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We’ve got another cross-post for you this week, and this time it’s also a live panel recording. Recently, Mike joined a panel at Boston University Questrom School of Business which was recorded for WBUR’s Is Business Broken? podcast, alongside professors Marshall Van Alstyne and Nadine Strossen, and moderated by host Curt Nickisch. The discussion is all about Section 230 specifically and the regulation of speech more broadly, and you can listen to the whole thing here on this week’s episode.

You can also download this episode directly in MP3 format.

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Despite widespread beliefs to the contrary, patents are not a measure of innovation, nor are they needed for companies to thrive — something even Elon Musk understands. But one aspect of patents that is rarely considered is their morality. The European Patent Office’s Board of Appeal wrestled with this issue in an interesting case involving the plant extract simalikalactone E and its use to treat malaria. As the patent admits: “simalikalactone E (SkE) was isolated from Quassia amara (Simaroubaceae), a medicinal plant widely used in the Amazon for the treatment of malaria.” In other words, the use of the plant extract to treat malaria was already known among Amazonian peoples, who naturally did not try to patent it. Related to this, an objection was raised to the patent, on the grounds that it was contrary to “morality”, as defined by Article 53 of the European Patent Convention:

European patents shall not be granted in respect of:

(a) inventions the commercial exploitation of which would be contrary to “ordre public” or morality; such exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States;

The IPKat has a good explanation of the reasoning behind the objection:

the Opponent argued that the invention represented “biopiracy” on behalf of the patentee against the indigenous people involved in the original research. Specifically, the Opponent submitted that the interactions with the indigenous communities had been conducted in an immoral fashion, involving deception and an abuse of trust. According to the Opponent, the members of the communities involved had not been fully and transparently informed of the nature of the research project, its objectives, the filing of the patent, and other risks and benefits of the project to community members and their knowledge. As such, the Opponent argued, the IP rights of the communities over their traditional knowledge had been violated. The Opponent submitted that the deception and breach of trust displayed was contrary to ordre public and would jeopardize relations between indigenous and local communities and researchers.

However, the EPO’s Board of Appeal rejected this argument for an interesting reason:

The exclusion to patentability provided for in Article 53(a) EPC requires the stated offense to morality to reside in the “commercial exploitation” of the claimed invention. The claims of the patent were directed to the formula of the antimalarial, a process of manufacturing the antimalarial and its use in therapy. Given the dire need for effective antimalarial medication, the Board of Appeal found that the commercial exploitation of these inventions would not be contrary to public morality (on the contrary, they would be beneficial to society). Specifically, the Board of Appeal made a clear distinction between the morality of the commercial exploitation of an invention, and the morality of how the invention itself occurred (r.2.14).

That is, patents can be excluded if their commercial exploitation would be immoral, but it doesn’t matter if the way the invention claimed in the patent was made turned out to be immoral. European patent law simply doesn’t care about that aspect. Fortunately, that’s not the end of this particular story, as the IPKat post explains:

Questions over the morality of scientific discovery must therefore be dealt with in a different forum than the patent office. In this case, despite the decision of the Board of Appeal, the European patent in question appears to have lapsed on all member states due to failure to pay renewal fees. The US case has similarly been abandoned. It thus appears that the substantial political pressures on the [patent-holder, the French Institute for Development Research] outside the patent system have impacted their desire and/or ability to commercialise the invention.

It’s good that this kind of pressure works, but it would be better if the patent world cared more about the morality of inventors’ actions in the first place.

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It should be clear by now that being a fan of one particular politician doesn’t make you a member of a “protected” group. It’s just a stupid as cops claiming they should be given more rights and protections because people just don’t seem to be showering them with unconditional love in recent years. Wearing clothing that you’re hoping will provoke a response (either supportive or otherwise) doesn’t make you a victim of actionable harassment just because it didn’t trigger the responses you hoped it would.

Triggered MAGA fan B.W. (a minor, hence the initials) sued the Austin, Texas Independent School District (AISD) after his MAGA gear provoked completely expected responses, like other students (and even some faculty members) calling him a bigot and a racist and suggesting he might be a fan of the KKK. B.W.’s parents ultimately pulled him from the school after belatedly discovering that their son’s attempted owning of the libs had backfired.

The lawsuit was brought under Title VI, a legal authority that forbids “harassment based on the victim’s race, color, or national origin.” The complaint (now in its fourth amended version) tried to claim B.W. was being “harassed” because he was white, rather than because of his repeated displays of support for Donald Trump.

This obviously wasn’t pleasant for B.W., but one can assume he hoped to trigger some libs, and the libs were indeed triggered, leading to this sort of thing. From the decision [PDF], which is written by Judge Priscilla Richman, whose judicial record would seem to indicate people might have expected her to come down on the other side of this issue.

B.W.’s operative Complaint alleged that a math class aide “repeatedly called B.W. ‘Whitey,’” and a group of students shouted at him and other Cross Country teammates, “here are all the white boys!” A teacher asked him if he “enjoyed his White Gospel Music.” A substitute teacher told B.W., “I will not have a white man talk to me about gender issues!” A teacher told B.W. that she was “getting concerned about how many white people there are.” A student told B.W., “America is only for white people,” and another student “repeat[ed] the evils of the white race in American history” to B.W.

While this probably wasn’t pleasant for B.W., it really doesn’t sound like the sort of harassment that would result in a lawsuit. This is actually pretty mild, at least in terms of what’s recounted at the beginning of the decision. (There’s more in the lengthy dissent, which involves the back nine (judges) participating in this en banc hearing, who disagreed with the majority decision written by Richman.) It doesn’t matter that one student created a meme that made B.W. look like a KKK member. Nor does it matter that B.W. was regularly called a “racist” by other students (who also allegedly repeatedly “flicked him off” and “cussed at him).

What matters here is what the law says, in terms of harassment under Title VI. And B.W.’s attempt to secure a victory under this legal statute was immediately undercut by his own lawsuit. (Emphasis in the original.)

B.W.’s own pleadings, which we “must accept as true,” assert that the meme was motivated by politics and not race. B.W.’s complaint specifically alleges that “D.K. admitted to the school that he made the KKK meme about B.W. because D.K.’s father told him not [to] be friends with anyone who was a Conservative.”

[…]

Being called a racist is not the equivalent of being harassed based on the harassment victim’s race. Being accused of racism says nothing about the race of the accused. A racist or alleged racist could be a person of virtually any color. The pejorative term is used because of the accused’s own alleged views about race, not because of the accused’s race. The “flicking off” and “cussed at” allegations, read in context, were alleged to have been motivated by B.W.’s “Conservative and Republican political opinions” and his support for Donald Trump. The complaint does not allege they were racially motivated.

As awful as this is (I mean, at least in terms of faculty members participating in the dogpiling), this simply isn’t actionable. MAGA is not a race, color, or religion, even though it definitely draws more people of one specific race and color and whose acolytes often act as though supporting Donald Trump is an expression of Christian faith.

The majority opinion affirming the lower court’s dismissal of the suit is five pages. The dissents are nearly five times a long (24 pages). And even if I don’t agree harassing someone over their MAGA gear is actionable under Title VI, the dissenting opinions make some decent points about how MAGA could be a stand-in for “white,” especially when applied in this fashion to other races and competing political beliefs.

First, the dissent says there’s at least some evidence hateful acts were directed at B.K. because of his race, especially when his pleadings are “accepted as true” during this stage of the legal proceedings.

In his complaint, B.W. includes recurrent incidents of harassment that explicitly reference his race. He alleges that students repeatedly recited the “evils of the white race” to B.W.; that students ran into the locker room and proclaimed (with B.W. present) “here are all the white boys!”; and that students daily abused B.W. both physically and verbally. Worst of all, B.W. alleges that another student beat him bloody and then bragged to the school that he had done so “because B.W. was white.” B.W. alleges that he was subjected to daily harassment from his classmates following that public pronouncement of racial animus. Adding insult to B.W.’s obvious physical injuries, much of the harassment came from school teachers.

Then there’s the KKK meme, which likely would not have been created if B.K. was not white. And that’s problematic, because it seems the majority might have sided with B.K. if he hadn’t been white and subject to similar harassment due to perceived race.

The KKK meme is further evidence of race-based harassment. Groups like the KKK and the Nazis are white-supremacist organizations that generally have a racial association tied to membership. Thus, a meme depicting B.W. as a member of the KKK has a racial component, particularly in the context of the other overtly race-based harassment that B.W. alleges occurred here. When an individual is accused of membership in a politically odious organization associated with that individual’s protected characteristic, such an accusation amounts to stereotyping based on that protected characteristic. Suppose instead that a student made a meme of an Afghan classmate as a member of the Taliban or Al Qaeda. Such a meme obviously implicates the student’s protected characteristics.

But, ultimately, there’s another factor in play here — elements admitted in B.K.’s own pleadings: he wore MAGA gear, something that closely aligned him with the views expressed by MAGA figureheads, many of which are racists, bigots, and — in far too many cases — closely aligned with white nationalists. In my opinion, that’s the wild card. It would be far easier to prove the harassment was solely linked to B.K. being white if he hadn’t chose to repeatedly wear shirts and hats that linked him with a bunch of other (similarly white) bigots. If the harassment had occurred without this factor in play, it would clearly have been solely racially-motivated. But B.K. wore stuff he knew would inevitably provoke negative responses. And then he sued when this gambit paid off.

It is inexcusable that staff members participated in the alleged bullying, and perhaps there’s still something under state law that might earn B.K. a win, but under Title VI, it’s just not going to work because the plaintiff’s admitted “political beliefs” don’t make him part of a protected group.

You have likely heard that Donald Trump has nominated conspiracy theorist Robert F. Kennedy Jr. to be his next Secretary of Health and Human Services. This is dangerous and cruel for a very long list of reasons, but his nomination also exposes the critical flaws in a bill proposed by Senators Amy Klobuchar and Ben Ray Lujan just a few years ago.

In 2021, Senators Klobuchar and Lujan introduced a bill that would have given the Secretary of Health and Human Services the power to unilaterally declare what constitutes “health misinformation” online. Under the proposed law, a new exemption to Section 230 would be created for any content deemed misinformation by the HHS Secretary, which could open tech platforms up to lawsuits, creating immense pressure to block such content.

At the time, the bill seemed misguided and unconstitutional. In the hands of an anti-science zealot like RFK Jr. as HHS Secretary, it would be catastrophic.

From the bill:

Not later than 30 days after the date of enactment of this Act, the Secretary of Health and Human Services, in consultation with the heads of other relevant Federal agencies and outside experts determined appropriate by the Secretary, shall issue guidance regarding what constitutes health misinformation…

And then, any site hosting content so designated would be “treated as a publisher or speaker” of such “health misinformation,” effectively opening them up to lawsuits.

If that bill had become law, RFK Jr. could declare that factual information debunking his anti-vaccine conspiracy theories is “misinformation.” He could threaten lawsuits, or just unleash others to sue, to force social media platforms to silence anyone who corrects his dangerous nonsense about vaccines and autism.

Thankfully, Klobuchar and Lujan’s bill went nowhere, and for good reason. Giving a single political official the power to define “misinformation” runs counter to core First Amendment principles. What’s deemed “misinformation” could change radically from one administration to the next, creating a censorship regime beholden to electoral whims.

The RFK Jr. nomination illustrates exactly why we continually call out these kinds of bills. Because this is not the kind of power you want to give to the government (nor should you be able to under the First Amendment).

And if you don’t think that RFK Jr. wouldn’t take advantage of such a law had it been passed, you haven’t been paying attention. While RFK Jr. has been cosplaying as a “free speech” supporter of late, the reality is that he has a long and problematic history of trying to suppress speech and to punish people for their speech.

Even his latest “free speech crusade” is really a series of censorial failed lawsuits against social media companies for using their free speech rights to moderate his conspiracy theory nonsense. Even the very Trumpist Fifth Circuit just laughed one of his cases out of court a couple weeks ago.

But there’s an even longer, more disturbing history as well. A decade ago, he talked about how he believes his political opponents should be jailed for their speech, even calling them war criminals and accusing them of “treason.” Somewhat hilariously, at the time, he was talking about those who denied climate change and billionaires “impoverishing the rest of us.”

“They are enjoying making themselves billionaires by impoverishing the rest of us. Do I think they should be in jail, I think they should be enjoying three hots and a cot at the Hague with all the other war criminals,” Kennedy declared.

He might want to take a look at his new boss and the crew he’s hanging around with, given that Donald Trump has repeatedly denied climate change exists and promised to ramp up fossil fuel production in the country. And if we’re talking about billionaires impoverishing the rest of us, just take a look around you, Bobby.

Either way, the point is that RFK Jr. has a long history of deeply authoritarian and censorial instincts. He’s not a free speech supporter by any means. If Klobuchar and Lujan’s bill had been law, we would have just handed him the ability to censor any pushback to his dangerous views.

So, next time, can people actually listen to us when we raise the alarm about how problematic censorial bills are, and how they would be abused in the wrong hands?

We noted earlier this week how Trump had unsurprisingly picked Brendan Carr to head the FCC. We also pointed out how Carr’s “policies” are utterly indistinguishable from the interests of unpopular telecom and media giants like Comcast and AT&T. He’s going to demolish whatever’s left of the FCC’s consumer protection standards and media consolidation limits, and he’s not going to be subtle about it.

Carr is the dictionary definition of “regulatory capture.” He’s going to deliver the final killing blow to net neutrality (if the Trump-stacked courts don’t get to it first). He’s also going to take a hatchet to the FCC’s recent inquiry into shitty broadband usage caps, efforts to stop broadband “redlining” (read: racism in fiber deployment), good faith efforts to help the poor afford broadband, and efforts to stop your cable, phone, wireless, or broadband provider from ripping you off with shitty fees.

But as I dug through the mainstream reporting on Carr’s appointment, very few outlets seemed interested in making any of that clear to readers. The New York Times and Washington Post, for example, kept the focus largely on Carr’s animosity toward “big tech” companies for their “censorship of Conservatives” (read: doing the absolute bare minimum to thwart racist assholes and right wing propaganda on the internet).

The fact that Carr’s primary function at the FCC will be to coddle unpopular telecom and media giants in about thirty different ways barely warrants a mention. Over at the Cox Communications owned Atlanta Journal Constitution (whose owners will benefit from a Carr appointment in several different ways), Carr’s appointment is framed like this:

We’re a decade into Trumpism, and major outlets are still putting false claims unchallenged in headlines. Why do you think that is, exactly? Readers told me the Atlanta Journal Constitution just reprinted the already soft WAPO story on Carr’s appointment, but cut off much of the second half where consumer groups illustrate that the headline they chose is demonstrably false.

Most of the rest of the mainstream coverage wasn’t much better. Fox News, of course, chose to focus on the exciting new racist potential of the Carr pick, but they screwed up the sub-headline to make it sound like he actually supports diversity and inclusion initiatives:

USAToday parrots claims that Carr is “fighting for free speech,” but can’t be bothered to mention that that (1) isn’t fucking true, and (2) that his primary role will be to gut consumer protections like net neutrality. Reuters similarly can’t be bothered to mention the risk Carr poses to consumer protection. In Politico, Carr’s looming assault on telecom consumer protection warrants one sad paragraph.

I’m sure there was some selective editing at play, but several major telecom and media consumer rights folks went out of their way to help media outlets highlight how Carr is a “nice guy” (see, in order, NPR, CNN, NYT), which I’m sure will be helpful as he happily demolishes twenty-five years of consumer advocacy policy work and threatens media giants for criticizing authoritarian leadership:

If the public doesn’t sense adequate alarm from experts whose entire careers have been in consumer and media market protection, they’re not going to be alarmed. I understand the desire for some civility, but this is not an ordinary administration. These are fascists who are going to steadily disassemble the entirety of federal consumer protection and corporate oversight over drinks and giggles.

Meanwhile, yes, Carr’s mindless authoritarian animosity to “big tech” is absolutely worth discussing, as are his threats to pull the broadcast licenses of companies that criticize Trump (even though that will be no easy feat, even with a Trump-stocked court and muted FCC authority). But his primary goal at the FCC will be to be as errand boy to historically unpopular media and telecom giants, and downplaying (or ignoring) that fact does Carr and his industry buddies no shortage of favors.

Meanwhile if you thought mainstream press coverage during this last election season was feckless, authoritarian-normalizing mush, you ain’t seen nothin’ yet.

If this sounds familiar, sadly, it is.

Three years ago, the Fifth Circuit Appeals Court somehow arrived at the conclusion that tasing someone soaked in gasoline — an act of escalation that not only killed the suicidal person officers were supposed to rescuing but also burned the entire residence to the ground — was not excessive force. It was supposedly justified by the gasoline-soaked man’s threats that he would burn himself and the house down if officers kept advancing on him.

Robbing him of his life and his remaining autonomy, Arlington, Texas police officer Officer Guadrama discharged his Taser and made the man’s threats a reality. And it was still just considered to be the sort of thing cops should be doing by the Fifth Circuit court.

It went the other way here. In a California court, a federal judge has arrived at the opposite conclusion in a nearly identical incident. (via Courthouse News Service)

In this case, Paul Hall was despondent because his family refused to interact with him, apparently “fed up with him” for reasons that go unexplained. Feeling abandoned, Hall soaked himself in gasoline, sat on the floor in the middle of the house, and threatened to light himself on fire.

Officer John Gale of the Weed, California police department responded to the call. His actions, as well as those of Paul Hall, were captured by the officer’s body camera. To his credit, Officer Gale at least made some effort to defuse the situation by talking to Hall, who repeatedly reminded him he was covered in gasoline and ready to take his own life by igniting the lighter he held in one of his hands.

When that didn’t work, Gale tried to take the lighter by force by attempting to wrestle it out of Hall’s hands. When that didn’t work, Gale went back to his first tactic: yelling repeatedly for Hall to drop the lighter. This tactic didn’t work the first few dozen times, but according to the footage, Gale did this same thing more than 50 times, perhaps expecting he was due for a win.

Right before he set Hall on fire with his Taser, Officer Gale again ordered Hall to “drop the lighter” and to “put it down.” And right before his fired at Hall, Hall dropped his hands to his sides, possibly on his way to complying. But he never got a chance. That’s when Gale fired and that’s when Hall caught on fire.

Gale first insisted this wasn’t excessive force. The court says in some cases, these actions might not have been. But in this case, at best, that’s still an open question. And the reason it’s still a set of disputed facts is because the officer’s own body cam footage (arguably) contradicts his assertions. From the decision [PDF]:

Defendant Gale’s repeated assertion that Plaintiff Hall “appeared to be flicking the lighter to start” at the time Defendant Gale shot his taser is disputed by Plaintiff and arguably
contradicted by the body camera footage […] Upon review of the body camera footage, it is not undisputedly apparent to the Court that Plaintiff Hall appeared to be flicking the lighter to start. Thus, a reasonable jury could conclude, during his interactions with Defendant Gale, Plaintiff Hall did not attempt to ignite the lighter such that he posed an immediate threat that warranted intermediate force.

Then there’s the fact it appears Hall was finally attempting to comply with Gale’s demands moments before Gale decided to deploy his Taser.

Second, Plaintiff Hall alleges he complied with Defendant Gale’s commands to put down the lighter by moving his hands down by his side, including the one holding the lighter. The body camera footage confirms, shortly before Defendant Gale tased Plaintiff Hall, Plaintiff Hall had dropped both hands, including the one holding the lighter. The body camera footage also shows Defendant Gale shot Plaintiff Hall with the taser after Plaintiff Hall had dropped both of his hands. A reasonable jury could conclude any threat related to the lighter dissipated the moment Plaintiff Hall put his hands down.

That’s strike two. Strike three is the undeniable fact Hall wasn’t threatening anyone other than himself. And there’s plenty of evidence on the record that Officer Gale couldn’t have reasonably believed he was a threat to others because the officer made no attempt to remove other people from the house, didn’t even bother to bring in the fire extinguisher he had in his squad car, or hold off on taking any action until the fire department arrived. If he really thought he needed to save others from the immediate threat of a fire, he would have taken those actions. In the end, he was the one to ignite the fire that threatened others, all while claiming this was the only way to prevent the man he set on fire from harming other people.

And here’s where the decision referenced in the opening of this post comes into play. Completely ridiculously, Officer Gale cited that decision in support of his qualified immunity request despite (1) the case was handled by a different circuit, (2) the decision issued by the Fifth was non-precedential, and (most importantly) (3) had been issued two years after he set Paul Hall on fire. As any plaintiff knows and every cop defendant should know, you can’t cite something as precedent when it happens after the incidents in dispute. The clue is in the goddamn word, which requires something to precede something else to be relevant, not arrive after the fact.

Immunity is denied because even if the court were inclined to treat a non-binding decision issued two years after Officer Gale set Paul Hall on fire with his taser, the facts of the cases are different enough Officer Gale couldn’t reasonably believe non-binding non-precedent put him in the clear for deciding setting someone on fire for the crime of threatening to set themselves on fire was justified.

It’s bad enough the body cam footage contradicted the officer’s claims. It’s even worse that his lawyer thought he could get some QI for his client by time-traveling to the future (so to speak) to find cases supporting his client’s actions.

Whatever your politics, there can be no arguing that the election of Donald Trump once more to the highest office in the land has served as a permission slip for some of the worst people in the country to behave badly. We’re already seeing this in all sorts of ways, from incel fuckwits telling women that it’s “Your body, my choice, forever“, to obviously racist and antisemetic public displays, and so on. Note that I am not laying these occurrences squarely at the feet of Donald Trump as though he specifically ordered that any of this occur, but it is a simple, inconvenient fact that these assholes pulling this crap are his fans and voters. And until the man specifically decries these horrible things, he tacitly endorses them.

The same would be true of Oklahoma State Superintendent Ryan Walters’ actions. We last discussed Walters over his plans to use taxpayer money to buy 55,000 bibles for the state’s public schools. Notably, the initial ask included a very specific set of specs for these bibles, with which essentially only Trump’s perverse God Bless The U.S.A. Bible complied. After a bipartisan backlash, which Walters of course blamed on “leftists,” the spec list was changed so that more bibles would fit the bill. But if you thought that this signaled that Walters would stop treating Trump’s boots like a lollipop, you were wrong.

The most recent news is that Walters has announced that 500 bibles have already been purchased for public schools, specifically for AP courses on government. This comes with language that attempts to couch the purchase as being for historical purposes, which is absolutely absurd.

In a news release, Walters said the Bibles would be used in Advanced Placement government classrooms across the state. He said the move represented “the first in the nation Bible purchase explicitly for use in schools as an academic and literary resource,” and described the purchase as “the first step toward providing Bibles for every classroom in the state.”

“We are focused on ensuring we get Bibles available in every classroom in our state as quickly as we can,” Walters said in a news release. 

Notably absent from the announcement was any indication of how many copies of other religious texts had been purchased for schools as well. No mention of any purchases of the Qur’an, the Hadith, the Torah, the Talmud, the Vedas, the Adi Granth, the Avesta, nor even the Gospel of the Flying Spaghetti Monster. And that’s sort of a big problem when it comes to what Walters is attempting here, given the collision course he is currently on with the First Amendment. The government is to take no stance on matters of religion and forcing exactly one very specific religious text into classrooms is as naked a violation of the First Amendment as I can recall.

And Walters can attempt to portray this as necessary in order to teach the foundational history of America, but that is plainly bullshit. One does not need the full copy of a religious text, to which not all founding fathers subscribed mind you, in order to learn about the importance of religion to the history of the country. You can find evidence of its importance in the same fucking First Amendment that Walters is currently attempting to violate. That amendment’s inspiration, Jefferson’s Virginia Statute of Religious Freedom, was specifically designed to uncouple his state’s government from the Church of England, with a primary aim to protect other religions in the state, such as Catholicism and those of Jewish faith. Hell, at least some number of the founding fathers weren’t Christian at all, but rather Deists. So where the hell are the Deist texts in Oklahoma classrooms? You know, for historical purposes and such?

Conversations on the historical nature of religion in America are perfectly valid and fun, frankly, but they would also be entirely wasted calories when it comes to Walters. He’s not interested in any of this. And if you think he is, that is belied by his other demand of the public schools under his care.

State Superintendent Ryan Walters sent superintendents an email Thursday afternoon mandating districts show students a video of him announcing the new Office of Religious Liberty and Patriotism and inviting students into a prayer for President-elect Donald Trump, among other topics.

In the video, Walters says the “radical left” is attacking religious liberty in schools, patriotism is being “mocked,” and there is “a hatred for this country pushed by woke teachers’ unions.”

He invites the students to pray with him, clarifying they don’t have to join in.

“I pray for our leaders to make the right decisions,” Walters said. “I pray in particular for President Donald Trump and his team as they continue to bring about change to the country.”

Nothing like a little newspeak mixed in with a healthy dose of hypocrisy, apparently. The name of his manufactured office is negated by his own actions. This isn’t practicing religious liberty; that’s what Jefferson did. This is the state government favoring one specific religious text as the expense of every other religious text. That’s the opposite of religious freedom.

And to demand, nay, mandate what is essentially the indoctrination of school-aged children into the political opinions of one man, from one party, with not a care in the world for the 32% of voters who didn’t vote for Walters’ preferred candidate or party, is bonkers. And before we get comments about how “Wah, the left has been indoctrinating kids in schools for years,” please show me where a member of the left mandated the viewing of a video by school children that specifically negatively portrays the other political side as hating the country, or attacking religious liberty. Go ahead, I’ll wait.

All the worse is subjecting these same children to a call for prayer for a man who is quite plainly as un-Christian a person as we’ve ever had serve in the Oval Office. This is pure boot-licking behavior from a person whom everyone agrees is merely vying of a position in Trump’s government.

Republican President-elect Donald Trump is quickly filling out his incoming Cabinet, and Walters’ name has been mentioned by some national news outlets as a potential pick for education secretary or adviser.

Exactly correct. Walters is using both the real religious beliefs of those within his state and freaking children in order to advance his own political career.

Somehow, it strains the mind to imagine Christ approving of any of this. Regardless of that, all of this should be struck down as violating the Constitution.

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Elon Musk’s ExTwitter has filed an important First Amendment lawsuit against California over its unconstitutional law regulating deepfakes. This follows Musk’s earlier successful challenge to the state’s social media “transparency” law. Yes, sometimes Elon Musk actually does file good First Amendment cases that help protect free speech. I’m just as amazed as anyone, but it’s worth calling it out when he does the right thing.

It’s true of his newest lawsuit against California for yet another bogus First Amendment-ignoring law, this one having to do with deepfakes.

We similarly cheered on Elon Musk’s earlier lawsuit against California over its unconstitutional social media transparency law and were vindicated when the Ninth Circuit said the law violated the First Amendment.

The complaint filed by ExTwitter makes a compelling case that AB 2655 is unconstitutional on multiple fronts:

Like in that first lawsuit, ExTwitter has hired Floyd Abrams, one of the most well-known First Amendment lawyers out there, protesting one of California’s new anti-deepfake laws:

AB 2655 requires large online platforms like X, the platform owned by X Corp. (collectively, the “covered platforms”), to remove and alter (with a label) — and to create a reporting mechanism to facilitate the removal and alteration of — certain content about candidates for elective office, elections officials, and elected officials, of which the State of California disapproves and deems to be “materially deceptive.” It has the effect of impermissibly replacing the judgments of covered platforms about what content belongs on their platforms with the judgments of the State. And it imposes liability on the covered platforms to the extent that their judgments about content moderation are inconsistent with those imposed by the State. AB 2655 thus violates the First and Fourteenth Amendments of the United States Constitution; the free speech protections of Article I, Section 2, of the California Constitution; and the immunity provided to “interactive computer services” under Section 230 of the Communications Decency Act, 47 U.S.C. § 230(c).

Worse yet, AB 2655 creates an enforcement system that incentivizes covered platforms to err on the side of removing and/or labeling any content that presents even a close call as to whether it is “materially deceptive” and otherwise meets the statute’s requirements. This system will inevitably result in the censorship of wide swaths of valuable political speech and commentary and will limit the type of “uninhibited, robust, and wide-open” “debate on public issues” that core First Amendment protections are designed to ensure. New York Times v. Sullivan, 376 U.S. 254, 270 (1964). As the United States Supreme Court has recognized, our strong First Amendment protections for such speech are based on our nation’s “profound national commitment” to protecting such debate, even if it often “include[s] vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

The complaint is strong and presents a clear explanation of the myriad problems with this law.

AB 2655 suffers from a compendium of serious First Amendment infirmities. Primary among them is that AB 2655 imposes a system of prior restraint on speech, which is the “most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). The statute mandates the creation of a system designed to allow for expedited “take downs” of speech that the State has targeted for removal from covered platforms in advance of publication. The government is involved in every step of that system: it dictates the rules for reporting, defining, and identifying the speech targeted for removal; it authorizes state officials (including Defendants here) to bring actions seeking removal; and, through the courts, it makes the ultimate determination of what speech is permissible. Rather than allow covered platforms to make their own decisions about moderation of the content at issue here, it authorizes the government to substitute its judgment for those of the platforms.

It is difficult to imagine a statute more in conflict with core First Amendment principles. As the United States Supreme Court has held, “it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988). Even worse, AB 2655’s system of prior restraint censors speech about “public issues and debate on the qualifications of candidates,” to which the “First Amendment affords the broadest protection” to ensure the “unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995).

If challenging these deepfake laws sounds familiar, there already was one challenge to AB 2655 from a user whom California Governor Gavin Newsom directly called out as someone the law was designed to silence. In that case, two of the laws were challenged, and the court (very, very quickly) issued an injunction against the other one, AB 2839, which was set to go into effect immediately. The challenge to 2655 was put on the backburner, since it wasn’t set to go into effect until January 1st of next year.

Now ExTwitter is jumping in to challenge it as well, and hopefully it succeeds. The complaint is well done and makes good points, and I’m happy that Elon is challenging the law in this way. One hopes that perhaps the legal team representing him could do more to explain to him how the First Amendment actually works so he stops misrepresenting it in other contexts.

It’s also good to see that the complaint makes a big deal of how Section 230 protects ExTwitter from such laws, especially given how Elon’s best buddy, Donald Trump, has made noises about stripping Section 230 protections from websites.

AB 2655 directly contravenes the immunity provided to the covered platforms by 47 U.S.C. § 230(c)(1), which prohibits treating interactive computer service providers as the “publisher or speaker of any information provided by another information content provider.”

AB 2655’s Enforcement Provisions violate Section 230(c)(1) because they provide causes of action for “injunctive or other equitable relief against” the covered platform to remove or (by adding a disclaimer) alter certain content posted on the platform by its users. See §§ 20515(b), 20516. AB 2655 thus treats covered platforms “as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1).

Section 230(c)(1) bars such liability where the alleged duty violated derives from an entity’s conduct as a “publisher,” including “reviewing, editing, and deciding whether to publish or withdraw from publication third-party content.” See, e.g., Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009) (finding that Yahoo! was entitled to immunity under Section 230(c)(1) from claims concerning failure to remove offending profile), as amended (Sept. 28, 2009); Calise v. Meta Platforms, Inc., 103 F.4th 732, 744 (9th Cir. 2024) (finding that Meta was immune under Section 230(c)(1) from claims that would require Meta to “actively vet and evaluate third-party ads” in order to remove them).

The complaint also praises the Supreme Court’s good ruling in the Moody case about how social media sites have a First Amendment right to present content how they want:

Even if AB 2655 were not a prior restraint, it still violates the First Amendment because it runs counter to the United States Supreme Court’s recent decision in Moody v. NetChoice, LLC, in which the Court held, in no uncertain terms, that when a social media platform “present[s] a curated and ‘edited compilation of [third party] speech,’” that presentation “is itself protected speech.” 144 S. Ct. 2383, 2409 (2024) (quoting Hurley v. IrishAm. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 570 (1995)); see also id. at 2401 (“A private party’s collection of third-party content into a single speech product (the operators’ ‘repertoire’ of programming) is itself expressive, and intrusion into that activity must be specially justified under the First Amendment.”); id. at 2405 (quoting Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974)) (“‘The choice of material,’ the ‘decisions made [as to] content,’ the ‘treatment of public issues’ — ‘whether fair or unfair’ — all these ‘constitute the exercise of editorial control and judgment.’ . . . For a paper, and for a platform too.”). Because AB 2655 impermissibly replaces the judgments of the covered platforms about what speech may be permitted on their platforms with those of the government, it cannot be reconciled with the Supreme Court’s decision in Moody.

AB 2655 disregards numerous significant First Amendment holdings by the Supreme Court in Moody — specifically, that (i) it is not a “valid, let alone substantial” interest for a state to seek “to correct the mix of speech” that “social-media platforms present,” id. at 2407; (ii) a “State ‘cannot advance some points of view by burdening the expression of others,’” id. at 2409 (quoting Pac. Gas & Elec. Co. v. Pub. Utilities Comm’n of California, 475 U.S. 1, 20 (1986)); (iii) the “government may not, in supposed pursuit of better expressive balance, alter a private speaker’s own editorial choices about the mix of speech it wants to convey,” id. at 2403; (iv) “it is no job for government to decide what counts as the right balance of private expression — to ‘un-bias’ what it thinks biased, rather than to leave such judgments to speakers and their audiences. That principle works for social-media platforms as it does for others,” id. at 2394; and (v) “[h]owever imperfect the private marketplace of ideas,” a “worse proposal” is “the government itself deciding when speech [is] imbalanced, and then coercing speakers to provide more of some views or less of others,” id. at 2403.

Again, this seems important, given that the ruling in Moody was shooting down problematic GOP-pushed bills to force social media companies to host speech they didn’t want to host.

All in all, this is a strong complaint that is completely consistent with strong First Amendment principles. I’m glad that Elon was willing to have ExTwitter step up and bring it, even if he’s doing so for purely selfish reasons.