Tag: Free speech

From a Justice Department press release [UPDATE: link fixed] dated Oct. 24, but just posted on Westlaw a few days ago:

A Diamond Bar man pled guilty today to a federal criminal civil rights charge for disrupting a “Stop Asian Hate” rally in March 2021 by running a red light and driving through a crowded crosswalk of peaceful demonstrators while shouting racial slurs and epithets.

On the third day of trial, Steve Lee Dominguez, 57, pleaded guilty to one felony count of bias-motivated interference with federally protected activities….

According to the Plea Agreement,

Defendant drove to the “Stop Asian Hate” rally in his car, a black Honda four-door sedan. When he approached the intersection at the center of the rally, he stopped and yelled “Go back to China!” and “fuck China!” to the rally participants, including the Victims. Defendant then deliberately ran a red light and drove his car, which was at all times a dangerous weapon, through the crosswalk of the intersection. He made an illegal U-turn and cut off the route of several rally participants who were lawfully crossing the street in the crosswalk. The Victims, other adults, and a nine-year-old child had to quickly move to avoid being hit by defendant’s car. Defendant then got out of his car and continued to yell racial epithets and threatening language at the rally participants, including “come on you fucking Niggers,” “you Jap motherfucker,” “Fuck you, you Gook!” and “Fuck you, I’ll be back,” among others.

The Justice Department press release also states,

He then called the police, identified himself as “John Doe” and falsely reported to police that the rally participants were blocking the street and he had to run a red light “because they were about to trample my car,” according to evidence presented at trial. He also requested that police “get some control out” at the intersection.

In yesterday’s Reyes v. City of New York, Judge Jessica Clarke (S.D.N.Y.) (appeal pending) held that the First Amendment “right to record police conducting official duties in public places” doesn’t apply to police precinct lobbies: They are “nonpublic fora” where restrictions on First Amendment activity need only be viewpoint-neutral and reasonable, and bans on recording in such places are reasonable in light of the government’s “privacy, safety and security interests.” But it held that New York law protects such recording:

The New York State Right to Record Act (“NYS RTRA”), enacted on July 14, 2020, provides that “[a] person not under arrest or in the custody of a law enforcement official has the right to record law enforcement activity and to maintain custody and control of that recording and of any property or instruments used by that person to record law enforcement activities ….” Persons are barred from recording if they “engage in actions that physically interfere with law enforcement activity or otherwise constitute a crime defined in the penal law involving obstructing governmental administration.” The NYS RTRA further creates a private right of action.

Similarly, the New York City Right to Record Act (“NYC RTRA,” together with the NYS RTRA, the “Right to Record Acts”), enacted on August 14, 2020, states that “[a] person may record police activities and maintain custody and control of any such recording and of any property or instruments used in such recording.” The law further provides that “[n]othing in this chapter shall be construed to permit a person to engage in actions that physically interfere with an official and lawful police function, or to prevent the seizure of any property or instruments used in a recording of police activities where the seizure is otherwise authorized by law, or to prohibit any officer from enforcing any other provision of law.” …

[T]he broad, straightforward provisions of the Right to Record Acts mean what they say: people can record the police….

In passing the Right to Record Acts, the legislatures presumably considered the privacy, security and safety concerns that might result from a broad statute allowing the public to record law enforcement, and they found that transparency and accountability of law enforcement officials outweighed those concerns. The Court finds no basis to disturb that decision.

Law enforcement is part of the democratic system of government and the public has a legitimate interest in seeing how law enforcement operates. “Access to information regarding public police activity is particularly important because it leads to citizen discourse on public issues ….”

Plaintiff is represented by Andrew Claude Case and Meena Oberdick of LatinoJusticePRLDEF.

“The purpose of this administrative stay is to give the court sufficient opportunity to consider the emergency motion for a stay pending appeal and should not be construed in any way as a ruling on the merits of that motion.”

BREAKING: The Trump gag order in DC is on hold. Appeals court panel has temporarily stayed it and scheduled a Nov. 20 oral argument. The panel:

Millett (Obama)
Pillard (Obama)
Garcia (Biden) pic.twitter.com/egJGonwsOG

— Kyle Cheney (@kyledcheney) November 3, 2023

The Onion speaks with more courage, insight and moral clarity than the leaders of every academic institution put together. I wish there were a @TheOnion university. https://t.co/R8gufC9opJ

— Michael Eisen (@mbeisen) October 13, 2023

Science reports:

Michael Eisen, editor-in-chief of the prominent open-access journal eLife and longtime critic of traditional journals, says he is losing that job for publicly endorsing a satirical article that criticized people dying in Gaza for not condemning the recent attacks on Israel by the Palestinian group Hamas.

“I have been informed that I am being replaced as the Editor in Chief of @eLife for retweeting a @TheOnion piece that calls out indifference to the lives of Palestinian civilians,” Eisen posted on the social media platform X today. Multiple editors at eLife or advisers to the journal have already resigned to protest his dismissal.

eLife subsequently confirmed the firing in a statement, saying: “Mike has been given clear feedback from the board that his approach to leadership, communication and social media has at key times been detrimental to the cohesion of the community we are trying to build and hence to eLife‘s mission. It is against this background that a further incidence of this behaviour has contributed to the board’s decision.” …

[A day after his original post but before the firing], [Eisen] posted, “Every sane person on Earth is horrified and traumatized by what Hamas did and wants it to never happen again. All the more so as a Jew with Israeli family. But I am also horrified by the collective punishment already being meted out on Gazans, and the worse that is about to come.… The Onion is not making light of the situation. And nor am I. These articles are using satire to make a deadly serious point about this horrific tragedy.”

It may well be that the removal also stems in part from friction between Eisen and others in the past (see this Nature article); but as I understand the quoted eLife statement and the credible-seeming press accounts surrounding it, his statements here were indeed the immediate cause of the dismissal.

I’m at a conference and can’t get into this in more detail, but if the facts are as reported, it seems to me that eLife behaved in a way that scientific institutions (including journals) ought not behave. I’m with the professor quoted below:

“The whole [academic] enterprise we’re engaged in rests on the ability to have open intellectual exchange about any topic and express our views honestly,” says Josh Dubnau, a neurobiologist at Stony Brook University and one of the [authors of a letter opposing Eisen’s removal]. “Nothing he said was repugnant or hateful. There shouldn’t be consequences for minority views in academia.” Dubnau went on to ask whether eLife would define acceptable positions on other controversial issues, such as abortion or the war in Ukraine.

Here’s the content of the Tweeted The Onion article:

Dying Gazans Criticized For Not Using Last Words To Condemn Hamas
GAZA CITY, GAZA—The complicity of each and every Palestinian in the violent actions of their militant ruling authority was reportedly on full display Friday morning when dying Gazans received justified criticism for not using their last words to condemn Hamas. For example, instead of issuing a full-throated denunciation of the violent attacks by Hamas that have left over 1,300 Israelis dead, one dying woman holding her 6-year-old son who had just been killed in a bombing is said to have doubled down by telling her child she loved him. According to reports, such barbarism on the part of Palestinians was on full display across the Gaza Strip, where many men of fighting age could not muster a single world of reproof for Hamas’ actions while they coughed up blood. In war-ravaged Gaza City, a dying reporter was heard blatantly begging for help instead of labeling Hamas a terrorist organization. At press time, the Israeli Defense Forces Twitter account underscored the massive surge of contempt they were contending with by posting a video that featured the shocking savagery of a Palestinian corpse that refused to condemn Hamas even when kicked.

As with satire generally, there are different possible interpretations here; but even if you think that academic journals should refuse to be associated with editors who express views that are genuinely extraordinarily vitriolic or vulgar or hostile, this just doesn’t qualify. This is one scientist, speaking as a citizen (not on behalf of a journal), expressing a view that is generally critical of the Israeli retaliation for the October 7 attacks, and suggesting that Palestinians are being excessively criticized for their failure to condemn the attacks. It’s bad for public discourse, and bad for science, if scientists have to face professional retaliation simply for expressing such political views on controversial political topics.

From today’s order and accompanying opinion in Murthy v. Missouri:

The application for stay … is granted. The preliminary injunction issued on July 4, 2023, by the United States District Court for the Western District of Louisiana … as modified by the United States Court of Appeals for the Fifth Circuit on October 3, 2023 … is stayed. The application for stay is also treated as a petition for a writ of certiorari, and the petition is granted on the questions presented in the application….

Justice Alito, with whom Justice Thomas and Justice Gorsuch join, dissenting from grant of application for stay.

This case concerns what two lower courts found to be a “coordinated campaign” by high-level federal officials to suppress the expression of disfavored views on important public issues. To prevent the continuation of this campaign, these officials were enjoined from either “coerc[ing]” social media companies to engage in such censorship or “active[ly] control[ling]” those companies’ decisions about the content posted on their platforms. Today, however, a majority of the Court, without undertaking a full review of the record and without any explanation, suspends the effect of that injunction until the Court completes its review of this case, an event that may not occur until late in the spring of next year. Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing.

This case began when two States, Missouri and Louisiana, and various private parties filed suit alleging that popular social media companies had either blocked their use of the companies’ platforms or had downgraded their posts on a host of controversial subjects, including “the COVID–19 lab leak theory, pandemic lockdowns, vaccine side effects, election fraud, and the Hunter Biden laptop story.” According to the plaintiffs, Federal Government officials “were the ones pulling the strings,” that is, these officials “‘coerced, threatened, and pressured [the] social-media platforms to censor [them].’” Based on extensive findings of fact that spanned 82 pages, the District Court held that the plaintiffs were likely to be able to prove their claims and were threatened with irreparable harm, and it therefore issued a preliminary injunction against a number of Executive Branch agencies and officials.

On appeal, the Court of Appeals agreed with the District Court’s assessment of the evidence, which, in its words, showed the existence of “a coordinated campaign” of unprecedented “magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life.” The Court of Appeals found that “the district court was correct in its assessment—’unrelenting pressure’ from certain government officials likely ‘had the intended result of suppressing millions of protected free speech postings by American citizens.’”

To stop this “campaign,” the injunction, as it now stands, prohibits the covered officials from doing two things. First, they may not “coerce” social media platforms to make “content-moderation decisions.” Second, they may not “meaningfully contro[l]” social media platforms’ “content-moderation” efforts. Displeased with these restrictions, the Government filed an emergency application asking us to stay the effect of this injunction pending certiorari.

Under a straightforward application of the test we use in deciding whether to grant a stay, the Government’s application should be denied. To obtain a stay pending the disposition of a petition for a writ of certiorari, an applicant must show, among other things, “a likelihood that irreparable harm will result from the denial of a stay.” A stay is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Thus, the Government in this case must make a “clear showing” of irreparable harm. And to do that, it is not enough to “simply sho[w] some ‘possibility of irreparable injury.’” A mere “‘possibility’ standard is too lenient.” Instead, the Government must prove that irreparable harm is “likel[y].” Here, the Government’s attempts to demonstrate irreparable harm do not come close to clearing this high bar.

Instead of providing any concrete proof that “harm is imminent,” the Government offers a series of hypothetical statements that a covered official might want to make in the future and that, it thinks, might be chilled. But hypotheticals are just that—speculation that the Government “may suffer irreparable harm at some point in the future,” not concrete proof. And such speculation does not establish irreparable harm.

Moreover, it does not appear that any of the Government’s hypothetical communications would actually be prohibited by the injunction. Nor is any such example provided by the Court’s unreasoned order. The Government claims that the injunction might prevent “the President and the senior officials who serve as his proxies” from “speak[ing] to the public on matters of public concern.” Application 36; accord, id., at 3 (suggesting that the Fifth Circuit’s decision implicates “the use of the Office’s bully pulpit to seek to persuade Americans”). The President himself is not subject to the injunction, and in any event, the injunction does not prevent any Government official from speaking on any matter or from urging any entity or person to act in accordance with the Government’s view of responsible conduct.

The injunction applies only when the Government crosses the line and begins to coerce or control others’ exercise of their free-speech rights. Does the Government think that the First Amendment allows Executive Branch officials to engage in such conduct? Does it have plans for this to occur between now and the time when this case is decided?

Despite the Government’s conspicuous failure to establish a threat of irreparable harm, the majority stays the injunction and thus allows the defendants to persist in committing the type of First Amendment violations that the lower courts identified. The majority takes this action in the face of the lower courts’ detailed findings of fact. But “[w]here an intermediate court reviews, and affirms, a trial court’s factual findings, this Court will not ‘lightly overturn’ the concurrent findings of the two lower courts.” And the majority suspends the relief afforded below without a word of explanation.

Applying our settled test for granting a stay, I would deny the Government’s application, but I would specify in the order that in the unlikely event that a concrete occurrence presents a risk of irreparable harm, the Government can apply for relief at that time, including, if necessary, by filing an emergency application here. Such an order would fully protect the ability of Executive Branch officials to speak out on matters of public concern.

At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate.

Since there’s no opinion defending the stay, I thought I’d pass along the introduction to the Solicitor General’s stay application:

This application concerns an unprecedented injunction installing the United States District Court for the Western District of Louisiana as the superintendent of the Executive Branch’s communications with and about social-media platforms—including senior White House officials’ speech addressing some of the most salient public issues of the day. The lower courts held that federal officials had transformed the private platforms’ content-moderation decisions into state action and violated the First Amendment by urging platforms to remove COVID-19 misinformation, highlighting the risk of disinformation from foreign actors, and responding to the platforms’ inquiries about matters of public health. The courts then entered a sweeping preliminary injunction governing thousands of federal officials’ and employees’ speech concerning any content posted on any social-media platform by anyone. That injunction flouts bedrock principles of Article III, the First Amendment, and equity.

First, respondents lack Article III standing. Respondents are five individual social-media users and two States. The Fifth Circuit held that they have standing because their posts have been moderated by social-media platforms. But respondents failed to show that those actions were fairly traceable to the government or redressable by injunctive relief. To the contrary, respondents’ asserted instances of moderation largely occurred before the allegedly unlawful government actions. The Fifth Circuit also held that the state respondents have standing because they have a “right to listen” to their citizens on social media. App., infra, 204a. But the court cited no precedent for that boundless theory, which would allow any state or local government to challenge any alleged violation of any constituent’s right to speak.

Second, the Fifth Circuit’s decision contradicts fundamental First Amendment principles. It is axiomatic that the government is entitled to provide the public with information and to “advocate and defend its own policies.” A central dimension of presidential power is the use of the Office’s bully pulpit to seek to persuade Americans—and American companies—to act in ways that the President believes would advance the public interest. President Kennedy famously persuaded steel companies to rescind a price increase by accusing them of “ruthless[ly] disregard[ing]” their “public responsibilities.” President Bush decried “irresponsible” subprime lenders that shirked their “responsibility to help” distressed homeowners. And every President has engaged with the press to promote his policies and shape coverage of his Administration.

Of course, the government cannot punish people for expressing different views. Nor can it threaten to punish the media or other intermediaries for disseminating disfavored speech. But there is a fundamental distinction between persuasion and coercion. And courts must take care to maintain that distinction because of the drastic consequences resulting from a finding of coercion: If the government coerces a private party to act, that party is a state actor subject “to the constraints of the First Amendment.” And this Court has warned against expansive theories of state action that would “eviscerate” private entities’ “rights to exercise editorial control over speech and speakers on their properties or platforms.”

The Fifth Circuit ignored those principles. It held that officials from the White House, the Surgeon General’s office, and the FBI coerced social-media platforms to remove content despite the absence of even a single instance in which an official paired a request to remove content with a threat of adverse action—and despite the fact that the platforms declined the officials’ requests routinely and without consequence. Indeed, the Fifth Circuit suggested that any request from the FBI is inherently coercive merely because the FBI is a powerful law enforcement agency. And the court held that the White House, the FBI, and the CDC “significantly encouraged” the platforms’ content-moderation decisions—and thus transformed those decisions into state action—on the theory that officials were “entangled” in the platforms’ decisions. The court did not define that novel standard, but found it satisfied primarily because platforms requested and relied upon CDC’s guidance on matters of public health.

The implications of the Fifth Circuit’s holdings are startling. The court imposed unprecedented limits on the ability of the President’s closest aides to use the bully pulpit to address matters of public concern, on the FBI’s ability to address threats to the Nation’s security, and on the CDC’s ability to relay public-health information at platforms’ request. And the Fifth Circuit’s holding that platforms’ content-moderation decisions are state action would subject those private actions to First Amendment constraints—a radical extension of the state-action doctrine.

Third, the lower courts’ injunction violates traditional equitable principles. An injunction must “be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Here, however, the injunction sweeps far beyond what is necessary to address any cognizable harm to respondents: Although the district court declined to certify a class, the injunction covers the government’s communications with all social-media platforms (not just those used by respondents) regarding all posts by any person (not just respondents) on all topics. And it forces thousands of government officials and employees to choose between curtailing their interactions with (and public statements about) social-media platforms or risking contempt should the district court conclude that they ran afoul of the Fifth Circuit’s novel and ill-defined concepts of coercion and significant encouragement.

The district court’s injunction has been stayed during the Fifth Circuit proceedings, and the Fifth Circuit extended an administrative stay through Monday, September 18, to allow the government to seek relief from this Court. If allowed to take effect, the injunction would impose grave and irreparable harms on the government and the public. In contrast, a continued stay pending further proceedings in this Court would impose no cognizable harm on respondents. The Court should therefore stay the injunction in full pending the filing and disposition of the government’s forthcoming petition for a writ of certiorari. At a minimum, the Court should stay the injunction insofar as it applies beyond any content posted by the individual respondents themselves.