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You have less than a week to weigh in on Brendan Carr’s obviously bullshit retaliatory censorial attack on Disney. While it’s quite clear that Carr is likely to ignore the comments, they still very much matter. It needs to be in the public record that the public is against this attack on free speech and fundamental rights, rather than letting MAGA chuds stuff the comment box with nonsense.
Karl and I have detailed much of the history of how we got here. For many years, Carr has presented himself as a true defender of free speech and the First Amendment, but his actions made clear long ago that he only meant when Democrats were in the White House. During the first Trump administration, Trump demanded that his FCC support his plan to wreck Section 230 and enable greater censorship online. When one of the three GOP FCC commissioners — staunch Republican Mike O’Rielly — made a few tepid comments about how the FCC shouldn’t be in the business of messing with 230, Trump pulled his renomination. Carr, however, made it clear he’d be Trump’s little censorial lapdog.
He then spent the four Biden years once again pretending to care about free speech, but the second Trump was elected, Carr made it abundantly clear that if Trump made him chair of the FCC he’d be Trump’s loyal censor in chief. Since then he’s lived up to that promise and more. He’s launched a series of bogus investigations, always into perceived ideological enemies of Trump and MAGA, always pretending that he just has to do this. He held up the Ellisons’ takeover of Paramount and CBS until CBS agreed to pay Trump a bribe. And, most famously, he briefly got Jimmy Kimmel kicked off of TV for making a joke that Carr didn’t like.
His latest move, as we’ve covered, was to go after ABC’s The View for having Texas Senate candidate James Talarico on their show. It was yet another in Carr’s long line of bullshit, censorial investigations designed to intimidate broadcasters (but only those he deems too woke — if you’re MAGA, you get a total free pass) into only letting MAGA and MAGA-supportive guests on the air. This time, though, Disney fought back.
Rather than pathetically caving like CBS, Disney filed a petition for declaratory ruling that The View had done nothing wrong in having Talarico on as a guest. They even hired some big time litigators in Paul Clement and Jennifer Tatel to file the petition.
The underlying issue is the “equal time rule,” which was barely discussed for decades. But Carr has glommed onto it as his tool for attacking ABC for not being obsequious enough to Trump. The rule, which only applies to broadcast license holders, says that they have to provide equal time to competing candidates for public office. But there’s a clear exemption for a “bona fide newscast” or a “bona fide news interview.”
All the way back in 2002, the FCC made it clear that The View, and plenty of other shows like it, qualified for the “bona fide news exemption,” and it has been operating accordingly, as have many right-leaning radio and TV programs. Indeed, most local TV station affiliates (which these rules technically apply to) are owned by MAGA friendly media giants like Sinclair and Nexstar. Did Carr go after any of them? Of course not.
Instead, he manufactured a fake controversy. Most broadcaster affiliates (including Disney’s owned and operated affiliates) didn’t bother to file any paperwork regarding Talarico’s appearance because they (like everyone else) had been relying on the FCC’s granted exemption as a bona fide news interview. But Carr then got a few non-Disney owned affiliates (i.e., those owned by Trump-friendly media conglomerates) to file some paperwork in order to pretend that Disney’s owned and operated affiliates were somehow bucking the normal way of operating. As Disney noted in its filing, the whole thing was manufactured by Carr:
“The Bureau neglected to note, however, that while certain ABC affiliates documented Talarico’s appearance in their online public inspection files, the filings were made more than two weeks after Talarico’s appearance and apparently at the request of the FCC, which reportedly promised to eschew enforcement for the late filing. KTRK Television received no such request and no such offer, despite the Bureau specifically contacting it about the Talarico appearance less than 10 days after it occurred.”
With Disney filing its petition, Carr recognized he basically had to open a public comment period, even though he clearly has no intention of admitting that his entire investigation is bullshit.
But that doesn’t mean we should ignore it. As Karl noted, it’s quite likely that MAGA folks are spinning up their usual fake-comment-orama-generator, which Carr will undoubtedly use to claim there’s widespread public support for him punishing Disney.
But having comments on the record calling out how this is censorial nonsense, a massive abuse of Carr’s power, and blatantly unconstitutional still matter. The record is public, and it will be helpful to make it clear that Carr knows exactly what he’s doing and for whose benefit he’s doing this little charade. MAGA folks won’t be in charge forever, and dismantling the corrupt censorial rot represented by the likes of Brendan Carr needs to start with the basics: getting it on the record that we all know and see what he’s doing.
The first round of comments are due on June 22nd. It’s a simple form and you can just fill it out. Or if you’d prefer, write out a document, save it as a PDF, and attach it via that form as well. Just get it on the record that you don’t support Carr’s censorial retaliation campaign. There will also be a second round of comments due July 6th, but it would be nice to get more people to file in this first round and make it clear that the public knows what Carr is up to.
For what it’s worth, in any such filing, I would recommend making your arguments as clearly and compellingly as possible. I know that sometimes people just file pure angry screeds but those are less effective than a few paragraphs explaining why you don’t support Carr’s censorial campaign and asking the FCC to knock it off.
Filed Under: brendan carr, broadcast licenses, censorship, comment period, donald trump, equal time rule, fcc, intimidation, james talarico, jimmy kimmel, the view
Companies: abc, disney
If you recall, Trump FCC censor Brendan Carr recently launched numerous sham investigations of Disney/ABC because a comedian made fun of the President.
One of those sham investigations includes the bogus claim that Disney should be stripped of its eight broadcast licenses because the company is sometimes nice to women and minorities. Another involves the false claim that an ABC affiliate violated the law because an ABC affiliate broadcast an interview with Texas Democratic Senate hopeful James Talarico without filling out the appropriate paperwork.
The inquiries are complete bullshit, but that hasn’t stopped the press from helping Carr pretend otherwise. And Disney and their lawyers have had to jump through costly hoops all the same.
Like last week, when Disney filed its application for broadcast license renewal, something an attached letter notes the company did “in protest.” It’s a pretty heated retort, as far as giant corporations go:
“WABC-TV (“WABC” or the “Station”) submits this license renewal application under
protest in response to an unlawful, arbitrary, and unconstitutional Order issued on April 28, 2026, by the Media Bureau. The Commission had not demanded early renewal in over five decades. And it has never before demanded simultaneous license renewal applications from a group of stations commonly owned with a network as it has here.The Order has no legitimate purpose. There is no information that the application will reveal that the Commission could not obtain through other means. The Order is inconsistent with a legitimate exercise of investigative authority and is plainly incompatible with the First Amendment. Worse, the Order opens the door to an assault on the Station’s license, while the Commission searches for a legal pretext to achieve its desired goal. This effort to suppress speech under the guise of bureaucratic process must not prevail. WABC files this application without waiving any rights, and calls on the Commission to rescind the Order.”
Carr’s attacks on Disney are legally incoherent. But such assaults are not really designed to win in court, they’re designed to chill speech. They’re designed to send the message that if you criticize the president (whether via comedian or journalist), you’ll face all manner of costly legal headaches.
It’s a pathetic assault on the First Amendment, and while Trump early second tenure threats have had some notable successes among the country’s pathetic corporate media giants, the effectiveness will only dwindle as Trump’s polling, health, and political power wanes, leaving Carr holding an empty bag and a terrible reputation as a cowardly zealot.
Carr’s legal efforts are in particular hot water here given that, as one previous ABC filing indicated, he appears to have collaborated with right wing local broadcasters to create the illusion that ABC-owned Houston affiliate KTRK had violated the law. It’s just the sort of thing you’d hope would result in corporations thinking twice the next time they’re keen on electing censorial fascists.
Filed Under: 1st amendment, brendan carr, broadcast license, censorship, fcc, free speech, james talarico, jimmy kimmel
Companies: abc, disney
Good news if you really enjoy corporatism, autocracy, propaganda and a violently misinformed electorate!
The U.S. has fallen to sixty-fourth place (now below Ukraine) in the annual Reporters Without Borders (RSF) World Press Freedom Index. As corrupt, oligarch-coddled authoritarians the world over continue to enjoy their moment in the sun, journalism (aka the “enemy of the people”) continues to be violently disassembled by a lazy coalition of fascist ideology and corporatism.
From the latest report (see the full interactive index):
“For the first time in the history of the Reporters Without Borders (RSF) World Press Freedom Index, over half of the world’s countries now fall into the “difficult” or “very serious” categories for press freedom. In 25 years, the average score of all 180 countries and territories surveyed in the Index has never been so low.”
The study notes that in 2002, 20% of the global population lived in a country where the state of press freedom was categorized as “good.” A quarter century later, less than 1% of the world’s population lives in a country that falls under this category.
In the U.S., Trump-friendly oligarchs like Larry Ellison and Elon Musk are gobbling up the remnants of dying traditional media and newer social media platforms alike, keen on turning both into oligarch and autocrat friendly agitprop machines. All while Trump destroys whatever was left of public media, and endlessly harasses companies that platform basic journalism and comedy.
At the same time, journalism layoffs continue to be rampant at the hands of corporate media giants dead set on destroying whatever was left of media consolidation limits, public interest reporting, and even archival and journalistic history. The result is a lazy, ad-driven, badly automated engagement ouroborus where anything serving the public interest is a distant and fleeting consideration.
The better performers in the index include Norway, Finland (where they teach kids media literacy and how to identify propaganda starting at the age of three), Sweden, Denmark, and Estonia. While decidedly smaller with vast differences, such countries have strange perks like functional public media and an operational social safety net not yet hollowed out by grotesque levels of corruption.
From the study:
“In the United States (which ranks 64th out of 180 countries and territories) journalists who were already fighting against economic headwinds and dealing with a crisis of public trust—among other challenges—now also contend with President Donald Trump’s systematic weaponisation of state institutions, including funding cuts to public broadcasters such as NPR and PBS, political interference in media ownership, and politically motivated investigations targeting disfavoured journalists and media outlets.”
It can, of course, always get worse. Autocracies start by consolidating media and turning established outlets in to autocratic agitprop bullhorns, but ultimately move on to dominating or destroying whatever’s left of independent journalism through legal harassment and ultimately murder.
There are paths out from under this, but it requires a lot of coordinated efforts the U.S. has historically had an allergy to. Including restoring antitrust reform and imposing not just consolidation limits but diversity ownership requirements. It would also help to drive creative new funding models for journalism, dramatically reshape media literacy policy, and aggressively support real publicly-funded media freed from corporate influence, historically a close ally to maintaining a functioning democracy.
Filed Under: consolidation, free press, free speech, global press freedom, journalism, media, press, propaganda, reporting
Companies: reporters without borders
Shortly before the Supreme Court inflicted enormous damage on the Voting Rights Act, the Reconstruction Amendments of the Constitution, any pretense of constitutionally guaranteed Equal Protection, the civil rights movement, its credibility, and our democracy writ large with its Alito-penned decision in Louisiana v. Callais, it released a separate decision in First Women’s Choice Resource Centers v. Davenport.
In terms of overall substance, this latter case was one where an anti-choice plaintiff got a win, which perhaps is why there was little trouble in the Court reaching a unanimous result in its favor. But it is just a procedural win, allowing its case to go forward, rather than a judicial validation of its actual viewpoint. (“This case presents a narrow question. We are not asked to decide the merits of First Choice’s federal lawsuit, only whether it may proceed.” [p. 5]). And, more importantly, it is a strong First Amendment win, with language that will be useful in later cases, including ones where more liberal positions have been impacted by government overreach. (“We have recognized […] that associational rights carry
special significance for political, social, religious, and other minorities. With the freedom to associate, minorities can ‘show their numerical strength,’ influence policy, and ‘stimulate competition’ in the marketplace of ideas. But take that freedom away and ‘dissident expression’ stands particularly vulnerable to marginalization or outright ‘suppression by the majority,’ leaving all of society poorer for it.” [p. 7]). And it will be useful in cases in federal and state courts all over the country, where it is binding precedent, and not just at the Supreme Court, which can blow with the wind depending on whose case is before it.
In other words, it is a decision that is likely to matter, and in a way that is good news for the First Amendment and the rights it protects, particularly with respect to associative freedom, the anonymity such expressive relationships depend on, and the standing needed to be able to challenge government intrusions on either, including by way of subpoenas.
In this case the plaintiff, First Women’s Choice Resource Centers, Inc., is what is sometimes referred to as a crisis pregnancy center. Despite the plaintiff’s name invoking “choice” such places are not about informing pregnant women about the full range of choices available to them. They instead steer them towards avenues that do not include the medical care needed to potentially terminate their pregnancy. The issue however is not that those running these centers don’t wish to support abortion but that they may be deceptively ensnaring vulnerable women who think they are getting more comprehensive advice about their choices than the limited information these centers offer, which has led some states, like New Jersey, to investigate whether they are indeed duping people.
But in this case New Jersey—the defendant in this case—as part of its investigation tried to subpoena the plaintiff for names of its donors (“Effectively, that demand required First Choice to provide personal information about donors who gave through two other websites, through the group’s various social media pages, by mail, in person, or by any other means.” [p. 2-3]). The stated rationale for seeking this data was to ensure that no donor had similarly been deceived as to the services the plaintiff delivered. [p. 3]. The plaintiff’s attempt to avoid the subpoena led to litigation in both state and federal courts, with the state seeking to enforce the subpoena in the former and the plaintiff bringing a civil rights lawsuit in the latter, alleging that the subpoena violated its First Amendment rights.
A federal law—42 U. S. C. §1983—authorizes suits against any person who, under color of state law, deprives another of his federal constitutional rights. First Choice filed a complaint under that statute, arguing, among other things, that the Attorney General’s demand for information about its donors violated its First Amendment rights. Specifically, First Choice observed that the First Amendment “prohibits the government from discouraging people from associating with others” “in pursuit of many political, social, economic, educational, religious, and cultural ends.” And, First Choice alleged, the Attorney General’s subpoena had just that impermissible effect. For its donors, the group represented, “anonymity is of paramount importance,” and its inability to guarantee that anonymity in the face of the Attorney General’s demands injured the group by discouraging donors from associating with it. [p. 3-4]
The federal district court dismissed the suit, largely on the grounds that because the state litigation had not yet resulted in the subpoena being enforced the plaintiff hadn’t suffered an injury it could sue over, [p. 4-5], and the Third Circuit upheld the dismissal. [p. 5]. With this decision, however, the Supreme Court has now allowed the federal lawsuit to go forward, finding that the plaintiff indeed has the standing to challenge how the subpoena affects its First Amendment rights.
“Standing” has to do with whether a party is eligible to bring a certain lawsuit. Courts can only hear legitimate “cases and controversies,” [p. 5], and standing helps ensure that the litigation put before it meets that criteria by ensuring that the parties bringing it are entitled to. [p. 5-6]. They are only entitled to if they have an “injury in fact,” caused by the defendant, and the litigation is capable of redressing it. [p.5].
This case focused on whether the injury-in-fact element was satisfied. [p. 6]. It can only be satisfied when the litigation involves “an injury that is concrete, particularized, and actual or imminent.” [p. 6]. And here the Court found that there was such an “actual and ongoing” injury, caused by the subpoena itself. [p. 6]. In fact, even though the state litigation had not yet resulted in the subpoena being enforced made no difference; it was the very existence of the subpoena that was so chilling to the plaintiff’s First Amendment rights. (“Even if a subpoena targeting First Amendment activity is never enforced in court, [it] will give its targets a very good reason to clam up [and] give the target organization’s members and supporters a very good reason to abandon the cause.” [p. 12]).
The reason is that the plaintiff is allowed to hold its anti-abortion views. And others who share those views are allowed to associate with the plaintiff, including by giving it support. But if those others had to fear the government showing up at their door to discuss their views, they would be reluctant to continue their association with the plaintiff. And that reluctance would result in harm to the plaintiff, now unable to associate with others as freely as they should have been able to and would have been able to if the subpoena had not given rise to the fear that their donors’ identities would be discoverable by the government.
Finally, consider First Choice’s two unrebutted declarations. In the first, several donors represented that “[e]ach of us would have been less likely to donate to First Choice if we had known information about the donation might be disclosed” to the Attorney General. The donors added that they submitted their declaration anonymously because they feared what they called the Attorney General’s “record of hostility toward pro-life groups.” I the second declaration, First Choice’s executive director stated that the Attorney General’s demand threatened to “weaken [the group’s] ability to recruit new donors . . . as prospective partners would be hesitant to risk the revelation of their personal information through government investigation.” All this is more than enough to establish injury in fact under our precedents. An injury in fact does not arise only when a defendant causes a tangible harm to a plaintiff, like a physical injury or monetary loss. It can also arise when a defendant burdens a plaintiff ’s constitutional rights. […] All this occurs not just when a demand is enforced, but when it is made and for as long as it remains outstanding. [p. 11-12]
As the Court reminded, associative freedom is protected by the First Amendment.
The First Amendment guarantees all Americans the rights to speak, worship, publish, assemble, and petition their government freely. Each of these rights, this Court has “‘long understood,’” necessarily carries with it “‘a corresponding right to associate with others.’” […] Appreciating all this, we have held that government actions tending to “curtai[l] the freedom to associate” warrant “the closest scrutiny” under the First Amendment. […] We have also held that “compelled disclosure of affiliation with groups engaged in advocacy” can “constitute a[n] effective . . . restraint on freedom of association.” [p. 6-7]
As is the anonymity that expression, including associative expression, often requires.
[In NAACP v. Alabama we observed] the “vital relationship” between “privacy in one’s associations” and the “freedom to associate.” Strip away the ability of individuals to work together free from governmental oversight and intrusion, and the freedom to associate may become no freedom at all—individuals deterred, groups diminished, and their protected advocacy suppressed. [p. 8]
[…]
Since NAACP v. Alabama, we have faced many cases along similar lines. In them, one state authority or another has demanded private donor or member information. And in one case after another we have subjected those demands to heightened First Amendment scrutiny. Throughout, we have emphasized the critical role “‘privacy in . . . associatio[n]’” plays “‘in preserving political and cultural diversity and in shielding dissident expression from suppression.’” We have acknowledged, too, that demands for private donor information “inevitabl[y]” carry with them a “deterrent effect on the exercise of First Amendment rights.” [p. 9]
Yet here was a subpoena now threatening both.
Each of these strands tightens the braid into one conclusion. From its allegations and declarations, and given our many and longstanding precedents in the area and reasonable inferences about third party behavior, First Choice has established that the Attorney General’s demand for private donor information injures the group’s First Amendment associational rights. [p. 13]
It is conceivably possible that on remand the lower courts might find the rationale behind the subpoena “’sufficient to justify the deterrent effect’ associated with the disclosure demand, [p. 8], and narrowly-tailored enough, [p. 10], such that there was in fact no actual intrusion on the plaintiff’s First Amendment rights stemming from its issuance. This decision by the Supreme Court does not resolve the question; it only determined that the question could be brought before the courts. But the same analysis that allowed the Supreme Court to identify a likely constitutional injury, enough for the plaintiff to be able to bring the case before the courts to seek a remedy, may yet be employed to find there indeed was an injury that requires redressing—here, by quashing the subpoena.
But regardless of what ultimately happens to the plaintiff’s case, this decision by the Supreme Court has broader implications. First, it doubles-down on prior precedent protecting freedom of association and the anonymity it depends on, and second—and perhaps more practically—it directly ties these First Amendment interests to the discovery instruments propounded by government actors, often too casually, seeking to unmask people. It makes clear that the intermediaries receiving these unmasking demands have their own cognizable First Amendment rights in being able to preserve the anonymity of those who associate with them, with the standing to challenge when those rights are trampled. And although this case addressed organizations and their donors, it is but a small analytical step to apply the same or similar reasoning to Internet platforms seeking to protect the identities of their users from seeking to unmask anonymous speakers, especially in concert with McIntyre v. Ohio Elections Commission, regarding the First Amendment protection for anonymous speech, and Moody v. NetChoice, regarding the First Amendment’s protection of platforms’ editorial and associative discretion. Per this decision, those unmasking attempts can amount to a constitutional injury to the platforms themselves, which they now have compelling new precedent to use to fight them.
Filed Under: 1st amendment, anonymity, anonymous donors, associational rights, crisis pregnancy centers, donors, free speech, supreme court
Companies: first women's choice resource centers
Brendan Carr’s FCC claims to be moving forward their their plan to “review ABC’s broadcast licenses” because Jimmy Kimmel made a joke about the president’s wife. And it’s every bit as dumb and legally baseless as you might expect.
Carr has sent a letter to ABC/Disney saying he’s accelerating the review of their existing broadcast licenses. It’s very clearly because the Trump administration wants to annoy, harass, and pressure ABC into firing Kimmel. But since that’s a direct assault on the First Amendment, they’re trying to do an end around and pretend that the review is because ABC is “violating DEI requirements.”
Carr’s underlying legal argument is genuinely and profoundly stupid. He’s claiming that ABC’s ordinary, modest, and inconsistent corporate diversity practices are racist against white men, and therefore violate the already fairly thin anti-discrimination components of the Communications Act.
It’s absolute fucking gibberish. But you’ll notice that most outlets, including this piece from CNBC, try to make the effort sound like sensible policy being conducted by reasonable adults:
“The letter orders the company to file for early renewal for ABC-owned television stations and notes the action is related to an investigation into Disney’s DEI efforts, which began last year.
Disney confirmed on Tuesday that it received the FCC’s order initiating an accelerated review of its licenses. The FCC said in the letter that Disney now has 30 days — or until May 28 — to file for the renewals.”
As we noted previously, ABC only actually owns about eight licenses to begin with. Most ABC broadcast licenses (230 or so) are actually owned by right-wing friendly local broadcasters already loyal to the president. We’ve noted how these stations routinely air right wing agitprop, and have been rewarded by Trump and Carr with a series of merger approvals that violate existing media consolidation limits.
The actual process of yanking a broadcast license is also a complicated, difficult, and extremely time consuming affair. Were Carr to actually do this (beyond sending Disney a stern letter to put on a show for the press), you’re talking about potentially years of legal wrangling. A fight Carr would very likely lose, because, again, his entire underpinning argument is baseless and stupid.
Carr doesn’t actually want a legal showdown with deep-pocketed Disney over this turd of a case. They’re just hoping to make life so costly and annoying for ABC/Disney that the company not only fires Kimmel, but thinks twice about supporting any journalist, satirist, or comedian who dares challenge the administration. It’s also a message to other networks that host voices critical of the unpopular president.
This is, if the pathetic U.S. press coverage of this FCC inquiry is any indication, already having an effect. A good chunk of the news reports on this inquiry (see: this Semafor piece) can’t be bothered to be honest about the pathetic, baseless nature of this censorship effort. Many outlets seem dedicated to helping Trump and Carr pretend this is any sort of above-board review. They’re enablers.
Anna Gomez, the FCC’s lone Democratic official (because Republicans refuse to fill the other seat), correctly notes that this whole dumb First Amendment violating gambit will fail:
“This is the most egregious action this FCC has taken in violation of the First
Amendment to date. As part of its ongoing campaign of censorship and control, the
White House called publicly for the silencing of a vocal critic, and this FCC has now
answered that call. This is an unprecedented and politically motivated attempt to
interfere with how broadcasters operate, and this unlawful overreach will fail.”
You know it’s bad when even Ted Cruz is blasting your baseless censorship campaign as stupid:
“It is not government’s job to censor speech, and I do not believe the FCC should operate as the speech police.”
You might recall that the last time Disney capitulated to these dim fascists (temporarily suspending Kimmel because he made some jokes about the deceased right wing social media propagandist Charlie Kirk), it resulted in the company losing millions of streaming video customers and amusement park attendees. Hopefully Disney execs learned their lesson from that experience.
The problem for Trump is that as his health, influence, popularity, and political power wane, he and Carr’s threats will carry less and less weight, even among feckless corporations. They’re just weak men afraid of words, ideas, and comedy, desperately trying to pretend that they have power to permanently stifle jokes. It’s foundationally pathetic and embarrassing, something press coverage should make very clear.
Filed Under: 1st amendment, brendan carr, broadcast, broadcast licenses, censorship, comedy, dei, fcc, free speech, jimmy kimmel, licenses
Companies: abc, disney
James Comey is not exactly someone we’ve ever been a fan of on Techdirt. He was a terrible FBI director in so many ways. We’ve spent years criticizing the man — for his crusade against encryption, his supporting the FBI’s ridiculously aggressive impersonation of reporters, his embrace of the FBI’s program to coerce and entrap people down on their luck into fake terrorist plots, and much more. And, while the impact has been exaggerated, it is true that he took multiple actions violating DOJ procedures that likely helped get Donald Trump elected in 2016. So it’s not like I’m rushing to support the guy. He’s a bad cop and has been for some time.
But the indictment the Department of Justice handed down against James Comey on Tuesday is a truly embarrassing legal document, and everyone involved in producing it should be professionally radioactive for the rest of their careers. I would have said it’s one of the most embarrassing legal documents that this DOJ has produced, but remember, just a day earlier they filed a legal brief that was indistinguishable from a Truth Social post.
The charge, in its entirety, concerns this Instagram post from May 2025:
If you can’t see that, it’s an Instagram post from Comey showing some shells on some sand with the shells spelling out 8647 and the caption on the post saying:
Cool shell formation on my beach walk
For this — for posting a photo of arranged seashells in a slightly sassy pattern and posting it to Instagram — Comey has been charged with two federal felonies: threatening the President under 18 U.S.C. § 871, and transmitting a threat in interstate commerce under 18 U.S.C. § 875(c). (For what it’s worth Comey has claimed he didn’t arrange the sea shells, but just found them. It’s unclear if that makes much of a difference, it’s protected speech either way).
Ken “Popehat” White, who has perhaps done more than any other lawyer in America to explain First Amendment doctrine to laypeople, didn’t mince words about what this is:
The charge is preposterous and no competent or honest prosecutor would bring it. It represents a betrayal of the professional and ethical obligations of every U.S. Department of Justice attorney involved, and reflects the complete collapse of the Department’s credibility and independence in favor of a cultish and cretinous devotion to Donald Trump.
He’s right, and the way to understand just how right he is requires understanding the path that brought us here.
Because this is the second time the Trump DOJ has tried to indict Comey. The first attempt collapsed in spectacular fashion last year, after Trump — in what was apparently supposed to be a private direct message but accidentally went out as a public Truth Social post — demanded that Pam Bondi install Lindsey Halligan, a former insurance lawyer with no relevant experience, as a U.S. Attorney specifically because she had promised to indict Comey. The problem: Halligan wasn’t legally appointed. The entire indictment got tossed before the court could dismiss it for being ridiculous (which would have happened) because the person who filed it wasn’t allowed to file it.
As we noted at the time, this pattern of procedural self-sabotage is a recurring feature of an administration that treats legal procedure as an inconvenience rather than the actual point of having a justice system.
So how did the DOJ respond to that humiliation? By coming back with something substantively even worse. In theory, they tried fixing the “wrong person filed it” problem by having an actually legally appointed person file something… even if that something has no legal basis whatsoever. Progress! Sort of?
The seashell indictment was filed by W. Ellis Boyle, the U.S. Attorney for the Eastern District of North Carolina, with Assistant U.S. Attorney Matthew R. Petracca listed as the prosecuting attorney. Remember those names. They put their signatures on this. Boyle is listed as the U.S. Attorney for the Eastern District of North Carolina, but he’s serving in an acting capacity — Trump has nominated him multiple times, yet the Senate has still refused to confirm him.
The legal problem with the indictment is pretty easy to spot: to convict someone under either of the threat statutes the DOJ is invoking, the government has to prove the communication constituted a “true threat.” Under controlling Fourth Circuit precedent (this case is in North Carolina), a true threat is something “an ordinary, reasonable recipient who is familiar with the context in which the statement is made would interpret as a serious expression of an intent to do harm.”
As Ken White noted, the Supreme Court established this framework in Watts v. United States, a 1969 case involving an 18-year-old draft protester who said:
They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.
The Court found this was protected political hyperbole, not a true threat. An explicit statement about wanting a President in your rifle sights — protected.
If Watts isn’t damning enough, there’s United States v. Bagdasarian, a much more recent Ninth Circuit case where a man posted online statements about wanting to shoot then-candidate Barack Obama, including some genuinely vile racially explicit language about hoping Obama would be killed. The court held that even that did not constitute a true threat under the relevant statutes.
I’d be curious to hear from anyone defending this indictment whether they think Bagdasarian was wrongly decided. Or do we change the “true threat” standard when the target is Trump?
So the descending ladder of seriousness looks like this:
Any first-year law student who’s taken a basic First Amendment course could tell you the seashell post is constitutionally protected. Any prosecutor with five minutes of research time would know that Bagdasarian and Watts exist. But, of course, as we’ve seen over and over and over again in the Trump era, the point is not to bring a good case or a winnable case. The point is just to punish Trump’s enemies with vexatious, vindictive prosecutions in hopes of creating a chilling effect among the populace and stopping them from criticizing the President with the thinnest skin possible.
Now, “86” has had various meanings over the years — to “86” something in restaurant slang means to remove it from the menu or get rid of it. The DOJ’s theory is apparently that when used about a person, it means to kill them. No one else believes that. This is the kind of motivated reading that requires ignoring both the dictionary and how actual humans use language.
But fine, let’s grant the absolute most uncharitable reading and say “86 47” means “get rid of the 47th President through killing.” Even granting that — even doing all the work for the prosecution — it’s still obviously protected political expression, and still obviously not a true threat under the controlling case law.
Which brings us to the part that genuinely cannot be explained by anything other than pure vindictiveness. Here is a tweet from Jack Posobiec, a prominent Trump loyalist/conspiracy theorist, posted in January 2022:
That tweet is still up. I just made that screenshot minutes ago. As of this writing, it has been online for nearly four years. No FBI investigation. No federal indictment. No felony counts. Literally no one thought that was an actual threat. Because it’s not. Apparently the DOJ’s theory of criminal threats has a loyalty-based expiration date — the same numerical expression is a felony when arranged in shells by a Trump critic and a perfectly fine tweet when posted by a Trump supporter about a different President.
Indeed, the fact that Posobiec seems to have no issue keeping this tweet up is itself a sign that the MAGA world knows it’s engaged in purely theatrical vindictive prosecution — and wants you to know they know. To them, once again, nothing here is about justice or the rule of law. It’s just “will this make the people I dislike upset.” That is their only motivating factor.
The DOJ has baked the selective prosecution argument directly into its own theory of the case. Comey’s lawyers will surely refresh the selective prosecution motion they filed in the first, dismissed indictment, and the facial absurdity of this one — combined with the existence of identical, ignored expression by Trump allies — makes that motion approximately as easy to support as such motions ever get.
There’s a specific kind of institutional rot in play here, driven entirely by Donald Trump and his minions. Competent authoritarianism is dangerous in obvious ways. Incompetent authoritarianism that keeps trying anyway is dangerous in different ways: it normalizes the use of state power for personal vengeance while demonstrating that the people wielding it will stop at nothing — even on the most facially ridiculous grounds. That’s a chilling effect doubled: a politicized DOJ, staffed by people who can’t pass a First Amendment quiz.
White is right that the indictment is unlikely to survive. Comey’s attorneys can challenge it on its face, arguing that even taking every allegation as true, seashells spelling “86 47” are protected by the First Amendment as a matter of law. The assigned judge was appointed by a Republican but is reportedly not a partisan hack, and the case law here is so clear that it would take extreme judicial bad faith to let this proceed. The selective prosecution motion is also stronger now than it was the first time, with Posobiec’s untouched tweet sitting there as Exhibit A.
But as White notes, surviving the motion to dismiss isn’t actually the point:
The point of the indictment is to demonstrate that the United States Department of Justice is wholly an instrument of Donald Trump’s senescent pique, no more independent of him than a boil on his ass. The point is to show that the administration can, and will, use the Department’s mechanisms to punish enemies. The point is to show that the Department can, and will, punish protected speech. The point is to show that the Department is staffed by committed fanatics willing to do anything, however unethical and unconstitutional, to promote Trump.
The point is to show that in the war between Donald Trump and the U.S. Department of Justice, Trump has won. Now they’re on the field slitting the throats of the wounded and looting bodies.
W. Ellis Boyle and Matthew R. Petracca put their names on this indictment. They will, presumably, lose this case the way the previous Comey case was lost — embarrassingly, on grounds that any competent attorney not engaged in cult-like performative fealty to a wannabe authoritarian could have anticipated. And when this is all over, when there is some accounting for what was done to the Department of Justice in these years, the people who signed the seashell indictment should never be trusted with prosecutorial power, a bar membership, or any position requiring professional judgment ever again.
The shells, for what it’s worth, were on a beach. The tide has presumably long since rearranged them. The Instagram post was taken down fairly quickly when the MAGA world lost their minds over it. The federal felony charges, somehow, remain.
Filed Under: 1st amendment, donald trump, ellis boyle, free speech, jack posobiec, james comey, matthew petracca, true threats, vindictive prosecution
Anonymous insiders tell the access journalists at Semafor that Trump FCC boss Brendan Carr is cooking up a “review” of ABC broadcast licenses after Jimmy Kimmel once again made the President sad.
The FCC clearly leaked word of the inquiry to Semafor in the hopes that Semafor would present it as a serious, big boy sort of inquiry. And Semafor was happy to oblige, with a six paragraph story that can’t bother to mention that the Trump administration has serious credibility issues, ABC doesn’t really have many broadcast licenses, and that none of this is legally supportable:
“The Federal Communications Commission is moving toward a review of Disney’s broadcast licenses, according to people familiar with the matter, a maneuver that would up the pressure on the ABC owner as it faces fierce scrutiny from the administration — again — over a late night monologue.”
We’ve mentioned time and time again that most of these national media giants don’t personally own all that many broadcast licenses to review. Those are generally under the domain of local broadcast affiliates, most of which are increasingly being consolidated in the hands of right wing rich men who already gushingly support the administration (see: NexStar, Tegna, Sinclair).
The licenses ABC does have are limited and not up for renewal anytime soon. There’s eight in total, and while the FCC claims they can just accelerate renewal review, that’s not how any of this works. Stripping them away isn’t quick, or easy. It never really happens. Anna Gomez, the FCC’s lone commissioner (because Republicans refuse to seat any more), made it very clear the purported reviews are illegal:
“This is unprecedented, unlawful, and going nowhere. This political stunt won’t stick,” Gomez said. “Companies should challenge it head-on. The First Amendment is on their side.”
If you recall, when one activist media reform group suggested pulling a single Philly Fox News affiliate license for lying repeatedly about election conspiracy theories back in 2023, Carr (and the GOP generally) responded with pure revulsion. These folks are not… ideologically consistent. They’re not even logical.
The threat against “ABC’s broadcast licenses” (because a comedian told a joke) is obvious an illegal assault on the First Amendment (something Semafor can’t bother to make clear). But more generally, it’s designed as an ambiguous threat of costly legal headaches and annoyance if ABC executives don’t help the administration silence voices (journalists or comedians) critical of our unpopular president.
Obviously the last time Brendan Carr illegally abused FCC authority to try and censor Kimmel, it didn’t go well for Brendan Carr (something else Semafor doesn’t mention). Given the mass cancellations to their streaming services, Disney’s decision to temporarily suspend Kimmel didn’t go well for them either (something else Semafor doesn’t think is worth mentioning).
Fighting the deep-pocketed Disney corporation on obvious shaky First Amendment grounds is not something Brendan Carr actually wants. What he wants is for pathetic, feckless executives to pre-emptively bend and quiver at his very serious threats as a very serious big man. But as Trump’s power and health wanes, that’s going to happen less and less, putting Brendan Carr in a sad little box.
Carr’s options as a dutiful little authoritarian lapdog are limited, so he’s increasingly trying to pretend he’s got more leverage and legal authority than he actually does. In addition to vague anonymous threats of broadcast license “inquiries,” he’s also recently leaked word he’s “investigating” Kimmel for his political donations, another hollow effort that’s destined to go nowhere.
Ironically Semafor’s toothless coverage of this is precisely the sort of lazy, pseudo-journalistic cack the administration likes. Fluff that normalizes, elevates, and validates the empty rants and illegal, incoherent acts of unpopular and lame autocrats, but can’t be bothered to mention to readers that the king is not wearing any pants.
Filed Under: 1st amendment, anna gomez, brendan carr, broadcast licenses, censorship, donald trump, fascism, free speech, jimmey kimmel, media
Companies: abc, disney
Apparently we’ve reached the stage of the second Trump presidency when we’re doing reruns of the old hits. As you’ll recall, Donald Trump has been desperate to get late-night TV host and comedian Jimmy Kimmel fired for quite some time. While Trump has long complained about any late night comedian making fun of him, he really has gone after Kimmel in particular. Things went into overdrive last fall when America’s top censor, FCC chair Brendan Carr, threatened an investigation if Disney didn’t punish Kimmel for a joke. Disney initially caved, before millions started canceling their subscriptions, leading to a backtracking.
But, since then, both Trump and Carr have continued to look for opportunities to get Kimmel fired for his speech.
In any normal world this would be a huge five alarm fire as an attack on the First Amendment. The president and his minions keep trying to get a comedian fired for his jokes because they are critical of the president. That’s not how any of this is supposed to work. But because Trump does it so often, almost everyone seems to just shrug and move on.
And now Trump is at it again. Both Donald and Melania went on social media to whine about Kimmel mocking Trump again — and to demand he be fired again. Because he told a pretty standard joke about Donald Trump being old.
While the White House Correspondents Dinner this past weekend was shut down after someone tried (and failed) to rush past security with a couple of guns (you know, the kind that Trump and the Republicans have made sure it’s easy for anyone to purchase), even before that the Correspondents Association knew better than to hire the usual comedian to entertain the journalistic elite in the room, preferring instead to hire a magician/mentalist.
Kimmel decided last week, on his show, to present an alternative — effectively what his own White House Correspondents Dinner roast would have been. It’s a pretty typical WHCD comic routine, interspersed with “audience reaction” shots spliced in from other events. You can watch it here:
One joke in it referred to Melania Trump, pretending that she was present (like she would be at the actual dinner) and saying: “Mrs. Trump, you have a glow like an expectant widow.”
Anyone not desperate to exploit a situation for political gain would hear that joke and recognize immediately that it’s about the fact that the president is decades older than his third wife, and that his health does not appear to be that great (in multiple ways).
But, because no big news story can go unexploited by the Trumps for personal and political gain, they’re pretending that this mid-level joke, combined with the failed security breach by a lone nut, somehow… demands the firing of Jimmy Kimmel all over again..
In his social media post Monday afternoon, Mr. Trump described the comedian’s joke as “really shocking” and “something far beyond the pale.” He ended his post: “Jimmy Kimmel should be immediately fired by Disney and ABC.”
The first lady had posted about Mr. Kimmel a few hours earlier.
“His monologue about my family isn’t comedy,” she wrote. “His words are corrosive and deepens the political sickness within America.” She called Mr. Kimmel “a coward” who “shouldn’t have the opportunity to enter our homes each evening to spread hate.” She said he “hides behind ABC because he knows the network will keep running cover to protect him.”
“Enough is enough,” she wrote. “It is time for ABC to take a stand.”
Oh come on.
This theatrical pearl-clutching over a joke is pathetic and ridiculous on almost every level. First, Kimmel was making an obvious joke about the age difference and the obvious decline in health of the president. It had nothing to do with political violence. Second, claiming that this joke has anything to do with the attempt at violence makes no sense. Kimmel’s joke about the age difference between the Trumps was made two days prior to the scheduled WHCD. The comments above act as though they’re somehow associated with the lone nut’s failed assassination attempt, but unless time works backwards that makes no sense.
Third, if we’re going to talk about “corrosive” dialogue that “deepens the political sickness within America,” the only one to talk about is President Trump, who can barely go a day without issuing corrosive attacks on anyone who criticizes him… or just anyone who is a non-white, non-male who doesn’t praise him.
Fourth, Trump has had it in for Kimmel for years, so of course he’d jump on this excuse to attack him again and demand he be fired — even though the last attempt not only failed badly, but made millions more people aware of Trump’s insecure lashing out at comedians.
Finally, Trump and his MAGA cultists keep pretending that they’re all about free speech, when he is actually (by far) the most censorial president of our lifetime. And here he is demanding someone be fired (not for the first time) over a simple joke. That is authoritarian, censorial bullshit.
Yet, we hear nothing from the folks who spent years insisting that when the Biden admin sent emails to Facebook asking them how they were going to handle health misinformation, that was the greatest attack on free speech in history. Those same people are still making things up about the Biden administration… and have nothing to say about yet another actual attack on free speech. We don’t need to review this all over again, but some Biden officials sent weak emails asking Facebook and Twitter to improve their policies on disinformation, which were mostly ignored. As the Supreme Court said clearly in the Murthy ruling, there was no evidence presented of any actual coercion by the government, which meant the plaintiffs had no standing to bring the case (there needs to be an actual case or controversy, and they could present none).
Meanwhile, between Trump and Carr, we see clear, detailed attempts by the administration to punish a comedian and the company he works for speech that is critical of the president. It’s about as big an attack on the First Amendment as we’ve seen from a President in decades.
Kimmel, for his part, mentioned the latest verbal attacks and attempt to get himself fired on his monologue Monday night, seemingly taking it in stride, but having the President of the United States repeatedly target a comedian for making jokes about him is about as far from a free speech presidency as you can get.
Filed Under: 1st amendment, donald trump, free speech, jimmy kimmel, jokes, melania trump, whcd
Companies: disney
In June 2025, the Fifth Circuit Appeals Court upheld what would seem to have been an extremely obvious conclusion reached by the federal court handling the case: yes, it definitely violates the Constitution to mandate the posting of a religious text in every classroom in Louisiana. This wasn’t about displaying an assortment of “foundational texts” as its defenders (disingenuously) claimed: It was about pushing their preferred religion on students by any means possible.
Last June, the Fifth Circuit exposed the hypocrisy of the mandate while upholding the lower court’s injunction blocking its enactment:
It is also unclear how H.B. 71 ensures that students in Louisiana public schools “understand and appreciate the foundational documents of [its] state and national government” when it makes displaying those “foundational” documents optional, and does not require that they also be printed in a large, easily readable font. La. R.S. § 17:2124(A)(9). When the Ten Commandments must be posted prominently and legibly, while the other “contextual” materials need not be visible at all, the disparity lays bare the pretext.
If only that had been the end of the story. Presumably, enough Fifth Circuit judges preferred to reach a different conclusion that the appellate court decided to take another look at it using its full slate of judges. Since this is the Fifth Circuit we’re talking about, you already know how that turned out.
This time, the majority pretended it was simply impossible to tell if this Louisiana law actually violated the Constitution. The only way to be sure was to let the state enact it first and allow the courts to deal with any rights violations after they’ve occurred. The injunction was lifted, with the majority claiming Supreme Court precedent (that hasn’t actually been overturned by the Supreme Court) is no longer valid when it comes to discussing possible Establishment Clause violations.
That same argument — that the three-prong test created by the Supreme Court in 1971’s Lemon v. Kurtzman, which dealt with another set of church/state separation issues. This is the test:
While a handful of judges (you can guess which ones) have opined that the “Lemon test” is dead, having been “abrogated” by more recent decisions, the Supreme Court has never issued a ruling overturning it. In fact, elements of the test were still being applied more than 30 years later.
Nonetheless, the Fifth Circuit — as it did earlier this year during its en banc review of the Louisiana law — says Lemon is dead [PDF] and, therefore, pretty much any law requiring the posting of the Ten Commandments in classrooms doesn’t violate the Constitution.
We conclude the Texas law does not violate either the Establishment Clause or the Free Exercise Clause. Here is a summary of our reasons.
First, the Establishment Clause. Plaintiffs primarily claim we are bound by Stone v. Graham, 449 U.S. 39 (1980) (per curiam), which invalidated a similar Kentucky law decades ago. We disagree. Stone applied an analysis—the “Lemon test”—which confounded courts for decades. See Lemon v. Kurtzman, 403 U.S. 602 (1971). Mercifully, the Supreme Court jettisoned Lemon and its offspring some years ago. See Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 534 (2022) (recognizing the Court has “abandoned Lemon”). With Lemon extracted, there is nothing left of Stone.
After deciding Lemon (and Stone) no longer applies, the majority moves on to say even if it did, there would be no constitutional violation because:
No child is made to recite the Commandments, believe them, or affirm their divine origin…
While it is true that the law makes no demands of teachers or students to do anything more than be in the same room as a Ten Commandments poster that “must be visible” to all students from up to 16 feet away, it’s quite obvious that this law is crafted to sneak a bit of the state’s preferred religion (at least in terms of those writing, supporting, and defending this law) past the protections of the Constitution.
It’s obvious from the statements they made while pushing this bill through the legislature. And it’s just as obvious now that the law has been given a free pass by the Fifth Circuit Appeals Court.
Texas Attorney General Ken Paxton, a Republican, called the ruling “a major victory for Texas and our moral values.”
“The Ten Commandments have had a profound impact on our nation, and it’s important that students learn from them every single day,” he said.
Pretty bold to use the royal “our” to mandate a specific set of moral values be posted prominently in taxpayer-funded public schools. It’s even bolder when it directly contradicts the desires of prominent members of this particular religious community — something that was pointed out by the dissenting judges in Fifth Circuit’s ruling on the Louisiana Ten Commandments law:
Indeed, every faith-based organization before us—on behalf of thousands of members—and every clergy and devout plaintiff agree that Louisiana must not pick and post specific scripture that the state commands will confront children in state classrooms. All religious voices submitted to us, barring one individual, oppose Louisiana’s attempt to select, inculcate, and enforce this version of gospel text in compulsory public education.
The people with power are pushing religion on kids against the wishes of the clergy and “devout plaintiffs.”
There’s a dissent attached to this ruling as well. This one tackles the Fifth Circuit majority’s decision to rely twice on its presumption that Lemon is dead law to hand Bible-thumping legislators wins in two states:
In Van Orden, despite applying a historical approach instead of Lemon, the plurality cited Stone as a “limit[] to the display of religious messages or symbols” and “an example” of the Court’s “vigilan[ce] in monitoring compliance with the Establishment Clause in . . . schools.” “The placement of the Ten Commandments monument on the Texas State Capitol grounds,” Van Orden explained, is “a far more passive use of those texts than was the case in Stone.” […] This is because “[t]he display [was] not on the grounds of a public school, where, given the impressionability of the young, government must exercise particular care in separating church and state.” Id. at 703 (Breyer, J., concurring in the judgment) (citing Lee v. Weisman, 505 U.S. 577, 592 (1992); Stone, 449 U.S. 39). And, unlike in Van Orden, “the text” of the Ten Commandments in Stone “confronted elementary school students every day.”
Van Orden recognized Stone’s viability, notwithstanding Lemon, given the special “concerns that arise in the context of public elementary and secondary schools.”
The Fifth Circuit majority — like the defendants whose unconstitutional law it has allowed to be enacted — cherry picks from post-Lemon Supreme Court jurisprudence to arrive at the conclusion it wants, rather than one the Constitution (and actual Supreme Court precedent) dictates. With two of the three states in the circuit already have been given a green light to mix church and state, it’s up to Mississippi to get this bill signed by the governor so the Fifth can complete its three-state sweep of the Establishment Clause.
Filed Under: 10 commandments, 1st amendment, 5th circuit, establishment clause
Back in 2023, Arkansas passed a social media age verification law so poorly drafted that the bill’s own sponsor couldn’t accurately describe who it covered. The law appeared to exempt TikTok, Snapchat, and YouTube while the sponsor publicly claimed those were the exact platforms being targeted. When the state’s own expert witness testified that Snapchat was covered, the state’s own attorney disagreed with his own witness in the same hearing. That law was struck down on First Amendment and vagueness grounds, and then permanently enjoined earlier this year in a suit brought by the trade group NetChoice.
So Arkansas went back to the drawing board and passed Act 900, which was supposed to fix all the problems with the original. Judge Timothy Brooks of the Western District of Arkansas has now preliminarily enjoined that law too, in a ruling that reads like a patient teacher explaining to a student why the homework still doesn’t work despite a rewrite.
The legislature did manage to fix the content-based definition problem that sank the first law, but the progress stops there. Act 900 imposes four main new requirements on social media platforms: a prohibition on “addictive practices,” default settings for minors (including a nighttime notification blackout), privacy default settings at the most protective level, and a parental dashboard requirement. Every single one of these provisions fell apart on review, each in its own special way.
The “addictive practices” provision might be the most impressively broken. Here’s what it actually says platforms must do:
Consistent with contemporary understanding of addiction, compulsory behavior, and child cognitive development, ensure that the social media platform does not engage in practices to evoke any addiction or compulsive behaviors in an Arkansas user who is a minor, including without limitation through notifications, recommended content, artificial sense of accomplishment, or engagement with online bots that appear human.
“Contemporary understanding of addiction” is doing a lot of work here, and it’s not up to the job. There is no consensus that social media constitutes addiction in any clinical sense. So it’s entirely unclear what a company would need to do here, which is fatal in a First Amendment context. And yet, the law is designed such that violations are strict liability and ridiculously broad. A plain reading of the law shows that it is not limited to addiction to the platform itself; a platform can apparently be held liable if its practices “evoke” addiction to off-platform activities. And the statute uses the singular “user,” meaning a single child’s response triggers liability.
As the court puts it:
Not only does Act 900 impose liability based on a single child’s response to the platform, it does so on a strict liability basis—a platform is liable for a practice the evokes addiction in a single child even if it could not have known through the exercise of reasonable care that the practice would have such an effect. “Businesses of ordinary intelligence cannot reliably determine what compliance requires.”
The state, realizing belatedly that it had written an unworkable law, asked the court to just sort of ignore the strict liability language and read in a specific intent requirement that doesn’t exist anywhere in the text. As the judge notes, that’s not how any of this works. The courts interpret the law as written and are not there to fix the legislature’s mistakes:
Instead of defending the statute the General Assembly enacted, Defendants ask the Court to rewrite it by ignoring the strict liability provision altogether and inserting a specific intent requirement that appears nowhere in the text. The Court cannot do so.
Then there’s the default provisions. The court was actually somewhat sympathetic to the idea that the state has a legitimate interest in helping kids sleep. The problem is that the law itself undermines that interest by letting parents flip the nighttime notification blackout off. And the government is not there to fix what parents refuse to do:
While Defendants justify the notification default as an aid to parental authority, they ignore their own evidence that parents are part of the problem. If parents wanted to prevent their children’s sleep from being disrupted by late-night notifications, they have a readily available, free, no-tech solution already at their disposal: taking devices away at night. Yet “86% of adolescents sleep with their phone in the bedroom.” …. The State has provided no evidence that parents lack the tools to assert their authority in this domain, so it appears unlikely that the State’s deferential approach to restricting nighttime notifications will actually serve its stated interest in ensuring minors get enough sleep. This “is not how one addresses a serious social problem.”
The privacy default is worse. It requires platforms to set privacy controls to their most restrictive level for minors — but says nothing about who can change them. Meaning, as the court notes, the minor can just… change them. The state argued this was necessary to protect children from sexual exploitation online. The court points out the obvious problem:
On the other hand, because the default can be changed by the minor, this provision is also wildly underinclusive. Defendants say children need this law to protect them from sexual exploitation online. But the law, in effect, allows children to decide whether they need protection from sexual exploitation online because they are free to depart from the protective default. As Defendants’ evidence shows, teenagers’ developing brains make them less likely than adults to appreciate the risks associated with, for example, making their profiles public… Like the notification default, while the burdens imposed by the privacy default may be slight, they do not appear likely to serve the State’s asserted interest at all. Imposing small burdens on vast quantities of speech for no appreciable benefit is not consistent with the First Amendment. Arkansas cannot sentence speech on the internet to death by a thousand cuts.
Any law that burdens First Amendment speech has to be tailored precisely to a compelling goal. And if it’s either under or over-inclusive, it’s going to have problems surviving. Making it such that kids could just turn off the privacy controls fails that test.
But the dashboard provision is where things get genuinely hilarious, in that dark way where you wonder if anyone read the bill before voting on it. Act 900 has three separate definitions for people who interact with platforms: “account holders,” “users,” and “Arkansas users.” The problem is that, according to the statute’s own definitions, a “user” is specifically someone who is not an account holder — in other words, just a visitor to the site who doesn’t have an account. Yes, it’s confusing. The court is confused. Everyone is confused.
Act 900 has one particularly noteworthy problem: “users.” Act 900 has three different definitions for relationships a person can have with a platform. First, an “account holder” is “an individual who primarily uses, manages, or otherwise controls an account or a profile to use a social media platform.” Id. sec. 1, § 4-88-1401(1). “Account holder” is not used in any of the Act’s operative provisions. Second, a “user” is “a person who has access to view all or some of the posts and content on a social media platform but is not an account holder.” Id. § 1401(12). Third, an “Arkansas user” is “an individual who is a resident of the State of Arkansas and who accesses or attempts to access a social media platform while present in this state.” Id. § 1401(2). “Arkansas users” include both “account holders” and “users,” but “users” are definitionally not “account holders.” The addictive practices provision and the default provisions therefore apply to all Arkansas minors, whether they have a social media account or are merely a website visitor. Worse, the dashboard provision applies only to minor “users,” not account holders.
Again: the dashboard provision requires platforms to build parental supervision tools for minor “users.”
Not account holders. Users. Which, as the court notes, definitionally does not include “account holders.” Meaning it only applies to… random anonymous visitors to the website. Those who have accounts… apparently aren’t covered?
As the court explains, taking the statute at its word would require platforms to:
(1) collect age information from everyone who visits a covered platform to identify minors; and (2) collect and store identity information for every minor who visits a platform to track their “use habits,” connect them with their parents, and effectuate “tools for a parent to restrict his or her minor child’s access.”
This is a law that claims to be about children’s privacy that accidentally requires mass surveillance and identity collection on every anonymous visitor to a website, just in case one of them turns out to be an Arkansas minor. The court openly “questions whether this was the General Assembly’s intended result” but notes it can’t just rewrite the statute because the legislature picked the wrong word. That’s on them. Just like the earlier provision that the state asked the court to quietly rewrite.
The Arkansas legislature does not appear to be a detail-oriented body.
Oh, and there’s also an audit requirement directing platforms to conduct quarterly audits to ensure their products aren’t “causing minors to engage in compulsory or addiction-driven behavior” — again, including off-platform behavior, apparently. How a platform is supposed to audit for behaviors that happen when users aren’t on the platform is left as an exercise for the reader.
What makes this all so maddening is that none of these problems are subtle. The “user” vs. “account holder” mixup is the kind of thing that any lawyer should catch on a close read. The strict liability plus singular “user” combination in the addictive practices provision is exactly the drafting error that made the 2023 law fail. The defaults that can be changed by the very minor they’re supposed to protect — that’s not a hard problem to spot.
There is a reason this pattern keeps repeating.
Passing an unconstitutional law to “protect the kids” from Big Tech generates headlines, press conferences, and signing ceremonies. Governor Sarah Huckabee Sanders got to tweet about how “social media companies have gotten away with exploiting kids for profit” when she signed the original law. That made the news. The permanent injunction three years later, overturning that same law? Barely a ripple. Act 900 itself got its own round of celebratory press. The injunction we’re discussing here will get a fraction of that coverage.
The political asymmetry is kind of the point. State legislatures have figured out that there is essentially no downside to passing obviously unconstitutional social media laws. The upside is maximal: you get to posture as tough on Big Tech, protective of children, and responsive to moral panics about screens and teens. The downside — losing in federal court, wasting state resources on legal fees, and getting lectured by judges about basic First Amendment doctrine — happens quietly, years later, long after the political benefits have been banked.
Arkansas will almost certainly lose its appeal, and either way the legislature will be back next session with a new hastily drafted law that fixes some of Act 900’s problems while introducing fresh ones. And then that will get struck down. And then they’ll try again. Texas, Florida, California, Ohio, Utah, Mississippi, Tennessee, Georgia, and a growing list of other states are running the same play on roughly the same schedule.
The courts keep doing their jobs. NetChoice keeps winning. Judges keep writing careful opinions explaining, for what feels like the hundredth time, that strict scrutiny means what it means, vagueness doctrine exists for a reason, and you cannot simply compel platforms to do whatever you want because you have invoked The Children.
None of it matters to the incentive structure. The headline from the signing ceremony is worth more than the opinion from the courthouse. Until that changes — until voters start holding legislators accountable for passing laws that can’t survive even the most basic constitutional review — we’re going to keep reading rulings like this one. Arkansas just provided the latest installment. There will be more.
Filed Under: 1st amendment, arkansas, free speech, privacy, protect the children, social media, social media addiction, social media safety act
Companies: netchoice
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