Category: First Amendment

Protecting the First Amendment in Stopping Cop City: Unconstitutional Overbreadth in Georgia’s RICO Laws

James Swinehart

In March 2021, then-Atlanta Mayor Keisha Lance Bottoms alongside the Atlanta Police Foundation announced plans to build the Atlanta Public Safety Training Center—a massive $90 million police training facility boasting shooting ranges, explosives testing grounds, and a mock city for urban warfare training, bestowing the project with its popular nickname, “Cop City.” Since then, Cop City has been the subject of over two years of ongoing opposition from activists concerned about environmental degradation and racial discrimination. The project has destroyed 85 acres of Atlanta’s 300-acre Weelaunee Forest, a valuable public green space in one of Atlanta’s largest minority communities. Concerns have also surfaced over Cop City’s costly and expansive role in a continued push towards stronger policing in the city’s minority communities, a trend that has risen in Atlanta following the police-centered unrest that took place in the city in 2020. The collective opposition of these groups has come to form “Stop Cop City,” a decentralized movement that has gone on to wage two years of extensive and controversial protests in the Weelaunee Forest and the wider city of Atlanta.

Stop Cop City’s protests commenced following the announcement of Cop City in 2021, with the most notable example being the continued camping of activists in the wooded construction site. This specific form of protest has resulted in regular run-ins with the law over their occupation of the forest, some violent, with one early 2023 altercation resulting in the death of an activist and the wounding of a Georgia state trooper. The act further inflamed Stop Cop City protests, with several charges of arson and domestic terrorism arising after construction equipment for the project was set on fire by protestors. However, legal action against Stop Cop City was just beginning and would soon take a drastic turn.

On August 29, 2023, Georgia Attorney General Chris Carr released a legal indictment charging 61 Defend the Atlanta Forest protestors of racketeering under the state’s Racketeer Influenced and Corrupt Organizations statute, commonly referred to as RICO. Under Section 4 of Georgia’s RICO statute, racketeering is defined as an act of conspiracy between one or more people to maintain “interest in or control of any enterprise, real property, or personal property of any nature, including money,” or to “participate in any such enterprise through a pattern of racketeering activity.” Under Section 3 of the statute, the enterprises controlled by racketeers include property, interests, and institutions, and the racketeering activities can be any crime pertaining to the maintenance of the enterprise. The laws were originally made to target gang and mob activity, connecting individual crimes to larger group-motivated ones, but in the case of the Stop Cop City indictment, Carr maintained that Defend the Atlanta Forest protestors held an interest in stopping the building of Cop City, using racketeering activities including arson, domestic terrorism, and money laundering.

These allegations and the unique usage of RICO laws have elicited extensive debate. While RICO laws were originally made to target organized crime in the case of gangs and mobs, concerns have risen over the fact that Carr’s usage of RICO laws allows them to target protest movements as well. Critics of Carr’s decision hold that using RICO laws against protesting movements is a direct attack on the First Amendment right to peaceful protest, with Odette Yousef of NPR reporting that the indictment is “chilling First Amendment activity” amongst citizens of Atlanta. However, Carr maintains that the protests were not peaceful and deserve to be held accountable for the crimes that the “violent anarchists” committed. The use of RICO laws to go about this accountability in the event of a protest, though, is unprecedented for Georgia. 

Similar usage of federal RICO laws, however, took place when they were applied against anti-abortion protestors in the 1993 Supreme Court case National Organization of Women (NOW) v. Schiedler. The Court found that the protestors could be labeled as racketeers, claiming that the anti-abortion protestors acted in organized crime against the abortion clinics. The case effectively established that under federal RICO laws, unruly protesting could be a “predicate act” for racketeering, or an individual crime contributing to a larger one. Similar to the Stop Cop City case, this usage of RICO laws was controversial. University of Idaho JD Jillian Christensen argues that the usage of federal RICO laws against protesting represents a substantial “clash” between the gang and mob-related racketeering crimes that federal RICO laws were formed to target and their usage against protestors at the time of writing. She cites NOW as setting a precedent for RICO laws to be used beyond their intended purpose against the Black Lives Matter and Antifa movements of 2020 and perhaps future movements. In the greater context of constitutional law, I interpret Christensen’s arguments to claim that the usage of federal RICO laws against protesting represented unconstitutional overbreadth—a type of constitutional infringement that occurs when a statute is used substantially beyond its original intentions. By targeting protestors, federal RICO laws are being used substantially beyond their original intentions of targeting gang and mob-related crimes. By extension, this argument can be applied to the Stop Cop City indictment in Georgia.

When evaluating Attorney General Carr’s usage of Georgia’s RICO against Stop Cop City protestors, unconstitutional overbreadth is apparent and must be acknowledged. As shown in NOW v. Scheidler, overbroad usage of federal RICO laws allows for protesting to be used as a predicate act for racketeering, condemning any protests that can be connected to any sort of crime to the possibility of overbroad racketeering indictments. The same can be seen in Georgia, wherein overbroad usage of RICO laws allowed 61 protestors from Defend the Atlanta Forest to be indicted for racketeering on the grounds that they maintained interest in an act of protest against a political issue. But, as Yousef pointed out, where is the line drawn between the political issue of protesting and racketeering activities? And if this is allowed to happen with Stop Cop City protestors, what precedent does it set for future protests in Georgia? The result of unconstitutionally overbroad usage of RICO laws allows for the First Amendment right for groups to peacefully assemble and protest to be lumped into the criminal equivalent of gang activity if any crime is committed by an individual protestor. The line between protestor and racketeer, therefore, needs to be distinguished for the sake of protecting the right to protest in Georgia, as well as ensuring constitutionality in Carr’s usage of RICO laws. 

To effectively draw this line, I propose that Georgia’s courts should acknowledge the unconstitutionally overbroad use of RICO laws toward protestors in Carr’s Stop Cop City indictment and instead focus on criminalizing the individual crimes within the movement. As suggested by Christensen in addressing the overbroad use of federal RICO laws, courts can potentially achieve a greater distinction between protesting and racketeering by restricting protesting from being used as a predicate act in RICO cases. Protesting can be distinguished from racketeering through its constitutional definition and is generally defined as an act of speaking out in public forums, typically organized. A line could subsequently be drawn between acts of organized protesting and acts of organized crime associated with mobs or gangs. This would restrict RICO laws from unconstitutionally tying Stop Cop City protestors into the criminal equivalents of gang and mob-related crimes, while still allowing Carr to hold individual instances of unruly crime within the protests accountable. This would also set a healthy precedent for future protests, ensuring that future protests within the state are protected from overbroad usage of RICO laws while maintaining RICO laws’ strength against organized crime in the cases of mobs and gangs.

Going forward, the inherent overbreadth of Georgia’s RICO laws must also be acknowledged. As noted by the Atlanta Journal Constitution’s Tamar Hallerman, Georgia’s state-level RICO laws are notoriously broad and allow for even broader usage than federal ones. Georgia’s RICO laws accomplish this by containing more predicate acts to racketeering compared to federal ones, creating the potential for instances of unrelated individual crimes to be lumped into the larger crime of racketeering. This suggests that the overbroad usage of Carr in the case of his Stop Cop City indictment was facilitated by the laws’ broad nature. The overbroad nature of RICO statutes could therefore encourage overbroad usage. If overly broad RICO laws are allowing for acts of protest to be extended to the criminal equivalent of gang and mob-related organized crimes, then for the sake of the First Amendment, protesting’s usage as a predicate act for racketeering should be formally restricted from any RICO laws that allow it. NOW has already received negative treatment for the unconstitutional breadth it gave federal RICO laws. While the broad nature of RICO laws in the context of NOW has not yet been held to be unconstitutional at the time of writing, Georgia’s RICO laws are objectively broader than the national ones used in RICO, and therefore hold the potential to allow for greater overbreadth in their lumping of individual crimes into racketeering—an overbreadth already noted by the American Civil Liberties Union of Georgia’s condemnation of the laws’ “overbroad” usage. Prevailing evidence then dictates that Georgia’s RICO laws require closer observation of their constitutionally—and potentially, resolutions towards their overbreadth. A clear and beneficial resolution would be to formally exclude protesting from being a predicate act to racketeering, effectively ensuring constitutionality by ridding the laws of their overbreadth at the time of writing.

By acknowledging Carr’s overbroad usage of laws against Stop Cop City protesters and limiting further overbreadth in Georgia RICO laws, greater freedoms would be ensured for not only the Stop Cop City movement but for future protesting movements. Carr could argue that protests should be held accountable for group-motivated crimes, however, it can also be seen that his indictment effectively provides a pipeline for protesting to be charged as the criminal equivalent of gang activity. Limiting the usage of Georgia’s RICO laws would still hold protests accountable for individual crimes committed by unruly protestors—it would simply protect protesting and freedom of speech from being lumped in with racketeering crimes that should be reserved for gang and mob activity. Still, it must be noted that any movement against Georgia RICO laws at the time of writing would be highly controversial considering the current climate of their use against famous rappers and the nationally popularized indictment of former president Donald Trump. Nevertheless, acknowledging the unconstitutional overbreadth of Carr’s usage of RICO and limiting RICO’s use against protesting remains the best solution not only for the Stop Cop City movement, but for the future of First Amendment-protected demonstrations in Georgia as a whole.

Under the usage of state RICO laws at the time of writing, Georgians face difficult questions regarding their First Amendment rights for the future. The Stop Cop City movement has continued despite Attorney General Chris Carr’s broad indictment of the protestors, and as long as opposition to the planned police training facility continues, the rights of the peaceful protestors within that opposition ought to be protected. The evidence presented in the indictment overwhelmingly shows that the usage of Georgia’s RICO laws by Carr is unconstitutionally overbroad and that future usage of the laws should be restricted and returned to targeting mob and gang-related crimes. Indeed, one defendant in Carr’s Cop City indictment is challenging the constitutionality of the state RICO law at this time for many of the reasons outlined in this argument. Yousef warns that though the state’s conservative court is unlikely to consider the defendant’s claim, the court’s decision will set a national precedent for how RICO will be used against protestors in the future. For this reason, Georgia courts must find Carr’s usage of the state’s RICO statute unconstitutionally overbroad and reconsider how it should be used in the future—if not for the sake of Georgia, then for the sake of our nation’s Constitution.

Social Media Platforms as Publishers: Evaluating the First Amendment Basis for Content Moderation

Jimmy Fraley

Introduction:

In recent years, many Republican politicians have become increasingly vocal about the content censorship imposed by social media companies. These Republicans are concerned that social media companies have taken actions to censor conservative speech and have engaged in a type of viewpoint policing. This concern has turned into action, with Jim Jordan, Chairman of the U.S. House Committee on the Judiciary, subpoenaing the heads of several large companies, including Apple and Meta, to testify on what he calls “the federal government’s reported collusion with Big Tech to suppress free speech.” On the state level, several Republican-controlled legislatures have attempted to handle the issue. Notably, Texas and Florida have both passed laws restricting social media companies’ ability to censor content in an attempt to prevent viewpoint-based censorship.

Since their passing, both of these laws have faced legal challenges in federal court. These challenges revolve around the notion that social media platforms have the First Amendment right to censorship and content restriction. Specifically, challengers of the Constitutionality of the two laws argue that platforms exhibit editorial control of the content hosted on their sites, and thus should be granted rights similar to those of a newspaper, or similar publisher of content. This idea has created contradictions in federal court rulings and presented an issue ripe for the Supreme Court’s guidance. In this article, I argue that social media platforms do not exhibit editorial control on their platforms, do not serve as the publishers of online content, and do not have the First Amendment right to restrict speech.

Texas HB 20 and Florida SB 7072:

Texas House Bill 20 was signed into law in September of 2021. The bill, which only applies to companies with more than 50 million active users each month, aims to protect the First Amendment rights of Texas citizens. It requires companies to disclose information about their moderation process and search algorithms and to create clear usage policies detailing what qualifies as prohibited content. Most importantly, the law prohibits companies from censoring users based on viewpoint or geographic location.

Florida Senate Bill 7072 was signed in May of 2021 and is similar in substance to the Texas law. The law is aimed specifically at large social media companies, through a provision that only applies the law to platforms with more than 100 million global monthly users, and establishes a hefty fine structure for social media companies that deplatform candidates for local and statewide office. Like in Texas, the recent Florida law prohibits viewpoint-based restrictions on online platforms. Unlike in Texas, the censorship prohibitions in the Florida law are afforded exclusively to journalistic enterprises and candidates for public office, as well as posts about candidates for public office.

Legal Challenges:

Soon after Texas and Florida passed these laws, NetChoice, a trade association advocating for limited government regulation on the Internet, filed legal challenges to them. With members such as Twitter, Google, Meta, and TikTok, NetChoice represents the interests of a number of today’s largest technology and social media companies. The Computer & Communications Industry Association, another trade association representing social media platforms’ interests, joined NetChoice in its legal efforts. NetChoice filed lawsuits against both the Texas and Florida laws (NetChoice v. Paxton and NetChoice v. Moody, respectively).

In both cases, the NetChoice argued that the laws infringed on their First Amendment rights. In doing so, they claim that the amendment grants platforms the right to censor. They argue that because they exhibit editorial control over the content of the platform, akin to a publisher, they have the right to choose what kinds of content are displayed on their platform. In both cases, the petitioners also argued that the reporting and disclosure requirements implemented by both laws constitute an undue burden on their companies. The respondents disagreed with this analysis, arguing that social media companies are not the publishers of the speech users post on their platforms, meaning that the companies do not have the First Amendment right to censor and restrict content posted online.

Paxton was heard by the Fifth Circuit Court, and Moody was heard by the Eleventh Circuit Court. Both circuit court panels were comprised of three Republican-nominated judges. Despite their similar fact patterns, the circuit court panels decided Moody and Paxton in contrasting ways. In Paxton, the court found in favor of the respondents, upholding the Texas law. On the other hand, in Moody, the court found partially in favor of NetChoice, striking down the component of the Florida law prohibiting viewpoint-based censorship, while still allowing the law’s reporting and disclosure requirements to stand. These different decisions have created a court split, making the Supreme Court more likely to grant review. Indeed, the Court has already reached out to the federal government for their opinion on the matter.

In Paxton, the Fifth Circuit found in favor of the Texas law, overturning the lower court’s ruling. While the court cited several prominent and novel arguments that aided in their judgment, central among those was their conclusion that the law “protects other people’s speech and regulates the Platform’s conduct.” The court ruled that social media companies are not the publishers of content posted on their platforms, and thus have no First Amendment claim, which would have protected their right to engage in censorship. Central to the court’s rejection is Section 230 of the Communications Decency Act, passed in 1996 and a key factor in modern cases involving digital speech. Specifically, the Act states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Per the Fifth Circuit’s interpretation, Section 230 means that social media companies are not the publishers of content posted on their platforms, and thus are not afforded the same First Amendment protections as other publishers.

However, in Moody, the Eleventh Circuit found that the Florida law’s censorship restrictions are unconstitutional, since “Social-media platforms like Facebook, Twitter, YouTube, and TikTok are private companies with First Amendment rights.” Citing previous cases (Miami Herald, Pacific Gas & Electric Co., Hurley), the court reaffirmed that the First Amendment protects editorial discretion and that private entities have the right to exclude speech based on its content. The court found, among other arguments, that social media companies possess editorial discretion, and therefore, that any restriction of their content moderation efforts is a First Amendment violation. This ruling in Moody creates a contradiction with the ruling in Paxton, leaving the subject ripe to be taken up by the Supreme Court, with the states arguing that social media companies are not publishers, and the companies arguing that they act as publishers.

Resolution:

To resolve this contradiction in court rulings, it is important to determine whether social media companies should be treated as the publishers of the content posted on their platforms. Traditionally, editorial discretion and the rights of publishers were privileges afforded to more standard media, such as newspapers, or even TV broadcasts. With the advent of social media, it is unclear where platforms fall on an editorial spectrum. On one hand, they use algorithms to recommend and sort content. On the other hand, they don’t produce their own content, and organize content in a content-neutral manner.

Yet, while platforms exhibit some characteristics that suggest they serve as publishers of content, a common-sense approach to the issue reveals that platforms are nothing like newspapers and television channels. If an offensive Tweet were to be widely shared, the Tweet would be attributed to the user who created the Tweet and would never be attributed to Twitter in any way. In contrast, an offensive news article, or parade float, would be attributed to the editor or organizer in at least a minimal capacity. Facebook and the New York Times are not viewed or treated the same way by their users, or society as a whole, and should not be conflated in First Amendment cases. Indeed, an offensive news article written by a journalist at the New York Times would be attributed to the paper, since the paper employs the journalist, edited the offensive article, and chose to publish it on their website. In this situation, the New York Times exhibits editorial control over the offensive article. On the other hand, an offensive Tweet would not come from someone with a professional affiliation with Twitter, would not have been edited by Twitter, and would not have been selected for publication by Twitter. Thus, the company demonstrates no editorial control over the content posted on its platform. The 5th Circuit’s argument more aptly reflects the nature of the cyber landscape, while the 11th Circuit fails to acknowledge the novelty of digital content hosting by treating these companies as publishers. Social media platforms should not be treated as publishers of content. Platforms and publishers are not the same thing.

This argument is supported by the argument of social media companies themselves in other recent cases. Argued on February 21st, 2023, Gonzales v. Google LLC. dealt with Google’s recommendation of ISIS recruitment and fundraising videos before a 2015 terror attack. In this case, the petitioner argues that Section 230 of the Communications Decency Act does not protect all content recommendation practices, while Google argues Section 230 shields them from liability, claiming that “Section 230 flows from Congress’s recognition that today’s internet could not exist if the law treated every website and user as the publisher or speaker of the third-party content they disseminated.” In Gonzalez, Google is using the regulations and statutes laid out by Section 230 to protect them from liability, claiming that they should not be held responsible as a publisher of content. In contrast, NetChoice, of whom Google is a member, is arguing in Paxton and Moody that, because of the content organization practices of large platforms such as Google’s YouTube, they are the publishers of content and have First Amendment rights.

It appears that social media companies want to have Section 230 both ways; they wish to be afforded the First Amendment rights of a publisher, claiming that they hold editorial discretion over the content that appears on their platforms. Yet, at the same time, they want to be immune from liability based on the content posted to their platforms. The arguments made by these platforms in different cases are inconsistent with one another. The Supreme Court’s rulings in the upcoming cases should do much to clarify the issue and resolve the numerous contradictions present in the recent group of First Amendment cases.

The Supreme Court’s recent interest in Section 230 illustrates the growing importance of the statute in internet litigation and reveals the challenge the novelty of the Internet provides to lawmakers and judicial bodies. Until Congress acts to reform Section 230, it is up to the Court to shape the rules that govern the digital landscape. The Court should hold that internet platforms are not publishers or editors of the content hosted on their platforms.

A Plea to Act in Good Faith: How Two State Laws Challenge Social Media Platforms’ Editorial Practices

Tori Tinsley

Recent controversy surrounding the constitutionality of two state laws regulating social media platforms reveals that modern technology is presenting unprecedented challenges for the legal system. Two laws passed in Texas and Florida in 2021, HB 20 and SB 7072 have raised questions about whether states can make laws that regulate social media platforms’ free speech policies. Tech advocacy groups Net Choice and Computer & Communications Industry Association filed a joint lawsuit against Texas and Florida, arguing that the states’ bills unconstitutionally violated first amendment protections for online platforms. The U.S. Court of Appeals for the Fifth Circuit vindicated Texas’ law, which prohibits social media platforms from engaging in viewpoint based censorship1 and requires platforms to be transparent in their policies. Contrarily, the U.S. Court of Appeals for the Eleventh Circuit struck down Florida’s law, which restricts platforms from unfairly censoring users and deplatforming political candidates. 

Despite the similarities in Texas’ HB 20 and Florida’s SB 7072, the courts have handed down two very different rulings. Because of this, both bills have now been brought to the attention of the Supreme Court–a move which The Washington Post claims will bring “the most controversial debates of the internet age to the country’s highest court.”1 While the Supreme Court has vacated the Texas case, there is no update as to whether the Court will hear the Florida one. 

But, a question currently pervading the legal sphere is: how do two courts rule differently on two nearly identical state bills? A look at the Fifth Circuit and Eleventh Circuit rulings reveal that differing legal interpretations of intermediate scrutiny and editorial discretion led to different outcomes for Texas and Florida’s legislation. As such, the rulings raise the following questions: to what extent do social media platforms have immunity in editorial discretion? And, do Texas and Florida have a legitimate state interest for regulating the free speech practices of social media platforms? 

Let us first address the question of editorial discretion. Section 230 of the United States Communications Decency Act is referenced in both the Fifth and Eleventh Circuit court cases. It grants online services immunity in how they choose to moderate their content. It reads: 

(1) No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. (2) No provider or user of an interactive computer service shall be held liable on account of— (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

It is evident in both rulings that Section 230 of the United States Communications Decency Act has strong implications when determining the extent to which social media companies can exercise editorial discretion. In the Eleventh Circuit court opinion, the judges argued against Florida, claiming that a social media company’s “‘content-moderation’ decisions constitute protected exercises of editorial judgment.” In the court’s perspective, Florida’s law would restrict a platforms’ “content moderation” rights. Implied in the court’s argument is the expectation that social media platforms properly and fairly moderate content on their platforms. The court wrote:

The platform will have exercised editorial judgment in two key ways: First, the platform will have removed posts that violate its terms of service or community standards—for instance, those containing hate speech, pornography, or violent content…Second, it will have arranged available content by choosing how to prioritize and display posts—effectively selecting which users’ speech the viewer will see, and in what order, during any given visit to the site.

Florida and Texas find a problem with these two so-called exercises of editorial judgment: social media companies have unclear community standards and inconsistently “prioritize and display posts.” Recognizing this, the Fifth Circuit came to a conclusion contrary to the Eleventh Circuit: that corporations do not “have a freewheeling First Amendment right to censor what people say.”  

The good faith stipulation in Section 230 2(A) would be beneficial in clarifying the confusion surrounding editorial discretion. While the Fifth Circuit briefly referenced the “good faith” stipulation in Section 230, the Eleventh Circuit did not. According to the Congressional Research Service (CRS), Section 230 (1) offers online platforms immunity when providing content, but Section 230 (2) offers online platforms immunity when regulating content only when their regulation practices are conducted in good faith. Thus, the good faith stipulation is a limitation placed on social media platforms to ensure platforms engaged in fair and reasonable practices. Section 230 2(A) states that “no provider or user of an interactive computer service shall be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” If an action by a social media provider is not “taken in good faith,” then ought not the provider be held liable? 

A “good faith” test ought to be applied when determining whether a platform is properly exercising its editorial discretion. The fact that both Texas’ HB 20 and Florida’s SB 7072 articulate that social media companies are not currently engaging in good faith practices should call into question platforms’ editorial practices. SB 7072 states that “social media platforms that unfairly censor, shadow ban, deplatform, or apply post-prioritization algorithms to Florida candidates, Florida users, or Florida residents are not acting in good faith.” And, Texas’ HB 20 mentions that platforms should actively “make a good faith effort to evaluate the legality of the content or activity.” So, if platforms are engaging in bad faith practices by favoring some views over others and applying their policies unfairly, then this calls back into question a key consideration in the appellate court rulings: do states then have a legitimate interest in ensuring platforms act in good faith?

Florida and Texas argued that they had legitimate state interests in regulating social media platforms’ free speech policies, yet only Texas’ law was upheld by the Courts. Texas argued that it had a “fundamental interest in protecting the free exchange of ideas and information,” which the Fifth Circuit affirmed. Florida’s argument that it had “a substantial interest in protecting its residents from inconsistent and unfair actions by social media platforms,” however, was not a substantial reason for the Eleventh Circuit. The Eleventh Circuit upheld the decision of the district court, arguing that “there’s no legitimate—let alone substantial—governmental interest in leveling the expressive playing field.” Florida’s law, which aimed to ensure that social media companies treat conservatives and liberals fairly on their platforms, was considered unconstitutional.

In part, the district and appellate court rejected Florida’s claims to a substantial state interest since the bill was advertised by the state’s governor as an attack on big tech bias. As such, both courts came to the conclusion that the bill was nothing more than a scheme to advance conservative ideology. The Eleventh Circuit court claimed that the district court found “the entire bill was motivated by the state’s viewpoint-based purpose to defend conservatives’ speech from perceived liberal ‘big tech’ bias.” Both courts focused on the potential agenda behind the bill that they seemed to miss the relevance of the bill. 

Florida’s law held social media companies accountable for their unfair practices. So did Texas’ law. As the Fifth Circuit recognized, Texas’ law could “make censors think twice before removing speech from Platforms in a viewpoint-discriminatory manner.” Both HB20 and SB 7072 were aimed at preventing censorship, ensuring fairness, and maintaining transparency on social media platforms. When social media companies cannot ensure good faith practices and apply their own policies without discrimination, states should have a legitimate interest to intervene and ensure private companies treat their citizens’ viewpoints with equal dignity and respect. 

These two state laws have several implications for future congressional action, as the CRS notes. But there are also considerations for the Supreme Court. If the Florida case makes its way to the Supreme Court, justices will have to clarify what constitutes editorial judgment, what the apparent implications of Section 230 are, the relevance of the “good faith” clause, and whether states have a substantial interest in regulating the private sphere of online communications. As Supreme Court justices have noted in review of Texas’ HB 20, these issues concerning state regulations and digital speech rights are unprecedented “issues of great importance.”  

The Legality of Tattoo Discrimination in Employment

Leyuan Ma

Background

In recent years, tattoos have become increasingly popular as a form of body art in the United States. According to a 2019 survey, 30% of Americans have at least one tattoo, an increase from 21% in 2012. However, even as tattoos are now recognized as part of mainstream culture, many people are still judgmental towards tattoos due to their negative connotations, associating them with risky behavior, criminality, or gangs. As a result, people with tattoos are often concerned that their body art will hinder their chances of employment. Though a recent study argues that in practice “tattoos are not significantly associated with employment or earnings discrimination,” other research has shown that body art can be a source of employment discrimination, and individuals have indeed been dismissed from their jobs because of their tattoos.

Current Legislation

Is it legal for employers to discriminate against prospective or actual employees with tattoos? Currently, Title VII of the Civil Rights Act of 1964 protects employees and job applicants from employment discrimination based on race, color, religion, sex and national origin, but does not yet prohibit discrimination based on tattoos or other forms of body art. In addition, federal law allows employers to establish dress codes and grooming policies that require employees to cover up their tattoos in the workplace, as long as they are applied consistently and adhere to the Equal Employment Opportunity Commission’s  guidelines. For instance, employers can order all employees to cover up visible tattoos, but cannot apply such a rule only to males or people of a certain ethnicity.

On September 29th, 2022, New York City Councilman Shaun Abreu introduced a new bill that would amend New York’s administrative code and prohibit employment, housing, and public accommodations discrimination on the basis of having a tattoo. It would create an exception for employment and apprentice training programs in which covering a tattoo is a bona fide occupational qualification, a vocational qualification that is reasonably necessary to carrying out a particular job function in the normal operation of a business or apprentice training program, and where there exists no less discriminatory means of satisfying the qualification. The bill does allow for additional exceptions, but it does not specify what those might be in its current draft language. For instance, the bill may still permit employers to discriminate against employees and applicants with tattoos featuring hate speech. Currently, the bill has been referred by Council to the Committee on Civil and Human Rights. Though Abreu’s new bill is certainly a progressive step, unfortunately no existing legislation—federal, state, or municipal—prohibits the discrimination against people with tattoos in the workplace.

Does banning tattoos in the workplace violate the First Amendment?

The most powerful argument against tattoo discrimination is that it is a violation of Americans’ First Amendment rights. According to Councilman Abreu, “tattoos are a form of personal self-expression that, too often, incur bias and discrimination from employers, landlords and service providers.” Tattooing can be seen as artistic creation. Bearing a tattoo on one’s skin also makes a strong statement about one’s personality and identity, and thus can also be a form of personal expression. Therefore, tattoos could be considered  free speech protected under the First Amendment, and thus ordering employees to cover up their tattoos is an infringement of freedom of speech. However, it should be noted that the First Amendment does not apply to private employers. It states that “Congress shall make no law […] abridging the freedom of speech,” thus only regulating the government. In other words, even though tattoos constitute free speech, private employers would not be violating the First Amendment if they ban tattoos in the workplace.

The First Amendment argument has indeed been used against governmental restrictions on tattooing. In Yurkew v. Sinclair (D. Minn. 1980), commercial tattooist David Yurkew challenged the refusal of the Minnesota State Fair to rent space for commercial tattooing at the fair. Yurkew contended that tattooing is an art form and that the process of creating a tattoo is protected First Amendment activity. The defendants disputed this claim, arguing instead that protection of the health of fair patrons and consumers justifies the exclusion of tattooing from the fair. In the end, the court ruled against Yurkew and held that the “actual process of tattooing […] is not sufficiently communicative in nature as to rise to the plateau of important activity encompassed by [the] First Amendment.”

In more recent years, courts have gradually come to recognize tattooing as a form of free speech. The Yurkew v. Sinclair rationale was rejected in Buehrle v. City of Key West in 2015, when the United States Court of Appeals for the Eleventh Circuit determined that “the act of tattooing is artistic expression protected by the First Amendment, as tattooing is virtually indistinguishable from other protected forms of artistic expression; the principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper.” In addition, in Anderson v. City of Hermosa Beach (2010), the United States Court of Appeals for the Ninth Circuit held that “in matter of first impression, [the] tattoo itself, [the] process of tattooing, and [the] business of tattooing are First Amendment protected forms of pure expression.” In Coleman v. City of Mesa (2012), the Supreme Court also ruled that a “tattoo itself is pure speech, and the process of tattooing is also expressive activity for First Amendment purposes.” In sum, according to the federal courts’ latest jurisprudents, tattoos and the act of tattooing are now forms of expression protected by the First Amendment.

So, a question arises: would federal employers be infringing on First Amendment rights if they ordered employees to cover up tattoos? Currently, many governmental jobs have restrictions on tattoos, though they vary in strictness; for example, the Connecticut State Police requires that no tattoo should be visible while on-duty in the summer uniform, while the New York State Police allows the exception of a single band tattoo on one finger, and both police departments prohibit offensive or extremist tattoos. What is the legal ground for such restrictions?

In Medici v. City of Chicago (2015), police officers alleged that the city’s policy requiring on-duty officers to cover their tattoos violated their First Amendment rights. The Court  recognized the officers’ tattoos as a form of personal expression, but held that a government employer can enact “certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public.” Moreover, the Court supported the Chicago Police Department’s (CPD) “interest in ensuring that professionalism and uniformity is maintained,” and granted that “due to a tattoo’s unique character,” allowing on-duty police officers to display their tattoos “would undermine the CPD’s ability to maintain the public’s trust and respect, which would negatively impact the CPD’s ability to ensure safety and order.” Thus, in the federal sector, employers are also allowed to ban tattoos in the workplace. 

Inherent Discrimination

Through a close analysis of regulations and legal cases, we see that it is in fact legal to discriminate against tattoos in the workplace, both in private and federal sectors. This is to say, under current legislation, employers are allowed to use tattoos as a basis to distinguish candidates, and can require employees to cover up tattoos while on the job.

In Yurkew v. Sinclair (1980), the State Fair refused to rent space to a tattoo artist because it saw tattooing as a dangerous procedure which could cause the “transmission of communicable disease such as hepatitis.” In the following decades, tattooing has been proved to be safe under sterilized conditions, and the public has become more accepting of tattoos. However, thirty-five years after Yurkew, in Medici v. City of Chicago, the Court still held that “an on-duty police officer’s public display of any tattoo imaginable may, among other things, cause members of the public to question whether allegiance to their welfare and safety is paramount.” This in truth reflects people’s inherent bias towards tattoos, still seeing them as negative reflections on one’s character, which is contrary to the reality at present: though tattoos might have once been symbols of gang affiliation or risky conduct, nowadays they are more a form of personal expression with a variety of meanings. 

Is forcing servers or police officers to cover their tattoos really necessary for them to fulfill their duties? Are all people with tattoos really more risk-taking or less trustworthy? As Abreu proposed in his new bill, employers should be required to justify their restrictions on tattoos, and prove that covering a tattoo is the least discriminatory way to fulfill necessary vocational qualifications. Though federal jobs might require employees to adhere to stricter rules, employers should nevertheless reconsider the requirements in a contemporary setting.

A Look Back at Washington State’s Senate Bill (SB) 5843: Constitutional or Not?

Alexandra Orbuch ‘25

Introduced by the Washington State legislature in January 2022, Senate Bill (SB) 5843 attempted to criminalize statements made by elected officials or candidates that:   

(a) Are intended to incite or produce imminent lawless action and do incite or produce such action resulting in harm to a person or to property; (b) Are made for the purpose of undermining the election process or the election results; (c) Falsely claim entitlement to an office that an elected official or candidate did not win after any lawful challenge made pursuant to this title is completed and the election results are certified. 

The bill failed to gain sufficient support in the house, so it failed. But the politicians opposed simply struck it down with no discussion as to why. Because they stayed silent, I am here to discuss the serious constitutional issues with the latter two types of speech banned by the bill (sections b and c), as they shunt aside the “imminent lawless action” test and a host of other legal precedents. 

Washington Governor Jay Inslee put out a statement in support of SB 5843, alluding to President Trump’s message preceding the January 6 Capital riots. “The defeated president and his allies…are perpetuating the belief that this election was stolen from them,” he said. The language of the bill itself echoes this fear, highlighting “false statements and claims regarding the validity of the 2020 election” as the cause of “January 6.” 

Inslee declared that Trump “yell[ed]” fire in the crowded theater of democracy,” harkening back to Schenck v. United States, in which the Supreme Court said that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre.” Schenck created the “clear and present danger” test, which protected speech unless there is a “clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” 

Inslee seems to have missed the memo that the “clear and present danger” test is no longer the free speech barometer. Brandenburg v. Ohio replaced it with the “imminent lawless action” test, which forbids curbing speech unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The court made an important distinction in its ruling, writing that “the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” (emphasis added). 

While SB5843 does include speech likely to incite imminent lawless action as one of its offenses (section a), it also lays out two other types of speech that would qualify: speech “made for the purpose of undermining the election process or the election results” and speech “falsely claim[ing] entitlement to an office” after losing an election. 

Banning the latter two types of speech is unconstitutional. In order to fall outside of protected speech as set forth in Brandenburg, it would not be enough for a statement to attempt to “undermin[e]” elections or “falsely claim entitlement” to a political office. The burden of proof is much higher than that. The statement would need to call for lawless action in such a way that the speech mobilized action on the part of the parties on the receiving end of the speech. Moreover, the bill forgoes any mention of a timeframe at all for the latter two types of speech, completely shunting aside the “imminent” portion of Shenk’s free speech metric (emphasis added). 

The bill’s attempt to purge false claims of entitlements to political office is one that swims against the tides of precedent even beyond Schenck. In Bond v. Floyd, the court unequivocally declared that “erroneous statements must be protected to give freedom of expression the breathing space it needs to survive.” 3. Further, in U.S. v. Alvarez, the court asserted that banning lies “would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition.”

In Alvarez, Justice Kennedy wrote that “when the Government seeks to regulate protected speech, under the First Amendment the restriction must be the least restrictive means among available, effective alternatives.” There is almost always “an available, effective alternative” to censoring false narratives, one more in line with the value of freedom so integral to the American ethos: “counterspeech.” The court had faith in the intelligence and judgment of the American people, and rightfully so. Alvarez was “perceived as a phony” and “ridiculed” even before his FBI investigation. “There is good reason to believe that a similar fate would befall other false claimants,” said the court. 

The court aptly reminded the public that “the remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.” Calling “speech we do not like” illegal is contrary to established law and legal precedent. 

When the “government seeks to orchestrate public discussion through content-based mandates,” we wade into dangerous territory. Governor Inslee and the Washington legislature would do well to remember that American society “has the right and civic duty to engage in open, dynamic, rational discourse.” As the court so trenchantly wrote, “truth needs neither handcuffs nor a badge for its vindication.” It is not–and ought not be–the government’s place to police electoral discourse. America’s distinctiveness lies in the freedoms enshrined in its Bill of Rights. We live in a constitutional Republic, not a fascist censorial regime dedicated to protecting the government from even the most indistinct whiff of ‘untruth’ or critique.  

In U.S. v. Alvarez, the court proclaimed that “[a]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” It stated that content-based speech restrictions are relegated to limited “historic and traditional categories [of expression] long familiar to the bar.” 

These “categories” include incitement, obscenity, defamation, child pornography, fraud, fighting words, true threats, and speech integral to criminal conduct. Obscenity and pornography are clearly not at issue here, so I’ll table discussion of them. As for the fraud exception, it applies solely to false commercial advertisements and considering Inslee’s legislation has nothing to do with commerce and advertising, the fraud exception to the first amendment is inapplicable here.

In U.S. v. Williams, the court declared that the speech integral to criminal conduct, “offers to engage in illegal transactions,” do not fall under “First Amendment protection.” Solicitation of crime is illegal, but abstract advocacy of illegality is not. The scope of the speech integral to criminal conduct is limited to the “imminent lawless action” test set forth in Brandenburg. And, as already discussed, two-thirds of the criminalized actions set forth in the bill would not pass the test. 

Also subject to the “imminent lawless action” are fighting words, “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The court has made it very clear that words are protected unless they “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” Cohen v. California further narrowed the definition, ruling that speech that does not directly aim its message at an individual or group is in fact protected by the first amendment. Thus, making a statement challenging or lying about election results would not apply. In the court’s words, “an ‘undifferentiated fear or apprehension of disturbance’…is not enough to overcome the right to freedom of expression.” 

The last exception to protection under the first amendment are true threats, which “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” The court, in Virginia v. Black, limited true threats to speech “with the intent of placing the victim in fear of bodily harm or death.” SB 5843 targets political speech, not speech threatening physical violence, therefore the true threat exception is neither relevant nor applicable. Clearly, neither speech “undermining the election process or the election results” nor speech “falsely claim[ing] entitlement to an office” fall under the categories of speech that the Supreme Court has said the First Amendment does not protect.

Both the spirit of the proposed legislation and the language itself, taking issue with subjective ‘lies’ that may be otherwise deemed as opinion, conjecture, or assessments differing from the ‘conventional wisdom’ or infringing upon the comforts of elected officials, are ultimately dangerous attempts to legislate contrary to the intent of the Founding Fathers and the subsequent clarifications by the Courts defining protected rights under the Constitution.

When Two Worlds Collide: Evaluating Free Speech and National Security Claims around Trump’s WeChat Ban

by Nalin Ranjan

Introduction

Immigrants have come a long way from hopelessly striving toward the 20th-century ideal of full assimilation into American society. Descendants of Jewish immigrants, whom many believed could not be trusted, can now proudly take credit for developments in the sciences, politics, medicine, and the arts; blossoming Chinatowns have replaced enclaves that once shied away from any expression of their heritage for fear of persecution; Mexicans whose ancestors worked under poor conditions and compensation in the fields founded the United Farm Workers to ensure their voices were heard. The stories of immigrants who refused to merely conform to the expectations placed upon them are endless. They have long known that the immigrant experience entails keeping close to — and not abandoning — their unique cultures and communities.

It was thus that President Trump’s August 2020 ban on Chinese messaging service WeChat was met with large-scale trepidation amongst the Chinese-American community. For the unfamiliar, WeChat is the world’s third-largest messaging service and by far the most popular means of communication amongst first-generation Chinese immigrants, with nearly three million active daily users in the US. For many, it is the primary — if not only — means of keeping in touch with fellow Chinese immigrants and families back home. However, given its Chinese ownership, the app has been subject to intense scrutiny amid escalating tensions between the two countries. 

Legal action against the ban was swiftly taken, resulting in a preliminary injunction of the original order. And before further arguments were made, the Biden administration walked back the Trump-era restrictions. However, they also made it clear that they would continue probing the issue and that a further ban was not entirely out of the question just yet. In this article, I examine relevant constitutional arguments that may have been made in favor of the ban had further litigation continued. Whether or not the ban stands to constitutional muster will ultimately determine whether it is a legal restriction with unfortunate consequences or a fundamental violation of certain Americans’ right to communicate freely.

Background

President Trump initially issued Executive Order 13943 in August 2020, prohibiting “any transaction that is related to WeChat by any person, or with respect to any property… with Tencent Holdings Ltd [the parent company of WeChat]… or any subsidiary of that entity.” The order outlined seven restrictions — each prohibiting a certain type of transaction with WeChat or its parent company —that together would have immediately rendered WeChat services both useless and illegal to use. In particular, restrictions 1-4 would have crippled WeChat’s technological infrastructure and content-distribution backbone, while restriction 6, which bars “any utilization of the WeChat mobile application’s constituent code, functions, or services,” would have been nothing short of an explicit ban on using WeChat’s services for then-users in the United States. 

Make no mistake: most of the restrictions of the order could only be reasonably challenged in court by Tencent itself.1 But restriction 6, whose target is the American populace rather than a service/network/other technology managed by Tencent, could reasonably be challenged by American WeChat users, as it places an explicit restriction on a place Americans may go to express speech. My analysis hereinafter will focus on restriction 6, because 1) resolving first amendment challenges to restriction 6 entails tackling issues that would arise in challenges to other portions of the ban, and 2) first amendment challenges to restriction 6 most closely echo the concerns of American WeChat users, who are the most important stakeholders in this issue. 

Constitutionally, time, place, or manner (TPM) restrictions are permissible, but they must 1) apply equally to all forms of speech subject to the TPM restriction (i.e. be content-neutral), and 2) pass the test of intermediate scrutiny.2 Given that the ban seeks to impose a broad and sweeping restriction on the use of WeChat, it is clear that it passes the content-neutrality criterion: no particular message substance would be favored over another since all communication on WeChat would be prohibited. Thus, the only — albeit substantial — remaining obstacle that the ban must overcome is the test of intermediate scrutiny, which requires that a TPM restriction 1) serve a significant governmental interest unrelated to speech content, 2) be narrowly tailored, and 3) leave open adequate channels for communication. 

Does there exist a significant government interest that would be served by the ban?

As stated in President Trump’s initial executive order, the central motivation for issuing the ban is to protect national security. (The executive order clarifies that other threats, such as those to foreign policy and the economy, derive from the primary threat to US national security.) The precise definition of “national security” is somewhat elusive, but most would agree with the National Law Review’s characterization, which says that it “encompasses safeguarding the nation’s borders against foreign threats and terrorism… [which, in particular, may include] cyber-crimes, cyber-attacks, and other internet-based crimes.” And like most, we will grant that national security is a significant governmental interest unrelated to the particular content of restricted speech in this case.

Would the ban — as outlined in the original executive order and implemented in the Commerce Secretary’s addendum — prevent some action that gravely endangers US national security? The executive order would answer affirmatively, holding that the relevant action it prevents is the capture of “vast swaths of information from its users, which threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information.” This conclusion, however, is based on multiple unsound foundations.

First, the characterization of the information WeChat collects as “personal and proprietary” is misleading, if not plainly incorrect. Upon registering, users must agree to a privacy policy that explicitly describes how one’s information will be shared with other subdivisions of Tencent, service providers (middlemen providing services that enable the functioning of the app), third parties with whom the user interacts, advertising partners, and notably, governments/regulatory agencies that request it.  Of course, this finding is wholly unsurprising to the average WeChat user. In addition to the common knowledge that using an online service will expose one’s information to its administrator, there is also a common cultural element at play: many WeChat users, as first-generation Chinese immigrants, are familiar with the authoritative role the CCP takes in regulating the flow of information and communication. A sentiment of an anonymous user on tech forum SlashDot sums up the typical WeChat user’s attitudes on this issue: “WeChat is a great app, and I use it all the time. But I have never considered it to be private.” Ultimately, users are knowingly consenting to share their data with WeChat and its wide range of affiliates, so the suggestion that users’ “personal and proprietary” information will land into the hands of an actor that shouldn’t have access to it — including the CCP — is both legally and empirically incorrect. 

Second, the mere collection of “vast swaths of data” on consenting American users is not in itself a threat to national security, even if this data lands into the hands of presumed US adversaries like the CCP. It is certainly true that WeChat follows the typical social media company strategy of collecting a wide range of identifying information and day-to-day activity data from users that may compromise their individual privacy, but it is difficult to see how such perfunctory data could be used to threaten US national security as a whole. Knowledge of what certain consenting individuals are doing, where they are going, and what some of their preferences are seldom, if ever, provides the edge needed to engineer large-scale attacks on US citizens or institutions. And the US government has implicitly recognized this fact: the combined revenue of the data analytics and online advertising market — both heavily reliant on collection and exchange of highly specific personalized data — totaled almost $100 billion in 2020 with no indication of slowing down. These markets, which feature thousands of companies of varying sizes, are officially sanctioned — and even participated in — by the US government. Were the possession of terabytes of perfunctory data truly a prospect with imminent national security concerns, history suggests governmental oversight would be swift and uncompromising — or at the very least, more stringent than the lax attitude currently adopted that treats personal data as little more than an arbitrary, freely exchangeable good.3 

In short, there is little evidence to suggest that a blanket ban on the use of WeChat would significantly remedy any existing national security vulnerability.

Would the WeChat ban leave open adequate channels for communication?

As established in Ward v. Rock of Racism, “the basic test for gauging the sufficiency of alternative channels is whether the speaker is afforded a forum that is accessible and where the intended audience is expected to pass.” In other words, the subject of a TPM speech restriction must be afforded another venue in which the intended audience may reasonably participate in a similar capacity. Appellate court precedent has established this requirement as one admitting a strict interpretation. For example, refusal to grant a permit to the Million Youth March sufficiently close to the movement’s desired location in Harlem was ruled in 1998 to be a First Amendment violation, because the city’s proposed relocation to Randall’s Island would have “adversely affect[ed] plaintiff’s ability to reach its target audience” by “limit[ing] [the movement’s] reach to [only] those who make an affirmative decision to travel to [Randall’s Island].” 

The alternatives afforded to WeChat users, unfortunately, are quite worse than a two-mile walk eastward to Randall’s Island. As Peng notes in her testimony, the only available alternatives to contact relatives abroad are costly and provide vastly inferior functionality:

“Without WeChat, I will have to go back to the old way of buying calling cards and making expensive international calls. I will also not be able to reach all of my family members with one click. I will not be able to look at them through video calls with my own eyes. Nor can they see that I am well with their own eyes.” 

For the unfamiliar, the reason that Peng would have to go back to calling cards is that most apps that seem like viable alternatives (WhatsApp, Snapchat, Messenger, Line, etc.) are blocked by the Great Chinese Firewall. 

And for those whose only proficient language is Mandarin (or another dialect spoken in China),4 the lack of other Chinese-friendly messaging apps would all but require attaining sufficient proficiency in another language. Even if we discount the many cases where this is effectively impossible (e.g., for senior citizens), such a requirement would fundamentally run contrary to the American notion of free expression. Learning a particular language should never be an explicit prerequisite to communicate, nor is the government within its right to revoke access to platforms so as to implicitly institute this as a requirement.

Conclusion

For now, Chinese-American WeChat users can breathe a sigh of relief. Yet it is clear that the issue is far from resolved, as the Biden Administration has indicated that a subsequent restriction is well within the realm of possibility. However, amid ever-changing political headwinds, American WeChat users can cling steadfastly to the legal rock that is intermediate scrutiny. Indeed, striking down the Trump-era ban would have only required that one intermediate scrutiny criterion be unmet. That the ban spectacularly fails multiple criteria is a serious indication that subsequent administrations will need to dedicate genuine, good-faith effort to crafting a more measured response that does not irreparably sever certain Americans’ access to their most significant outlet of communication.

1 Foreign entities may bring suit in US courts; see Servicios Azucareros v. John Deere.

2 First developed in Craig v. Boren.

3 See this article, for example. Most data exchanged over US networks is unregulated. That is, most companies are not under any obligation not to share your data with third parties, who can in turn do as they wish with that data (including selling it again). And none of them are obligated to tell you what they do with your data.

4 No publicly available sources have an estimate on the true number of English-deficient WeChat users in the United States. But an extremely conservative estimate would likely lie in the hundred-thousands.

Making the Case for Trump’s January 6th Speech as Incitement

by Beck Reiferson

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1 Prin.L.J.F. 5

On January 12th, Alan Dershowitz, Professor Emeritus at Harvard Law School and one of the nation’s most prominent attorneys, published an op-ed in the publication Newsweek in which he argued against the second impeachment of President Donald Trump on constitutional grounds. He reasoned that Trump’s false statements about the legitimacy of the 2020 election, though “deeply upsetting,” did not meet the standard the Supreme Court set for “incitement” in Brandenburg v. Ohio (1969). He wrote that instead of constituting incitement, Trump’s “volatile words fell plainly on the side of political ‘advocacy,’ which is protected speech.” Dershowitz then claimed that since Trump’s statements were constitutionally protected, they could not be sufficient grounds for impeachment, since First Amendment-protected speech does not constitute “Treason, Bribery, or other high Crimes and Misdemeanors”—the grounds for impeachment enumerated in Article II, Section IV of the Constitution. I will argue that, though Dershowitz is right about constitutionally permissible speech being insufficient grounds for impeachment, Trump’s statements on the morning of January 6th do meet the standard for incitement as laid out in Brandenburg.

In Brandenburg, the Supreme Court held that “freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” As the word “imminent” indicates, the only statements Trump made that could potentially constitute incitement of the insurrection at the Capitol are those he made in a speech on January 6th, just before some of his followers stormed the building. The claims he repeated for months about widespread election fraud are irrelevant to the current discussion. Reformulating the Court’s words in Brandenburg makes clear what criteria Trump’s statements in this speech must meet in order to rise to incitement: they must have advocated for people to break the law, they must have been likely to cause illegal action, and Trump’s goal in uttering them must have been to provoke this illegal action. Let us examine each of these criteria in turn. 

Though it is true that Trump did not explicitly ask his followers to raid the Capitol in his January 6th speech, that does not preclude the possibility that he still advocated for the use of force; indeed, a close examination of his speech reveals several instances in which he employed coded, implicit appeals for those in the audience to take matters into their own hands to reverse the results of the election. He asserted, for example, that “We will never give up, we will never concede… You don’t concede when there’s theft involved,” implying that taking “no” for an answer was out of the question. He also thanked the audience after they broke out into the chant, “Fight for Trump!” and then immediately brought up the military and the Secret Service—two organizations closely connected with the use of force. Taken in conjunction with one another, these statements, along with many other similar ones that pervade the rest of the speech, express the sentiment that the ends of delivering the election victory to its ‘rightful’ winner justify whatever means are necessary to secure that end.

Next we turn to whether or not Trump’s rhetoric was “likely to incite or produce such [illegal] action.” A consideration of the makeup of the crowd in attendance and the contents of Trump’s speech points to a clear affirmative response to this question. Those in attendance in Washington D.C. on January 6th had traveled from all across the country in order to protest the certification of the Electoral College; just by virtue of having arrived in the capital, they had already demonstrated a profound willingness to—and even a commitment to—engage in extreme action in order to keep Trump in office for another four years. Their presence in Washington D.C. indicates that they felt deeply aggrieved by false claims of election fraud and that they strongly believed in the righteousness of their cause. They were, put simply, the individuals most likely to resort to violence to achieve their desired ends. So when Trump set out to “lay out just some of the evidence proving that we won this election,” he lit a rhetorical match before the most flammable of audiences. And when he urged those in attendance to “fight like hell, [since if you don’t] you’re not going to have a country anymore,” framing the consequences of inaction as destroying “the integrity of our glorious republic,” he further convinced an already aggrieved crowd of the necessity of taking up extreme measures in order to prevent the certification of the Electoral College. He gave those listening an ultimatum: do whatever you can to keep me in power or live in an undemocratic country with an illegitimate leader who will do profound damage to many things you hold dear. By emphasizing to those most inclined to violence the importance of fighting the certification, Trump increased the likelihood of violence occurring.

Lastly, we must determine if Trump’s words were “directed to inciting or producing imminent lawless action”—that is, if incitement to violence was his goal. Questions of intent are always difficult to answer, and that is especially the case here given the absence of explicit calls to violence. There still, however, exists evidence that Trump wanted January 6th to unfold along the lines that it did. First, in an interview with radio host Hugh Hewitt, Republican Senator Ben Sasse said multiple White House officials had told him that “as this [the storming of the Capitol] was unfolding on television, Donald Trump was walking around the White House confused about why other people on his team weren’t as excited as he was… He was delighted.” If it is true that Trump was happy with the insurrection, this suggests that that was his desired outcome from the outset; it seems unlikely that he went from being opposed to violent insurrection in the morning then delighted by violent insurrection later in the afternoon. Trump hoping for violence all along would also explain his initial inaction when his followers broke into the Capitol: hours after the protests had devolved into violence, Trump still had not condemned his followers, instead doubling down and further encouraging the mob by tweeting that Mike Pence had “failed to protect our Country and our Constitution.” Such language demonstrates a lack of displeasure with the events that were transpiring.

It may thus plausibly be argued that Trump’s speech on the morning of January 6th meets the high standard for incitement that the Supreme Court set in Brandenburg. This renders moot Dershowitz’s point about constitutionally permissible speech being insufficient grounds for impeachment.