The Worst Person You Know Just Filed A Good First Amendment Lawsuit Against A Very Badly Drafted Nudify App Ban

Free Speech

from the fire-the-people-who-drafted-this-bill dept

There’s been a bunch of news this week regarding Minnesota’s new law that purports to prohibit “nudification” technology, and the fact that xAI has sued to have the law blocked as unconstitutional. A few things need to be said upfront, because it’s very, very easy to just say the tech is terrible, that Elon Musk and Grok are terrible, and that of course Minnesota should ban it. But it’s also possible that, in the rush to attack very problematic apps built by very problematic people, Minnesota drafted a bad law that is ridiculously overbroad and pretty clearly unconstitutional. And… that is exactly what appears to be the case.

Let’s start with the basics: apps (mostly powered by various AI tools) that are used to produce modified imagery, especially stripping people of their clothes are… bad. They should be socially shunned. People using them to objectify or sexualize others are doing bad things, and people should judge those who use those apps accordingly. This is not a defense of those apps. Similarly, Elon Musk’s Grok and its widely promoted use of putting people (including children) in bathing suits definitely deserves social shunning as well. Norms take time to form, and the shunning here is still catching up to the technology.

But passing a badly drafted, obviously unconstitutional law does not help form those norms. Nor does it punish Elon Musk. Instead, it allows him to act like a First Amendment martyr.

It’s also worth clearing something up early, because a lot of the coverage has gotten it wrong: this is not a law about child sexual abuse material. CSAM is already quite illegal under both state and federal law, and nothing in HF 1606 is limited to images of minors. Had Minnesota drafted a law narrowly targeting AI-generated CSAM, it might have survived a constitutional challenge. That’s not what it did.

And if you want to pass a law to ban technology like this, there are rules under the First Amendment. And, in Minnesota, we even know what some of those rules are. After all, a decade ago, the state also passed a law criminalizing the dissemination of “nonconsensual private sexual images.” After some back and forth in the courts, the Minnesota Supreme Court finally blessed the law as constitutional in late 2020, but made it quite clear that the law went right up to the First Amendment line. It first noted that while the state wanted to claim there’s an entirely new category of unprotected speech (in this case, “substantial invasions of privacy”), the court refused to do so, citing the famed US v. Stevens case (about an attempt to outlaw animal “crush” videos) in which the Supreme Court made it quite clear that it wasn’t open to creating new categories of unprotected speech:

The United States Supreme Court has emphatically rejected “freewheeling” attempts “to declare new categories of speech outside the scope of the First Amendment.” Stevens, 559 U.S. at 472; see also Jorgenson, 946 N.W.2d at 604 (“The United States Supreme Court has been reluctant to expand these traditional categories of unprotected speech.”). It is possible, however, there are “some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed.” Stevens, 559 U.S. at 472.

To successfully argue for a new unprotected category of speech, the proponent must present “persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 792 (2011). This is a heavy burden to bear, and the Supreme Court has recently rejected creating new categories of unprotected speech for animal cruelty, Stevens, 559 U.S. at 472, depictions of excessive violence, Brown, 564 U.S. at 791–93, and false statements, Alvarez, 567 U.S. at 722–23.

In this case, we conclude that the State has failed to carry the heavy burden required to provide a basis to establish a new category of unprotected speech.

And yet, the law was still deemed constitutional, but not because it created a new category of unprotected speech, but rather because it passed strict scrutiny, in which the law is narrowly tailored to use “the least restrictive means” of addressing a compelling government interest. That is the test by which a law can still be deemed viable under the First Amendment, despite suppressing speech. In the case of the nonconsensual imagery bill, the law passed strict scrutiny because it focused very narrowly on a category of speech that is very likely to cause harm, and put in place a law that was narrowly tailored to only target that speech, and on top of that included clear exemptions for edge cases that likely wouldn’t be harmful.

Indeed, the court leaned hard on the fact that the law only reached images disseminated without consent, and only when the disseminator knew or reasonably should have known the subject expected privacy. Those two limits — consent and intent — are what kept the statute from sweeping in vast amounts of protected speech. Some quotes from the court which list out all the factors necessary to pass strict scrutiny.

First, the Legislature explicitly defined the type of image that is criminalized…. Furthermore, the image has to be “obtained or created under circumstances in which the actor knew or reasonably should have known the person depicted had a reasonable expectation of privacy.” Id., subd. 1(3). Images that do not clear each of these hurdles fall outside the scope of the statute.

Second, a defendant must “intentionally” disseminate the image. … This mens rea requirement means that a defendant must knowingly and voluntarily disseminate a private sexual image; negligent, accidental, or even reckless distributions are not proscribed. This specific intent requirement further narrows the statute and keeps it from “target[ing] broad categories of speech.”

Third, the statute has seven enumerated exemptions…. The statute allows for private sexual images to be distributed “in the course of seeking or receiving medical or mental health treatment.” Id., subd. 5(3). Advertisers, booksellers, and artists are protected because images “obtained in a commercial setting” for legal purposes fall outside the statute’s reach. Id., subd. 5(4). Journalists cannot be prosecuted because there are exemptions for the dissemination of private sexual images that involve matters of public interest and “exposure[s] in public.” Id., subd. 5(4)–(5).8 Educators and scientists are protected because there is an exemption for private sexual images disseminated for “legitimate scientific research or educational purposes.” Id., subd. 5(6). Accordingly, even if protected speech falls within the ambit of subdivision one and a disseminator acted with the requisite mens rea, that person may still be exempt from prosecution under these precise exceptions.

Fourth, to be prosecuted under the statute, a disseminator must act without consent…. This provision provides additional protection for commercial advertisements, certain adult films, artistic works, and other creative expression outside the statute’s scope.

Finally, this statute only encompasses private speech…. Unlike the overly broad statutes at issue in our recent decisions in In re Welfare of A.J.B. and Jorgenson, this statute covers only private sexual images and does not prohibit speech that is “at the core of protected First Amendment speech.”

It was all of that combined that allowed the law to pass strict scrutiny — something that is incredibly difficult to do. Most laws that have to clear strict scrutiny don’t. Here, this law survived with a careful roadmap from the court of how to do so.

One would think that Minnesota legislators would be aware of this ruling and the clear reasons why the law was deemed to pass strict scrutiny and then write an equivalent law with the same elements in trying to ban nudify apps.

But for reasons known only to the Minnesota legislators, they basically ignored every single one of those points.

Minnesota’s anti-nudification tech law is not limited to non-consensual content. This means, as legal commentator Kathryn Tewson noted, that if she uploaded a picture of herself and asked Grok to put her in a bikini, she could by her own hand, cause Grok to break this law. That… seems like a very problematic law.

And, again, the Minnesota Supreme Court has already told the state pretty much exactly how to make this law constitutional: focus on nonconsensual imagery, narrowly tailor it to just the deeply harmful content, include an intent requirement, and include clear delineated exemptions for things that should be allowed.

Minnesota legislators did none of that. Indeed, even the definition of “intimate parts” in the law borrows its definition of ‘intimate parts’ from an earlier statute, covering: “the primary genital area, groin, inner thigh, buttocks, or breast of a human being” — not much of which is inherently sexual, let alone harmful. Tewson offers another example: an edit of a Taylor Swift photo that changes the texture of her fishnet stockings to look more like skin. Whatever tool made that edit just violated Minnesota law.

This is, by definition, an overly broad, non-narrowly tailored law.

Another example: last year the TV show South Park did a deepfake parody of Donald Trump, showing a photorealistic version of him wandering naked through the desert, including his “intimate parts.”

Under this law, that video could violate HF 1606. That’s not narrowly tailored. That’s not dealing with intent or focused just on truly harmful content.

One lawyer I spoke to, after reading through the statute, wondered out loud whether the Minnesota legislature had deliberately drafted it in the dumbest way possible just to guarantee a successful challenge. That’s how poorly the law was drafted.

Of course, no one wants to hear that the law is badly drafted. Lots of people want to ban nudify apps and to yell about how ridiculous it is that Elon Musk has gone to court to challenge this law.

But… it’s the sort of thing he should be doing. Otherwise anyone can have Grok put themselves in a bikini and… Minnesota’s Attorney General can demand $500,000 for each such image created, even when the image was created deliberately, by the person in it, of themselves.

xAI (now a division of SpaceX) is right to challenge the law, not because nudify apps are a good thing, but because the law is terribly drafted and pretty clearly exceeds what’s allowed under the First Amendment. The complaint itself is worth a read. For one thing, it explains why xAI last week sued one of its own users for producing CSAM with Grok (which I had found perplexing at the time). It reads a lot like the company wanted a concrete example to put in this filing of how it fights back against those who use Grok in such ways (leaving out, of course, that Elon himself used the app to put himself in a bikini, thereby encouraging others to do the same).

It also explains why that complaint was focused on triggering the indemnity clause in X’s terms of service, which makes the user liable for any legal costs associated with their use of the product. What Musk is really signalling with that lawsuit is if Minnesota’s AG sues us under this law for your usage of the product, we’re going to sue you to cover our costs (which could include the $500,000 fine for any images created).

As the lawsuit notes, the law is just terribly written:

HF 1606 punishes AI platforms that allow users to alter images of real people to depict an “intimate part.” But the statute contains no knowledge, intent, or purpose requirement. It is a strict-liability statute keyed solely to whether a user succeeded in creating a covered image using the AI provider’s platform—regardless of whether the provider prohibits users from using its tool for such a purpose, regardless of how many mitigations the provider has in place, and regardless of how diligently the provider polices such conduct using its tool. There is no safe harbor for good-faith efforts of the provider of general-purpose AI creative tools to avoid harms. Liability attaches even if the depicted persons consented—or created the image themselves—and even if the image is never shared. Liability also attaches even if the image has artistic, scientific, political, satirical, educational, medical, or religious value, and (again) even if the company has deployed near-perfect, state-of-the-art technical controls to prevent the generation of nude images.

Additionally, the law’s definition of “intimate part” is exceptionally broad. Although the federal government and various states have enacted statutes that clearly define nudity for the specific context of AI-generated images, Minnesota rejected such a precise definition. Instead, it borrowed the definition of “intimate part” from a criminal sexual-contact statute. That definition was drafted for nonconsensual touching and thus covers the inner thigh, buttocks, or breast of a man or woman, as well as the groin and primary genital area. HF 1606 accordingly bans ordinary depictions of men without shirts, people in shorts or swimsuits, and other body parts routinely displayed in public—far beyond what an ordinary person would consider “nudification.”

Even worse, as the lawsuit states, the bill’s “principal sponsor” admitted that the law was designed to apply to consensual imagery:

A service used by an adult to edit a photograph of him or herself or a consenting individual is covered on the same terms as a service used to create an image of an unwilling stranger. The statute’s text draws no distinction among them. And this was by design. When a staff member of the Senate Judiciary and Public Safety Committee pointed out that the Act’s “prohibition applies to consensual images,” Senator Maye Quade (the bill’s principal sponsor) explained “that is intentional.”

That is the bill’s main sponsor stating, on the record, that she deliberately chose to leave out one of the very features Minnesota’s own Supreme Court had identified as necessary for a law like this to survive constitutional scrutiny.

That is legislative malpractice.

Since the lawsuit was filed, Maye Quade and other legislators have publicly defended the bill:

“I don’t see this as a free speech issue. This does not regulate content; it does not regulate art. It regulates conduct,” Maye Quade said. “Prompts are not art, and we protect art specifically in this law. It’s pretty audacious to sue to prevent a law that protects children from being turned into child sexual abuse material.”

She’s describing a law she could have written, but didn’t.

Notice what’s missing from that defense: any explanation of why the consent and intent elements the Minnesota Supreme Court specifically identified as saving the 2016 law were left out of this one. Also, she’s just simply incorrect that the law does not regulate speech. Again, if she simply read what the Minnesota Supreme Court said about the nonconsensual intimate imagery law, it spent pages analyzing the nonconsensual imagery statute — a law covering narrower material than this one — as a content-based restriction on speech that had to pass strict scrutiny to survive.

Similarly, the law does not actually “protect art.” Its one and only exemption is if the work “requires the technical skill of a user to nudify an image or video.” That could protect some art, but not all. And it defines art only in a case where a level of skill is needed, which itself potentially creates First Amendment issues in defining what is, and what is not art. There is plenty of modern art that people regularly complain takes no “technical skill” to create.

The complaint itself includes some other examples of what would violate the law, including this (gross) AI-generated image that Trump posted of a slimmed down version of himself, some of his cabinet members, and a randomly generated woman in a bikini sitting in a gleaming blue reflecting pool. Under the law, whatever tool was used to generate that image pretty clearly violated Minnesota’s law:

In this viral snapshot—which President Trump posted publicly— President Trump, Vice President J.D. Vance, Secretary of State Marco Rubio, and Secretary of the Interior Doug Burgum all are portrayed shirtless in the Washington Mall’s reflecting pool, along with an unknown (possibly fictitious) woman.19 An “intimate part” (the breast) of at least the President, Vice President, Secretary of the Interior, and the woman are “depict[ed],” with the Secretary of State also at least arguably included as well. The President posted this image on his personal account, presumably to make light of the public controversy surrounding repairs to the reflecting pool on the National Mall.

Nudify apps are gross. Musk’s encouragement of people to use Grok to de-clothe people is gross. People who use AI tools to “nudify” people are gross. But that doesn’t mean all laws targeting such things are good laws or constitutional.

In this case, despite having clear instructions from its own Supreme Court on how to write a constitutional law, Minnesota’s legislature deliberately chose to write an unconstitutional one. And thus, this lawsuit is the proper thing for SpaceX/xAI/Musk to do.

Supporting the lawsuit is not supporting Elon or Grok or nudify apps. It’s telling every legislature in the country the same thing: if you want the law to survive, learn to draft it in ways that aren’t unconstitutional.

Filed Under: 1st amendment, ai, free speech, grok, maye quade, minnesota, nudify, strict scrutiny
Companies: spacex, x, xai

The FTC Would Like To Decide Which AI Answers Are Too Woke, And Is Calling That Consumer Protection

Free Speech

from the the-woke-police dept

On Friday this week the FTC’s open comment period regarding its “Policy Statement Addressing AI Accuracy” will close, which means that a bunch of very smart, very busy people are wasting a ton of time this week writing up comments that will mostly be ignored by the FTC — but still matter for the record. The whole thing is so ridiculous that a former FTC lawyer has sarcastically requested that the FTC publish a quarterly “schedule of values” so AI companies at least know which ideologies they’re required to support to keep Donald Trump happy.

It’s an unconstitutional sham from an FTC whose chairman, Andrew Ferguson, quite openly sees his job as putting his thumb on the scale of speech to favor the MAGA worldview. Ferguson has been doing this since the very start of his tenure and it doesn’t appear to be slowing down now.

He couches his policy and investigatory efforts in the language of legitimate FTC authority, but nobody’s really fooled about what’s going on. Here, when he talks about “objectivity and accuracy” in responses from AI engines, everyone knows what he’s actually doing is crafting a policy that will let the FTC punish AI systems for giving “woke” answers that the MAGA world disagrees with.

The mechanism at work is blatantly obvious: the FTC is taking its Section 5 authority over “unfair and deceptive” practices — generally meant to go after companies engaging in outright fraud or deception to trick consumers — to claim that if an AI’s output is deemed to be too woke or not pro-MAGA enough, then the FTC will accuse the company of being “unfair or deceptive” in its marketing.

The draft policy statement builds its whole case on the idea that users trust what AI tools tell them — which conveniently becomes the hook for worrying that those trusting users might get fed something MAGA world doesn’t like. Thus making it “deceptive.” Yes. Really. In the actual world, the FTC’s Section 5 deception authority requires that a company make a representation that’s actually false, and materially so. Here, the Commission simply asserts — with no evidence at all — what consumers “reasonably expect,” and then appoints itself the judge of whether any given output matches.

As they have marketed their remarkable breakthroughs to the public, AI companies have spent years representing explicitly and implicitly that their systems aim to produce the best output—output that faithfully and accurately achieves users’ stated objectives and the built-in objectives that users expect in the AI system—that is possible within their technological and resource constraints. Because of these representations and the inherent nature of the products and services in question, consumers have a reasonable expectation that AI systems aim to give truthful and accurate outputs. Consumers have no basis to believe that AI systems aim to produce outputs that are distorted by undisclosed ideological objectives.

Nonetheless, an AI company might be tempted to alter or steer the output of its systems contrary to consumers’ reasonable expectations for various reasons, including attempted compliance with a state law, such as Colorado’s recently revised Artificial Intelligence Act. But steering an AI system in this manner may deceive consumers in violation of Section 5 of the FTC Act. That is true even if the deceptive steering is done in an effort to comply with state laws. Of course, a company may be able to avert potential deception by making truthful, non-misleading representations about the aims of its model. But such representations would need to make clear that the AI company is prioritizing objectives different than those consumers requested or would otherwise expect.

This is all a bit of shadow puppetry, where the FTC wraps its “AI outputs should never be too woke” argument in language that pretends to fit a traditional FTC mandate.

But this is all wildly unconstitutional, as even a cursory reading of how the First Amendment works would show. As the Supreme Court recently highlighted in Moody v. NetChoice, internet companies have clear First Amendment protections in their editorial decision making regarding what they choose to show — or not show — users of their services. From that ruling:

…this Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression—to “un-bias” what it thinks biased, rather than to leave such judgments to speakers and their audiences. That principle works for social-media platforms as it does for others.

Yet, that’s exactly what this proposed FTC policy is setting up: if AI tools don’t produce properly MAGA-fied outputs, the FTC might go after them, claiming that the outputs are not in line with “consumers’ expectations” (as determined by the MAGA FTC) and thus, “unfair and deceptive.”

And while a “policy statement” from the FTC is not binding law, it’s clearly designed to publicly state what kinds of views will get you investigated by the FTC, in an attempt to create chilling effects that pressure AI companies to pre-censor their bots. This is also why the comment period is basically a formality. Ferguson has no obligation to do anything regarding the comments, as there’s no official rule being promulgated.

And don’t sleep on the FTC’s statement regarding Colorado’s (admittedly questionable) law, which seems to serve no real purpose other than to try to backdoor its way into Trump’s desire to magically block state AI laws, which is something he cannot unilaterally do. Remember, while there have been efforts in Congress to preempt state laws, that has not come to pass. But here the FTC is telling companies, in writing, that complying with an enacted state law creates federal liability exposure, entirely because the FTC policy (not even a full rulemaking) says so.

Last week we had former FTC lawyer Keith Fentonmiller lay out how obviously unconstitutional all of this is. It’s the FTC trying to dictate editorial policies of private companies. The First Amendment does not allow that. Aaron Rieke, another former FTC lawyer, put it even more starkly (and hilariously) in a recent LinkedIn post, designed to look like a letter in response to this open comment period, but which cuts through all the bullshit and says, in effect, “look, if you want us to only push the preferred ideology, can you at least tell us which talking points we should bless, and which we should suppress”:

Dear Commissioners:

I write in enthusiastic support of the proposed policy statement, and with one modest request for clarification.

The statement wisely prohibits steering AI outputs toward undisclosed “ideological objectives” while preserving companies’ freedom to implement “prudent guardrails.” As a consumer who relies daily on these systems — having been assured, deceptively it now seems, that they are “helpful” — I confess I cannot always tell these apart. The distinction appears to reside not in companies’ conduct but in the values they pursue.

I therefore respectfully request that the Commission publish, and update quarterly, a schedule of values, each designated either “Ideology” (deceptive if undisclosed) or “Common Sense” (no disclosure required). The proposed statement offers a promising start — “equity” is evidently Column A, while cybersecurity occupies Column B — but leaves substantial compliance uncertainty regarding, e.g., deference to law enforcement, patriotism, and politeness.

Absent a complete schedule, companies must simply guess which viewpoints the government currently disfavors and speak at their peril. I assume the Commission has already concluded that a federal schedule of approved and disapproved values raises no First Amendment concerns. Publishing the schedule would helpfully memorialize that conclusion.

Such a schedule would also generate efficiencies for future administrations, who would need only swap the column headers.

Thank you for your leadership in ensuring that American AI remains free from government influence over its viewpoints, as determined by the government.

Respectfully submitted,

A Consumer, Acting Reasonably in the Circumstances

While sarcastic, it makes the point better than any of the earnest comments will. An FTC that can punish AI tools for failing to parrot the administration’s ideological preferences is an FTC acting as a censor, and we’d all be a lot better off coming out and saying so, rather than pretending there’s some legitimate intent or purpose behind this effort.

Ferguson’s FTC has been focused almost exclusively on abusing the power of the Commission (remember, Donald Trump fired the Democratic Commissioners and has made zero effort to replace them despite the law requiring two commissioners from the minority party) to win culture war arguments and punish those deemed insufficiently loyal. The new policy and comment period is just more of the same. It’s entirely about Trump & Ferguson setting the sloppy groundwork for them to whine and complain about AI tools accurately calling bullshit on MAGA propaganda as being “unfair and deceptive.”

None of this should be happening. It’s an attack on the First Amendment so obvious that the FTC isn’t even bothering to disguise it well. But, because of the political world we live in today, everyone has to pretend to take it seriously, to pretend that the FTC will read their comments carefully, weigh the pros and cons of various approaches on this policy, and come out with some final policy that people should take seriously.

The FTC has no business investigating the editorial judgments of companies, and its facade about consumer expectations and deceptive practices is a joke. People and organizations ought to still submit comments, if only to establish opposition to this farce on the record. But what a waste of time and brainpower from people who have approximately a thousand more productive things to do.

Filed Under: 1st amendment, ai, andrew ferguson, editorial policies, free speech, ftc, section 5, unfair and deceptive

Brendan Carr Lobs More Empty Threats At ABC For Not Airing Trump’s Election Fraud Lies

Free Speech

from the pathetic,-weak-men dept

Earlier this year FCC boss Brendan Carr launched a series of fake investigations into ABC because the network (1) hosted Democratic Texas Senate hopeful James Talarico on The View, (2) aired comedians who made fun of the president and his wife, and (3) occasionally engaged in journalism critical of Trump corruption.

The details of these investigations really don’t matter at this point. We’ve discussed how they’re legally incoherent, clearly violate the First Amendment, and involve Carr actively manufacturing false claims that ABC violated FCC rules it was long-exempt from. At other points it just involves Carr being incoherently racist on Trump’s behalf; such as claims that ABC didn’t eliminate its “DEI” requirements quickly enough.

Carr’s now dumping additional empty threats into the mix, claiming that his ongoing review of ABC’s local broadcast licenses will take into consideration the network’s refusal to air Trump’s recent prime time speech, which mostly just involved Trump spewing more false election fraud conspiracy theories surrounding his 2020 loss.

ABC and NBC wisely refused to air the speech live, knowing that helping to spread distrust in election integrity in real time would be the opposite of useful journalism. That made Trump mad, so he’s clearly urged Brendan Carr to levy some additional empty threats against ABC:

“I think when you have the President of the United States standing inside the White House delivering an important speech, I think that’s something that broadcasters should be carrying. And so, obviously, this is an issue,” Carr told reporters Wednesday. “There have been lots of concerns raised, including by members of Congress, about whether broadcasters and their decisions there comply with the public interest.”

Carr is somewhat vague here because he knows this is a bunch of bullshit.

Obviously it’s ABC’s First Amendment right to determine what it broadcasts and when. Carr has absolutely zero legal role in determining the scheduling lineup of a private company. Carr’s once again pretending that networks that refuse to pander to our mad idiot king will be subjected to FCC review of their public interest obligations affixed to ownership of public airwaves.

As we’ve mentioned countless times already, Carr doesn’t want any of this to actually head to court because he knows it’s an absolute loser on First Amendment grounds. The real goal remains to threaten U.S. media companies with costly and annoying legal headaches if they challenge Republicans or the unpopular president. It’s typical lazy autocrat stuff by weak men who are afraid of words.

When it comes to ABC, that’s still been embarrassingly effective. The company agreed to pay Trump a $16 million bribe in 2024 to settle a baseless lawsuit the company easily could have won. And more recently, ABC shows like The View have shied away from hosting any political candidates at all for risk of upsetting Trump.

Brendan Carr has openly stated in interviews he fancies himself a tough, pit bull enforcer; but as Trump’s health and political power wane, the threats will hold less and less weight. As a result you’ve already seen ABC execs start to show a backbone in their fight with Carr, openly pointing out how he colluded with local right wing broadcast affiliates to manufacture evidence suggesting ABC broke FCC rules (something I’m sure will play great in court).

Carr’s threats will become weaker and weaker until he’s ultimately booted from office by subsequent administrations, at which point he’ll fail upward to some mid-six figure job at a telecom or media think tank, where he’ll spend the rest of his life helping corporate America dismantle whatever’s left of competition, labor, and consumer protection standards.

One of the ironic things, for Carr, is that his authoritarian censorship and saber rattling often draws press and public attention away from all the other terrible things he’s doing, whether it’s destroying media consolidation limits, making life easier on robocallers, dismantling broadband consumer protection standards, or making it easier for giant shitty companies to run amok.

You’d like to think Carr ultimately faces some sort of meaningful accountability for being one of the most censorial, petty, captured, and authoritarian regulators in U.S. history, but I wouldn’t hold your breath.

Filed Under: brendan carr, censorship, fcc, first amendment, james talarico, media
Companies: abc, disney

The FTC’s National Nanny Returns: AI Edition

Free Speech

from the not-the-ftc's-job dept

In 1978, the Federal Trade Commission, the agency that regulates unfair or deceptive advertising, proposed limiting TV ads for sugary foods on programs targeted at children. The Washington Post’s editorial board scoffed that the plan would “turn the agency into a great national nanny.” Congress clipped the agency’s wings, and “kidvid” entered history as a cautionary tale of regulatory hubris. Once again, the FTC is channeling its inner Mary Poppins in the name of consumer protection. Only in this incarnation, she pulls a novel theory of deception from her regulatory carpetbag to control what AI chatbots say.

Under the FTC’s proposed policy statement on “Suppression of Accuracy in Artificial Intelligence Systems,” announced July 1, AI developers “likely” commit false advertising whenever they “steer” their models’ outputs toward objectives users don’t expect. The theory: because AI companies market their products as helpful, consumers expect maximally accurate answers, and any undisclosed editorial shaping of a model’s responses is deception. 

It is a policy proposal in search of a problem. True to Mary Poppins’ “I never explain anything” credo, it does not identify a single false advertisement or deceived consumer.

It is also wanting on the legal front, failing to pay even lip service to relevant Supreme Court precedent. In Brown v. Entertainment Merchants Association, the court held that video games—interactive software sold for profit—receive full First Amendment protection, because the Constitution’s protections “do not vary” when a new medium appears. In Moody v. NetChoice, the court reaffirmed that a platform’s choices about what expressive content to present are protected editorial discretion. The design choices underpinning large language models make them legally indistinguishable from video games and social media.

What the FTC calls “steering” is what the Supreme Court calls editing.

The FTC says developers could avoid liability under the policy by “clearly and conspicuously” disclosing that their systems prioritize objectives other than pure accuracy. But how would that work for Truthly, an AI chatbot promoted for its Catholic bias? Truthly’s slogan is “Every other AI is built to agree with you. Truthly tells you the truth.” Although Truthly affirmatively discloses its Catholic worldview and disclaims impartiality—seemingly just what the FTC policy demands—it also claims that, unlike secular chatbots, its news and information is filtered “through truth and morality.” Consumers might struggle to reconcile the chatbot’s biased-but-true disclaimers, rendering them ineffective under the FTC’s own disclosure standards. Paradoxically, a religious chatbot could face false-advertising charges for fulfilling its core function—generating religious outputs.

Freedom of the press, an explicit guarantee of the First Amendment, also would be vulnerable under the proposal’s legal logic. In theory, it would put a target on any media outlet that promises accuracy while exercising editorial judgment, including the NY Times, whose front page has promised “All the News That’s Fit to Print” since 1897. 

Right-leaning media also would be at risk. Newsmax tells viewers it delivers “real news.” Breitbart’s editorial guidelines declare its goal is “to report the truth – accurately and fairly.” One America News brands itself “Your Credible Source for National & International News.” 

Would print articles resort to cigarette-style bias warning labels to avoid an FTC investigation? Would cable news programs run a continuous chyron with their editorial criteria?

In 2004, the agency rejected any application of FTC law in this manner when it declined to challenge Fox News’s “Fair and Balanced” slogan as false advertising. According to then-Chairman Timothy Muris, the inquiry would have entailed an evaluation of the news content at issue, which is a “task the First Amendment leaves to the American people, not a government agency.”

The FTC’s new proposal, however, points the opposite way.

Not so long ago, FTC Chairman Andrew Ferguson touted the Commission’s enforcement focus on actors that use AI to violate the law or deceive consumers about the capabilities of their generative AI. When DoNotPay promoted a “robot lawyer” as comparable to a human professional, then-Commissioner Ferguson rightly voted to hold it accountable. When Workado exaggerated the accuracy of its AI-detection product, the FTC, with Ferguson as chair, ordered it to stop making unsubstantiated claims. 

At the same time, Ferguson was advocating for regulatory humility, declaring that “the FTC’s enforcement actions ought to be guided by the law, not the personal ideology, politics, or novel legal theories of its chairman or commissioners.” Under the Biden administration, he dissented from a proposed consent order against Rytr, a generative AI writing tool that was capable of generating deceptive outputs, arguing that the Commission was punishing “a product that helps people speak, quite literally.” 

Commissioner Melissa Holyoak, whom Ferguson joined in dissent, observed that “[p]art of generative AI’s promise is its ability to suggest new lines of thought that may never have occurred to a user in the first place.” In other words, he signed on to the view that generative AI may be most valuable when it defies consumer expectations. As chairman, Ferguson went further, vacating the Rytr order outright and condemning law enforcement “unsupported by facts or law.”

But that was then. 

The Supreme Court in Trump v. Slaughter subsequently stripped the FTC of its statutory independence, blessing a two-member, one-party Commission. And this Commission has not been shy about asserting its anti-left viewpoints. The FTC proposal puts “equity” in scare quotes and castigates Colorado’s AI law, while ignoring AI laws in Texas and Utah. Meanwhile, the administration the Commissioners serve requires federally purchased AI models to conform to its own official version of the truth. When a future administration inevitably jerks the ideological steering wheel leftward, consumers and AI developers—not the current Commission leadership—will suffer the whiplash. 

In the 1964 film, Mary Poppins measured the children with a tape measure calibrated with subjective character traits instead of inches. Of course, she was deemed “practically perfect in every way.” The FTC’s proposal similarly cloaks a subjective assessment in the language of unassailable objectivity. But all the spoonfuls of sugar in the history of children’s advertising could not mask the bitter taste of conformity with a single worldview.

By fostering regulatory uncertainty, the FTC’s proposal threatens to stall the innovation that the administration insists is essential to AI supremacy. Its facile assurance that developers could avoid deception liability through a disclosure that “dispel[s] the notion that the system is designed to give the best answer possible” is, in “Mary Poppins” parlance, “a piecrust promise. Easily made, easily broken.”

Keith R. Fentonmiller served more than two decades as a senior attorney in the Federal Trade Commission’s Division of Advertising Practices. He is also a published fiction author. The views expressed are his own.

Filed Under: ai, andrew ferguson, fair and balanced, false advertising, ftc, steering

Careful What You Sue For: Trump’s BBC Case Just Forced His Financial Records Into Discovery

Defamation

from the this-time-we-could-wait-for-discovery dept

We’ve written in the past that people online often get way too excited about theoretical pending “discovery” in frivolous lawsuits filed by bad actors. Because while there are certainly a few cases where (1) a frivolous case even reaches discovery and (2) some elements of that discovery are revealed to the public, in the vast majority of cases, that doesn’t happen. The legal strategy for most defendants is to get a case thrown out before it reaches discovery because discovery is incredibly expensive. And, even then, most often what is handed over in discovery never goes public.

But… hey, sometimes, “can’t wait for discovery” turns out to be an accurate sentiment.

Last year we noted that Donald Trump had filed an obviously frivolous lawsuit against the BBC, asking for $10 billion. At issue was an edit in the documentary he didn’t like which might be considered mildly misleading (though Donald Trump repeatedly falsely claimed that the BBC used AI to fabricate quotes, the reality was they edited two separate parts of the same speech to sound like they were said together, when they were really many minutes apart). That’s not defamation, though.

Either way, the case has not been going well for Trump. Because he argued that this documentary (which was only shown once in the UK and not in the US) harmed Trump’s business interests in Florida (where he sued), the BBC asked for Trump’s financial records as part of their discovery requests. Given that Donald Trump made more money last year (around $2 billion) than ever before, even as he remains the President of the United States, it seems like a reasonable request.

Trump and his (not very bright) lawyers tried to wriggle out of this by dropping some of the initial claims that were about how much harm the documentary did to his business, saying instead that it just harmed his reputation. The BBC said it still needed his financial records anyway. And now, Magistrate Judge Enjoliqué Lett has agreed, noting in court that the financial records would be relevant to the claims of reputational harm as well.

“All of President Trump’s brand, properties and businesses are impugned or said to have been impugned. Reputational, economic damages, all of that is now at issue in this case,” Lett said at the conclusion of a three-hour hearing.

Of course, Trump’s lawyers can (and almost certainly will) ask the Article III Judge (Roy Altman, who is a Trump appointee) to overrule the magistrate, but it might not work. After all, earlier in the case, Trump’s lawyers had sought to remove Lett from the case, claiming that she was biased against him, because before she became a Magistrate Judge, she had represented a client in a case against Trump. Judge Altman rejected that claim back in May, siding with his colleague, Magistrate Judge Lett:

The Plaintiff asks us to withdraw our referral of discovery matters from Magistrate Judge Lett and reassign them to a different Magistrate Judge. … He advances two arguments in support of this request: First, he cites our unrelated referral of discovery matters in Donald J. Trump Revocable Trust et al. v. Capital One…. Second, he argues that “Magistrate Judge Lett had appeared as counsel of record on behalf of a party directly adverse to President Trump in active federal litigation: Trump v. Clinton… The Plaintiff’s first argument is unavailing. “Effective April 19, 2026,” Magistrate Judge Hernandez replaced Magistrate Judge Lett as our “paired” Magistrate Judge for Miami-based cases…. We reassigned discovery in Capital One the next day based on case workload and the parties’ compressed discovery period…. Nothing about that decision mandates a withdrawal of the referral in the different circumstances of this case. The Plaintiff next argues that Magistrate Judge Lett previously “represent[ed] [a] defendant directly adverse to President Trump.” … Despite his claim to the contrary, the Plaintiff effectively seeks Magistrate Judge Lett’s recusal. … But 28 U.S.C. § 455 is clear that: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Accordingly, we’ll leave any decision regarding Magistrate Judge Lett’s recusal to her sound judgment. Signed by Judge Roy K. Altman on 5/19/2026.

So, at this point, Judge Altman seems willing to trust Magistrate Judge Lett’s judgment on the recusal question — and that deference may well carry over to the financial-records dispute too.

Of course, even if discovery does move forward, Trump could still file for a protective order to keep most of the records secret, outside of whatever has to be used in court. Alternatively, he could try to dismiss the case to get out of having to provide discovery.

Either way, this was a stupid, vexatious, obvious SLAPP suit designed to punish the BBC and waste its time and money. So it’s quite nice to see that backfiring on the censorial bully that is the President of the United States.

Filed Under: 1st amendment, defamation, documentary, donald trump, florida, panorama, slapp suit
Companies: bbc

JK Rowling Threatens To Sue Amnesty International Into Oblivion For Expressing An Opinion About A Charity She Funds

Free Speech

from the so-very-free-speechy dept

JK Rowling has spoken about how she wrote the first Harry Potter book while she was employed at Amnesty International and how much that experience influenced her writing, and how she learned “the power of human empathy” from working there. Rowling was also, you’ll recall, one of the high profile signers of the infamous Harper’s Letter on “open debate.”

Now she’s threatening to bankrupt Amnesty International for expressing an opinion about Beira’s Place, a “women only” charity Rowling created.

Amnesty International UK had released a report, expressing its well-supported opinion about so-called “anti-rights actors,” specifically calling out a number of groups that it believed, through their statements or actions, sought to “restrict human rights by undermining human rights protections in law and practice.” It had a section on “anti-gender” efforts by some groups which have targeted trans rights and pointed out that:

“Human rights are interconnected and mutually reinforcing. When the rights of one group are restricted, protections for others can also be weakened, even where the effects are not immediately visible.”

This should be a fairly non-controversial statement. But, the report named a number of organizations that it deemed to be “gender critical,” which are, in effect, organizations that have — through their words or actions — done damage to trans rights in particular, and the wider LGBTQ+ space.

No matter your stance on any of this, expressing an opinion about an organization should be seen as part of their free speech and… what’s the term Rowling used in the Harper’s letter? Right, “open debate.”

But, no, not here. One of the organizations that Amnesty mentioned was Beira’s Place, which Rowling helped create as an organization to provide support for female victims of sexual violence. However, aligned with Rowling’s transphobic views and campaigning, the organization proudly insists that it is for “women only.” Beira’s Place and the constant verbiage surrounding it about being for “women only” have certainly contributed to the sense that it is another part of Rowling’s transphobic mission to diminish and deny rights of transgender women.

To look at Rowling’s X feed, for example, is to witness a near never-ending stream of gleefully obnoxious and petty attacks on trans people who speak up for their own rights. I’d post examples, but I’d rather not give any more attention to that sort of hateful messaging.

Thus it’s entirely reasonable to have and express the opinion that Beira’s Place and other operations that refuse to recognize the rights of trans women (and trans men) are “anti-rights.” I mean, literally part of Beira’s Place’s messaging to the world has been its anti-trans stance.

After all, as the statement above notes, when you deny rights to one group, you are weakening rights for all. And, look, even if you somehow agree with Rowling, if you actually believed in free speech and “open debate” you should at least support Amnesty UK in expressing their opinion that being anti-trans is being anti-rights.

But Rowling seems to absolutely loathe any actual “open debate” regarding her views towards the trans community. Thus, she spoke out angrily about the Amnesty report, leading to a media fury, and causing the organization to pull it down. She has also demanded an apology and threatened to sue the organization:

Lawyers acting for the centre have threatened Amnesty with court action unless it permanently withdraws the report, publicly apologises to the blacklisted groups and commissions an external investigation into how it came to be published.

The letter said: “The [Amnesty] report has wrongly labelled all associated with Beira’s Place, including those accessing support as anti-rights bigots who are seeking to weaken human rights.

“This is a shocking way to describe those who are seeking help to overcome the trauma of sexual violence. There is no basis for these allegations, and our client, with the support of its founder JK Rowling, will not sit back and allow the reputation of Beira’s Place or those who access its support to be tarnished in this way.”

And to make it clear she seeks to burden Amnesty UK with as many costly lawsuits as possible, she’s offering to fund other organizations that wish to sue Amnesty International UK over this report.

That’s her tweeting:

Should any of the women’s organisations targeted by Amnesty UK’s recent ‘anti-rights’ blacklist wish to take legal action, applications can be made to the JK Rowling Women’s Fund.

So much for free speech and open debate, huh?

Rowling has a right to express her own bigotry and hateful views. But Amnesty International and anyone else should also be able to express their opinion that by her words and her deeds she is doing real harm to the rights of trans people worldwide. But Rowling is making every effort to shut that down.

I am sure that Rowling and her supporters will claim, ridiculously, that because she views Beira’s Place and her other anti-trans activism as “pro-women’s rights” that it is somehow defamatory to call it anti-rights. But that’s why it’s a protected opinion. Whether or not one’s views and actions are pro or anti-rights is, inherently, an opinion.

My opinion is that Rowling is a hateful, angry woman who has done tremendous harm to some of the most marginalized people in the world for no reason at all, and her wink wink nod nod “I’m just supporting women’s rights” bullshit as cover for that is both craven and pathetic. She has contributed to a hateful, anti-rights movement that has put millions of people at greater risk. That she is now seeking to effectively silence and potentially destroy the organization that she, herself, claims was so valuable in getting her to understand the value of human empathy is a particularly sad statement on where her life has taken her.

Meanwhile, I’m still waiting for literally any of her Harper’s Letter co-signers to call out her attacks on the organization’s speech, and threats to their existence for expressing an opinion she doesn’t like. Apparently, that kind of “open debate” is too much?

Filed Under: defamation, free speech, human rights, jk rowling, lgbtq, terfs, trans rights
Companies: amnesty international, beira's place

Florida’s Stop WOKE Act Shut Down (Again) By Eleventh Circuit Appeals Court

Free Speech

from the stopping-the-stoppers dept

Florida Republicans’ bigoted little piece of speech policing — the former “Stop WOKE Act” — has already been terminated multiple times by federal courts. Two lawsuits with two sets of plaintiffs have generated the same results: a ruling declaring the law unconstitutional and an injunction blocking the state from enforcing it.

The law aims to directly regulate speech in classrooms, allowing the government to punish teachers and administrators from engaging in any speech the Florida GOP doesn’t agree with. In practice, this means eliminating discussions about racism, equitable treatment, or anything related to LGBTQ+ issues.

The two lawsuits have generated some pretty stark paragraphs from presiding judges. Both take their cues from pop culture. Noting the cognitive dissonance of state lawmaking, the court said this in 2022:

In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world. See Stranger Things (Netflix 2022). Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely. 

The same court said this when the second lawsuit against the Stop WOKE law crossed its desk:

“It was a bright cold day in April, and the clocks were striking thirteen,” and the powers in charge of Florida’s public university system have declared the State has unfettered authority to muzzle its professors in the name of “freedom.” To confront certain viewpoints that offend the powers that be, the State of Florida passed the so-called “Stop W.O.K.E.” Act in 2022—redubbed (in line with the State’s doublespeak) the “Individual Freedom Act.” The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints. Defendants argue that, under this Act, professors enjoy “academic freedom” so long as they express only those viewpoints of which the State approves. This is positively dystopian.

The state appealed both decisions. The Eleventh Circuit Appeals Court upheld the injunction in March 2023. The state continued to assault the court with motions to undo this injunction, prompting the Eleventh Circuit to issue this additional order:

The Clerk is DIRECTED to treat any motion for reconsideration of this order as a non-emergency matter.

Forced to wait its turn, Ron DeSantis and his MAGA buddies have had to wait more than three years just to find out they still won’t be able to enforce this blatantly unconstitutional law. The state’s lawyers will read the whole thing looking for ways to argue this differently if (or when) the US Supreme Court decides to hear their appeal.

But anyone wanting to know how this turns out for Florida’s public service bigots won’t have to dip too far into the 85-page ruling. By the middle of the fourth page, you’ll know what you need to know. From the decision [PDF]:

When several groups of professors challenged Florida’s new restrictions, the State cast about for an existing case or doctrine that could support its speech ban in the university setting. Finding none, it tried to marry public-employee speech cases with government speech doctrine, resulting in a new rule: if the government pays a professor’s salary, it has total control over her classroom speech.

That is not a blessed union. Florida’s salary-for-speech rule is a breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the State’s own statutes recognize as centers of inquiry—classrooms where students are trusted to puzzle through ideas that are good and bad, easy and hard, ideally getting ever closer to the truth. This new rule also runs headlong into the Supreme Court’s repeated, if imprecise, endorsements of academic freedom. If the First Amendment offers any boundary of protection at all for public university classrooms, this statute crosses it.

The injunction stays in place, presumably forever. While there are certainly some members of the Supreme Court who would love to tie their precedent and ethics into knots just to block speech they personally don’t like, this doesn’t appear to be the case they’d choose since it would likely generate precedent that might work against the bigots in the Supreme Court when they go to bat for bigots in the White House.

The appeals court has already blocked the other part of the law — the clauses attempting to regulate speech in private workplaces by forbidding mandatory meetings that promoted views the GOP doesn’t agree with. The last ditch attempt to claim the government can regulate speech in college classrooms doesn’t fare any better, even if it’s not quite as clear cut in terms of constitutional violations as telling private companies what they can and can’t say.

Claiming that all speech by government employees is “government speech” is a non-starter. The state couldn’t find precedent to support its novel take on the First Amendment. And the few odds and ends it threw at the judicial wall in hopes of seeing something stick failed as well.

More credibly, the State explains that it also seeks to protect its “most cherished ideals.” But that justification fails, too. Though the government has plenty of ways to promote its own viewpoint, puppeteering every university professor in the state is not one of them.

The court spends 50 pages dismantling each and every one of the state’s arguments, citation by citation. There can be no doubt the law is unconstitutional, not that it matters to the state, which has already announced it will be appealing the ruling. But this is censorship that can’t even be bothered to pretend it’s anything but the very thing it claims it is opposed to. “Individual Freedom Act” (as it was renamed), my ass.

Florida seeks to strip public university professors—and by extension their students—of the ability to fully engage with ideas that are, for better or for worse, very popular in some academic circles. The State asks us to consider its rules a means of targeting discrimination. But hearing an idea you disagree with is not discrimination; it is an opportunity to come up with a better idea, or maybe even change your mind.

There’s a dissent that runs nearly as long as the opinion. Written by Judge Barbara Lagoa (someone with a history of anti-trans rulings), it’s 30+ pages of wasted time. To paraphrase: none of these plaintiffs should have been granted standing, much less relief and also: [bunch of Justice Alito quotes].

Doesn’t really matter, since it’s the dissent but I guarantee if anyone’s going to start polling for an en banc rehearing, it’s going by Judge Lagoa.

Suck it, DeSantis. Until that happens (if it ever will), your stupid hateful law is as dead as the eyes of your sycophants.

Filed Under: 11th circuit appeals court, 1st amendment, florida, free speech, ron desantis, stop woke act, woke

FCC General Counsel Channels Founding Fathers To Falsely Claim First Amendment Allows Banning Porn

Free Speech

from the the-censorship-police-are-getting-bolder dept

Another senior Trump administration official is gleefully showing off his true colors: The current general counsel for the Federal Communications Commission (FCC) published an opinion column with the Heritage Foundation’s news outlet The Daily Signal calling for stronger obscenity regulation. 

From the Founding through most of American history, courts allowed the legislature to control pornographic material. Judicial reactions to internet pornography broke this tradition to our great detriment.

That’s by Adam Candeub, the general counsel for FCC chair Brendan Carr’s censorship regime. Among other things, he was the lawyer who represented the racist Jared Taylor when he unsuccessfully sued Twitter for being moderated. He also was a key player in the first Trump administration’s effort to get rid of Section 230. Lately, he’s been one of the driving forces behind model legislation that helped lead to mass adoption of age verification laws around the United States. Candeub also contributed the section on Federal Trade Commission (FTC) regulatory actions for regulating online speech to the public policy treatise for Heritage Foundation’s Project 2025 effort. 

His resumé aside, Candeub’s latest contribution to wider discussion on free speech, pornography, and obscenity law is replete with culture war talking points of very little substance. He frames his arguments as a patriotic call to action referencing the founding fathers of the United States on the occasion of our country’s semiquincentennial year. 

He says they would have “supported” stronger obscenity regulations and a resumption of obscenity prosecutions, echoing recent calls by figures in the religious right and anti-porn movements to do so. It’s easy to claim what people 250 years ago would have said or believed since they’re not around to defend themselves.

But a casual look shows that several of the founding fathers were not particularly pure or morally superior when it came to sex and relationships. Even if you look past their somewhat infamous extramarital affairs, Ben Franklin was famous for both writing and sharing materials that might not even pass the test for obscenity today. Thomas Jefferson expressed deep outrage at the concept of censoring literature based on religious morality tests. Writing to bookseller Nicolas Dufief in 1814 after a magistrate threatened prosecution over a controversial text, Jefferson demanded, “Are we to have a censor whose imprimatur shall say what books may be sold, and what we may buy?” 

These are not the actions of men who would quickly embrace anti-obscenity laws.

I wrote for Techdirt not too long ago about the National Center on Sexual Exploitation’s president and chief executive officer, Marcel van der Watt, calling pornography a “national security threat” and urging the Department of Justice to resume prosecuting alleged obscenity as a way to fight pornography’s accessibility. 

Republican Sen. Jim Banks of Indiana also sent a letter to Trump’s Justice Department in May, arguing that the feds “[ending] obscenity prosecution was a mistake.”

This all matters, given that Candeub is expected to move to a top-level DOJ position soon.

His anti-porn screed is full of nonsense:

“Americans born after the mid-1990s have lived their entire lives in a world awash with hardcore pornography. Never has so much pornography been so available to so many at so little cost. Our laws leave much pornography effectively unregulated. Our technology, especially smartphones, brings portable, private porn shops to everyone’s phone.”

Aside from the clear misinformation about an “unregulated” pornography industry, Candeub proposes a supposed moral restoration of obscenity laws such that anything viewed through the lens of non-traditional sexual expression could be fair game for legislatures to heavily restrict or outright ban. 

Much of his column summarizes a report he produced on the topic for the Heritage Foundation, which was published on July 6. The report is aptly titled, “Restoring Obscenity Regulation in an Internet Age.” It is replete with the same talking points from the most extremist elements of the anti-pornography movement who desire to ban all pornography.

He praises the Supreme Court’s decision in the case Free Speech Coalition et al. v. Paxton, which found that Texas could require age verification for online adult content, despite it going against previous Supreme Court First Amendment precedent.

The report also calls for the return of Comstock laws and the patchwork of anti-vice statutes that were historically used to prosecute individuals for “obscene” devices, the transmission of “prurient” content, and other prohibitions that lasted into the 20th century. 

Most alarming, he views the high court’s 6-3 decision in the Paxton case as an optimistic but quite unclear step to modern Comstock prosecutions in state-level courts:

“Paxton may signal the reinvigoration of a dual-track approach to the regulation of obscenity: States can require oversight for minors, and mostly anything goes for adults. At the least, it is unclear what effect, if any, Paxton will have on obscenity for adults.”

He adds:

“The most optimistic result under current law would be a reinvigorated Miller with the national government again able to regulate the transmission of obscenity. The case’s flexible terms could allow for obscenity actions for internet-distributed pornography in state courts; the existing federal laws, specifically the modern version of the Comstock Act, prohibit obscene material from interstate transmission. Motivated state and local prosecutors could still get convictions in conservative communities, and national prosecutors could go against the big platforms like Google, which do not enjoy immunity from federal laws, for distributing obscenity.”

The bolded text is Candeub’s silver bullet. By his interpretation of the current Comstock law, the incumbent FCC’s general counsel is essentially calling for criminal prosecution for transmitting “obscene” web content across state lines because, well, the internet exists and it transcends borders. 

This is exceptionally problematic for two reasons. First, Candeub works for the FCC and is backing a legal strategy that’s been used, historically, to aggressively prosecute women, LGBTQ+ individuals, entire communities of color, consensual sex workers, and pornographic and non-pornographic publishers for their speech. 

This is the FCC presenting itself as the morality speech police.

Second, Candeub’s advocacy in this report and column conforms to Project 2025 and the Heritage Foundation’s call for the prosecution of “pornographers” who spread “the toxic normalization of transgenderism with drag queens and pornography.”

We’ve seen this idiocy before. 

Candeub’s arguments are about far more than pornography. He is contributing, from his position as a top government legal official, to a much broader effort to revive long-discredited obscenity and vice legal doctrines and expand government authority over lawful expression and activity. All of this is done in the guise of “restoring public morality” and “protecting children” from a supposed cultural decay. 

Coming from the lead attorney for Trump’s FCC, one of the architects of Project 2025, and a likely to be senior DOJ official, this signals a terrifying push forward towards a public policy agenda to enable greater and greater censorship by dubbing things like LGBTQ+ content and legal adult pornography as something that can be banned.

Michael McGrady covers the tech and legal sides of the online porn business.

Filed Under: 1st amendment, adam candeub, brendan carr, comstock laws, doj, fcc, free speech, fsc v. paxton, ftc, obscenity

Mexico Passed Speech Laws To Protect The Powerless. The Powerful Used Them To Silence Critics.

Free Speech

from the speech-laws-always-get-weaponized dept

For over a decade, a particular argument keeps resurfacing from well-meaning progressives: the rise of authoritarianism around the globe is a good reason to pass laws suppressing speech. The idea is that somehow, magically, without free speech, authoritarians and fascists would never come to power in the first place. This is historically illiterate. It’s also stupid. As we’ve argued for many, many years, speech suppressing laws are always eventually used by the powerful to suppress the speech of their critics.

The latest example comes from Mexico, where the current leadership has played up “press freedoms,” but at the same time, powerful politicians are using laws ostensibly passed to protect the marginalized… to imprison journalists instead. The New York Times piece makes the pattern concrete in a way that should be eye-opening to many.

Take, for example, the situation with politician Mara Chama Villa. She used a law that was passed to stop “gender-based political violence.” That sounds good, right? Most good folks would agree that “gender-based political violence” is bad. But in this case, Chama Villa claimed that a satirical radio skit mocking her for being a nepobaby candidate violated the law:

It started with a one-minute audio cartoon. Three siblings asked their influential father to buy them candidacies for the upcoming 2024 elections, squabbling over who got to run for which party.

The satirical spot broadcast on Radio Teocelo, the local community-run radio station that also produced the ad, did not mention names, actual political parties or locations.

But Mara Chama Villa, who was running to represent the area in Congress with Mexico’s Ecologist Green Party — and whose father had been the mayor of Teocelo, a coffee-producing town in the state of Veracruz, the deadliest for journalists — felt targeted. She filed a complaint against Radio Teocelo and reporters from other outlets who had previously covered her failed attempt in 2021 to succeed her father as mayor.

Their coverage, she argued in legal filings reviewed by The New York Times, minimized her career and hurt her chances to win the election.

In April 2025, a federal court found five reporters guilty of gender-based political violence because they had “minimized” Ms. Chama Villa “by subordinating her to a male figure with political power,” the court said in its ruling.

The impact of being found guilty — again, for making a satirical radio spot that would be common all over the globe — was pretty massive:

The penalties were sweeping: fines exceeding a month’s salary, mandatory public apologies, the deletion of the radio spot and all denounced articles and placement on a national registry of gender-violence offenders.

Oh, and some more chilling effects, just for fun. If you criticized the ruling? Well, you got added to a follow-on legal process:

When journalists, analysts and organizations across Mexico criticized the outcome, the dispute ballooned into a nationwide case targeting about 70 people.

This is, quite obviously, the opposite of freedom of the press or freedom of speech. And I’d argue it does not do anything positive towards stopping “gender-based political violence.” It’s just become a tool for a powerful political family to punish journalists who produced a bit of satire.

And this isn’t a one-off, as the Times highlights other cases using the same law to target activists as well:

Earlier this year, a court sanctioned Miguel Alfonso Meza, an anti-corruption activist, for gender-based political violence against Silvia Delgado, a lawyer who represented the notorious drug lord Joaquín Guzmán Loera, best known as El Chapo. Mr. Meza had called her a “narco lawyer” when questioning her candidacy for a criminal judgeship in Mexico’s first-ever judicial election.

When the court later partly revoked the penalties on Mr. Meza, Ms. Delgado said that she would appeal that ruling. Her goal, she added in an interview, was “not to silence anyone, but to fight for dignity.”

“By describing my candidacy as highly dangerous and comparing me to other candidates investigated for drug trafficking,” she said, “he unleashed excessive attacks against me.”

The article also describes a crime reporter who was accused of “terrorism” because his reporting on local drug cartels “caused public panic” leading him to being dragged from his car and arrested (he thought he was being kidnapped). He now admits that he’s stopped chasing stories he used to chase.

The chilling effects in such a system are unavoidable.

Mexican politicians can defend these laws all they like. No one supports gender-based political violence or terrorism — and that’s exactly what makes the laws so useful to the people abusing them. A law nobody can be seen opposing is a law nobody can stop. And so a community radio station gets fined a month’s salary over a one-minute cartoon, an anti-corruption activist gets sanctioned for calling El Chapo’s lawyer a “narco lawyer,” and a crime reporter stops chasing the stories that made him a crime reporter.

This is how it always goes. Every time you hand the state a tool to punish “bad” speech, the people who end up wielding it are whoever holds power — and they get to decide what counts as “bad.”

If that still sounds like a worthwhile trade — speech restrictions now to keep the fascists out later — consider that we ran this exact experiment a century ago. Weimar Germany had hate speech laws. Prosecutors used them against Nazis, including Julius Streicher, the publisher of Der Stürmer, who was convicted and jailed more than once for incitement against Jews. The laws did not stop the Nazis. Indeed, the Nazis used these prosecutions as yet more “evidence” that they were being prosecuted for their beliefs. Then, the Nazis took power, inherited those very tools, and turned them on everyone else. Streicher walked out of the courtroom a martyr and into the Reichstag. The speech laws meant to stop authoritarians became the authoritarians’ speech laws.

So here’s the only test that matters before you back a law like this: imagine the politician you distrust the most holding the pen. Because eventually, they will. And anyone who answers “with this law on the books, they’ll never get into power” is indulging in childishly naive wishful thinking — the same wish that has been losing to authoritarians for as long as there have been authoritarians.

You don’t keep bad people from power by handing the office a weapon and hoping good people get there first. You keep them out with stronger elections, stronger institutions, and an educated public that can see through them.

Not by deciding which speech to outlaw — and then praying you’re always the one holding the pen.

Filed Under: free press, free speech, gender-based political violence, mara chama villa, mexico
Companies: radio teocelo

Four Years After Dobbs, Anti-Abortion Lawmakers Keep Coming For Online Speech

Free Speech

from the taking-away-rights-is-an-ongoing-process dept

Last week marks four years since Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade’s constitutional protections for people seeking abortion care. Anniversaries are a moment to take stock, and over the last four years, EFF has seen firsthand how digital rights and reproductive rights have become increasingly intertwined. One major way this has happened: the fight over abortion has also become a fight over online speech and government censorship as a steady stream of proposed laws, cease-and-desist letters, lawsuits, and government investigations have targeted the websites and online resources that help people find and learn about reproductive healthcare.

This is an effort by anti-abortion government officials to mold the information ecosystem, restrict what people can read, and cut off the ways people communicate with one another. We’ve watched this build for years, and the encouraging news is that many of these efforts have failed. The worrying news is that they keep coming. And if they’re allowed to succeed, this could have repercussions for freedom of expression online beyond reproductive rights.

Targeting Sites That Just Share Information

The clearest tell that this is also a war on speech is that officials have aimed their efforts not just at abortion providers or the entities that prescribe and sell medication abortion, but also at websites that do nothing more than tell people what their options are, how to find a doctor, and where abortion remains legal.

Cease-and-Desists & Takedown Demands

State attorneys general have been hitting these online information hubs with cease-and-desist letters and takedown demands. Just this month, for example, Alabama Attorney General Steve Marshall sent cease-and-desist letters to multiple groups with abortion-related websites, including Plan C, a public health campaign that provides educational resources and research on abortion access. Plan C doesn’t sell or ship abortion pills. It simply provides information. Marshall’s office nonetheless claimed Plan C’s website “facilitates, aids, and abets” illegal abortion. The Arkansas attorney general similarly sent out cease-and-desists to several organizations regarding their websites, including Mayday Health, which, like Plan C, provides only information and does not directly prescribe or mail pills.

In another example from earlier this year, North Dakota Attorney General Drew Wrigley threatened legal action and ordered the Prairie Abortion Fund to scrub information off of its website, not because the fund sold pills, but because its site linked to several outside informational resources. The Attorney General primarily focused on the fund’s link to Plan C, meaning the biggest alleged issue was a link to a website that links to other websites where pills can be accessed.

What’s especially concerning is that the state doesn’t have to win, or even file, a lawsuit to get what it wants. Especially for smaller organizations and funds, a letter threatening legal action can be enough to chill their speech, causing them to remove important content and go quiet.

Censorship Mandates

Legislators in multiple states have also attempted to make it illegal to share resources on how to obtain an abortion, including on purely informational websites with a national or global audience. South Dakota recently passed a law making it a felony to “advertise” anything “described in a manner calculated to lead another to use or apply it for producing an abortion.” Language this broad can easily apply to websites that simply engage in First Amendment-protected advocacy or provide educational resources. Mayday Health, which operates one such website, has since sued the state in federal court to block the law. The lawsuit argues the law could reach something as small as wearing a sweatshirt that carries Mayday’s web address.

Other state legislatures have made similar efforts. Last year, for example, Texas introduced a bill that would have made it illegal to “provide information” on how to obtain an abortion-inducing drug. If you exchanged emails, had an online chat, or created a website that shared information about legal abortion services in other states, you could have violated this bill. Luckily this particular bill did not pass, but Texas has attempted to pass similar laws for several years now.

Dressing Censorship Up as Consumer Protection

A major way anti-abortion officials are targeting online speech is by weaponizing consumer protection and deceptive advertising laws, claiming that providing information about abortion violates them. This tactic is a threat to free speech rights. The First Amendment protects publishing truthful information on a public issue, and the Supreme Court has expressly said that includes providing information about legal abortion in a state where it is illegal.

Yet states like South Dakota have continued to use deceptive advertising claims to go after abortion speech. Last year, South Dakota sent a cease-and-desist and then filed a lawsuit against Mayday Health for running ads that simply read: “Pregnant? Don’t want to be?” with a link to Mayday’s website. The state claimed the ads were “deceptive.” Mayday then counter-sued in federal court, challenging South Dakota’s actions under the First Amendment. Though the federal judge ultimately declined to step in while the parallel state case was pending, she made a point of saying she believed Mayday’s website constitutes “speech subject to protection under the First Amendment.”

Other states have attempted to run the same play. Missouri sued Planned Parenthood in 2025 under its consumer-protection statute, calling a webpage that says abortion pills are safe an “unfair and deceptive” trade practice. Florida went even further, invoking its RICO law—a law typically used for organized crime—over the same kind of statement. Florida leaned heavily on a single study funded by an anti-abortion think tank, even as major medical organizations and decades of research put the serious-complication rate below half a percent. States should not be able to cherry-pick studies in order to erase online speech.

Going After Intermediaries & Erasing Whole Websites

Some officials aren’t content to restrict only certain abortion-related content—they want the websites gone entirely.

Take, for example, the cease-and-desist letters sent by the Arkansas attorney general last year. Letters were sent directly to internet intermediaries (entities that facilitate use of the internet, such as internet service providers, web-hosting providers, or things like search engines and social media platforms). The letters demanded that both a domain registry company and a web host stop supporting a site that discusses abortion drugs. But as we know, if we cut off the host or the domain, the speech disappears for everyone—not just for people in Arkansas.

Likewise, Texas’s 2025 bill would have required intermediaries to take down abortion-related content. It’s worth remembering that the imposition of civil and criminal liability on intermediaries also conflicts with a federal law that protects online intermediaries’ ability to host user-generated speech, 47 U.S.C. § 230 (“Section 230”), including speech about abortion medication.

The push has gone federal, too. In March 2026, Senator Bill Cassidy and colleagues on the Senate Health, Education, Labor and Pensions Committee pressed the FDA to use every tool it has against online sellers, including leaning on the domain registrars that keep these sites online.

Why This Should Worry Everyone

It’s tempting to see this as limited to the fight over reproductive rights. That would be a mistake. For people seeking care, the immediate harm is obvious: the internet is often the only place to find accurate, potentially life-saving information, and every letter, lawsuit, and takedown threat makes that information harder to find and riskier to share.

But the damage doesn’t stop there. We’re witnessing a live experiment in how to use consumer-protection laws, criminal statutes, and pressure on intermediaries to suppress a disfavored viewpoint, pull information offline, and make websites disappear. To think these tactics can only be used against abortion speech would be naïve. 

We hope courts and legislatures will continue to protect free speech online. But the continued drumbeat of threatening letters, lawsuits, and investigations is its own kind of harm. Here at EFF, we’ll keep defending the right to share and read information online—about abortion, and about everything else.

Republished from the EFF’s Deeplinks blog.

Filed Under: 1st amendment, abortion, censorship, dobbs, speech