Home » Featured » A contentious 12 months for the First Amendment

By Dennis Hetzel, published on August 20, 2024

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Editor’s note: The Free Speech Center operates on a fiscal year that begins July 1 of each year. This report details First Amendment developments over the fiscal year that ended on June 31, 2024.

America appears to be in the midst of a hazardous time for First Amendment rights as courts and politicians row through lots of choppy, uncharted waters.

During the past 12 months, challenges presented by the wide-ranging and often-negative impact of social media commanded many of the headlines. But that wasn’t all. There were fresh developments that affected areas such as freedom of assembly, the rights of journalists, trademark rights and how far school boards and state legislatures can go to ban books from school libraries.

In many cases, these issues remain only partially resolved at best. Even when cases resulted in U.S. Supreme Court rulings, the justices often chose to decide narrowly or push cases back to lower courts, leaving larger issues for later.

Here’s an overview of some of the First Amendment cases, new laws and other actions that mattered in the past 12 months.

In the courts

NetChoice cases on content moderation: The Supreme Court returned two closely watched cases to lower courts to reconsider. Florida and Texas had passed laws with sweeping restrictions and requirements on social media companies. 

Although conservatives tend to resist more government regulation, right-wing groups are exerting the pressure in these matters, claiming social media outlets often have a liberal bias, particularly when it comes to decisions blocking or removing posts that violate rules against hate speech and the spread of alleged misinformation. NetChoice, an industry trade group fighting the restrictions, argued that social media companies try to be content-neutral and moreover have the same First Amendment rights as other media outlets to decide what to publish. 

The Court was unanimous in deciding to send the cases back for further consideration, though the justices were divided on the reasoning. Justice Elena Kagan wrote for the majority that such editorial discretion is clearly protected by the First Amendment and existing standards should apply.

The NRA and fake COVID news: The Supreme Court considered two cases about government efforts to put pressure on private-sector companies, asking when coercion is a First Amendment problem. The two cases had quite differing results, based on different factual circumstances.

In National Rifle Association v. Vullo, the Court unanimously agreed that Maria Vullo, then the superintendent of the New York Department of Financial Service, pushed too hard when she urged insurers and banks to cut ties with the NRA over the group’s opposition to gun control in the wake of the mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla. The Court viewed it as coercion and a clear, albeit indirect, violation of the NRA’s free-speech rights by the government.

Murthy v. Missouri had a different result, although the case was dismissed not on its merits but on a lack of standing for the plaintiffs to sue in a 6-3 decision written by Justice Amy Coney Barrett. 

A group of bloggers and two states charged that the Biden administration violated their rights by pressuring social media companies to limit posts that spread alleged disinformation related to the COVID-19 pandemic in 2019, including alleged “fake news” about vaccines and mask mandates. A district court entered an injunction forbidding government officials even from “strongly encouraging” social media platforms to remove posts.

The government argued that public officials were not mandating any behavior by these companies but simply trying to save lives given what was known at the time. Advocates of the government position noted that companies such as Facebook were removing such posts before the government made its request and argued that an adverse decision could severely hamper public-health efforts to separate facts from fiction in the next crisis.

Justices in the majority agreed that coercion must be present for it to be a First Amendment violation. They didn’t see any in this case.

Trump gag orders: What are the free-speech rights of a defendant in court? The criminal prosecution of a former president during a political campaign raised unique questions and challenges to the underlying proposition that defendants’ free-speech rights can sometimes be restricted beyond what the First Amendment would usually allow.

Former President Donald Trump has faced multiple gag orders in his New York court cases related to his civil fraud trial and the Manhattan criminal case involving alleged falsification of business records. Judges designed the orders to limit public statements and social media posts that could influence the proceedings, affect the fairness of the trial and even endanger witnesses, court officials or family members connected to these cases.

In the criminal case brought by Manhattan District Attorney Alvin Bragg, Trump faced numerous restrictions and frequent rebukes, though the restrictions have been relaxed. In early August, an appellate court denied Trump’s latest effort to overturn the judge’s limited gag order. 

Your name in a trademark: Vidal v. Elster might seem like a wonky trademark fight, but it actually has significant First Amendment implications. In a 9-0 ruling authored by Justice Clarence Thomas, the Supreme Court upheld the constitutionality of a clause in a law called the Lanham Act that prohibits registering a trademark that includes the name of a living person without that person’s consent. The Court reversed a lower-court ruling that said it violated First Amendment rights. 

According to this summary, “the case concerned a lawyer’s attempt to trademark a brand of T-shirts with the phrase ‘Trump Too Small’ — a clear dig at Trump. The slogan referred to Sen. Marco Rubio’s comment during the 2016 presidential primary about Trump’s ‘small hands’.” 

The Court noted that the Lanham Act was not censoring free speech based on content, and that the lawyer was free to sell the shirts without trademark protection.

Arrested for speaking out: When a public official gets prosecuted criminally for speaking out, that’s a First Amendment problem. Such was the situation in Gonzalez v. Trevino, though the Supreme Court didn’t really resolve the thorny issues raised by the case, including what proof defendants have to show to prevail in a lawsuit claiming they faced retaliation for exercising free-speech rights. 

Sylvia Gonzalez was a city council member in a small Texas town who was arrested on a charge of tampering with government records – picking up a petition at the end of a council meeting. However, she claimed the actual reason was retaliation for her efforts to oust the city manager. She filed a federal civil rights claim.

In an unsigned 8-1 opinion, the Court sent the case back to the 5th U.S. Circuit Court of Appeals to consider existing precedents.

When your rep blocks you: In March, the Supreme Court issued a decision in two merged cases that asked whether public officials could block critics on their personal social-media accounts that refer to their public-sector work.

In O’Connor-Ratcliff v. Garnier, two California school board members blocked critical parents from their personal Facebook and X (Twitter) accounts, which the board members used to provide information about the school district and board. An appellate court ruled that the board members violated the First Amendment because there was a close relationship between the way the trustees used their social media pages and their official roles.

However, in Lindke v. Freed, an appellate court ruled that the city manager of Port Huron, Mich., James Freed, maintained his personal page on his own and wasn’t acting as a government official when he blocked a local critic. 

In a unanimous decision written by Justice Barrett, the Court created a test for such situations and sent the cases back for further review. It’s complicated, in part because public officials have their own First Amendment rights to interact. Barrett offered a two-part test: The official should have actual authority to speak on the subject, and claims that authority by speaking on that subject on a social media page.

If nothing else, public officials who are inclined to block critics and trolls probably have a new incentive to create separate social media accounts for their government roles if they want to wear their public official hats online.

Legislative actions

TikTok ban: Does the Chinese-owned social media site TikTok present such a threat to national security and democracy that it’s constitutional to require TikTok to shut down in the United States unless it finds a new owner?

The Chinese government adamantly denies that it uses the fast-growing site to promote its political interests while harvesting the data of millions of Americans, but skeptics abound, prompting Congress to pass a law requiring that TikTok sell or shut down in America, which President Biden signed into law. The controversy invites First Amendment challenges, now ongoing in the courts, both for singling out TikTok when other social media sites have their own privacy, conduct and security issues and for the overall debate regarding how strongly the government can control privately owned platforms. 

A related issue is the large number of government entities at all levels that block the TikTok app from being placed on government-issued devices (Montana, for instance).

Online child protection: Strong legislation to protect children from being exploited on social media sites and the Internet in general has often been stopped or blocked by First Amendment concerns about how far the government can go to regulate media platforms. The latest effort is dubbed the “Kids Online Safety Act,” which has passed the U.S. Senate with strong support but seems stuck in the U.S. House. President Biden has said he would sign it.

If passed, the bill creates what is called a “duty of care” that requires companies to take reasonable steps to prevent harm on online platforms to combat issues such as online bullying and the promotion of suicide, eating disorders, sexual exploitation and ads for illegal products. It also places other limits and requirements on how these platforms can market to children while protecting personal information. Enforcement of the “duty of care” provisions falls to the Federal Trade Commission.

Opposition comes from free-speech groups, including the American Civil Liberties Union, and there also are concerns about unintended consequences, such as blocking teens from seeing controversial but protected political speech on issues. Libertarian-conservative Sen. Rand Paul, R-Ky., claims the language of the bill might even block minors from seeing sports events that carry ads for gambling and alcohol.

Book bans: Book-banning stories about public and school libraries almost seem like old news. Conservative critics have joined with school board members and other local officials to remove material deemed to be age-inappropriate or below their definition of community moral standards. Bans range from acclaimed, prize-winning books to comic novels. Sensitive topics often focus on race, slavery and LGBTQ themes, much less often on violence. In some states, such as Missouri, librarians can face legal action or even criminal prosecution for not removing books from shelves.

What’s new are efforts to make such district-by-district, town-by-town actions conform to statewide mandates. In Utah, the state’s school board has ordered removal of 13 titles from all public schools in the state, including titles by acclaimed authors such as Judy Blume and Margaret Atwood. The board had the authority owing to a new state law as of July 1 that requires removal of books from all state public schools if three or more districts determine the books have pornographic or indecent conduct as defined by Utah law.

There’s pushback, too. As CNN recently reported, Minnesota, Illinois and Maryland have implemented restrictions on local book bans. The Minnesota law blocks banning or removing a book solely on the basis of its “viewpoint, or the messages, ideas or opinions it conveys.” Banning is still possible, but a professional librarian must be part of the evaluation. 

CNN cites a report from the free-speech group PEN America that says there were more than 4,300 book bans across 23 states and 52 public school districts in the six-month period ending in December 2023.

Ten Commandments in or out? First Amendment scholars often note that freedom of religion also implies freedom from having the religious views of others imposed on you. That’s the root of ongoing debates and court battles in Oklahoma and Louisiana over mandates to post the Biblical Old Testament’s Ten Commandments in classrooms.

Supporters say the effort isn’t to promote religion, but for educational value and understanding some of the source documents that influenced America’s founders, noting there is nothing unconstitutional about teaching the Bible as literature in public schools. Opponents say the stated intent is nothing but code for elevating the conservative Christian view of America and promoting those beliefs.

Press-freedom matters

Wall Street Journal reporter finally freed: The biggest prisoner exchange since the fall of the Soviet Union resulted in the freeing of Wall Street Journal reporter Evan Gershkovich and another American, Paul Whalen, on Aug. 1 in Turkey. Gershkovich, accused of spying after his arrest in March of 2023, adamantly maintained his innocence, as did U.S. officials and the Journal.

Two dozen others were freed after back-channel negotiations and maneuvers worthy of a movie plot came to fruition after months of talks. Also noteworthy were the ethical issues raised by one news outlet, Bloomberg News, breaking the embargo on reporting the release, which officials said could have blown up the whole deal.

The larger issue is the ongoing danger and threat to Americans traveling abroad in unfriendly countries, certainly including journalists, being arrested on trumped-up charges and used as bait for hostage swaps for truly undesirable actors. 

Assange cops a plea: In 2010, an Australian editor and publisher named Julian Assange released a trove of almost 500,000 documents related to the U.S. conflicts in Iraq and Afghanistan on the anti-secrecy, pro-free-speech Website he founded, WikiLeaks. That set off years of actions as the U.S. tried to prosecute him for leaking secrets while Assange took political refuge in the Ecuadorian Embassy in London with his cats. 

After being evicted from the embassy in 2019, he spent five years in a British high-security prison, fighting extradition to the U.S. – pretty much successfully.

The Assange case tested the boundaries of the inherent conflict between national security interests and the First Amendment. Assange became a hero among press-freedom advocates as well as those looking for reasons to undermine the U.S. government. Assange argued his work was functionally the same as the work of a journalist, and that he deserved the same protections from prosecution. U.S. officials asserted that Assange went much further, exposing classified military operations and putting named operatives and other intelligence sources in grave danger.

Under terms of the plea bargain, he pleaded guilty to a felony and was allowed to return to Australia, mainly on the basis of time already served in the London prison.

Kansas newspaper raid: A case involving a police chief who raided the office of a small local newspaper in August gained national attention as an arguably flagrant violation of the First Amendment.

The Marion, Kan., police took computers and cellphones from the Marion County Record and entered the home of the newspaper’s publisher and editor, Eric Meyer. Police claimed they had probable cause that the newspaper had violated Kansas law related to identity theft, involving a restaurant owner who disliked the newspaper after the paper checked on her driver’s-license status. Meyer also said the newspaper’s aggressive coverage of local issues, including the police chief’s performance, fueled the raids.

Almost a year to the day of the raid, a special prosecutor filed a charge of interfering with the judicial process against the police chief, Gideon Cody, in connection with the raid at the newspaper and two homes. 

According to a report in USA Today, Meyer responded to the news of the chief’s arrest in an email:

“Even though special prosecutors clearly indicated the raid was wrong, the charges filed aren’t about the raid but rather about an alleged cover-up afterward – Chief Gideon Cody’s efforts to have supposed victim Kari Newell delete text messages they had exchanged. That’s disappointing and a prime reason why the real resolution of this case is likely to come in civil suits we and others have filed in federal court.”

Police make journalists’ jobs harder: Journalists continue to fight for access when they cover protests. 

In Asheville, N.C., police used a trespassing law to say reporters had no right to be in a city park after hours as they covered protests. The reporters’ battle continues to go back and forth in the courts after trespassing convictions.

In Louisiana, a new law made Louisiana the fourth state to create “buffer zones” that require anyone to be within 25 feet of a law enforcement officer if they’re ordered back. A coalition of news outlets has sued to overturn the law, claiming it violates the rights of journalists to gain access to accurately cover events such as protests. 

The Louisiana law stemmed from a widely publicized case in 2016 in which two journalists were arrested while covering a protest march in Baton Rouge. They sued and won a $1.17 million award, arguing that their coverage, including photos of police using excessive force, was only possible through their access to the event. The journalists felt their efforts to cover the event made them targets. 

The eventual outcome of the Supreme Court’s Gonzalez case (see above) could affect the First Amendment constitutionality of these buffer-zone laws and other access issues that appear retaliatory.

Some resources used for this article:

Top First Amendment Cases of the 2023-2024 Supreme Court Term | Carlton Fields(msn.com)

States begin to push back on book bans – by banning them | CNN

EXPLAINER: Why is a police raid on a Kan. newspaper so unusual? | The Free Speech Center (mtsu.edu)

Brief says Asheville reporters’ convictions threaten press freedom (ncnewsline.com)

Opinion: Supreme Court ruling bodes well for unjustly convicted Asheville journalists 

La. becomes 4th state with ‘police buffer law’ | The Free Speech Center (mtsu.edu)

A look at Julian Assange and how the long-jailed WikiLeaks founder is now on the verge of freedom | The Free Speech Center (mtsu.edu)

Wall Street Journal reporter Gershkovich freed | The Free Speech Center (mtsu.edu)

U.S. banning TikTok? Your key questions answered | The Free Speech Center (mtsu.edu)

TikTok compares itself to foreign-owned American news outlets as it fights forced sale or ban (msn.com)

TikTok Bans and Regulation | The Free Speech Center (mtsu.edu)

What to know about the Kids Online Safety Act and its chances of passing | The Free Speech Center (mtsu.edu)

Public officials can be held liable for blocking critics on social media – SCOTUSblog

Dennis Hetzel worked extensively on First Amendment and open-government issues during his career as a reporter, editor, publisher, executive director of the Ohio News Media Association and president of the Ohio Coalition for Open Government. He lives in Holden Beach, N.C.

The Free Speech Center newsletter offers a digest of First Amendment- and news media-related news every other week. Subscribe for free here: https://bit.ly/3kG9uiJ

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