court a few weeks later, is that social media platforms have a First Amendment right to moderate the speech any user sees, and, because they exercise that right routinely, a plaintiff who believes they have been jawboned must prove that it was because of the government’s dictate, not the platform’s own decision. 

Plaintiffs’ Lack Standing to Bring Jawboning Claims 

Article III of the U.S. Constitution limits federal courts to only considering “cases and controversies.” This limitation requires that any plaintiff have suffered an injury that was traceable to the defendants and which the court has the power to fix. The standing doctrine can be a significant barrier to litigants without full knowledge of the facts and circumstances surrounding their injuries, and EFF has often complained that courts require plaintiffs to prove their cases on the merits at very early stages of litigation before the discovery process. Indeed, EFF’s landmark mass surveillance litigation, Jewel v NSA, was ultimately dismissed because the plaintiffs lacked standing to sue. 

The main fault in the Murthy plaintiffs’ case was weak evidence

The standing question here differs from cases such as Jewel where courts have denied plaintiffs discovery because they couldn’t demonstrate their standing without an opportunity to gather evidence of the suspected wrongdoing. The Murthy plaintiffs had an opportunity to gather extensive evidence of suspected wrongdoing—indeed, the Supreme Court noted that the case’s factual record exceeds 26,000 pages. And the Supreme Court considered this record in its standing analysis.   

While the Supreme Court did not provide guidance on what constitutes impermissible government coercion of social media platforms in Murthy, its ruling does tell us what type of cause-and-effect a plaintiff must prove to win a jawboning case. 

A plaintiff will have to prove that the negative treatment of their speech was attributable to the government, not the independent action of the platform. This accounts for basic truths of content moderation, which we emphasized in our amicus brief: that platforms moderate all the time, often based on their community guidelines, but also often ad hoc, and informed by input from users and a variety of outside experts. 

When, as in this case, plaintiffs ask a court to stop the government from ongoing or future coercion of a platform to remove, deamplify, or otherwise obscure the plaintiffs’ speech—rather than, for example, compensate for harm caused by past coercion—those plaintiffs must show a real and immediate threat that they will be harmed again. Past incidents of government jawboning are relevant only to predict a repeat of that behavior. Further, plaintiffs seeking to stop ongoing or future government coercion must show that the platform will change its policies and practices back to their pre-coerced state should the government be ordered to stop. 

Fortunately, plaintiffs will only have to prove that a particular government actor “pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff ’s speech on that topic.” Plaintiffs do not need to show that the government targeted their posts specifically, just the general topic of their posts, and that their posts were negatively moderated as a result.  

The main fault in the Murthy plaintiffs’ case was weak evidence that the government actually caused a social media platform to take down, deamplify, or otherwise obscure any of the plaintiffs’ social media posts or any particular social media post at all. Indeed, the evidence that the content moderation decisions were the platforms’ independent decisions was stronger: the platforms had all moderated similar content for years and strengthened their content moderation standards before the government got involved; they spoke not just with the government but with other outside experts; and they had independent, non-governmental incentives to moderate user speech as they did. 

The Murthy plaintiffs also failed to show that the government jawboning they complained of, much of it focusing on COVID and vaccine posts, was continuing. As the Court noted, the government appears to have ceased those efforts. It was not enough that the plaintiffs continue to suffer ill effects from that past behavior. 

And lastly, the plaintiffs could not show that the order they sought from the courts preventing the government from further jawboning would actually cure their injuries, since the platforms may still exercise independent judgment to negatively moderate the plaintiffs’ posts even without governmental involvement. 

 The Court Narrows the Right to Listen 

The right to listen and receive information is an important First Amendment right that has typically allowed those who are denied access to censored speech to sue to regain access. EFF has fervently supported this right. 

But the Supreme Court’s opinion in Murthy v. Missouri narrows this right. The Court explains that only those with a “concrete, specific connection to the speaker” have standing to sue to challenge such censorship. At a minimum, it appears, one who wants to sue must point to specific instances of censorship that have caused them harm; it is not enough to claim an interest in a person’s speech generally or claim harm from being denied “unfettered access to social media.” While this holding rightfully applies to the States who had sought to vindicate the audience interests of their entire populaces, it is more problematic when applied to individual plaintiffs. Going forward EFF will advocate for a narrow reading of this holding. 

 As we pointed out in our amicus briefs and blog posts, this case was always a difficult one for litigating the important question of defining illegal jawboning because it was based more on a sprawling, multi-agency conspiracy theory than on specific takedown demands resulting in actual takedowns. The Supreme Court seems to have seen it the same way. 

But the Supreme Court’s Other Jawboning Case Does Help Clarify Coercion  

Fortunately, we do know a little more about the line between permissible government persuasion and impermissible coercion from a different jawboning case, outside the social media context, that the Supreme Court also decided this year: NRA v. Vullo.  

InNRA v. Vullo, the Supreme Court importantly affirmed that the controlling case for jawboning is Bantam Books v. Sullivan 

NRA v. Vullo is a lawsuit by the National Rifle Association alleging that the New York state agency that oversees the insurance industry threatened insurance companies with enforcement actions if they continued to offer coverage to the NRA. Unlike Murthy, the case came to the Supreme Court on a motion to dismiss before any discovery had been conducted and when courts are required to accept all of the plaintiffs’ factual allegations as true. 

The Supreme Court importantly affirmed that the controlling case for jawboning is Bantam Books v. Sullivan, a 1963 case in which the Supreme Court established that governments violate the First Amendment by coercing one person to censor another person’s speech over which they exercise control, what the Supreme Court called “indirect censorship.”   

In Vullo, the Supreme Court endorsed a multi-factored test that many of the lower courts had adopted, as a “useful, though nonexhaustive, guide” to answering the ultimate question in jawboning cases: did the plaintiff “plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech?” Those factors are: (1) word choice and tone, (2) the existence of regulatory authority (that is, the ability of the government speaker to actually carry out the threat), (3) whether the speech was perceived as a threat, and (4) whether the speech refers to adverse consequences. The Supreme Court explained that the second and third factors are related—the more authority an official wields over someone the more likely they are to perceive their speech as a threat, and the less likely they are to disregard a directive from that official. And the Supreme Court made clear that coercion may arise from ither threats or inducements.  

In our amicus brief in Murthy, we had urged the Court to make clear that an official’s intent to coerce was also highly relevant. The Supreme Court did not directly state this, unfortunately. But they did several times refer to the NRA as having properly alleged that the “coercive threats were aimed at punishing or suppressing disfavored speech.”  

At EFF, we will continue to look for cases that present good opportunities to bring jawboning claims before the courts and to bring additional clarity to this important doctrine. 

 

Social media platforms, at least in their most common form, have a First Amendment right to curate the third-party speech they select for and recommend to their users, and the government’s ability to dictate those processes is extremely limited, the U.S. Supreme Court stated in its landmark decision in Moody v. NetChoice and NetChoice v. Paxton, which were decided together. 

The cases dealt with Florida and Texas laws that each limited the ability of online services to block, deamplify, or otherwise negatively moderate certain user speech.  

Yet the Supreme Court did not strike down either law—instead it sent both cases back to the lower courts to determine whether each law could be wholly invalidated rather than challenged only with respect to specific applications of each law to specific functions. 

The Supreme Court also made it clear that laws that do not target the editorial process, such as competition laws, would not be subject to the same rigorous First Amendment standards, a position EFF has consistently urged. 

This is an important ruling and one that EFF has been arguing for in courts since 2018. We’ve already published our high-level reaction to the decision and written about how it bears on pending social media regulations. This post is a more thorough, and much longer, analysis of the opinion and its implications for future lawsuits. 

A First Amendment Right to Moderate Social Media Content 

 The most important question before the Supreme Court, and the one that will have the strongest ramifications beyond the specific laws being challenged here, is whether social media platforms have their own First Amendment rights, independent of their users’ rights, to decide what third-party content to present in their users’ feeds, recommend, amplify, deamplify, label, or block.  The lower courts in the NetChoice cases reached opposite conclusions, with the 11th Circuit considering the Florida law finding a First Amendment right to curate, and the 5th Circuit considering the Texas law refusing to do so. 

The Supreme Court appropriately resolved that conflict between the two appellate courts and answered this question yes, treating social media platforms the same as other entities that compile, edit, and curate the speech of others, such as bookstores, newsstands, art galleries, parade organizers, and newspapers.  As Justice Kagan, writing for the court’s majority, wrote, “the First Amendment offers protection when an entity engaging in expressive activity, including compiling and curating others’ speech, is directed to accommodate messages it would prefer to exclude.”   

As the Supreme Court explained,  

Deciding on the third-party speech that will be included in or excluded from a compilation—and then organizing and presenting the included items—is expressive activity of its own. And that activity results in a distinctive expressive product. When the government interferes with such editorial choices—say, by ordering the excluded to be included—it alters the content of the compilation. (It creates a different opinion page or parade, bearing a different message.) And in so doing—in overriding a private party’s expressive choices—the government confronts the First Amendment. 

The court thus chose to apply the line of precedent from  Miami Herald Co. v. Tornillo —in which the Supreme Court in 1973 struck down a law that required newspapers that endorsed a candidate for office to provide space to that candidate’s opponents to reply—and rejected the line of precedent from PruneYard Shopping Center v. Robins—a 1980 case in which the Supreme Court ruled that  a state court decision that the California Constitution required a particular shopping center to let  a group set up a table and collect signatures when it allowed other groups to do so did not violate the First Amendment. 

In Moody, the Supreme Court explained that the latter rule applied only to situations in which the host itself was not engaged in an inherently expressive activity. That is, a social media platform deciding what user generated content to select and recommend to its users is inherently expressive, but a shopping center deciding who gets to table on your private property is not. 

So, the Supreme Court said, the 11th Circuit got it right and the 5th Circuit did not. Indeed, the 5th Circuit got it very wrong. In the Supreme Court’s words, the 5th Circuit’s opinion “rests on a serious misunderstanding of First Amendment precedent and principle.” 

This is also the position EFF has been making in courts since at least 2018. As we wrote then, “The law is clear that private entities that operate online platforms for speech and that open those platforms for others to speak enjoy a First Amendment right to edit and curate the content. The Supreme Court has long held that private publishers have a First Amendment right to control the content of their publications. Miami Herald Co. v. Tornillo, 418 U.S. 241, 254-44 (1974).” 

This is an important rule in several contexts in addition to the state must-carry laws at issue in these cases. The same rule will apply to laws that restrict the publication and recommendation of lawful speech by social media platforms, or otherwise interfere with content moderation. And it will apply to civil lawsuits brought by those whose content has been removed, demoted, or demonetized. 

Applying this rule, the Supreme Court concluded that Texas’s law could not be constitutionally applied against Facebook’s Newsfeed and YouTube’s homepage. (The Court did not specifically address Florida’s law since it was writing in the context of identifying the 5th Circuit’s errors.)

Which Services Have This First Amendment Right? 

But the Supreme Court’s ruling doesn’t make clear which other functions of which services enjoy this First Amendment right to curate. The Supreme Court specifically analyzed only Facebook’s Newsfeed and YouTube’s homepage. It did not analyze any services offered by other platforms or other functions offered through Facebook, like messaging or event management. 

The opinion does, however, identify some factors that will be helpful in assessing which online services have the right to curate. 

• Targeting and customizing the publication of user-generated content is protected, whether by algorithm or otherwise, pursuant to the company’s own content rules, guidelines, or standards. The Supreme Court specified that it was not assessing whether the same right would apply to personalized curation decisions made algorithmically solely based on user behavior online without any reference to a site’s own standards or guidelines. 

• Content moderation such as labeling user posts with warnings, disclaimers, or endorsements for all users, or deletion of posts, again pursuant to a site’s own rules, guidelines, or standards, is protected. 

• The combination of multifarious voices “to create a distinctive expressive offering” or have a “particular expressive quality” based on a set of beliefs about which voices are appropriate or inappropriate, a process that is often “the product of a wealth of choices,” is protected. 

• There is no threshold of selectivity a service must surpass to have curatorial freedom, a point we argued in our amicus brief. "That those platforms happily convey the lion’s share of posts submitted to them makes no significant First Amendment difference,” the Supreme Court said. Courts should not focus on the ratio of rejected to accepted posts in deciding whether the right to curate exists: “It is as much an editorial choice to convey all speech except in select categories as to convey only speech within them.” 

• Curatorial freedom exists even when no one is likely to view a platform’s editorial decisions as their endorsement of the ideas in posts they choose to publish. As the Supreme Court said, “this Court has never hinged a compiler’s First Amendment protection on the risk of misattribution.” 

Considering these factors, the First Amendment right will apply to a wide range of social media services, what the Supreme Court called “Facebook Newsfeed and its ilk” or “its near equivalents.” But its application is less clear to messaging, e-commerce, event management, and infrastructure services.

The Court, Finally, Seems to Understand Content Moderation 

Also noteworthy is that in concluding that content moderation is protected First Amendment activity, the Supreme Court showed that it finally understands how content moderation works. It accurately described the process of how social media platforms decide what any user sees in their feed. For example, it wrote:

In constructing certain feeds, those platforms make choices about what third-party speech to display and how to display it. They include and exclude, organize and prioritize—and in making millions of those decisions each day, produce their own distinctive compilations of expression. 

and 

In the face of that deluge, the major platforms cull and organize uploaded posts in a variety of ways. A user does not see everything—even everything from the people she follows—in reverse-chronological order. The platforms will have removed some content entirely; ranked or otherwise prioritized what remains; and sometimes added warnings or labels. Of particular relevance here, Facebook and YouTube make some of those decisions in conformity with content-moderation policies they call Community Standards and Community Guidelines. Those rules list the subjects or messages the platform prohibits or discourages—say, pornography, hate speech, or misinformation on select topics. The rules thus lead Facebook and YouTube to remove, disfavor, or label various posts based on their content. 

This comes only a year after Justice Kagan, who wrote this opinion, remarked of the Supreme Court during another oral argument that, “These are not, like, the nine greatest experts on the internet.” In hindsight, that statement seems more of a comment on her colleagues’ understanding than her own. 

Importantly, the Court has now moved beyond the idea that content moderation is largely passive and indifferent, a concern that had been raised after the Court used that language to describe the process in last term’s case, Twitter v. Taamneh. It is now clear that in the Taamneh case, the court was referring to Twitter’s passive relationship with ISIS, in that Twitter treated it like any other account holder, a relationship that did not support the terrorism aiding and abetting claims made in that case. 

Supreme Court Suggests Competition Law to Address Undue Market Influences 

Another important element of the Supreme Court’s analysis is its treatment of the posited rationale for both states’ speech restrictions: the need to improve or better balance the marketplace of ideas. Both laws were passed in response to perceived censorship of conservative voices, and the states sought to eliminate this perceived political bias from the platform’s editorial practices.  

The Supreme Court found that this was not a sufficiently important reason to limit speech, as is required under First Amendment scrutiny: 

However imperfect the private marketplace of ideas, here was a worse proposal—the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others. . . . The government may not, in supposed pursuit of better expressive balance, alter a private speaker’s own editorial choices about the mix of speech it wants to convey. 

But, as EFF has consistently urged in its amicus briefs, in these cases and others, that ruling does not leave states without any way of addressing harms caused by the market dominance of certain services.   

So, it is very heartening to see the Supreme Court point specifically to competition law as an alternative. In the Supreme Court’s words, “Of course, it is critically important to have a well-functioning sphere of expression, in which citizens have access to information from many sources. That is the whole project of the First Amendment. And the government can take varied measures, like enforcing competition laws, to protect that access." 

While not mentioned, we think this same reasoning supports many data privacy laws as well.  

Nevertheless, the Court Did Not Strike Down Either Law

Despite this analysis, the Supreme Court did not strike down either law. Rather, it sent the cases back to the lower courts to decide whether the lawsuits were proper facial challenges to the law.  

A facial challenge is a lawsuit that argues that a law is unconstitutional in every one of its applications. Outside of the First Amendment, facial challenges are permissible only if there is no possible constitutional application of the law or, as the courts say, the law “lacks a plainly legitimate sweep.” However, in First Amendment cases, a special rule applies: a law may be struck down as overbroad if there are a substantial number of unconstitutional applications relative to the law’s permissible scope. 

To assess whether a facial challenge is proper, a court is thus required to do a three-step analysis. First, a court must identify a law’s “sweep,” that is, to whom and what actions it applies. Second, the court must then identify which of those possible applications are unconstitutional. Third, the court must then both quantitatively and qualitatively compare the constitutional and unconstitutional applications–principal applications of the law, that is, the ones that seemed to be the law’s primary targets, may be given greater weight in that balancing. The court will strike down the law only if the unconstitutional applications are substantially greater than the constitutional ones.  

The Supreme Court found that neither court conducted this analysis with respect to either the Florida or Texas law. So, it sent both cases back down so the lower courts could do so. Its First Amendment analysis set forth above was to guide the courts in determining which applications of the laws would be unconstitutional. The Supreme Court finds that the Texas law cannot be constitutionally applied to Facebook’s Newsfeed of YouTube’s homepage—but the lower court now needs to complete the analysis. 

While these limitations on facial challenges have been well established for some time, the Supreme Court’s focus on them here was surprising because blatantly unconstitutional laws are challenged facially all the time.  

Here, however, the Supreme Court was reluctant to apply its First Amendment analysis beyond large social media platforms like Facebook’s Newsfeed and its close equivalents. The Court was also unsure whether and how either law would be applied to scores of other online services, such as email, direct messaging, e-commerce, payment apps, ride-hailing apps, and others. It wants the lower courts to look at those possible applications first. 

This decision thus creates a perverse incentive for states to pass laws that by their language broadly cover a wide range of activities, and in doing so make a facial challenge more difficult.

For example, the Florida law defines covered social media platforms as "any information service, system, Internet search engine, or access software provider that does business in this state and provides or enables computer access by multiple users to a computer server, including an Internet platform or a social media site” which has either gross annual revenues of at least $100 million or at least 100 million monthly individual platform participants globally.

Texas HB20, by contrast, defines “social media platforms,” as “an Internet website or application that is open to the public, allows a user to create an account, and enables users to communicate with other users for the primary purpose of posting information, comments, messages, or images,” and specifically excludes ISPs, email providers, online services that are nor primarily composed of user-generated content, and to which the social aspects are incidental to a service’s primary purpose.  

Does this Make the First Amendment Analysis “Dicta”? 

Typically, language in a higher court’s opinion that is necessary to its ultimate ruling is binding on lower courts, while language that is not necessary is merely persuasive “dicta.” Here, the Supreme Court’s ruling was based on the uncertainty about the propriety of the facial challenge, and not the First Amendment issues directly. So, there is some argument that the First Amendment analysis is persuasive but not binding precedent. 

However, the Supreme Court could not responsibly remand the case back to the lower courts to consider the facial challenge question without resolving the split in the circuits, that is, the vastly different ways in which the 5th and 11th Circuits analyzed whether social media content curation is protected by the First Amendment. Without that guidance, neither court would know how to assess whether a particular potential application of the law was constitutional or not. The Supreme Court’s First Amendment analysis thus seems quite necessary and is arguably not dicta. 

 And even if the analysis is merely persuasive, six of the justices found that the editorial and curatorial freedom cases like Miami Herald Co v. Tornillo applied. At a minimum, this signals how they will rule on the issue when it reaches them again. It would be unwise for a lower court to rule otherwise, at least while those six justices remain on the Supreme Court. 

What About the Transparency Mandates

Each law also contains several requirements that the covered services publish information about their content moderation practices. Only one type of these provisions was part of the cases before the Supreme Court, a provision from each law that required covered platforms to provide the user with notice and an explanation of certain content moderation decisions.

Heading into the Supreme Court, it was unclear what legal standard applied to these speech mandates. Was it the undue burden standard, from a case called Zauderer v. Office of Disciplinary Counsel, that applies to mandated noncontroversial and factual disclosures in advertisements and other forms of commercial speech, or the strict scrutiny standard that applies to other mandated disclosures?

The Court remanded this question with the rest of the case. But it did imply, without elaboration, that the Zauderer “undue burden” standard each of the lower courts applied was the correct one.

Tidbits From the Concurring Opinions 

All nine justices on the Supreme Court questioned the propriety of the facial challenges to the laws and favored remanding the cases back to the lower courts. So, officially the case was a unanimous 9-0 decision. But there were four separate concurring opinions that revealed some differences in reasoning, with the most significant difference being that Justices Alito, Thomas, and Gorsuch disagreed with the majority’s First Amendment analysis.

Because a majority of the Supreme Court, five justices, fully supported the First Amendment analysis discussed above, the concurrences have no legal effect. There are, however, some interesting tidbits in them that give hints as to how the justices might rule in future cases.

• Justice Barrett fully joined the majority opinion. She wrote a separate concurrence to emphasize that the First Amendment issues may play out much differently for services other than Facebook’s Newsfeed and YouTube’s homepage. She expressed a special concern for algorithmic decision-making that does not carry out the platform’s editorial policies. She also noted that a platform’s foreign ownership might affect whether the platform has First Amendment rights, a statement that pretty much everyone assumes is directed at TikTok. 
  
• Justice Jackson agreed with the majority that the Miami Herald line of cases was the correct precedent and that the 11th Circuit’s interpretation of the law was correct, whereas the 5th Circuit’s was not. But she did not agree with the majority decision to apply the law to Facebook’s Newsfeed and YouTube’s home page. Rather, the lower courts should do that. She emphasized that the law might be applied differently to different functions of a single service.
  
• Justice Alito, joined by Thomas and Gorsuch, emphasized his view that the majority’s First Amendment analysis is nonbinding dicta. He criticized the majority for undertaking the analysis on the record before it. But since the majority did so, he expressed his disagreement with it. He disputed that the Miami Herald line of cases was controlling and raised the possibility that the common carrier doctrine, whereby social media would be treated more like telephone companies, was the more appropriate path. He also questioned whether algorithmic moderation reflects any human’s decision-making and whether community moderation models reflect a platform’s editorial decisions or viewpoints, as opposed to the views of its users.
  
• Justice Thomas fully agreed with Justice Alito but wrote separately to make two points. First, he repeated a long-standing belief that the Zauderer “undue burden” standard, and indeed the entire commercial speech doctrine, should be abandoned. Second, he endorsed the common carrier doctrine as the correct law. He also expounded on the dangers of facial challenges. Lastly, Justice Thomas seems to have moved off, at least a little, his previous position that social media platforms were largely neutral pipes that insubstantially engaged with user speech.
  

How the NetChoice opinion will be viewed by lower courts and what influence it will have on state legislatures and Congress, which continue to seek to interfere with content moderation processes, remains to be seen. 

But the Supreme Court has helpfully resolved a central question and provided a First Amendment framework for analyzing the legality of government efforts to dictate what content social media platforms should or should not publish. 

 

 

 

Legal intern Danya Hajjaji was the lead author of this post.

The Sixth Circuit must carefully apply a new “state action” test from the U.S. Supreme Court to ensure that public officials who use social media to speak for the government do not have free rein to infringe critics’ First Amendment rights, EFF and the Knight First Amendment Institute at Columbia University said in an amicus brief.

The Sixth Circuit is set to re-decide Lindke v. Freed, a case that was recently remanded from the Supreme Court. The lawsuit arose after Port Huron, Michigan resident Kevin Lindke left critical comments on City Manager James Freed's Facebook page. Freed retaliated by blocking Lindke from being able to view, much less continue to leave critical comments on, Freed’s public profile. The dispute turned on the nature of Freed’s Facebook account, where updates on his government engagements were interwoven with personal posts.

Public officials who use social media as an extension of their office engage in “state action,” which refers to acting on the government’s behalf. They are bound by the First Amendment and generally cannot engage in censorship, especially viewpoint discrimination, by deleting comments or blocking citizens who criticize them. While social media platforms are private corporate entities, government officials who operate interactive online forums to engage in public discussions and share information are bound by the First Amendment.

The Sixth Circuit initially ruled in Freed’s favor, holding that no state action exists due to the prevalence of personal posts on his Facebook page and the lack of government resources, such as staff members or taxpayer dollars, used to operate it.  

The case then went to the U.S. Supreme Court, where EFF and the Knight Institute filed a brief urging the Court to establish a functional test that finds state action when a government official uses a social media account in furtherance of their public duties, even if the account is also sometimes used for personal purposes.

The U.S. Supreme Court crafted a new two-pronged state action test: a government official’s social media activity is state action if 1) the official “possessed actual authority to speak” on the government’s behalf and 2) “purported to exercise that authority” when speaking on social media. As we wrote when the decision came out, this state action test does not go far enough in protecting internet users who intereact with public officials online. Nevertheless, the Court has finally provided further guidance on this issue as a result.

Now that the case is back in the Sixth Circuit, EFF and the Knight Institute filed a second brief endorsing a broad construction of the Supreme Court’s state action test.

The brief argues that the test’s “authority” prong requires no more than a showing, either through written law or unwritten custom, that the official had the authority to speak on behalf of the government generally, irrespective of the medium of communication—whether an in-person press conference or social media. It need not be the authority to post on social media in particular.

For high-ranking elected officials (such as presidents, governors, mayors, and legislators) courts should not have a problem finding that they have clear and broad authority to speak on government policies and activities. The same is true for heads of government agencies who are also generally empowered to speak on matters broadly relevant to those agencies. For lower-ranking officials, courts should consider the areas of their expertise and whether their social media posts in question were related to subjects within, as the Supreme Court said, their “bailiwick.”

The brief also argues that the test’s “exercise” prong requires courts to engage in, in the words of the Supreme Court, a “fact-specific undertaking” to determine whether the official was speaking on social media in furtherance of their government duties.

This element is easily met where the social media account is owned, created, or operated by the office or agency itself, rather than the official—for example, the Federal Trade Commission’s @FTC account on X (formerly Twitter).

But when an account is owned by the person and is sometimes used for non-governmental purposes, courts must look to the content of the posts. These include those posts from which the plaintiff’s comments were deleted, or any posts the plaintiff would have wished to see or comment on had the official not blocked them entirely. Former President Donald Trump is a salient example, having routinely used his legacy @realDonaldTrump X account, rather than the government-created and operated account @POTUS, to speak in furtherance of his official duties while president.

However, it is often not easy to differentiate between personal and official speech by looking solely at the posts themselves. For example, a social media post could be either private speech reflecting personal political passions, or it could be speech in furtherance of an official’s duties, or both. If this is the case, courts must consider additional factors when assessing posts made to a mixed-use account. These factors can be an account’s appearance, such as whether government logos were used; whether government resources such as staff or taxpayer funds were used to operate the social media account; and the presence of any clear disclaimers as to the purpose of the account.

EFF and the Knight Institute also encouraged the Sixth Circuit to consider the crucial role social media plays in facilitating public participation in the political process and accountability of government officials and institutions. If the Supreme Court’s test is construed too narrowly, public officials will further circumvent their constitutional obligations by blocking critics or removing any trace of disagreement from any social media accounts that are used to support and perform their official duties.

Social media has given rise to active democratic engagement, while government officials at every level have leveraged this to reach their communities, discuss policy issues, and make important government announcements. Excessively restricting any member of the public’s viewpoints threatens public discourse in spaces government officials have themselves opened as public political forums.

The Supreme Court today correctly found that social media platforms, like newspapers, bookstores, and art galleries before them, have First Amendment rights to curate and edit the speech of others they deliver to their users, and the government has a very limited role in dictating what social media platforms must and must not publish. Although users remain understandably frustrated with how the large platforms moderate user speech, the best deal for users is when platforms make these decisions instead of the government.  

As we explained in our amicus brief, users are far better off when publishers make editorial decisions free from government mandates. Although the court did not reach a final determination about the Texas and Florida laws, it confirmed that their core provisions are inconsistent with the First Amendment when they force social media sites to publish user posts that are, at best, irrelevant, and, at worst, false, abusive, or harassing. The government’s favored speakers would be granted special access to the platforms, and the government’s disfavored speakers silenced. 

We filed our first brief advocating this position in 2018 and are pleased to see that the Supreme Court has finally agreed. 

Notably, the court emphasizes another point EFF has consistently made: that the First Amendment right to edit and curate user content does not immunize social media platforms and tech companies more broadly from other forms of regulation not related to editorial policy. As the court wrote: “Many possible interests relating to social media can meet that test; nothing said here puts regulation of NetChoice’s members off-limits as to a whole array of subjects.” The court specifically calls out competition law as one avenue to address problems related to market dominance and lack of user choice. Although not mentioned in the court’s opinion, consumer privacy laws are another available regulatory tool.  

We will continue to urge platforms large and small to adopt the Santa Clara Principles as a human rights framework for content moderation. Further, we will continue to advocate for strong consumer data privacy laws to regulate social media companies’ invasive practices, as well as more robust competition laws that could end the major platforms’ dominance.   

EFF has been urging courts to adopt this position for almost six years. We filed our first amicus brief in November 2018: https://www.eff.org/document/prager-university-v-google-eff-amicus-brief  

EFF’s must-carry laws issue page: https://www.eff.org/cases/netchoice-must-carry-litigation 

Press release for our SCOTUS amicus brief: https://www.eff.org/press/releases/landmark-battle-over-free-speech-eff-urges-supreme-court-strike-down-texas-and 

Direct link to our brief: https://www.eff.org/document/eff-brief-moodyvnetchoice

The United States has now, for the first time in the more than 100-year history of the Espionage Act, obtained an Espionage Act conviction for basic journalistic acts. Here, Assange's Criminal Information is for obtaining newsworthy information from a source, communicating it to the public, and expressing an openness to receiving more highly newsworthy information. This sets a dangerous practical precedent, and all those who value a free press should work to make sure that it never happens again. While we are pleased that Assange can now be freed for time served and return to Australia, these charges should never have been brought.

Additional information about this charge: 

• EFF Statement on Assange Indictment and Arrest (April 11, 2019)

• The Government’s Indictment of Julian Assange Poses a Clear and Present Danger to Journalism, the Freedom of the Press, and Freedom of Speech (May 24, 2019)

• EFF Statement on British Court’s Rejection of Trump Administration’s Extradition Request for Wikileaks’ Julian Assange (Jan. 4, 2021)

• EFF, Freedom of the Press Foundation and 22 Other Press Freedom Organizations Call on Attorney General to Drop Assange Prosecution (Feb. 8, 2021)

As we put it in a blog post last month, no single country should be able to restrict speech across the entire internet. That's why EFF celebrates the news that Australia's eSafety Commissioner is dropping its legal effort to have content on X, the website formerly known as Twitter, taken down across the globe. This development comes just days after EFF and FIRE were granted official intervener status in the case. 

In April, the Commissioner ordered X to take down a post with a video of a stabbing in a church. X complied by geo-blocking the post in Australia, but it declined to block it elsewhere. The Commissioner then asked an Australian court to order a global takedown — securing a temporary order that was not extended. EFF moved to intervene on behalf of X, and legal action was ongoing until this week, when the Commissioner announced she would discontinue Federal Court proceedings. 

We are pleased that the Commissioner saw the error in her efforts and dropped the action. Global takedown orders threaten freedom of expression around the world, create conflicting legal obligations, and lead to the lowest common denominator of internet content being available around the world, allowing the least tolerant legal system to determine what we all are able to read and distribute online. 

As part of our continued fight against global censorship, EFF opposes efforts by individual countries to write the rules for free speech for the entire world. Unfortunately, all too many governments, even democracies, continue to lose sight of how global takedown orders threaten free expression for us all. 

After several years of litigation across the federal appellate courts, the U.S. Supreme Court in a unanimous opinion has finally crafted a test that lower courts can use to determine whether a government official engaged in “state action” such that censoring individuals on the official’s social media page—even if also used for personal purposes—would violate the First Amendment.

The case, Lindke v. Freed, came out of the Sixth Circuit and involves a city manager, while a companion case called O'Connor-Ratcliff v. Garnier came out of the Ninth Circuit and involves public school board members.

A Two-Part Test

The First Amendment prohibits the government from censoring individuals’ speech in public forums based on the viewpoints that individuals express. In the age of social media, where people in government positions use public-facing social media for both personal, campaign, and official government purposes, it can be unclear whether the interactive parts (e.g., comments section) of a social media page operated by someone who works in government amount to a government-controlled public forum subject to the First Amendment’s prohibition on viewpoint discrimination. Another way of stating the issue is whether a government official who uses a social media account for personal purposes is engaging in state action when they also use the account to speak about government business.  

As the Supreme Court states in the Lindke opinion, “Sometimes … the line between private conduct and state action is difficult to draw,” and the question is especially difficult “in a case involving a state or local official who routinely interacts with the public.”

The Supreme Court announced a fact-intensive test to determine if a government official’s speech on social media counts as state action under the First Amendment. The test includes two required elements:

• the official “possessed actual authority to speak” on the government’s behalf, and
• the official “purported to exercise that authority when he spoke on social media.”

Although the court’s opinion isn’t as generous to internet users as we had asked for in our amicus brief, it does provide guidance to individuals seeking to vindicate their free speech rights against government officials who delete their comments or block them outright.

This issue has been percolating in the courts since at least 2016. Perhaps most famously, the Knight First Amendment Institute at Columbia University and others sued then-president Donald Trump for blocking many of the plaintiffs on Twitter. In that case, the U.S. Court of Appeals for the Second Circuit affirmed a district court’s holding that President Trump’s practice of blocking critics from his Twitter account violated the First Amendment. EFF has also represented PETA in two cases against Texas A&M University.

Element One: Does the official possess actual authority to speak on the government’s behalf?

There is some ambiguity as to what specific authority the Supreme Court believes the government official must have. The opinion is unclear whether the authority is simply the general authority to speak officially on behalf of the public entity, or instead the specific authority to speak officially on social media. On the latter framing, the opinion, for example, discusses the authority “to post city updates and register citizen concerns,” and the authority “to speak for the [government]” that includes “the authority to do so on social media….” The broader authority to generally speak on behalf of the government would be easier to prove for plaintiffs and should always include any authority to speak on social media.

Element One Should Be Interpreted Broadly

We will urge the lower courts to interpret the first element broadly. As we emphasized in our amicus brief, social media is so widely used by government agencies and officials at all levels that a government official’s authority generally to speak on behalf of the public entity they work for must include the right to use social media to do so. Any other result does not reflect the reality we live in.

Moreover, plaintiffs who are being censored on social media are not typically commenting on the social media pages of low-level government employees, say, the clerk at the county tax assessor’s office, whose authority to speak publicly on behalf of their agency may be questionable. Plaintiffs are instead commenting on the social media pages of people in leadership positions, who are often agency heads or in elected positions and who surely should have the general authority to speak for the government.

“At the same time,” the Supreme Court cautions, “courts must not rely on ‘excessively broad job descriptions’ to conclude that a government employee is authorized to speak” on behalf of the government. But under what circumstances would a court conclude that a government official in a leadership position does not have such authority? We hope these circumstances are few and far between for the sake of plaintiffs seeking to vindicate their First Amendment rights.

When Does the Use of a New Communications Technology Become So “Well Settled” That It May Fairly Be Considered Part of a Government Official’s Public Duties?

If, on the other hand, the lower courts interpret the first element narrowly and require plaintiffs to provide evidence that the government official who censored them had authority to speak on behalf of the agency on social media specifically, this will be more difficult to prove.

One helpful aspect of the court’s opinion is that the government official’s authority to speak (however that’s defined) need not be written explicitly in their job description. This is in contrast to what the Sixth Circuit had, essentially, held. The authority to speak on behalf of the government, instead, may be based on “persistent,” “permanent,” and “well settled” “custom or usage.”  

We remain concerned, however, that if there is a narrower requirement that the authority must be to speak on behalf of the government via a particular communications technology—in this case, social media—then at what point does the use of a new technology become so “well settled” for government officials that it is fair to conclude that it is within their public duties?

Fortunately, the case law on which the Supreme Court relies does not require an extended period of time for a government practice to be deemed a legally sufficient “custom or usage.” It would not make sense to require an ages-old custom and usage of social media when the widespread use of social media within the general populace is only a decade and a half old. Ultimately, we will urge lower courts to avoid this problem and broadly interpret element one.

Government Officials May Be Free to Censor If They Speak About Government Business Outside Their Immediate Purview

Another problematic aspect of the Supreme Court’s opinion within element one is the additional requirement that “[t]he alleged censorship must be connected to speech on a matter within [the government official’s] bailiwick.”

The court explains:

For example, imagine that [the city manager] posted a list of local restaurants with health-code violations and deleted snarky comments made by other users. If public health is not within the portfolio of the city manager, then neither the post nor the deletions would be traceable to [his] state authority—because he had none.

But the average constituent may not make such a distinction—nor should they. They would simply see a government official talking about an issue generally within the government’s area of responsibility. Yet under this interpretation, the city manager would be within his right to delete the comments, as the constituent could not prove that the issue was within that particular government official’s purview, and they would thus fail to meet element one.

Element Two: Did the official purport to exercise government authority when speaking on social media?

Plaintiffs Are Limited in How a Social Media Account’s “Appearance and Function” Inform the State Action Analysis

In our brief, we argued for a functional test, where state action would be found if a government official were using their social media account in furtherance of their public duties, even if they also used that account for personal purposes. This was essentially the standard that the Ninth Circuit adopted, which included looking at, in the words of the Supreme Court, “whether the account’s appearance and content look official.” The Supreme Court’s two-element test is more cumbersome for plaintiffs. But the upside is that the court agrees that a social media account’s “appearance and function” is relevant, even if only with respect to element two.

Reality of Government Officials Using Both Personal and Official Accounts in Furtherance of Their Public Duties Is Ignored

Another problematic aspect of the Supreme Court’s discussion of element two is that a government official’s social media page would amount to state action if the page is the “only” place where content related to government business is located. The court provides an example: “a mayor would engage in state action if he hosted a city council meeting online by streaming it only on his personal Facebook page” and it wasn’t also available on the city’s official website. The court further discusses a new city ordinance that “is not available elsewhere,” except on the official’s personal social media page. By contrast, if “the mayor merely repeats or shares otherwise available information … it is far less likely that he is purporting to exercise the power of his office.”

This limitation is divorced from reality and will hamstring plaintiffs seeking to vindicate their First Amendment rights. As we showed extensively in our brief (see Section I.B.), government officials regularly use both official office accounts and “personal” accounts for the same official purposes, by posting the same content and soliciting constituent feedback—and constituents often do not understand the difference.

Constituent confusion is particularly salient when government officials continue to use “personal” campaign accounts after they enter office. The court’s conclusion that a government official “might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection” is thus highly problematic. The court is correct that government officials have their own First Amendment right to speak as private citizens online. However, their constituents should not be subject to censorship when a campaign account functions the same as a clearly official government account.

An Upside: Supreme Court Denounces the Blocking of Users Even on Mixed-Use Social Media Accounts

One very good aspect of the Supreme Court’s opinion is that if the censorship amounted to the blocking of a plaintiff from engaging with the government official’s social media page as a whole, then the plaintiff must merely show that the government official “had engaged in state action with respect to any post on which [the plaintiff] wished to comment.”  

The court further explains:

The bluntness of Facebook’s blocking tool highlights the cost of a “mixed use” social-media account: If page-wide blocking is the only option, a public of­ficial might be unable to prevent someone from commenting on his personal posts without risking liability for also pre­venting comments on his official posts. A public official who fails to keep personal posts in a clearly designated per­sonal account therefore exposes himself to greater potential liability.

We are pleased with this language and hope it discourages government officials from engaging in the most egregious of censorship practices.

The Supreme Court also makes the point that if the censorship was the deletion of a plaintiff’s individual comments under a government official’s posts, then those posts must each be analyzed under the court’s new test to determine whether a particular post was official action and whether the interactive spaces that accompany it are government forums. As the court states, “it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.” This is in contrast to the Sixth Circuit, which held, “When analyzing social-media activity, we look to a page or account as a whole, not each individual post.”

The Supreme Court’s new test for state action unfortunately puts a thumb on the scale in favor of government officials who wish to censor constituents who engage with them on social media. However, the test does chart a path forward on this issue and should be workable if lower courts apply the test with an eye toward maximizing constituents’ First Amendment rights online.

In a case being heard Monday at the Supreme Court, 45 Washington lawmakers have argued that government communications with social media sites about possible election interference misinformation are illegal.

Agencies can't even pass on information about websites state election officials have identified as disinformation, even if they don't request that any action be taken, they assert.

Yet just this week the vast majority of those same lawmakers said the government's interest in removing election interference misinformation from social media justifies banning a site used by 150 million Americans.

On Monday, the Supreme Court will hear oral arguments in Murthy v. Missouri, a case that raises the issue of whether the federal government violates the First Amendment by asking social media platforms to remove or negatively moderate user posts or accounts. In Murthy, the government contends that it can strongly urge social media sites to remove posts without violating the First Amendment, as long as it does not coerce them into doing so under the threat of penalty or other official sanction.

We recognize both the hazards of government involvement in content moderation and the proper role in some situations for the government to share its expertise with the platforms. In our brief in Murthy, we urge the court to adopt a view of coercion that includes indirectly coercive communications designed and reasonably perceived as efforts to replace the platform’s editorial decision-making with the government’s.

And we argue that close cases should go against the government. We also urge the court to recognize that the government may and, in some cases, should appropriately inform platforms of problematic user posts. But it’s the government’s responsibility to make sure that its communications with the platforms are reasonably perceived as being merely informative and not coercive.

In contrast, the Members of Congress signed an amicus brief in Murthy supporting placing strict limitations on the government’s interactions with social media companies. They argued that the government may hardly communicate at all with social media platforms when it detects problematic posts.

Notably, the specific posts they discuss in their brief include, among other things, posts the U.S. government suspects are foreign election interference. For example, the case includes allegations about the FBI and CISA improperly communicating with social media sites that boil down to the agency passing on pertinent information, such as websites that had already been identified by state and local election officials as disinformation. The FBI did not request that any specific action be taken and sought to understand how the sites' terms of service would apply.

As we argued in our amicus brief, these communications don't add up to the government dictating specific editorial changes it wanted. It was providing information useful for sites seeking to combat misinformation. But, following an injunction in Murthy, the government has ceased sharing intelligence about foreign election interference. Without the information, Meta reports its platforms could lack insight into the bigger threat picture needed to enforce its own rules.

The problem of election misinformation on social media also played a prominent role this past week when the U.S. House of Representatives approved a bill that would bar app stores from distributing TikTok as long as it is owned by its current parent company, ByteDance, which is headquartered in Beijing. The bill also empowers the executive branch to identify and similarly ban other apps that are owned by foreign adversaries.

As stated in the House Report that accompanied the so-called "Protecting Americans from Foreign Adversary Controlled Applications Act," the law is needed in part because members of Congress fear the Chinese government “push[es] misinformation, disinformation, and propaganda on the American public” through the platform. Those who supported the bill thus believe that the U.S. can take the drastic step of banning an app for the purposes of preventing the spread of “misinformation and propaganda” to U.S. users. A public report from the Office of the Director for National Intelligence was more specific about the threat, indicating a special concern for information meant to interfere with the November elections and foment societal divisions in the U.S.

Over 30 members of the House who signed the amicus brief in Murthy voted for the TikTok ban. So, many of the same people who supported the U.S. government’s efforts to rid a social media platform of foreign misinformation, also argued that the government’s ability to address the very same content on other social media platforms should be sharply limited.

Admittedly, there are significant differences between the two positions. The government does have greater limits on how it regulates the speech of domestic companies than it does the speech of foreign companies.

But if the true purpose of the bill is to get foreign election misinformation off of social media, the inconsistency in the positions is clear.  If ByteDance sells TikTok to domestic owners so that TikTok can stay in business in the U.S., and if the same propaganda appears on the site, is the U.S. now powerless to do anything about it? If so, that would seem to undercut the importance in getting the information away from U.S. users, which is one the chief purposes of the TikTik ban.

We believe there is an appropriate role for the government to play, within the bounds of the First Amendment, when it truly believes that there are posts designed to interfere with U.S. elections or undermine U.S. security on any social media platform. It is a far more appropriate role than banning a platform altogether.

 

 

With strong bipartisan support, the U.S. House voted 352 to 65 to pass HR 7521 this week, a bill that would ban TikTok nationwide if its Chinese owner doesn’t sell the popular video app. The TikTok bill’s future in the U.S. Senate isn’t yet clear, but President Joe Biden has said he would sign it into law if it reaches his desk. 

The speed at which lawmakers have moved to advance a bill with such a significant impact on speech is alarming. It has given many of us — including, seemingly, lawmakers themselves — little time to consider the actual justifications for such a law. In isolation, parts of the argument might sound somewhat reasonable, but lawmakers still need to clear up their confused case for banning TikTok. Before throwing their support behind the TikTok bill, Americans should be able to understand it fully, something that they can start doing by considering these five questions. 

1. Is the TikTok bill about privacy or content?

Something that has made HR 7521 hard to talk about is the inconsistent way its supporters have described the bill’s goals. Is this bill supposed to address data privacy and security concerns? Or is it about the content TikTok serves to its American users? 

From what lawmakers have said, however, it seems clear that this bill is strongly motivated by content on TikTok that they don’t like. When describing the "clear threat" posed by foreign-owned apps, the House report on the bill  cites the ability of adversary countries to "collect vast amounts of data on Americans, conduct espionage campaigns, and push misinformation, disinformation, and propaganda on the American public."

This week, the bill’s Republican sponsor Rep. Mike Gallagher told PBS Newshour that the “broader” of the two concerns TikTok raises is “the potential for this platform to be used for the propaganda purposes of the Chinese Communist Party." On that same program, Representative Raja Krishnamoorthi, a Democratic co-sponsor of the bill, similarly voiced content concerns, claiming that TikTok promotes “drug paraphernalia, oversexualization of teenagers” and “constant content about suicidal ideation.”

2. If the TikTok bill is about privacy, why aren’t lawmakers passing comprehensive privacy laws? 

It is indeed alarming how much information TikTok and other social media platforms suck up from their users, information that is then collected not just by governments but also by private companies and data brokers. This is why the EFF strongly supports comprehensive data privacy legislation, a solution that directly addresses privacy concerns. This is also why it is hard to take lawmakers at their word about their privacy concerns with TikTok, given that Congress has consistently failed to enact comprehensive data privacy legislation and this bill would do little to stop the many other ways adversaries (foreign and domestic) collect, buy, and sell our data. Indeed, the TikTok bill has no specific privacy provisions in it at all.

It has been suggested that what makes TikTok different from other social media companies is how its data can be accessed by a foreign government. Here, too, TikTok is not special. China is not unique in requiring companies in the country to provide information to them upon request. In the United States, Section 702 of the FISA Amendments Act, which is up for renewal, authorizes the mass collection of communication data. In 2021 alone, the FBI conducted up to 3.4 million warrantless searches through Section 702. The U.S. government can also demand user information from online providers through National Security Letters, which can both require providers to turn over user information and gag them from speaking about it. While the U.S. cannot control what other countries do, if this is a problem lawmakers are sincerely concerned about, they could start by fighting it at home.

3. If the TikTok bill is about content, how will it avoid violating the First Amendment? 

Whether TikTok is banned or sold to new owners, millions of people in the U.S. will no longer be able to get information and communicate with each other as they presently do. Indeed, one of the given reasons to force the sale is so TikTok will serve different content to users, specifically when it comes to Chinese propaganda and misinformation.

The First Amendment to the U.S. Constitution rightly makes it very difficult for the government to force such a change legally. To restrict content, U.S. laws must be the least speech-restrictive way of addressing serious harms. The TikTok bill’s supporters have vaguely suggested that the platform poses national security risks. So far, however, there has been little public justification that the extreme measure of banning TikTok (rather than addressing specific harms) is properly tailored to prevent these risks. And it has been well-established law for almost 60 years that U.S. people have a First Amendment right to receive foreign propaganda. People in the U.S. deserve an explicit explanation of the immediate risks posed by TikTok — something the government will have to do in court if this bill becomes law and is challenged.

4. Is the TikTok bill a ban or something else? 

Some have argued that the TikTok bill is not a ban because it would only ban TikTok if owner ByteDance does not sell the company. However, as we noted in the coalition letter we signed with the American Civil Liberties Union, the government generally cannot “accomplish indirectly what it is barred from doing directly, and a forced sale is the kind of speech punishment that receives exacting scrutiny from the courts.” 

Furthermore, a forced sale based on objections to content acts as a backdoor attempt to control speech. Indeed, one of the very reasons Congress wants a new owner is because it doesn’t like China’s editorial control. And any new ownership will likely bring changes to TikTok. In the case of Twitter, it has been very clear how a change of ownership can affect the editorial policies of a social media company. Private businesses are free to decide what information users see and how they communicate on their platforms, but when the U.S. government wants to do so, it must contend with the First Amendment. 

5. Does the U.S. support the free flow of information as a fundamental democratic principle? 

Until now, the United States has championed the free flow of information around the world as a fundamental democratic principle and called out other nations when they have shut down internet access or banned social media apps and other online communications tools. In doing so, the U.S. has deemed restrictions on the free flow of information to be undemocratic.

In 2021, the U.S. State Department formally condemned a ban on Twitter by the government of Nigeria. “Unduly restricting the ability of Nigerians to report, gather, and disseminate opinions and information has no place in a democracy,” a department spokesperson wrote. “Freedom of expression and access to information both online and offline are foundational to prosperous and secure democratic societies.”

Whether it’s in Nigeria, China, or the United States, we couldn’t agree more. Unfortunately, if the TikTok bill becomes law, the U.S. will lose much of its moral authority on this vital principle.

TAKE ACTION

TELL CONGRESS: DON'T BAN TIKTOK

Over the past month, the independent news outlet Indybay has quietly fought off an unlawful search warrant and gag order served by the San Francisco Police Department. Today, a court lifted the gag order and confirmed the warrant is void. The police also promised the court to not seek another warrant from Indybay in its investigation.

Nevertheless, Indybay was unconstitutionally gagged from speaking about the warrant for more than a month. And the SFPD once again violated the law despite past assurances that it was putting safeguards in place to prevent such violations.

EFF provided pro bono legal representation to Indybay throughout the process.

Indybay’s experience highlights a worrying police tactic of demanding unpublished source material from journalists, in violation of clearly established shield laws. Warrants like the one issued by the police invade press autonomy, chill news gathering, and discourage sources from contributing. While this is a victory, Indybay was still gagged from speaking about the warrant, and it would have had to pay thousands of dollars in legal fees to fight the warrant without pro bono counsel. Other small news organizations might not be so lucky. 

It started on January 18, 2024, when an unknown member of the public published a story on Indybay’s unique community-sourced newswire, which allows anyone to publish news and source material on the website. The author claimed credit for smashing windows at the San Francisco Police Credit Union.

On January 24, police sought and obtained a search warrant that required Indybay to turn over any text messages, online identifiers like IP address, or other unpublished information that would help reveal the author of the story. The warrant also ordered Indybay not to speak about the warrant for 90 days. With the help of EFF, Indybay responded that the search warrant was illegal under both California and federal law and requested that the SFPD formally withdraw it. After several more requests and shortly before the deadline to comply with the search warrant, the police agreed to not pursue the warrant further “at this time.” The warrant became void when it was not executed after 10 days under California law, but the gag order remained in place.

Indybay went to court to confirm the warrant would not be renewed and to lift the gag order. It argued it was protected by California and federal shield laws that make it all but impossible for law enforcement to use a search warrant to obtain unpublished source material from a news outlet. California law, Penal Code § 1524(g), in particular, mandates that “no warrant shall issue” for that information. The Federal Privacy Protection Act has some exceptions, but they were clearly not applicable in this situation. Nontraditional and independent news outlets like Indybay are covered by these laws (Indybay fought this same fight more than a decade ago when one of its photographers successfully quashed a search warrant). And when attempting to unmask a source, an IP address can sometimes be as revealing as a reporter’s notebook. In a previous case, EFF established that IP addresses are among the types of unpublished journalistic information typically protected from forced disclosure by law.

In addition, Indybay argued that the gag order was an unconstitutional content-based prior restraint on speech—noting that the government did not have a compelling interest in hiding unlawful investigative techniques.

Rather than fight the case, the police conceded the warrant was void, promised not to seek another search warrant for Indybay’s information during the investigation, and agreed to lift the gag order. A San Francisco Superior Court Judge signed an order confirming that.

That this happened at all is especially concerning since the SFPD had agreed to institute safeguards following its illegal execution of a search warrant against freelance journalist Bryan Carmody in 2019. In settling a lawsuit brought by Carmody, the SFPD agreed to ensure all its employees were aware of its policies concerning warrants to journalists. As a result the department instituted internal guidance and procedures, which do not all appear to have been followed with Indybay.

Moreover, the search warrant and gag order should never have been signed by the court given that it was obviously directed to a news organization. We call on the court and the SFPD to meet with those representing journalists to make sure that we don't have to deal with another unconstitutional gag order and search warrant in another few years.

The San Francisco Police Department's public statement on this case is incomplete. It leaves out the fact that Indybay was gagged for more than a month and that it was only Indybay's continuous resistance that prevented the police from acting on the warrant. It also does not mention whether the police department's internal policies were followed in this case. For one thing, this type of warrant requires approval from the chief of police before it is sought, not after. 

Read more here: 

Stipulated Order

Motion to Quash

Search Warrant

Trujillo Declaration

Burdett Declaration

SFPD Press Release