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Republican AGs Decide that Coercive Jawboning is Good, Actually
"It's not censorship when WE do it!"
It will surprise nobody to learn that when politicians trumpet the First Amendment, they are generally referring only to expression that they agree with. But occasionally, they demonstrate their hypocrisy in a fashion so outrageously transparent that it shocks even the most cynical and jaded First Amendment practitioners. Last week, we were treated to just such an instance, courtesy of seven Republican Attorneys General. They deserve to be named, ignominiously: Todd Rokita (IN), Andrew Bailey (MO), Tim Griffin (AR), Daniel Cameron (KY), Raul Labrador (ID), Lynn Fitch (MS), and Alan Wilson (SC).
One of those names might stick out: Missouri AG Andrew Bailey. Last week, Bailey took a victory lap in Missouri’s lawsuit against the Biden administration: U.S. District Judge Terry Doughty engaged in some judicial theatrics, releasing a 155-page ruling on July 4 finding that an assortment of government actors likely violated the First Amendment by discussing content moderation with social media platforms.1
That ruling was a very mixed bag, and is outside the scope of this article (Mike Masnick has a good writeup here). The important thing to remember is that Missouri sued government officials, asserting that their pressure on social media platforms over content was unconstitutional—and a judge agreed.
The very next day, Bailey turned around and joined these other AGs in a ham-fisted, legally and factually inaccurate letter threatening Target over the sale of Pride Month merchandise and its support of an LGBT organization—all of which happens to be, you guessed it, protected expression. Let’s dig in.
It’s worth reviewing exactly what products the AGs complained about:
LGBT-themed onesies, bibs, and overalls
T-shirts labeled “Girls Gays Theys,” “Pride Adult Drag Queen Katya”
“Girls’ swimsuits with ‘tuck-friendly construction’ and ‘extra crotch coverage’ for male genitalia”
I’m going to stop them right here: The use of “girls” in this sentence is clearly intended to insinuate that the complained-of swimsuits are for children. But as it so (not surprisingly) happens, that was false: theses swimsuits were available in adult sizes only).
“Merchandise by the self-declared ‘Satanist-Inspired’ brand Abprallen” which “include the phrases ‘We Bash Back’ with a heart-shaped mace in the trans-flag colors, ‘Transphobe Collector’ with a skull, and ‘Homophobe Headrest’ with skulls beside a pastel guillotine.”
“[P]roducts with anti-Christian designs such as pentagrams, horned skulls, and other Satanic products . . . [including] the phrase ‘Satan Respects Pronouns’ with a horned ram representing Baphomet—a half-human, half-animal, hermaphrodite worshipped by the occult.”
It would be difficult to come up with a clearer example of government targeting expression on the basis of viewpoint—the most fundamental First Amendment violation possible. You don’t see them going after “daddy’s little girl” shirts or “Jesus Calling” books, and I’d bet my life that they wouldn’t pursue the seller of a shirt that says “there are only two genders.” The AGs’ complaint is, by its own admission, directed at the messages contained within certain products.
You may not need reminding, but apparently these inept AGs do: the First Amendment’s protection is quite broad.
It envelops expression conveyed via clothing (or other products) the same as it protects the words written in a book: the government cannot ban “Satanist” shirts any more than it could ban the sale of bibles.
And it protects the sale, distribution, and reception of expression no less than the right to create the expression: the government cannot punish the seller of a book any more than it could prohibit writing it in the first place.
So What’s These AGs’ Problem, Exactly?
As a general matter, that’s a question better directed to their therapists—there’s probably a lot going on there.
But specific to these products, our merry band of hapless censors really had to heave a (entirely unconvincing) Hail Mary to try getting around the First Amendment:
Our concerns entail the company’s promotion and sale of potentially harmful products to minors [and] related interference with parental authority in matters of sex and gender identity .
State child-protection laws penalize the “sale or distribution . . . of obscene matter.” A matter is considered “obscene” if “the dominant theme of the matter . . . appeals to the prurient interest in sex,” including “material harmful to minors.” Indiana, as well as other states, have passed laws to protect children from harmful content meant to sexualize them and prohibit gender transitions of children.
Obscenity and “Harmful to Minors”
Threshold note: Obscenity doctrine is a complete mess, and for various reasons obscenity prosecutions are extremely difficult in this day and age. But historically, obscenity law has been a favorite tool of government actors seeking to suppress LGBT speech. These AGs are following in that ignoble, censorious, and bigoted tradition.
Let’s start with the definition of obscenity that Indiana AG Todd Rokita (who authored the letter) provides:
A matter is considered obscene “if the dominant theme of the matter . . . appeals to the prurient interest in sex,” including material harmful to minors.
First, Rokita actually gets his own state’s law wrong. Obscenity does not include “material harmful to minors” under Indiana law. The latter is its own separate category.2 Perhaps that’s a minor quibble, but if you’re going to issue bumptious threats under the color of law, you should at least describe the law correctly.
Second, Rokita conveniently leaves out the three other requirements for matter to be “harmful to minors”:
Sec. 2. A matter or performance is harmful to minors for purposes of this article if:
(1) it describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sado-masochistic abuse;
(2) considered as a whole, it appeals to the prurient interest in sex of minors;
(3) it is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for or performance before minors; and
(4) considered as a whole, it lacks serious literary, artistic, political, or scientific value for minors.
He leaves them out, of course, because it’s obvious that none of the products discussed describe or represent “nudity, sexual conduct, sexual excitement, or sado-masochistic abuse” and the inquiry properly ends at Step One.
But even under his truncated definition, you would have to be incompetent to stand trial—let alone practice law—to conclude that any merchandise the letter complains of, “considered as a whole . . . appeals to the prurient interest in sex of minors.” The Supreme Court defined “prurient interest” as "a shameful or morbid interest in nudity, sex, or excretion.” As with all Supreme Court attempts to define sex-related things, this definition is somewhat clunky and unsatisfying; yet it still demonstrates how asinine these sorry excuses for lawyers are.
Recall some of the products named in the letter:
LGBT-themed onesies, bibs, and overalls. The inclusion of “bibs” indicates to me that they’re referring to…clothes for infants? First of all, that very young child wearing their Pride bib over their Pride onesie while chucking Cheerios across the room from their highchair has no knowledge of “nudity, sex, or excretion,” let alone the capacity for a shameful interest in it. Second, if these AGs look at an infant wearing a Pride bib and their mind immediately goes to SEX, I would urge them to seek immediate mental health care and stay at least 1000 feet away from any child, ever.
I'm also curious how either of these insanely benign shirts (made for adults, by the way) could possibly appeal to the prurient interest of anyone:
Aha, they will say. What about the tuck-friendly swimwear? Set aside the fact that they were apparently only available in adult sizes. Do they appeal to a shameful interest in nudity? Considering that it’s clothing, quite the opposite. What about sex? No, not really: sex means sex acts or sexual behavior, not mere gender expression. If a statute defining “prurient interest” as “incit[ing] lasciviousness or lust” was held unconstitutionally overbroad, there is no question that defining gender expression as “a shameful interest in sex” is not going to work. Excretion? Well, unless you’re the type of person that pees in the pool and gets off on it (way to tell on yourselves), that’s not going to work either.
And obviously the “Satanist” and “anti-Christian” merchandise they complain about in such a delicate, snowflake-like fashion have absolutely nothing to do with sex.
The only possible way that the AGs could believe (other than by reason of sheer incompetence) that these products are legally “harmful to minors” is if they believe that anything LGBT-related is ipso facto sexual. That’s a belief that is both shockingly prejudiced, and so stupid that even the Fifth Circuit wouldn’t likely accept it. During oral arguments in the litigation over Texas’ content moderation law, Judge Andy Oldham found it “extraordinary” that social media platforms affirmed that under their view of the First Amendment, they could ban all pro-LGBT content if they so desired. If all such content is “harmful to minors,” I have a hard time believing he would have found the proposition so troubling.
None of these products are even close calls. They are emphatically, and unquestionably protected by the First Amendment.
The AGs cite as another concern “potential interference with parental authority in matters of sex and gender identity.” Footnote 3 provides citations to a bevy of state laws about school libraries and gender-affirming care (several of which have been enjoined). Which, of course, have nothing to do with anything, as the footnote even acknowledges: “all of these laws may not be implicated by Target’s recent campaign.”
But even after acknowledging that these laws are irrelevant, the letter continues to say “they nevertheless demonstrate that our States have a strong interest in protecting children and the interests of parental rights.”
That’s great, I’m happy for them, but also…no. What they demonstrate is that your state legislatures passed some bills. What they don’t demonstrate is that you have the constitutionally valid interest you think you do. The merchandise is clearly protected by the First Amendment for both adults and minors. And “[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.”
California, too, tried the “parental rights” argument when it banned the sale of violent video games to minors. The Supreme Court was not impressed:
Such laws do not enforce parental authority over children's speech . . . they impose governmental authority, subject only to a parental veto. In the absence of any precedent for state control, uninvited by the parents, over a child's speech . . . and in the absence of any justification for such control that would satisfy strict scrutiny, those laws must be unconstitutional.
The law is clear: government may not place limits on (or punish) the distribution of constitutionally protected materials to minors by shouting “parental rights.” Parents are free to parent, but the government is not free to enforce its version of “good parenting” (guffaw) on everyone by law.
Target’s Donations to GLSEN
If you thought that was the end of the stupidity, buckle up. The AGs also complain about Target’s donations to GLSEN, an LGBT education advocacy group which the letter, for no apparent reason, instructs readers on how to pronounce (“glisten,” if you’re curious). Because GLSEN advocates that educators should not reveal students’ gender identity to their parents without consent, the AGs claim that the donations “raise concerns” under “child-protection and parental-rights laws.”
First things first: GLSEN has a First Amendment right to advocate for what it believes school policies should be,3 no matter what a state’s law says. The AGs’ insinuation that advocacy against their states’ laws is somehow unlawful is startling and dangerous.
Second, Target has a First Amendment right to support GLSEN through its partnership. This thinly-veiled threat that Target could face prosecution if it doesn’t stop donating to advocacy that government officials don’t like is wholly beneath contempt, and should be repulsive to every American. I’m not sure how much there is to say about this; it’s a dark sign that the attorneys general of seven states would so readily declare their opposition to fundamental liberties.
“But this speech we don’t like”
Simply put, the government “is not permitted to employ threats to squelch the free speech of private citizens.” Backpage.com, 807 F.3d at 235. “The mere fact that [the private party] might have been willing to act without coercion makes no difference if the government did coerce.” Mathis, 891 F.2d at 1434. “[S]uch a threat is actionable and thus can be enjoined even if it turns out to be empty…. But the victims in this case yielded to the threat.” Backpage.com, 807 F.3d at 230-31. Further, even a vaguely worded threat can constitute government coercion. See Okwedy, 333 F.3d at 341-42. But here, the threats have been repeated and explicit, and “the threats ha[ve] worked.” Backpage.com, 807 F.3d at 232.
The threats in this case . . . include a threat of criminal prosecution . . . Even an “implicit threat of retaliation” can constitute coercion, Okwedy, 333 F.3d at 344, and here the threats are open and explicit.
You could be forgiven for thinking that this came from a draft complaint or motion for a preliminary injunction aimed at the attorneys general who signed this letter.
But in fact, it is from Missouri’s own motion for a preliminary injunction in Missouri v. Biden, arguing that the federal government coerced social media platforms into censoring users.
What was the “threat of criminal prosecution” so explicit and coercive, in Missouri’s view, to render the government responsible for platforms’ content moderation decisions? Then-candidate Biden
threatened that Facebook CEO Mark Zuckerberg should be subject to civil liability, and possibly even criminal prosecution, for not censoring core political speech: “He should be submitted to civil liability and his company to civil liability…. Whether he engaged in something and amounted to collusion that in fact caused harm that would in fact be equal to a criminal offense, that’s a different issue. That’s possible. That’s possible – it could happen.”
So, according to Missouri, the blustering of a candidate who, if elected, would not himself even have the power to actually prosecute is sufficiently explicit and coercive. And that’s in a case about whether the government can be held responsible for private action against third-party speech.
This argument leaves precisely no room for the notion that a letter from states’ top prosecutors, citing various criminal statutes, to the speaker of the targeted, protected speech itself, is anything but an even more obvious First Amendment violation. It would be so even had Missouri not made this argument. But the rank hypocrisy here is so brazen that it cannot escape notice.
Spaghetti at the Wall
In the second half of the letter, the AGs shift gears to say they are also writing as the representatives of their states in their capacity as shareholders of Target. They allege that Target’s management “may have acted negligently” in its Pride campaign, due to the backlash and falling stock price. They write:
Target’s management has no duty to fill stores with objectionable goods, let alone endorse or feature them in attention-grabbing displays at the behest of radical activists. However, Target management does have fiduciary duties to its share-holders to prudently manage the company and act loyally in the company’s best interests. Target’s board and its management may not lawfully dilute their fiduciary duties to satisfy the Board’s (or left-wing activists’) desires to foist contentious social or political agendas upon families and children at the expense of the company’s hard-won good will and against its best interests.
They aren’t even trying to hide their perverse inversion of the First Amendment, turning the company’s right to decide what expressive products to sell into a threat of liability for deciding to sell the expressive products they disfavor.
Perhaps the AGs think that framing it as a “shareholder” concern makes the First Amendment magically go away. They are wrong.
Regardless of how they try to obfuscate it, the AGs are using the coercive authority of the state to silence views they disagree with. Whether the states are shareholders is irrelevant, and I suspect Missouri would have said as much had the federal government defendants in Missouri v. Biden been daft enough to attempt this argument.
Dig into the investments of FERS, the U.S. Railroad Retirement Board, etc., and I’ll bet good money that you’ll find investments in companies that own social media platforms. If the federal government communicated concerns as a “shareholder” of those companies, threatening that they may be breaching their fiduciary duty/duty of care by not removing noxious content, what do you suppose the reaction from the Right would be? You know exactly what it would be.
To paraphrase the Supreme Court, very recently, “When a state [business regulation] and the Constitution collide, there can be no question which must prevail. U.S. Const., Art. VI, cl. 2.” Purporting to write as government “shareholders” is not an invisibility cloak against the First Amendment: state governments cannot simply purchase stock in a company and declare that they now have the right to threaten the company over their protected expression.
Implicitly Condoning Violence Against Speech (Provided it’s Against the People We Don’t Like)
To round off its unrelenting hypocrisy, the letter concludes by warning Target to “not yield” to “threats of violence.” But only some threats, apparently:
Some activists have recently pressured Target [to backtrack on its removal/relocation of Pride merchandise] by making threats of violence . . . Target’s board and management should not use such threats as a pretext . . . to promote collateral political and social agendas.
“You hear that, Target? You better not use anything as an excuse to say things we don’t like!”
Conspicuously absent is any note of the fact that it was threats of violence against Target employees that caused the merchandise to be removed or relocated in the first place. That, perhaps unsurprisingly. doesn’t seem to bother them so much—the violent threats, and Target caving to them, is just fine if these AGs agree with the perpetrators of the violence. Because for them, the First Amendment is about their own power, and nothing else.
Whatever one thinks of Target’s decisions, having even the slightest shred of honesty and principle when it comes to the First Amendment should leave you thoroughly disgusted by this letter.
But these AGs are not principled, honest, ethical, or competent attorneys (I’d wager that they aren’t those things as people either), and they deserve neither respect nor the offices they hold despite their manifest unfitness.
They are con-artists engaging in the familiar ploy of using the First Amendment as a partisan cudgel to claim expression they like is being censored, while actively working to censor speech they disagree with. Their view of the First Amendment is clear and pernicious: you can say whatever they think you should be allowed to say.
It’s nothing new, of course. But it’s always worthy of scorn and condemnation. And maybe a lawsuit or two.
Rokita also pulls the “dominant theme” language from the obscenity statute rather than the “harmful to minors” statute, so that’s another strike against his having a firm grasp on his own state’s law, but I suppose “considered as a whole” does similar (though not exactly the same) work.