On blogs, personal and political websites, and through user-generated content sites, ordinary citizens in extraordinary numbers are recreating a public sphere and reinvigorating the democratic debate at the core of our political system. of Americans have already used the Internet in connection with a political campaign — more than during all of 2004. User-generated content is playing a particularly integral role, with of Americans watching online videos and using social networking sites to engage in political activity.
An overwhelming number of political discussions are taking place in publicly accessible but privately owned, online town squares. Which means that this important political speech depends on service providers, users, and content owners all doing their part to safeguard free speech.
Unfortunately, political speech has been threatened repeatedly by claims that controversial material violates a site’s terms of use or infringes copyrights or trademark rights. Here are just a few recent examples:
- The International Olympics Committee (IOC) demanded that YouTube remove a video of a protest by Students For a Free Tibet, based on a bogus . The IOC subsequently withdrew the notice, but the IOC’s demand is a lesson in the dangers of hair-trigger Digital Millenium Copyright Act (DMCA) takedowns by service providers.
- An alleged terms of service violation caused to take down a slideshow of a military funeral.
- Another alleged terms of use violation caused YouTube to remove a video critical of John McCain, apparently because the video included numerous graphic images of the effects of war.But those images were integral to the commentary: the focused on McCain’s support for the Iraq war.
- An apparent copyright complaint caused Broadview networks to shut down a parodying Exxon’s environmental policies.
- The Republican National Committee the online vendor CafePress for allowing users to create T-shirts using Republican trademarks, like "Grand Old Party," or the official version of the elephant logo.
- The Chicago AutoShow tried to use allegations of to force the shutdown of a satirical website promoting transportation alternatives
- The Associated Press tried to use the DMCA to force the of blog entries that reproduced excerpts of AP news stories—some of them just a few words long.
ACLU of Northern California and Electronic Frontier Foundation (EFF) urge service providers to take extra precautions before pulling the plug on political speech. Remember that you're facilitating a new era of reason and debate, and that there are that protect you as a facilitator. By taking that responsibility seriously, you’ll do right by your users, content owners and the political process.
We urge content owners to count to ten and look at the Fair Use Frequently Asked Questions and for some guidance before firing off a complaint.Remember that you are legally obligated to consider whether the use of your material is a .
Consider carefully whether actions may result in the loss of free speech, and remember: the antidote to free speech that you don't like is more free speech. Make your voice heard with a written blog post, a video blog post, or a message in the comment thread. We also urge users to contact us if they feel that their political speech has been improperly censored.
As we move forward into the fall election season, the Internet can continue to revitalize our political lives in exciting and unforeseen ways — but only if service providers, users, and content owners all do their parts. No matter where you stand on the candidates or the issues, we should all agree on one principle: No Downtime for Online Free Speech!
—By Nicole Ozer and Corynne McSherry (EFF)
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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.