Earlier this year, the chairman of the Federal Communications Commission, Tom Wheeler, abruptly abandoned a survey of Americans’ media information needs, which, despite its modest scope, would have provided crucial data for the FCC in its efforts to maintain viewpoint diversity in our increasingly concentrated media markets.
Ironically, Wheeler did so in the face of accusations the FCC was assaulting the First Amendment and press freedoms when, in fact, the study would have helped enhance free expression. Critics argued that, as Republican FCC Commissioner Ajit Pai wrote in a Wall Street Journal op-ed, the study was “an initiative to thrust the federal government into newsrooms across the country.”
Unfortunately, despite Chairman Wheeler’s (premature) withdrawal of the initiative, the brickbats continue.
The House Committee on Oversight and Government Reform now plans to take time, tax dollars, and focus away from the real problems facing our country and government by launching a formal inquiry into the Wheeler study.
Chairman Darrell Issa’s (R-CA) letter to the chairman announcing the inquiry previews the tenor of this “investigation.” The Wheeler study, Rep. Issa said, is emblematic of an “ongoing assault on the Constitution by the Obama Administration.” The study “was not an innocent inquiry” and is “disconcerting in light of the current Administration’s continuing efforts to silence the constitutionally protected speech of its opposition.”
Such language suggests that perhaps the Chairman’s views have been colored by his view of other administration actions and may not be entering into the “investigation” with a completely open mind.
It’s crucial to understand what we’re talking about here. The survey, known as the Critical Information Needs study (“CIN”), would have assisted the FCC in identifying barriers to entry in the communications marketplace, especially for minority and female owners, which the FCC is obliged by law to do.
It also would have included a section surveying minority and female media consumers to evaluate whether their information needs are being met, including things like access to emergency information in a hurricane.
Some, however, pounced on the study as a direct assault on the First Amendment. In addition to Commissioner Pai’s op-ed in the Wall Street Journal, some Congressional Republicans called the study the first step on the road to a “news police.” Rep. Greg Walden (R-OR), chairman of the powerful House Energy and Commerce Committee, to block the CIN study.
Were there a legitimate First Amendment concern with the CIN study, the ACLU would be the first to object (it’s not like we love FCC content regulation). We caution the Congressional committee charged with eliminating government waste, however, not to waste scarce taxpayer resources on an “investigation” into a harmless, and actually helpful, government fact-finding exercise.
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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.