Category Archives: Politics & media law

Following the First

First Amendment court tracker, 2025:  

Dominion Voting Machines v Newsmax — April 8 — A Delaware judge denied a motion for summary judgment by Newsmax Corp., which means a multi-million dollar defamation trial will start on April 28 — unless Newsmax settles out of court with Dominion. A similar last-minute pre-trial settlement took place in Dominion v Fox, in April of 2023. And a similar defamation case brought by Smartmatic voting machines company against Fox is also headed for court in April.  Newsmax settled with Smartmatic for $40 million on March 13, 2025.

Associated Press access to White House — April 8 — The Trump White House can’t punish the  The Associated Press for news coverage and geographic terminology that Trump dislikes, a federal judge said Tuesday. The injunction by Judge Trevor McFadden was a major blow to the administration’s efforts to curtail the AP’s access to the White House.  (CNN AP, NPR )

Court won’t reconsider Sullivan — March 24 — The Supreme Court denied certiorari to a petition brought Steve Wynn, a former casino owner and Republican party figure.  The petition asked the court to overturn the 1964 Supreme Court defamation ruling in New York Times v. Sullivan, a landmark libel case that makes it difficult for a public figure to pursue a defamation claim.  Wynn had argued that the Sullivan standard “is a relatively new feature of libel law.” (Reuters)

Perspectives on Trump media pressure

Several important responses have come up recently in reaction to the Trump administration’s new wave of pressure on the media in the winter of 2025.

director of the Knight First Amendment Institute at Columbia University, expressed concern in a New York Times op-ed over noted US Judge Learned Hand’s “Spirit of Liberty” speech while considering the acquiescent media’s responses to Trump’s laughable libel suits.  Hand said: 

Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.

Meanwhile, the Trump administration is sending NBC News and the New York Times out from standard Pentagon offices and replacing them with partisan media outlets Brietbart and the NY Post. This will seriously undermine the public’s right to know, said Kevin Baron and Price Floyd of the Washington Post.

Also responding to new developments, former Federal Trade Commission chair, Lina Khan,  noted the lack of competition between the big tech / media industries that put Trump into power.

It should be no surprise that our big tech firms are at risk of being surpassed in A.I. innovation by foreign competitors. After companies like Google, Apple and Amazon helped transform the American economy in the 2000s, they maintained their dominance primarily through buying out rivals and building anticompetitive moats around their businesses.

Another episode of pressure on the media involves  Executive Order 14172  of Jan. 20, 2025, directing federal agencies to adopt the name “Gulf of America” for the body of water that had been called the “Gulf of Mexico” for at least 300 years.  Google MapsApple MapsBing Maps, and several U.S.-based media outlets such as USA TodayAxios, and Fox News adopted the change.  One organization that did not adopt the change was the Associated Press, which said that since it serves and international audience, it would not be. appropriate to reflect a US-only name change.  In order to coerce the Associated Press to use the “Gulf of America” name, the Trump administration ordered that AP reporters and photographers be banned from all government news conferences and events.  The AP sued in federal court but was unable to secure an immediate injunction against the discriminatory and coercive policy.  The problem is that this is an ancient form of viewpoint discrimination called compelled speech. (For more on the topic see “Compelled Speech” on this site).

The AP issue involved more than simply having reporters access White House events, according to Julie Pace, AP executive editor. “It was about whether the government can tell a news organization, or anyone, what language to use and if they don’t comply, retaliate against them.”

On April 8, a federal court ordered the White House to remove restrictions on the AP.

Climate scientist wins libel suit

US climate scientist Michael Mann won his longstanding libel suit against right-wing climate deniers on Feb. 8, 2024, with a jury award of $1 million in puntive damages. 

The lawsuit began in 2012, when Mann accused Rand Simberg, a former adjunct scholar at the Competitive Enterprise Institute, and Mark Steyn, a contributor to National Review, of defamation when they alleged that his work was so fraudulent it was like child molestation.     

Scientists see  the verdict “as a warning to those who attack scientists working in controversial fields, including climate science and public health,” according to  Nature magazine.   

The question in libel is whether the defendant knowingly published a falsehood or acted in reckless disregard for the truth.  In testimony,  Simberg and Steyn both insisted that they do not agree with Mann’s climate science, so the question was whether or not they were reckless.

“The trial transported observers back to 2012, the heyday of the blogosphere and an era of rancorous polemics over the existence of global warming, what the psychology researcher and climate misinformation blogger John Cook called “a feral time,” said a New York Times article.

A federal court opinion from 2016  located here: Competitive Enterprise Institute v Mann.   The 2024 decision is not yet on Nexis, SCOTUS blog, or other legal sources. Also see Alito Dissent from denial of cert, 2021.

 

Murthy v Missouri: Court wont block talks

The Supreme Court stopped a temporary injunction to block the Biden administration’s ongoing conversations about disinformation with social media companies on Oct. 20, 2023.

This leaves federal agencies such as the Centers for Disease Control free to attempt to influence  social media companies in order to  (as the administration says) “mitigate the hazards of online misinformation” by flagging content that violated the social media platforms’ own policies.

The states of Missouri and Louisiana have contended in Murthy v Missouri (aka Missouri v Biden) that the government “coerced, threatened, and pressured social-media platforms to censor” them, in violation of the First Amendment.  US Surgeon General Vivek Murthy is named as a defendant in the suit.  Evidence of this pressure campaign  emerged when the Twitter Files were released after Elon Musk purchased Twitter and took over company management on Oct. 27, 2022.  CNN published an article about the Twitter Files Dec. 2, 2022.

See SCOTUS Blog, Justices Allow Continued Communication
Also: FIRE Statement on Murthy v Missouri being granted cert

Recent Issues & Cases

SUPREME COURT Ends 2023 term

Several important decisions on free speech issues were handed down by the Supreme Court in the session ending June 30, 2023.   Linda Greenhouse of the New York Times notes that this session caps the triumph of what would have been an unimaginably right-wing agenda when John Roberts became Chief Justice in 2005.

Of course the big swing to religious law was Dobbs v Jackson Women’s Health Organization last year overturning Roe v Wade. This year it was 303 Creative v. Elenis — a case involving the balance between individual religious rights and public accommodations.  In 303 Creative, the Supreme Court ruled that the First Amendment prohibits the state of Colorado from forcing a website designer to work with content that conflicts with her beliefs,  such as gay marriage.

The case overturns a ban on commercial discrimination based on sexual  orientation in the 2018 decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.  The 303 Creative case also calls into question the 2015 case  Obergefell v. Hodges in which the court said same-sex marriages were unconstitutional. 

Justice Sonia Sotomayor’s dissenting opinion  in 303 Creative notes how far the decision crosses the line separating church and state: “Today, the court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”  This is a backlash against  people’s rights, she says. “New forms of inclusion have been met with  reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims.”

Other cases this term included: 

Counterman v. Colorado   — A “true threats” case — The court said that the First Amendment limits laws that make it a crime to threaten people on the internet. In such cases, governments  must prove that the defendant acted with a culpable mental state, and not only that his words were objectively threatening. The ACLU commended the court’s decision. The case is also significant in that the  court used the New York Times v Sullivan standard, which two of the justices (Thomas and Gorsuch) would like to overturn. That now seems unlikely.

US v Hansen– Criminal solicitation —  A law against encouraging illegal immigration is constitutional, the court said, so long as it applies specifically to criminal acts and not to general ideas about immigration, which are protected under the First Amendment.

Groff v. DeJoy —  Religious accommodation — A US Postal Service delivery worker sued because he was being forced to work on Sundays.  “Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business,” the court said.

Gonzalez v Google LLC and Twitter v Taamineh both involved the extent of protection for YouTube (Google) in automatically posting and recommending terrorist recruiting videos; they also involved the broader question of how social media and the internet are to be regulated. The SCOTUS Blog has a valuable repository of documents about the case. In both cases, the anti-terrorism law was held NOT to apply, and no decision was made about Section 230 specifically or whether or not to change the way social media and the internet are regulated.

censorship

Tic-Tok banned in 19 US states, and often on wifi at public universities, because it poses a theoretical national security risk by giving the Chinese government an ability to monitor users.

Journalists arrested in Asheville, NC, for taking video of police enforced  evictions.  They were convicted of trespassing in April, 2023, but in May, forty five  journalism and human rights organizations wrote in support of an appeal.  And on May 30, defendants Matilda Bliss and Melissa Coit filed a  motion to dismiss the charges. 

Proposals for book bans and gag orders in education have increased 250 percent in 2022 compared to 2o21, according to a study by PEN America, a non-profit free speech advocacy group.

libel

Voting machine company libel suits continue against Fox News,  One America News Network and three  Trump advisors, despite the settlement of the Dominion case on April 19, 2023.  That settlement came after Fox underestimated the strength of Dominion’s case against them, according to a May 27, 2023 NY Times article. 

The Smartmatic voting machine company is the second to bring a libel case against Fox over lies about election fraud in 2020.  Participants in that case took depositions in the fall of 2023 and say the trial might be scheduled for 2025. The allegation is that Fox and OANN aired a pattern of defamatory claims from Trump supporters about illegal  manipulation of vote counts that threw the 2020 election to Joe Biden. Depositions in advance of the trial have shown that Fox personalities did not believe the claims at the time they were aired.  One Fox personality, Tucker Carlson, was forced to resign from Fox News due (in part) to the disgrace he brought onto the network.

privacy

New European regulations on digital privacy will take effect in 2023 and 2024.  As part of the new push to improve digital privacy, the EU fined Facebook / Meta   1.2 billion Euros for privacy violations on May 22, 2023.

Digital media

State of Missouri v Biden — Federal government pressure on social media  sites is a violation of their First Amendment rights according to a sweeping decision by a federal judge. A July 4 decision in a Louisiana federal court restricted communication between the Biden administration and social media platforms — calling it “Orwellian” violation of the First Amendment. The Biden administration disagrees.  Fox headlined the issue: “Big Tech Censorship Goes to Court.

Section 230,  (of Title 47, US Code)   the social media liability shield, still stands after two similar cases Gonzalez v Google LLC and Twitter v Taamineh  by the US  Supreme Court on May 18, 2023 (noted above).

Section  230 is unpopular on both sides of the political aisles. The  Biden White House has  renewed the call for repeal of  the liability shield for social media companies in of 2022.   President Joe Biden is focused on six reform principles, which also include stronger competition  and privacy protection laws, greater transparency and more  consideration of mental health issues.

The Brookings Institution has a Guide for Conceptualizing the debate over  Section 230, such as individual harms, general harms and policy challenges.

COPYRIGHT

Dr Dre sends “cease & desist” letter to Rep. Marjory Taylor Green, who is using his music without permission on social media.

Steamboat Willie, the first Mickey Mouse cartoon, goes into the public domain (loses copyright protection) this year. What will it mean? Not that much, says Brooks Barnes in the New York Times Dec. 27.  

A  federal court in California rejected Facebook’s  “safe harbor”  Section 230 argument in a copyright case in January 2023.

Close to home 

Virginia state consumer data protection act took effect Jan 1, 2023.  Critics say it doesn’t go far enough,

Social media:   State Del. Nadarius Clark, D-Portsmouth, is proposing an investigation into the impacts of social media on Virginians.

Anti-fraternity ordinance  in Radford — Sec. 120.1-64.   entitled “Additional requirements for Greek organizations/signs”  — remains in effect, despite  Reed v Town of Gilbert, 2015, and the “content discrimination principle.”

Alex Jones and libelous hate speech

Alex Jones (Wikipedia).

Alex Jones is bankrupt. The host and owner of  the far-right fake news conspiracy-peddling website “Infowars.com” owed $1.5 billion dollars by the end of 2022 to people harmed by his lies about  the massacre at an elementary school in Sandy Hook CT a decade beforehand.

The cascade of losses in libel suits began with a Texas jury’s Aug. 5, 2022 decision to award  $50 million in actual and punitive damages to parents of the massacre’s victims. Four more libel suits  in Texas and Connecticut also ended with guilty verdicts and heavy fines.

Jones’ lies about Sandy Hook began within hours of the massacre, and were frequently  repeated since then. He falsely claimed that the Sandy Hook elementary school massacre of 2012 was a hoax and  that the parents of the children killed  at the school were “crisis actors.”  As a result, Sandy Hook parents were subjected to harassment and other damages, on top of the profound grief of losing their children. One family has had to move 10 times to avoid Jones’ followers.

Jones’ attorneys argued that the First Amendment protects his right to make mistakes and that other people, not Jones, were to blame for the harassment.

But it’s too late for that argument. Jones already lost the first Texas libel suit by refusing to cooperate with the court, and default judgments were issued.  The only question in the Texas case and others involves the amount of damages.  Continue reading

Communications law basics

What are the essential basic things you should know about communications law?

The statue of Justice on the roof of the Old Bailey in London. (Charles D.P. Miller, Wikipedia, Creative Commons).

The reason we ask is that digital media has amplified personal communications, and, now more than ever, educated people need some general basic background in the law of communication. This is an outline for a short course module that can be used in college classes or by interested individuals.

This idea for a one-week (three lecture) short course is structured around three basic themes: Foundations of law, specific communications and media issues, and a few forward-looking legal and ethical questions.

Foundations of law

  1. Historical concepts in law, especially natural rights, equal justice and the marketplace of ideas.
  2. The First Amendment to the US Constitution and similar protections in international law.
  3. How the system of courts and legal precedent works in the US and other countries.

Specific issues in Communications and Media Law

  1. Do social media bans violate First Amendment rights?
  2. Violent images and hate speech: how have the US courts drawn the line? What about other democracies (Europe, Japan, India)?
  3. What is libel and how well does the law protect open debate about public people and institutions?
  4. What is invasion of privacy and how does the law try to balance individual protection against public rights?
  5. What laws regulate truth in advertising?
  6. Broadcasting: What was the Fairness Doctrine? Is there an argument for reinstating it?
  7. How does copyright law work? What is Creative Commons?
  8. How are competition laws (also called anti-trust laws in the US) being applied to social media companies in the US and in Europe?

Jurisprudence and ethics

  1. What ethical codes do we expect the news media to follow? Why?
  2. How do concepts of social responsibility conflict with libertarian views about free speech? 
  3. How does the structure of new digital media challenge traditional First Amendment jurisprudence and concepts like the marketplace of ideas? 

 

Invoking George Orwell

George Orwell, author of 1984

George Orwell, journalist and author of “1984”

Big Tech is not the Ministry of Truth.”
Or at least, so says the Attorney  General of Alabama  who has invited citizens to file formal complaints if they have been censored on social media.

“It should concern us all when platforms that hold such tremendous power and influence over information wield that power in contradiction of—and with undisguised disdain for—the foundational American principles of free speech and freedom of the press,” says Alabama Attorney General Steve Marshall. “The censorship campaign currently being waged by giant corporate oligarchs like Facebook and Twitter is, in a word, un-American.”

You may recall that in Orwell’s novel 1984, the Ministry of Truth controls news, entertainment, education, and the arts. Of course, truth is only what the ministry says it is.   Speaking up for some idea that is not “true”  is punishable by death or indefinite  imprisonment.

But it’s just a novel.  It may go without saying, but here in the US at least, nobody’s life is on the line and nobody is headed for Siberia for some crackpot  Q-nut idea they want to shout to the world.

Yes, Facebook and Twitter have blocked or even banned a few US citizens who insist on deadly lies, for example, that the last election was fraudulent;  that vaccines don’t work; that the virus  is a hoax; that masks are the “mark of the beast;” and so on.  Facebook and Twitter are trying to apply a standard of human dignity and provable truth through their terms of service.

Don’t like it?  Fine. Go to the competition.  There are dozens of new social media platforms, according to a July 2021 article in Forbes.  You don’t even have to pay for a subscription. Jeez.

Continue reading

Another laughable libel suit

The last time a sitting president sued a newspaper for libel, laughter broke out on the floor of the US Senate.

That was December 15, 1908, when president Teddy Roosevelt sued the  New York World  newspaper after it linked him to corruption over the Panama Canal. Roosevelt ordered federal attorneys to file criminal libel suits against newspapers  all over the country. Democrats were outraged, once they stopped laughing.  One US attorney resigned in protest rather than prosecute Teddy’s critics for libel.

The main target of the suits, New York World newspaper publisher Joseph Pulitzer, famously said:  “He cannot muzzle the World.”  (See Pulitzer’s Reply Dec. 16, 1908)

Roosevelt’s lawsuit,  US v Press Publishing,  used to be considered the “last gasp” of seditious libel.

The US Supreme Court didn’t think much of the suit, handing down a ruling  in 1911 that was only two pages long. The ruling ignored the merits of the case and simply sustained an objection by Press Publishing (the owner of the NY World)  that “the court has no jurisdiction in this case, because there is no statute of the United States authorizing the prosecution.”

The case was thought to be a First Amendment landmark at the time, but it is barely remembered in communications law textbooks today.  After all, what sitting president would lower himself to file such a suit?  Even outright allegations of murder did not tempt President Bill Clinton to wield that cudgel against critics like Jerry Falwell. What president would be so foolish as to sue for libel just because a newspaper published a disagreeable opinion?

Which brings us to Donald Trump, the president who defied expectations. Tump  sued the New York Times  on Feb. 26, 2020, and the Washington Post, on March  3, 2020, for  an apparently disagreeable opinion about Trump’s relationship with Russian dictator Vladimir Putin. In the suit, Trump claimed that the Times knowingly published the supposedly false charge that there was a “quid pro quo” with the Russians in return for  their help in the 2016 election.  (The plaintiff’s petition can be read here.) 

This “quid pro quo” was described in  an op-ed written by former New York Times editor Max Frankel and published March 27, 2019.  In the op-ed, Frankel rejected  small concerns about “collusion” with Russia in the Trump campaign. The much larger issue, he said, involved the relationship between Trump and Putin.

(UPDATE: The story continues but the court dismissed Trump’s lawsuit in March, 2021).
Continue reading

Trump dossier libel suit dismissed

In a victory for First Amendment advocates,  a federal court ruled Dec. 19, 2018  that news articles about the Steel Dossier, which alleges illegal and immoral acts by Donald Trump and his campaign in 2016, were protected by the “privilege” defense against defamation suits.

The dossier (memo) was written by former British Intelligence head of the Russia desk, Christopher Steele and circulated in the months before and after the November 2016 election.   It was  published  January 10, 2017, by BuzzFeed News with the headline:   These Reports Allege Trump Has Deep Ties to Russia.

BuzzFeed cautioned that the dossier  “includes specific, unverified, and potentially unverifiable allegations of contact between Trump aides and Russian operatives, and graphic claims of sexual acts documented by the Russians.”

Although the major subject of the dossier was Donald Trump and his attorneys and advisors, the suit was filed by Aleksej Gubarev, a Russian whose name was peripheral to the events described in the dossier.     

In her ruling, federal judge Ursula Ungaro of  Miami granted a motion by Buzzfeed magazine to dismiss the lawsuit, saying that the press was protected by the legal doctrine of  fair report privilege.   

Privilege is one of three major defenses against libel suits. (The other two are truth and fair comment).   The defense of privilege gives journalists the ability to report on official government proceedings whether or not information in the proceedings is provably true or not.   The doctrine of privilege allows unfettered news reporting of conflicting ideas or versions of events that may surface in trials, executive memos or congressional hearings.

According to a Columbia University Global Freedom of Expression article,  the decision turned on the question of whether the report was an official proceeding.  In many cases, courts have interpreted proceedings to be official whether or not they are open to the public.