I suppose it's in the nature of a federal constitutional trial about sexual speech that there will be moments of amusing contrast: between the formality of the setting and procedures and the graphic nature of the testimony and evidence; between the serious expressions on the government lawyers' faces and the words that come out of their mouths ("COPA applies to juicyboobs.com"); between the government's desire to criminalize sexually explicit content on the internet and their eagerness to broadcast it in the courtroom.
The first two days of our trial challenging the so-called "Child Online Protection Act" (COPA) have produced some memorable moments. The government's opening argument, which previewed their theory of the case, proceeded as a kind of syllogism: (1) we all know that COPA was intended to target only "commercial pornography"; (2) plaintiffs, who provide sexual but indisputably valuable material, are not commercial pornographers; (3) ergo, plaintiffs are crying wolf about their fear of prosecution under COPA. There's a hole in this argument: COPA never uses the words "commercial pornography"; it broadly targets descriptions or depictions of sexual acts or nudity. In fact, the word "pornography" has no legal significance -- it's in the eye of the beholder. As one of our plaintiffs memorably explained in her deposition: " Is pornography the intent of the creator or the experience of the reader? When I was 13, I masturbated to Jane Eyre. Was Charlotte Bronte a pornographer?"
Although a judge, and not a jury, will decide whether COPA violates the first amendment, you wouldn't have guessed that if you listened to the government's opening arguments. We were admonished that we should not "let this trial become purely an intellectual exercise," but should "take a moment" to remember the children who were being harmed by pornography. We were told of the young girl who "typed [her] dog's name" into a search engine, and "pictures of naked girls kept popping up." I couldn't help wondering what the poor girl had named her dog. (Are they sure it wasn't a cat?. . . .)
When time permits, I'll send some dispatches from the trial. In the meantime, one of our plaintiffs, , which I commend to you. [LINK] I'll sign off with a mystery. There is a stone-faced man with a large suitcase who has been observing proceedings form a perch in the corner of the courtroom. Today, one of my colleagues politely asked him who he was. He said that he was "part of a group" that is working on a "replacement law" in case "this one doesn't work." (By not working, I take it he means is struck down as unconstitutional.) When another colleague asked him his name, he exercised his constitutional right to anonymity (i.e., he refused to answer). But I did overhear snippets of a conversation he had with government lawyers. "There are some things I can't say," he was saying, "but I can tell you that the Family Research Council and the Concerned Women of America . . . ." That's all I caught. Who is he? Keep checking the blog in case I learn more.
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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.