Free speech roundup

  • “To no one’s surprise, Hungary’s coronavirus emergency bill — which criminalizes fake news — has already resulted in police detaining and questioning social media users who criticize Orbán.” [Sarah McLaughlin] “Part of the powers granted to the government by the coronavirus authorization act is the ability to criminally prosecute the spreading of false news which inhibits the ability of authorities to defend against the pandemic. András recalled that the police arrived at his home at 6 a.m. with a search warrant.” [Insight Hungary 444]
  • The more you know about past abuses under the former FCC public interest standard, the less sanguine you will be about inviting the government to regulate the fairness of social media platforms [John Samples and Paul Matzko]
  • “China-Style Internet Control Is One of the Worst Ideas for Solving Coronavirus” [Ilya Shapiro] “China’s cybersecurity administration [earlier this year] implemented a set of new regulations on the governance of the ‘online information content ecosystem’ that encourage ‘positive’ content while barring material deemed ‘negative’ or illegal.” [Lily Kuo, The Guardian]
  • San Antonio council’s anti-hate-speech resolution had a lot of ill-advised content but managed to stop short of overstepping the First Amendment itself [Taylor Millard, Hot Air]
  • We reported on SEC gag orders last year (more: Robert McNamara) and now the New Civil Liberties Alliance is in court to challenge another one [Peggy Little, NCLA on SEC v. Romeril]
  • Once censorship to regulate “online harms” gets its foothold the topics of its meddlesome ambition will expand [Charles Hymas on demands in Britain that “body shaming” in social media be subject to legal sanction]


  • RE: San Antonio’s “Anti-Hate-Speech Resolution.”

    While Mr. Millard argues that the resolution is not contrary to the First Amendment in that it does not call for arrests or penalties, what the resolution does call for is that citizens who hear others use the “offensive” terms report the person so they can be “investigated.”

    Quoting the resolution:

    , all persons are encouraged to report any such antisemitic, discriminatory or racist
    incidents to the proper authorities for investigation; and

    (And yes, the resolution calls for using certain labels of the COVID-19 virus “racist.”)

    Being “investigated” for legal speech is a violation of the First Amendment.

    • It depends on what the referent of “incidents” is. If it refers several clauses back to the various expressions of speech that the council condemns, then, yes, you are right. Encouraging the reporting of such incidents would be a menace to the First Amendment.

      If, on the other hand, it refers back to the immediately preceding clause, which states that “discriminatory and hate-motivated *behavior or violence* will not be tolerated,” then not so much. Behavior and violence are not expression.

      There is much wrong with the resolution, including a public body’s officiousness in presuming to censure would-be humor and satire. But it is not a forced reading to assume that “incidents” refers to the “behavior and violence” they had just mentioned, and not to jokes.

      • Mr. Olson:

        I think that you miss a couple of nuances. First, the idea that “behavior” isn’t speech is true from the standpoint of how First Amendment claims are analyzed, but is speaking or writing “behavior”; yes it is. Thus, posting a joke or speaking loudly in public in a manner not approved by the solons of San Antonio, is almost certainly an incident.

        Second, protected-speech motivated investigations, unless completely passive, actually violate the First Amendment. I think your “menace” characterization incorrectly puts this in the category of a danger to First Amendment ideals rather than actual First Amendment violations.

        The interesting question these sorts of things bring up is the problem of judicial remedies. Obviously, assuming for the sake of argument that things like this do, in fact, violate the First Amendment, who is going to have standing? This is why First Amendment culture matters. And there are serious problems with an “it’s ok, unless a court tells me otherwise” mindset. Whatever one thinks of the Wisconsin Supreme Court’s decision, one part of it is unassailable. A government official created a crime out of whole cloth. Pandemic or not, that is unacceptable. Your general view appears to be that citizens should listen to such things and go to the courts for redress. The problem, of course, is that if our leaders have a “get it past the goalie” mentality (in other words, it’s ok, unless I am told not ok), then society is constantly trying to play catch up with its rights. But what of the fact that people were either arrested in Wisconsin for a non-crime or threatened with arrest for a non-crime?

        Fundamentally, an attribute of statism is that citizens are generally not free to resist government orders (whether lawful or not). That helps with order, and order, in and of itself, is a good. But where the people in the government decide that lawfulness qua lawfulness is not a condition precedent to an order, but whether it’s a good idea, and we’ll let courts sort it out, the statist bargain loses a lot of moral force. Even in the best of circumstances, it’s difficult (other than on utilitarian grounds) to say that society has the moral authority to ask a person to stand down when his or her rights are being violated. Where government officials are indifferent to what rights are or deliberately violate them, then society’s moral authority evaporates. For example, in Wisconsin, there was a girl who posted her story about COVID-19 on her Facebook page. Cops ordered her and her family to take down the post on the pain of arrest. Does society have the right to expect them to acquiesce to that order? Very difficult question. And a harder question when you have crimes created by decree.

      • To be fair, I should note that Eugene Volokh, with whom I nearly always agree on First Amendment questions, does read “incidents” as possibly referring back to speech and thus does see the resolution as potentially encouraging denunciation of others’ speech to the police. He also has many sensible things to say about the other overreaching aspects of the resolution:

      • Mr. Olson,

        I truly wanted to believe that the San Antonio City Council was referring to actual acts and not speech.

        One of the statements by by the Mayor in supporting and passing the resolution was this:

        Explaining the decision [to pass the resolution], Mayor Nirenberg revealed ‘there has been a rise in hate speech throughout the course of this pandemic’.

        If so called “hate speech” is not one of the targets of the resolution and the call for investigations, why would the Mayor say that?

        Secondly, initially when pressed for incidents, the Mayor did not give any specifics, only that he had “seen” them. (How he was out and about talking with people during “stay at home” orders was a mystery to me.)

        However, Councilwoman Shirley Gonzalez said in supporting the resolution that she had heard of attacks of employees at the famous “Golden Star restaurant.”

        I remembered the Golden Star as being at the epicenter of a homeless area that the City did not want to address. Homeless people were attacking staff, patrons, defecating, etc and the City refused to do anything to help the owners. The owners of the restaurant said people were afraid to get out of their cars because of the homeless and drug infected area long before the COVID-19 outbreak.

        The owners of the restaurants pleaded for help from the City and got some, but not enough according the owners.

        I know it is cynical of me, but the problems at the Golden Star were there long before COVID-19 but it seems that the Council that looked the other way when the restaurant asked for assistance now wants to use those same acts as some sort of “hate speech” and “hate crimes.”

        That’s what tipped me over to the idea the resolution was just as much about speech as acts.

        My initial response in this thread was because in the Millard article, he did not even seem to consider that the resolution and its “investigation” clause could pertain to speech. I thought that was a little odd given the totality of the comments by the Council and the Mayor and the resolution itself.

  • Re Item #2: … inviting the government to regulate the fairness of social media platforms …The abuses inherent in Federal Radio Commission (now FCC) regulation of licensees under the “public interest” standard are always worth repeating when the issue of government licensing and regulation of internet speech arises. The cited article covers one exemplary historical case in exquisite detail, and touches on several lesser know cases as well.

    At least in the FRC/FCC cases, there was a plausible basis for regulation: the broadcast medium spectrum available for free speech was limited. Government was seen as the fair arbiter to allocate limited spectrum

    But government’s attempts to license speech never end, even where there is no such plausible basis for them. Currently government is still attempting to strangle free speech on the internet, which is not limited by broadcast radio spectrum.

    The recent federal FOSTA and SESTA statutes effectively outlaw any social media platforms that federal prosecutors choose to attack, by permitting prosecution of social media platform owners for the speech of those who use the platforms.

    FOSTA and SESTA, have been covered by Overlawyered recently. The statutes have given federal prosecutors new weapons in their crusade to stamp out any speech that offends their delicate sensibilities. No doubt those abusive and likely unconstitutional statutes will appear here again as the cases make their way through the courts.