The protests against the Dakota Access Pipeline (DAPL) have created many historic moments, both good and bad. The protests constitute one of the largest international gatherings of indigenous people in more than 150 years. In a victory for Native advocates, they pushed the Department of the Army to that it would look for an alternate route for the pipeline. The DAPL has also attracted a troubling pattern of excessive force: law enforcement agencies have deployed tear gas, rubber bullets, concussion grenades, mace, and water cannons against hundreds of peaceful protestors.
But due to temporary flight restrictions (“TFRs” or “no-fly zones”) instituted by the Federal Aviation Administration (“FAA”), too few of those newsworthy moments have been captured on photo or video.
Since large-scale protests began near Standing Rock, the FAA has instituted three no-fly zones that have banned all civilian aircraft—and therefore prevented any aerial footage for news reports—for miles around the protests. This prohibition is particularly powerful in the area near Standing Rock—a rural, widespread, and sparsely-populated area where comparable information is impossible to obtain on the ground.
The bans were in place for more than 30 days between October 24 and the middle of last week, and they forbade drone cameras from recording many high-profile events over that time, including various weapons and alarming military equipment against individuals on October 27, and the Army Corps of Engineers sending an eviction notice to the chairman of the Standing Rock Sioux Tribe on November 25. This only added to the obstruction journalists were already facing from local police, including , , , and the .
The FAA claims that the TFRs included special provisions for media to operate aircraft within the no-fly zones. But the actual text of the TFRs did not tell reporters how to seek an exemption. And the —telling one indigenous videographer that —until it finally from the most recent ban.
By instituting these broad no-fly zones above hotly-contested law enforcement operations, the FAA has been complicit in denying the public’s right to gather and access information about a matter of immense public debate and concern—much as it was complicit when it decided to institute a no-fly zone over Ferguson in 2014. And by failing to consult with the Standing Rock Sioux Tribe before instating the bans, the FAA has also contravened the obligation federal agencies have to consult with a sovereign tribe before taking any action that directly affects the tribe. These failures are troubling. But these failures also give the FAA an opportunity to demonstrate that it recognizes and respects the rights of protestors, reporters, and indigenous people.
To that end, the ACLU, the ACLU of North Dakota, and the Floyd Abrams Institute for Freedom of Expression sent the FAA a letter on Friday requesting that it change its approach to TFRs. Specifically, we asked that the FAA ensure that “no-fly zones are not physically larger or longer in duration than strictly necessary to preserve public safety”; that “flight variances are available and granted to media entities whenever consistent with public safety”; that “any no-fly zones are based on supported facts that justify such an extreme measure”; and that the FAA consult the Standing Rock Sioux Tribe before instituting any future TFR.
As we did in response to the FAA’s no-fly zone over Ferguson, we invited the FAA to refuse any attempts to enlist it in restricting the rights of protestors, reporters, and indigenous people. This time, let’s hope it accepts our invitation.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.