On Congressblog: Fighting for FOIA

WASHINGTON — The Supreme Court issued a major blow to freedom of expression online today by refusing to block legislation that will effectively ban TikTok in the United States beginning this Sunday, January 19. The decision will impact more than 170 million Americans who use the social media platform and will endanger the constitutional rights of every American to speak and receive information online. “The Supreme Court’s ruling is incredibly disappointing, allowing the government to shut down an entire platform and the free speech rights of so many based on fear-mongering and speculation,” said Patrick Toomey, deputy director of ACLU’s National Security Project. “By refusing to block this ban, the Supreme Court is giving the executive branch unprecedented power to silence speech it doesn’t like, increasing the danger that sweeping invocations of ‘national security’ will trump our constitutional rights.” Under the First Amendment, the government must meet an extraordinarily high bar to ban an entire communications platform. It must show that the ban is the only way to prevent serious, imminent harm to national security, and that the ban limits no more speech than necessary to accomplish that purpose. As the ACLU noted in its amicus in support of TikTok, the government has not come close to meeting that standard. Absent last-minute action by Congress or the president, starting January 19, TikTok is likely to disappear from app stores in the U.S. and existing U.S. users will probably lose the ability to update the app on their devices, at the very minimum. However, President Biden or President-elect Donald Trump could grant TikTok an extension under the law or direct the Department of Justice not to enforce the ban. This week, Sen. Ed Markey (D-MA) also introduced a bill that would give Bytedance, the Chinese parent company of TikTok, more time to sell the app. “Taking away Americans’ free speech rights does not make us safer; it endangers our democracy,” said Jenna Leventoff, senior policy counsel at ACLU. “The next administration must immediately work with Congress to fix or repeal this flawed legislation. No one should be stripped of their ability to express themselves, especially on a platform that brings together such an immense, vibrant collection of voices from around the world.”

WASHINGTON – The Supreme Court today heard arguments in Free Speech Coalition v. Paxton, a challenge to H.B. 1181, a Texas law that requires people to undergo an invasive age verification process before accessing sexual content online. Represented by Quinn Emanuel, the American Civil Liberties Union, and the ACLU of Texas, the Free Speech Coalition argued that adults have a First Amendment right to look for and access information online, including sexual content. The plaintiffs argued the government cannot burden adult access to sexual speech in an effort to protect kids, whether at drive-in movies, on cable TV, or via the internet. “Efforts to childproof the internet not only hurt everyone’s ability to access information, but often give the government far too much leeway to go after speech it doesn’t like — all while failing to actually protect children,” said Vera Eidelman, senior staff attorney with the ACLU Speech, Privacy, and Technology Project. “Pornography is historically the canary in the coal mine when it comes to censorship. Allowing the government to restrict access to sexual content will inevitably lead to more censorship and a more restricted internet for everyone.” Texas’ H.B. 1181 regulates any website that publishes content one third or more of which is “harmful to minors” — a broad category that encompasses virtually any explicit content, from porn to sexual health materials to R-rated movies. The law forces people who visit those sites to prove they are over 18 via government-issued ID, like a driver’s license, digital ID (which Texas does not have), or transactional data, like records from mortgage, education, and employment entities. “We are grateful for the opportunity to present our case and answer the justices’ questions,” said Derek Shaffer, partner at Quinn Emanuel Urquhart and Sullivan and counsel of record in the case. “We agree that states have a compelling interest in protecting children from harmful sexual content online, and we urge lawmakers to consider less restrictive, more effective solutions than the approach taken by Texas. We hope the Court will confirm the need to apply strict scrutiny to laws that burden and chill adults’ exercise of their First Amendment rights, and we look forward to the Court’s decision.” As the plaintiffs explained in court today, forcing people to identify themselves in order to access information online compromises adults’ rights to privacy and free speech without preventing children from accessing porn. That’s because H.B. 1181 does not apply to sites where minors are most likely to be exposed to sexual content, including search engines and most social media platforms. ”We can protect children online without censoring the internet for adults,” said Alison Boden, executive director of the Free Speech Coalition. “There are smarter, more effective solutions to keeping kids from seeing adult materials that don’t violate the First Amendment right of consumers to go online anonymously.” Since Texas passed H.B. 1181 in 2023, nearly 20 states have enacted similar age verification laws. In states where these laws have passed, the vast majority of adult sites have left the state, potentially increasing the use of VPNs, as well as the popularity of less-regulated sites with sexual content that don't comply with the letter of the law. “By restricting entire websites where only a third of content is deemed harmful to minors, Texas is censoring constitutionally protected speech that we all have a right to access. The government cannot dictate what content we access online without meeting strict scrutiny,” said Brian Klosterboer, senior staff attorney with the ACLU of Texas. Free Speech Coalition v. Paxton is part of the ACLU's Joan and Irwin Jacobs Supreme Court Docket. A decision in the case is expected by early summer 2025.

A SLAPP (Strategic Lawsuit Against Public Participation) suit brought against Columbia professors who criticized the school’s response to student protests is a classic – and unlawful – way to weaponize our legal system to punish and silence constitutionally-protected speech. The ACLU is back in court to protect our right to free speech.

NEW YORK – A faculty organization at Columbia University filed a motion today to dismiss a lawsuit targeting it for public comments about the university’s response to campus protests last spring. The Columbia University chapter of the American Association of University Professors (Columbia-AAUP) is represented by the ACLU and civil rights law firm Wang Hecker, LLP. Columbia-AAUP is one of 21 defendants named in a SLAPP (strategic lawsuit against public participation) suit filed on behalf of five anonymous current and former Columbia students, who allege that Columbia-AAUP's public statements about student protests injured them by causing Columbia to move classes online, restrict access to campus, and cancel commencement. SLAPP suits weaponize the legal system to punish and silence constitutionally protected speech. They have become a common tool for intimidating and silencing criticism—including from whistleblowers, journalists, and political protestors—by threatening defendants with costly and lengthy litigation. Several states, including New York, have strong anti-SLAPP laws that protect defendants from meritless suits by forcing the plaintiff to prove “substantial basis” for their claims for the lawsuit to proceed. “This lawsuit is precisely the type of vindictive and meritless action that anti-SLAPP laws are designed to dismiss and deter,” said Scarlet Kim, senior staff attorney with the ACLU's Speech, Privacy, and Technology Project. “Our client spoke publicly on matters of immense public concern, to defend students’ right to free speech and to condemn Columbia’s punitive response. To suggest that this speech somehow caused Columbia to cancel in-person classes or commencement is ludicrous. It’s obvious that the intent of this lawsuit is not to ameliorate harm, but to shame, punish, and chill our client’s speech. We will not allow our client to be bullied into silence, simply because the plaintiffs didn’t like what it had to say.” Columbia-AAUP's statements about the student protests warned that Columbia’s treatment of student protestors threatened to usher in an era “of repressed speech, political restrictions on academic inquiry, and punitive discipline against the university’s own students and faculty.” Other defendants named in the suit include students, student groups, non-profit organizations, and elected officials. “This suit strikes at the very heart of higher education,” said Reinhold Martin, president of Columbia-AAUP. “Suing a faculty organization for protected speech, especially about university affairs, targets free speech and academic freedom as such. For decades, Columbia’s campus has proudly hosted protest, dissent, and debate; it is this very history that we aim to preserve by dismissing this frivolous action. We are confident that the courts will not allow this type of abusive lawsuit to erode the culture of free expression that defines higher education.” If the ACLU prevails on the motion to dismiss, New York’s anti-SLAPP law will grant attorney's fees to our client and dismiss the lawsuit. The ACLU has also further sought sanctions against plaintiffs' counsel for bringing such a frivolous action. The brief can be viewed here.