Why would Twitter not be able to flag / annotate / censor any content it sees fit? https://www.whitehouse.gov/presidential-actions/executive-order-preventing-online-censorship/ As I understand it, the 1st amendment is to protect 'free speech' from government censorship, not platform censorship. Is this not correct? In others words, the first amendment 'leashes' government. UPDATE: a basic constitutional doctrine called State Action. It’s the notion that the Constitution only limits things the government does, not things that private individuals do. (and presumably social media, a private corporation) If the above presumptions are correct, why wouldn't a commercial platform (Twitter, Facebook, social media, etc.) be able to remove or annotate content as it sees fit (i.e. Terms of Service or otherwise)? IANAL and do not understand the purpose of the document
The essence of the order's argument is that in editing user generated content outside of the provisions in one section of the Communications Decency Act (CDA), the platform necessarily excludes itself from the protections afforded by another section of the CDA. The EFF says: ... Even though neither the statute nor court opinions that interpret it mush these two Section 230 provisions together, the order asks the Federal Communications Commission to start a rulemaking and consider linking the two provision's liability shields. The order asks the FCC to consider whether a finding that a platform failed to act in "good faith" under subsection (c)(2) also disqualifies the platform from claiming immunity under section (c)(1). In short, the order tasks government agencies with defining “good faith” and eventually deciding whether any platform’s decision to edit, remove, or otherwise moderate user-generated content meets it, upon pain of losing access to all of Section 230's protections. ... The order also argues that the very popular social media platforms such as Twitter and Facebook are the functional equivalent of the public square, not merely private providers protected by the First Amendment, and therefore should not be able to edit user generated content. The EFF article quotes from a Supreme Court judgment that says "merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints." Recommend the full article: https://www.eff.org/deeplinks/2020/05/trump-executive-order-misreads-key-law-promoting-free-expression-online-and See also Techdirt's article, The Two Things To Understand About Trump's Executive Order On Social Media: (1) It's A Distraction (2) It's Legally Meaningless. [edit] Eugene Volokh wrote a good explainer with background. Regarding the social-media-platforms-become-state-actors argument, see this recent D.C. Circuit judgment on appeal (Freedom Watch v Google etc): Freedom Watch's First Amendment claim fails because it does not adequately allege that the Platforms can violate the First Amendment. In general, the First Amendment 'prohibits only governmental abridgment of speech.' Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). Freedom Watch contends that, because the Platforms provide an important forum for speech, they are engaged in state action. But, under Halleck, 'a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.' ... This was a group that alleged Google, Facebook, Twitter and Apple "conspired to suppress conservative political views ... its audience and revenues and succeeded in reducing each". Very similar to Trump's complaints. And "this idea that Section 230 requires sites to moderate in a neutral fashion has become very popular even though it has no basis in reality or law" - Ken White (aka Popehat) in another good explainer and podcast about this.
You'll note that Maryland governor Larry Hogan was sued and ended up settling over Facebook deleted comments and blocks. And a judge ruled that Trump can't block comments on Twitter. So it seems there's an evolving consensus that politicians can't simply block or delete social media comments for differing viewpoints.
This is a complicated question because adblockers have grown increasingly complex in recent years. What it means to "block ads" from both a legal and technical perspective is more complex than it was just a few years ago. First the broad strokes: It's not illegal to block ads. Multiple court cases have defended users' rights to control the information that enters their computers / devices. You have the legal right to view or not view whatever you like. But... that doesn't mean your use of an adblocker isn't in violation of US law. The crucial issue with legality when it comes to adblockers is less about blocking ads, and more about circumventing a websites measures to defeat adblockers. The US DMCA has strict wording regarding 'circumvention of access controls'. If a website has taken active measures to prevent access by adblocking users, and your adblocker circumvents those measures -- this is very likely a violation of the DMCA. The important point here is that the legal transgression isn't blocking ads. It's the circumvention of access controls which in attempt to limit access to adblock users. There's a good write-up on this topic here: https://blockadblock.com/adblocking/adblockers-dont-break-the-law-except-when-they-do/ Additionally, a website's "Terms of Use" agreement may address adblocking. As we all know, website ToU's are not always legally binding on the site visitor. But sometimes they are. There's a good exploration of how to implement a ToU that addresses adblocking here: http://blockadblock.com/adblocking/addressing-adblocking-terms-use-agreement/
Firstly, because there isn't an explicit Constitutional &quot;right to privacy&quot;, per se, and even if there was (and there are arguments that several constitutional provisions amount, in aggregate, to a right to privacy), that it wouldn't be absolute, in the same way that freedom of speech and of the press are not absolutes. Indeed, the closest thing to a right to privacy, the 4th Amendment, has explicit caveats: &quot;The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.&quot; (emphasis mine). Thus reasonable searches and seizures, especially those authorized by a warrant, are constitutional. Furthermore, even in light of a constitutional right of privacy derived from this statue, depending on how the &quot;search history&quot; is compiled, the 4th Amendment might not even apply, due to the Katz doctrine, also known as the &quot;open fields&quot; doctrine. Basically, the 4th amendment (as far as searches goes) does not apply to things that are publicly observable; while this would protect a literal &quot;search history&quot; compilation (baring a reasonable search), the searches themselves are public queries, broadcasted over the internet. Anyone watching could compile them into a &quot;search history&quot; themselves.
Ultimately the answer (in the US) is the US Constitution. The courts pretty much have the unlimited power to interpret the law, and the limits on power mainly pertain to what the state can do. The length of the leash on the government depends on what kind of rights are at stake. The weakest and default limit is known as "rational basis", and comes down to asking whether a government action is rationally related to a legitimate government interest (such as stopping terrorist attacks) plus whether there was due process and equal protection. There are more rigorous standards (intermediate scrutiny, strict scrutiny) in case a law involves a "suspect classification", or in case a fundamental constitutional right is infringed. In the case of strict scrutiny, the government would have to show that it had a compelling interest in the action, the law would have to be "narrowly tailored" (i.e. does that thing and only that thing), and should be the least restrictive way to achieve that result. Roe v. Wade is probably the best-know example of that kind of review, which held that abortion laws "violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy". A court would not order a party to do an impossible act. A court could order a party to do something which the party had argued was impossible, but you can interpret a court's decision to indicate that it rejected the argument. The defendant would not shoulder the burden of proving that the action was impossible, though they would have to counter the government's argument that the act could be performed if they believe it is not possible. (In the Apple case, the argument would probably be some Apple-internal document that says "Yeah, we can do it, but do we want to?"). There is probably an expense-related limit in that the courts would not order Apple to liquidate all of their assets to comply. But: if a case were to end up at the Supreme Court, the court is stricken with mass insanity and arbitrarily orders a defendant to do the impossible, there is only the option of impeachment and Senate trial to remove the offending justices, and that is just not going to happen. There is no higher authority that overturns SCOTUS.
This page lists the highlights of case law regarding prior restraint and the First Amendment. Two pertinent cases are New York Times Co. v. United States, where the court held that despite the potential harm of publishing the revealed information, the prior restraint doctrine was more important (the government cannot prohibit speech before it happens). Reno v. ACLU affirms that even if a publication might cause harm to a class of people, that (limited) harm does not justify universally prohibiting the speech. There is no criminal penalty arising from the government censoring speech. A civil lawsuit – &quot;section 1983&quot; – is possible against an official who illegally attempts to suppress expression contra the First Amendment. The award might be just a dollar if the person so oppressed cannot prove actual damage. Technically, the sky is the limit, and it just depends on how outrageous the jury finds the government's action. If the government were to order suppression of opposition to its policies, we could easily be in the territory of world-record awards for violation of civil rights.
The government is prohibited by the first amendment from creating a law which gives preference to one religion over another. Banning entry to persons of one or more religions would do this.
Overview Under Near v. Minnesota it is very hard to &quot;legally restrict&quot; any publication in the US. The &quot;Banned books&quot; linked to in the question have, in some cases, been removed from particular school curricula or from library collections. A few have been challenged as obscene, but none of them are unavailable to the general public at this time. A work can be &quot;legally banned&quot; or &quot;legally restricted&quot; under US law for only a few reasons: Security A work that is actually classified cannot be lawfully distributed. However, referring to it or quoting from it would be legal unless the quoted content includes actual classified information. A problem with this is that one often does not know just what aspects of a document are in fact classified, short of asking the government. In many cases the restrictions on distributing classified material apply only to those who have accepted a security clearance or otherwise agreed to be bound by the classification system. However under the Espionage Act and the Atomic Energy act, and perhaps other laws, in some cases people who never accepted a clearance may be enjoined from disclosure, or possibly held criminally liable. This was challenged in United States v. Progressive, Inc. 467 F. Supp. 990 (W.D. Wis. 1979) (The &quot;H-bomb Secret&quot; case). But that case was dropped as moot when the information was published by others, and the DoE announced that they would not prosecute anyone involved. No final binding decision on the issues was made. A\n attempt to enjoin publication of classified information was famously overturns in New York Times Co. v. United States, 403 U.S. 713 (1971) (the &quot;Pentagon Papers&quot; case). In that case the material sought to be classified was historical, not of current operational importance. Obscenity A work found obscene under Miller v. California, 413 U.S. 15 (1973) is illegal to distribute. But it is legal to refer to such a book. It is legal to quote it, unless the quoted section is itself obscene under Miller. Note that content will not be found obscene under Miller unless it violates a specific law, usually a state law. Unless there is such a law, a prosecution does not pass the Miller test. This means that generalized laws such as &quot;disturbing the peace&quot; cannot be used to punish allegedly obscene content. Laws may prohibit content not obscene under Miller from being knowingly provided to minors, or shown in movie theaters under ratings which would permit minors to enter. A work containing child pornography is unlawful to create, distribute, or possess under 18 U.S.C. §2251 and subsequent sections. Quoting a part that includes child pornography as defined under those laws would be equally illegal, but quoting a part that does not include such content would not. Referring to such a book would not be illegal. Note that in the US only actual images of real children constitute child pornography. Drawings or computer images not based on any real child, and text, may not be banned under these laws. In some other countries, such content may be highly illegal. Defamation Republishing a work found to be defamatory would in many cases be defamation also, and could give rise to a successful lawsuit, but it is not a crime. A quote that did not include any of the defamatory statements would be lawful. A quote that did include defamatory statements may be protected under some circumstances, such as news reporting of the court case. It is lawful to refer to such a work. Criminal Libel Criminal libel was once common, but prosecutions for it are now very rare. According to the ACLU: Twenty-four states have laws that make it a crime to publicly say mean things about people, with penalties ranging from fines to imprisonment. These laws violate the First Amendment and are disproportionately used against people who criticize public officials or government employees. The ACLU has filed a lawsuit challenging the law in New Hampshire. According to Wikipedia: Criminal libel is rarely prosecuted but exists on the books in many states, and is constitutionally permitted in circumstances essentially identical to those where civil libel liability is constitutional. According to The First Amendment Encyclopedia's article: Although libel or defamation is now primarily a civil claim, it once was primarily a criminal offense, prosecuted by the government and punishable by imprisonment or a fine. In the United States, courts have based decisions regarding slanderous or libelous statements on the First Amendment rights of free speech and freedom of the press. ... There was also a growing sentiment against criminal libel, which led the drafters of the 1962 American Law Institute’s Model Penal Code specifically to exclude the crime of criminal defamation. ... [The US Supreme] Court ruled, in Garrison v. Louisiana (1964), that truth must be an absolute defense to criminal libel. The Court also held that the actual malice requirement in Sullivan applied to criminal libel prosecutions stemming from statements about public officials ... The Court’s most recent ruling regarding criminal libel was Ashton v. Kentucky (1966), which held that Kentucky’s unwritten, common law crime of libel was too indefinite and uncertain to be prosecuted. This ruling effectively eliminated common law criminal libel. In short, while criminal libel still exists in the US it is of very limited importance and rare occurrence. referring to a document publishing a criminal libel is not an offense. Quoting such a document could be an offense if the quotation includes the allegedly libelous statement(s). Copyright Infringement Distributing unauthorized copies of a work, or copies of an unauthorized derivative work, may be copyright infringement and be grounds or a successful infringement suit. Referring to such a work is lawful. Linking to an infringing work may in some cases be held to be contributory infringement. Quoting from such a work will in most cases be lawful, unless the quotation itself constitutes infringement. Quoting an excessive amount may itself be infringement. Note that a valid defense of fair use may mean that distributing copyrighted content is lawful, so that a suit will not succeed. Fair use issues are highly fact-driven, and no clear bright line can be drawn between what is and is not permitted. This seems to be by legislative intent. Fair use was originally a judge-made doctrine, incorporated into the Copyright Act of 1976. Note also that copyright infringement is usually a civil matter, so that if the copyright holder does not file suit, there is no enforcement. Only in willful bulk commercial infringement are criminal charges brought. Trade Secrets It is unlawful to publish, distribute, or use a trade secret to which one has gained improper access. Under the Uniform Trade Secrets Act (UTSA), specifically section 1.4: &quot;Trade secret&quot; means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. &quot;Improper means&quot; of learning a trade secret (under the USTA, sec 1.1) include: theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means. &quot;Proper means&quot; include: discovery by independent invention, reverse engineering, licensing arrangement, and published literature. The 2016 US Federal Defend Trade Secrets Act (18 U.S.C. § 1836) and the earlier US Economic Espionage Act of 1996 offer protection to trade secrets on a federal level. Note that like copyright, violation of a trade secret is a civil matter, not a crime. If the owner of a trade secret does not file a suit or take other legal action, there is no enforcement. It is not unlawful to refer to a trade secret or a document that discloses one. It is not unlawful to disclose a trade secret that has already become public knowledge, although an actual document may well be protected by copyright. Conclusion Simply referring to a work is almost never unlawful. Quoting from a work that is actually legally restricted will generally only be unlawful if the quoted content alone violates the same law or is on its own the same tort.