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First Amendment News returns on Wednesday, Jan. 4 — happy holidays and a good new year to all. 

• “,” Press Release (Nov. 30)

On November 30, 2022, the Knight Institute filed a  on behalf of  and other members of —one of Central America’s foremost independent news organizations, based in El Salvador—who were the victims of spyware attacks using NSO Group’s Pegasus technology. This case is the first filed by journalists against  in a U.S. court.

The lawsuit alleges that NSO Group and its parent company violated U.S. law by developing, selling, and assisting in the deployment of Pegasus against the plaintiffs. Between June 2020 and November 2021, El Faro’s employees, including the plaintiffs in this case, were subjected to 226 Pegasus infections. Through these attacks Global, their iPhones were accessed remotely and surreptitiously, their communications and activities were monitored, and their personal data was accessed and stolen. As described in the complaint, the attacks intensified around El Faro’s publication of major stories. The lawsuit asks the court to order NSO Group to identify, return, and then delete all information it obtained through the attacks, and to order NSO Group to identify the clients that ordered the surveillance.

[ . . . ]

“These spyware attacks were an attempt to silence our sources and deter us from doing journalism,” said , El Faro’s co-founder and director. “We are filing this lawsuit to defend our right to investigate and report, and to protect journalists around the world in their pursuit of the truth.”

El Faro is an internationally renowned digital newspaper based in El Salvador. It is dedicated to investigative and in-depth journalism about human rights, inequality, violence, and government corruption. NSO Group is an Israel-based technology company that develops spyware and sells it to governments around the world—including governments that have been implicated in serious human rights abuses. NSO Group’s signature product, called Pegasus, can infect smartphones undetected to give the spyware’s operators access to contact lists, calendar entries, text messages, emails, search histories, GPS locations, and more. According to today’s complaint, the Pegasus spyware attacks against El Faro were part of a broader campaign against the press and civil society in El Salvador, in which at least nine organizations and 35 individuals were targeted.

“The use of spyware to surveil and intimidate journalists poses a truly urgent threat to press freedom,” said , senior staff attorney with the Knight First Amendment Institute. “American courts must ensure that spyware manufacturers are held accountable for their actions where those actions violate U.S. law, as they did in this case.”

The complaint filed today alleges that NSO Group’s actions in developing spyware and deploying it against El Faro journalists violated, among other laws, the Computer Fraud and Abuse Act and the California Comprehensive Computer Data Access and Fraud Act. In addition to asking the court to rule that the Pegasus attacks against El Faro and its reporters violated U.S. law, the lawsuit asks the court to require NSO Group to identify, return, and then delete all information it obtained through these attacks; to prohibit NSO Group from deploying Pegasus again against the plaintiffs; and to require NSO Group to identify the client that ordered the surveillance. The plaintiffs are filing the lawsuit in the same district in which two other lawsuits have been filed against NSO Group: one by Apple, and one by WhatsApp. The Supreme Court is expected to decide imminently whether to grant a cert petition filed by NSO Group in the WhatsApp case.

“NSO Group and other mercenary spyware manufacturers are supplying authoritarian governments with the tools to stifle dissent and crush press freedom,” said , the Knight Institute’s executive director. “Courts must ensure that spyware manufacturers and their clients do not enjoy impunity for unlawful practices that have profound implications for democracy and human rights around the world.”

California Age-Appropriate Design Code Act challenged on First Amendment grounds

Preliminary Statement

1. Although styled as a privacy regulation to protect minors, the  (AB 2273)1 is a content-based restriction on speech that will subject a global communications medium to state supervision and hobble a free and open resource for “exploring the vast realms of human thought and knowledge.” Packingham v. N. Carolina, 137 S. Ct. 1730, 1737 (2017).

2. Among its many infirmities, AB 2273 presses companies to serve as roving censors of speech on the Internet. The law imposes on private firms, big and small, the obligation to identify and “mitigate” speech that is “harmful or potentially harmful” to users under 18 years old, and to “prioritize” speech that promotes such users’ “well-being” and “best interests.” If firms guess the meaning of these inherently subjective terms wrong—or simply reach different conclusions than do government regulators—the State is empowered to impose crushing financial penalties. The State can also impose such penalties if companies fail to enforce their content moderation standards to the Attorney General’s satisfaction. AB 2273 does this without so much as a nod to whether the law’s restrictions are necessary to serve a compelling state interest.

3. Rather than protect minors, AB 2273 will harm them, along with the Internet as a whole. Faced with the arbitrary application of AB 2273’s draconian penalties, online businesses will face overwhelming pressure to over-moderate content to avoid the law’s penalties for content the State deems harmful. Such over-moderation will restrict the availability of information for users of all ages and stifle important resources, particularly for vulnerable youth who rely on the Internet for life-saving information.2 Separately, AB 2273 will require businesses to verify the ages of their users, which—to the extent it can even be done to the State’s satisfaction—will frustrate anonymous and casual browsing, magnify privacy concerns, and wrest control over minors’ online activities from parents and their children.

4. For these and other reasons, AB 2273 is facially unconstitutional on at least four grounds and is preempted by two federal statutes: The Act on its face violates the First Amendment, Fourth Amendment, and the Due Process and Commerce Clauses of the United States Constitution; violates Article I, Sections 2(a) and 7(a) of the California Constitution; and is preempted by the Children’s Online Privacy Protection Act (COPPA), 15 U.S.C. §§ 6501 et seq., and the COPPA Rule, 16 C.F.R. § 312.1 et seq., as well as Section 230 of the Communications Decency Act, 47 U.S.C. § 230. Plaintiff NetChoice, LLC accordingly seeks an order declaring AB 2273 invalid and enjoining its enforcement.

• (counsel of record) and ,,, (attorneys for Plaintiff)

Prosecuting Trump?

• Alan Z. Rozenshtein and Jed Shugerman, “,” The Atlantic (Dec. 20)

Yesterday the House January 6 Committee unanimously voted to recommend that former President Donald Trump be criminally prosecuted, for charges including conspiracy to defraud the United States, obstructing an act of Congress, and, the most serious, insurrection. A congressional criminal referral of a former president is unprecedented, and if Special Counsel Jack Smith and the Department of Justice decide to prosecute Trump, they will have to address a formidable defense: that Trump’s speech on January 6, 2021, no matter how irresponsible or how full of lies about a “stolen” 2020 election, was, after all, a political speech and thus protected by the First Amendment.

• is an associate professor of law at the University of Minnesota Law School.
• is a professor at Fordham Law School.

Senator Mike Lee seeks to redefine ‘obscene’

• Emma Camp, “’,” Reason (Dec. 20)

Sen. Mike Lee (R–Utah) the Interstate Obscenity Definition Act (IODA), which attempts to edit the legal definition of “obscenity” to allow essentially for the regulation of pornography. The bill is yet another attempt by conservative lawmakers to regulate internet pornography in recent years. While other attempts have aimed for less regulation, this bill goes right to the source—attempting to roll back the First Amendment protections that prevent state regulation of porn in the first place.

While obscenity is not afforded First Amendment protection, the bar for what actually amounts to obscenity is incredibly high—something Lee hopes to change.

[ . . . ]

The is an attempt to challenge the Miller test's prominence, creating an alternate definition of obscenity. According to IODA, content would be deemed obscene if: ‘(i) taken as a whole, appeals to the prurient interest in nudity, sex, or excretion, (ii) depicts, describes or represents actual or simulated sexual acts with the objective intent to arouse, titillate, or gratify the sexual desires of a person, and, (iii) taken as a whole, lacks serious literary, artistic, political, or scientific value.’

[ . . . ]

As the IODA conflicts with a Supreme Court ruling, it would likely face legal challenges before it could be enforced. Granted, it's unclear whether such challenges would be successful. “It's possible that the Court may ultimately modify Miller in a way that would lead to upholding the law; hard to know for sure,” UCLA law professor Eugene Volokh tells Reason. “If the law is passed, I don't think it could be enforced by lower courts, because it's inconsistent with the Miller v. California precedent. But might the Supreme Court agree to hear a challenge to the law, and use it as an occasion to revisit the precedent? Hard to know for sure.”

Related

• Kim Bojórquez, “,” Axios (Dec. 20)
• Nick Mordowanec, “,” Newsweek (Dec. 16)

Law review article: Shiffrin on morality and the First Amendment

• Steven H. Shiffrin, “,” First Amendment Law Review (2020)

Moral judgments can and should play an important role in the interpretation of the First Amendment, and the First Amendment should be interpreted to facilitate the leading of moral lives by its people, including its corporate and public officials. These claims are controversial because most scholars would deny that it is appropriate for courts to take into account the moral value of speech in interpreting the First Amendment or to take into account the impact of its rulings on the moral lives of its people or its impact on the morality of the culture.

Moreover, the relationship of the religion clauses to the moral lives of its citizens and the morality of the culture are deeply contested in the scholarly literature and in the public life of American politics. These issues are important now and they have been for many years. I will argue not only that First Amendment doctrine is distorted by its failure to take into account the moral lives of its people, whether in or out of corporate or public office, but also that the public morality encouraged by the interpretations of freedom of speech and religion is defective.”

New scholarly article: Schafer and Kosseff on proposed NYT v. Sullivan statute

• Matthew L. Schafer & Jeff Kosseff, “,” Federal Communications Law Journal (2022)

[W]e argue that Congress should take up and pass a preemption statute. This proposed statute would set baseline national standards, some previously adopted by the Court as a constitutional matter and others only ever considered by it, that must be satisfied to maintain a defamation action based on interstate speech. By doing so, Congress could insulate the press and the public from the fallout that will follow in the wake of overruling Sullivan. This approach has the added benefit of not establishing a national law of libel nor a new procedural scheme such as an anti-SLAPP, both of which are more ambitious proposals that we think have a low likelihood of gaining traction in Congress no matter how appropriate such approaches might be.

[ . . . ]

INTRODUCTION

NEW YORK TIMES CO. V. SULLIVAN

THE PROGENY

THE WEAPONIZATION OF LIBEL LAWSUITS AND THE DRUMBEAT OF THREATS TO SULLIVAN

PREEMPTION AND DEFAMATION

THE FREEDOM OF SPEECH AND PRESS ACT

CONCLUSION

APPENDIX: TEXT OF THE FREEDOM OF SPEECH AND PRESS ACT

Twitter times

• Eric Levitz, “,” New York Magazine (Dec. 19)
• Madison Czopek, “,” Politifact (Dec. 19)
• Liz Peek, “,” Fox News (Dec. 19)
• “,” The Economist (Dec. 19)
• Samantha Michaels, “,” Mother Jones (Dec. 18)
• Olafimihan Oshin, “,” The Hill (Dec. 18)

YouTube: Elon Musk, free speech, and Twitter’s future

• “,” Bloomberg Technology (Dec. 16)

Former Twitter Founding Team Member and Former White House Chief Digital Officer (2015-2017) Jason Goldman joins Caroline Hyde to discuss the future of the social media platform under Musk, what it means now that he is looking for potential investors, and issues of free speech on the platform.

View video

�鶹��ýIOS and Volokh file amicus brief challenging ‘racial ridicule’ law

• Adam Steinbaugh, “�鶹��ýIOS, Professor Eugene Volokh file amicus brief challenging Connecticut’s ‘racial ridicule’ law,” �鶹��ýIOS (Dec. 20)

In 1917, Connecticut adopted a law criminalizing any “advertisement” that “ridicules or holds up to contempt any person or class of persons” because of their race, nationality, or religion. A century later, the state’s police and prosecutors regularly ignore the “advertisement” part of the law. Instead, they treat the law as a de facto ban on “hate speech,” arresting people — often homeless or mentally ill — who utter racial slurs.

Especially when those insults are directed at police officers.

[Recently], �鶹��ýIOS filed an amicus — “friend of the court” — brief in the Connecticut Supreme Court with Eugene Volokh, the Gary T. Schwartz Distinguished Professor of Law at UCLA. We’re asking the court to remind police and prosecutors that the law cannot be used to arrest people for speech that is not an advertisement. Connecticut’s limited “racial ridicule” statute (Gen. Stat. § 53-37) :

Any person who, by his advertisement, ridicules or holds up to contempt any person or class of persons, on account of the creed, religion, color, denomination, nationality or race of such person or class of persons, shall be guilty of a class D misdemeanor.

By its plain terms, the law only applies to an “advertisement” of some sort. It could potentially be read to ban only advertisements that indicate the proprietor is engaged in unlawful discrimination — for example, a business that says “No Irish need apply” or ‘Whites only.” This reading of the statute would not, in itself, be unconstitutional.

• Cerame v. Lamont amicus brief
• �鶹��ýIOS and professor Volokh are represented by of .

YouTube: Rabbi Leder on anti-Semitism and free speech

• “,” CBS Sunday Morning (Dec. 6)

The senior rabbi of Wilshire Boulevard Temple in Los Angeles says “Jew hatred” is often promulgated by other marginalized communities — and ignores our common humanity.

View video

More in the news

• “,” CBS17 (Dec. 19)
• Charles P. Pierce, “,” Esquire (Dec. 17)
• Jonathan Scruggs, “,” Fox News (Dec. 16)
• Susanna Granieri, “,” First Amendment Watch (Dec. 15)
• “,” Free Speech Center (Dec. 15)
• Jessica Chasmar, “,” Fox News (Dec. 14)
• Alec Greven, “,” Institute for Free Speech (Dec. 13)

2022-2023 SCOTUS term: Free expression and related cases

Review granted 

• (argued Dec. 5)
•  

Pending petitions

State action

Qualified immunity

Liability under Anti-Terrorism Act

Section 230 immunity

• (review granted)

Review denied

• ()

Last FAN

• FAN 359: “New movement: ‘Common Good Constitutionalism’ challenges libertarian-minded conservatives’ view of free speech”

This article is part of First Amendment News, an editorially independent publication edited by professor Ronald K. L. Collins and hosted by �鶹��ýIOS as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article's author(s) and may not reflect the opinions of �鶹��ýIOS or of professor Collins.