One of the most viewed television news programs in the United States reported on a government program that prosecutes thousands of people simply due to what they have posted online. And it provided not even a scintilla of concern for the free speech implications.

On Sunday’s episode of 60 Minutes, reporter Sharyn Alfonsi reported on Germany’s “coordinated effort to curb online hate speech.” Alfonsi had a front-row seat to this effort, as she participated in COPS-style ride-alongs as German police raided people’s homes and seized their electronic devices.

Without displaying a shred of concern about giving the government power to prosecute people for online speech, Alfonsi devoted much of the segment to an interview with three German hate speech prosecutors. They told her it is a crime to insult people in public, and the penalties can be higher if the speech is online.

“Because in internet, it stays there,” one prosecutor said. “If we are talking face to face, you insult me, I insult you, okay. Finish. But if you’re in the internet, if I insult you or a politician…” [sic]

“It sticks around forever,” Alfonsi concluded.

Yet Alfonsi displayed no concern, asking instead about the reactions of people when their cell phones are seized, the severity of the crimes, and how the police and prosecutors build their case against online posters.

Alfonsi failed to mention egregious examples of German authorities stretching the definition of “hate speech” and “public insult,” such as a recent prosecution of a man for using a poop emoji to describe Germany’s Vice-Chancellor Robert Habeck and the raid of a Berlin woman’s home after she posted “from the river to the sea” on her social media accounts.

Alfonsi highlighted a 2021 police raid against someone who called a German politician a word for a male body part. “So it sounds like you’re saying, ‘It’s okay to criticize a politician’s policy’ but not to say ‘I think you’re a jerk and an idiot?’” Alfonsi asked.

“Exactly,” the prosecutor said. “Comments like ‘You’re a son of a bitch.’ Excuse me for using, but those words has nothing to do with a political discussions or a contribution to a discussion.” [sic]

Still, Alfonsi was not alarmed that prosecutors had the unilateral discretion to determine whether an online discussion about a politician constituted a “contribution to a discussion.”

Alfonsi also highlighted the case of a German politician who sued Meta to cause the company to remove fake quotes that were attributed to her. “After all this, are you seeing less hateful comments now on your social media feeds?” Alfonsi asked

“Yes,” the politician responded, “there are less hateful comments. And there was one tweet which says, ‘Don’t say that to her, she would take you to court.’”

“You might sue them,” Alfonsi concluded.

A balanced news article would, at the very least, quote a free speech advocate who is alarmed by a politician chilling online speech with the specter of a lawsuit — something that might be of concern to a news organization currently facing an FCC investigation and lawsuit over its editing of an interview with a presidential candidate.

But such viewpoints were entirely missing in the 60 Minutes piece. Instead, Alfonsi featured an interview with Josephine Ballon of HateAid, who was concerned that some companies are not complying with the Digital Services Act, a new European law that threatens platforms with massive fines if they do not adequately develop procedures to respond to harmful content.

Alfonsi noted that such prosecutions and regulations would be impossible in the United States. But she strongly implied that Germany is taking the better course. “In the United States, most of what anyone says, sends, or streams online – even if it’s hate-filled or toxic – is protected by the First Amendment,” she said. “But Germany is trying to bring some civility to the world wide web by policing it in a way most Americans could never imagine.”

To 60 Minutes, one of the most storied news organizations in the United States, the First Amendment is a bug and not a feature. And that should worry us all.

Jeff Kosseff is a Non-Resident Senior Fellow at The Future of Free Speech and the author of the new book Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation.

The United States Supreme Court may soon hear a TikTok case that could set a vital nationwide precedent for online speech law. But it’s probably not the case that you’re thinking about.

The legal and technology world has been focused on the fallout from the Supreme Court’s decision last week to uphold a law requiring TikTok to find a new owner or shut down. But a separate TikTok case could determine the fate of Section 230, a 1996 law on which many online platforms have built their business models.

Last August, the United States Court of Appeals for the Third Circuit ruled against the company in Anderson v. TikTok. The tragic case arose out of “Blackout Challenge” videos, which depict TikTok users engaging in self-asphyxiation. Ten-year-old Nylah Anderson watched a video and unintentionally hanged herself. Anderson’s mother sued TikTok under state tort law, including negligence.

A Pennsylvania district court judge dismissed the case under Section 230, which immunizes online services such as TikTok from claims that arise from third-party content. For nearly three decades, Section 230 has been key to the strategic growth of social media platforms, search engines, and other online services that rely on user-generated content. The law also has attracted critics who believe that online platforms should be liable for harmful user content.

This lawsuit focused not only on the user content, but on the TikTok algorithm that allegedly caused the Blackout Challenge video to appear on Nylah’s For You Page. Still, other courts, including appeals panels in the Second and Ninth Circuits, have held that Section 230 protects platforms from claims arising from algorithmic promotion or amplification of user content.

The Third Circuit panel that heard the appeal of Anderson v. TikTok disagreed with those other courts and reversed the Pennsylvania judge’s dismissal of the case. Section 230 does not apply, the panel reasoned, because in a 2024 case, Moody v. NetChoice, the Supreme Court ruled that the First Amendment protects platforms’ content moderation decisions. The majority wrote:

“Given the Supreme Court’s observations that platforms engage in protected first-party speech under the First Amendment when they curate compilations of others' content via their expressive algorithms, it follows that doing so amounts to first-party speech under § 230, too.”

The Third Circuit refused TikTok’s request for an en banc rehearing, so TikTok is preparing to file a cert petition with the Supreme Court. The petition would have been due this week, but TikTok recently obtained an extension to Feb. 20. In an indication of the case’s importance, TikTok has hired former Solicitor General Paul Clement to represent it at the Supreme Court.

In his request for an extension to submit a cert petition, Clement previewed his argument: that the Third Circuit opinion goes against Section 230 interpretations in many other circuits and that Moody v. NetChoice had nothing to do with Section 230. He wrote:

“NetChoice simply accepted the industry’s argument that websites engage in First Amendment protected editorial judgment in deciding whether and how to display content. It did not hold that third-party speech becomes a website’s own speech simply because the website displays and organizes it.”

Although the Supreme Court declines to grant the vast majority of cert petitions that it receives, this petition might be tough to decline due to the circuit split that the Third Circuit created. The Supreme Court has never interpreted the scope of Section 230.

In 2023, it granted cert in Gonzalez v. Google, but resolved the case without interpreting Section 230. “You know, these are not like the nine greatest experts on the internet,” Justice Elena Kagan said during oral argument in Gonzalez. Despite that, these nine justices may have no choice but to decide the fate of a vital internet law.

Jeff Kosseff is a Non-Resident Senior Fellow at The Future of Free Speech and the author of the new book Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation.

In upholding the law that requires ByteDance to divest TikTok or shut it down in the United States, the Supreme Court set a dangerous First Amendment precedent that will allow legislators and executive officials in the future to limit speech based on vague national security and privacy concerns.

The Court emphasized the purported “narrowness of our holding,” which approved the Protecting Americans from Foreign Adversary Controlled Applications Act. The unsigned opinion argues that the entire ballgame came down to data protection and national security:

“Data collection and analysis is a common practice in this digital age. But TikTok’s scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects, justify differential treatment to address the Government’s national security concerns.”

“National security.” The Court used the phrase more than a dozen times in fewer than 20 pages. But the Court – like the Justice Department that argued in support of the law – had trouble articulating more than a possibility of China accessing and misusing the TikTok data. The Court wrote:

“Even if China has not yet leveraged its relationship with ByteDance Ltd. to access U.S. TikTok users’ data, petitioners offer no basis for concluding that the Government’s determination that China might do so is not at least a reasonable inference based on substantial evidence.”

“Might” is doing a lot of work in that sentence, and reliance on what “might” happen is a far cry from the Court’s previous considerations of the First Amendment and national security.

The Court failed to acknowledge New York Times v. United States, a 1971 opinion in which the Court rejected the Justice Department’s national security-related request to block newspapers’ publication of the Pentagon Papers. In a concurrence, Justice Hugo Black wrote:

“The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”

Today’s Court did not heed Justice Black’s caution.

This is not to minimize the rational concerns about China potentially using TikTok to violate millions of Americans’ privacy. The danger in the opinion is allowing the mere potential for such harms to override the free speech interests of 170 million American users of TikTok.

To avoid running into a First Amendment roadblock, the Court engaged in twists and turns to justify applying a lower standard of scrutiny that is reserved for “content-neutral” speech restrictions. The Court reached this conclusion even though the law targets TikTok by name (as did the bill’s supporters in Congress), and the law has exclusions for certain types of platforms, like product and travel review sites.

The Court sidestepped these content-based designations by reasoning that the law has a “content-neutral justification: preventing China from collecting vast amounts of sensitive data from 170 million U.S. TikTok users,” and that it “neither references the content of speech on TikTok nor reflects disagreement with the message such speech conveys.” This rationale ignores the fact that the restrictions affect certain platforms more than others. And the reasoning also allows the government in the future to avoid strict scrutiny by claiming that a speech restriction is motivated by concerns over privacy rather than over speech.

In applying this lower level of First Amendment scrutiny, the Court continued to look only at the data privacy justifications, minimizing the fact that many of the law’s supporters repeatedly stated that they were concerned about China’s potential influence of the TikTok algorithm. The Court acknowledged that the Government asserted “an interest in preventing a foreign adversary from having control over the recommendation algorithm that runs a widely used U.S. communications platform, and from being able to wield that control to alter the content on the platform in an undetectable manner.”

Surely that is a content-based restriction? Not at all, the Court reasoned. Despite the abundant evidence of the speech-regulating motivations, the Court swiftly found that the “record before us adequately supports the conclusion that Congress would have passed the challenged provisions based on the data collection justification alone.”

It is unclear what TikTok’s fate will be in the United States. But the impact of this short opinion threatens to be far more enduring than any single app. Under this opinion’s rationale, the government can impose a sweeping restriction on a speech platform by merely citing national security and privacy concerns. Such an approach may be commonplace in other countries, but the United States has long prioritized First Amendment rights over privacy and national security.

Such free speech values were epitomized in Justice Louis Brandeis’s 1927 concurrence in Whitney v. California (stressing the importance of “freedom to think as you will and to speak as you think”) and Justice Oliver Wendell Holmes’s 1919 dissent in Abrams v. United States (“the principle of the right to free speech is always the same.”)

In his brief concurrence in the judgment today, Justice Neil Gorsuch cited both opinions and wrote, “[a]s persuaded as I am of the wisdom of Justice Brandeis in Whitney and Justice Holmes in Abrams, their cases are not ours.” Indeed, both Brandeis and Holmes would acknowledge as much. But they also would expect that today’s Court would apply the principles that they articulated in those opinions. That, unfortunately, did not happen.

Jeff Kosseff is a Non-Resident Senior Fellow at The Future of Free Speech and the author of the new book Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation.