Embracing Openness: The Path to Trustworthy Governance

Good Government Files celebrates Sunshine Week with a TL;dr on TikTok legislation, social media litigation and changes to public information laws

The sun just set on Sunshine Week, “a nonpartisan collaboration among groups in the journalism, civic, education, government and private sectors that shines a light on the importance of public records and open government.”

Good Government Files advocates for that kind of illumination, and, as it so happens, the topic is ripe for a TL;dr overview. Federal legislation that would ban or force the sale of TikTok easily passed the U.S. House of Representatives on March 13; the Supreme Court at long last clarified when public officials can block citizens on social media; and multiple state legislatures have amended or are in the process of amending open records and open meetings laws.

Let’s start with a couple of pieces on TikTok legislation. First, a look at the legal challenges sure to follow if legislation passes impacting the social media platform owned by China-based ByteDance. Next, will be a look at details in the bill you may not know about.

Potential TikTok Ban Tees Up Legal Showdown Over Free Speech

In Monday’s Wall Street Journal, reporter Jacob Gershman examined how the proposed bipartisan TikTok legislation could lead to a significant legal battle, pitting national security interests against First Amendment rights of TikTok and its users.

Here are three takeaways:

1. Legal Battle on First Amendment Grounds: Any litigation over the TikTok ban would require courts to navigate the complex intersection of national security goals and the First Amendment rights of TikTok and its users, emphasizing the unprecedented nature of Congress taking drastic action against an internet platform. “The U.S. has long restricted foreign ownership of radio and television broadcasting, but Congress has never taken such drastic actions against an internet platform used by millions of Americans to communicate,” Gershman writes.

2. Precedents and Government Justifications: Previous rulings against efforts to ban TikTok cited the limitations of the government’s authority when restricting personal communications. Recently, the article notes, “Montana lost a court ruling that blocked its attempt to ban TikTok, with a judge ruling the state’s effort was likely illegal for several reasons, including because it intruded on free-speech protections.” For example, “In 1965, the high court ruled citizens have a right to receive information, even if it is foreign propaganda,” Gershman writes. “The decision invalidated a federal law that allowed the U.S. postmaster general to deliver foreign mailings of Communist political propaganda only upon the addressee’s request.”

3. Impact of Past Litigation on Future Cases: The Trump administration attempted to ban TikTok under an emergency economic powers act, with the government arguing the ban didn’t impinge on speech rights because TikTok users shut out from the app could post and consume the same content on other platforms such as Instagram. “Similar litigation unfolded when the Trump administration sought to ban WeChat, China’s dominant multipurpose app used by Chinese-speaking U.S. residents,” the article notes. “A judge in California blocked that ban, saying it wasn’t clear why less restrictive alternatives, such as barring WeChat from government devices, wouldn’t address U.S. security fears.”

Why the TikTok Ban is So Dangerous

That ⬆️ is the headline on a Racket News article by Matt Taibbi. The subhead gets to a point I had not seen reported elsewhere: “Did they tell you the part about giving the president sweeping new powers?”

Taibbi critiques the potential TikTok ban, highlighting its implications for free speech and executive power. Instead of my typical three takeaways, I’ll pass along some excerpts. Taibbi read the fine print of the bill and found the following definition of “Foreign Adversary Controlled Application,” i.e., a platform like TikTok.

As written, any “website, desktop application, mobile application, or augmented or immersive technology application” that is “determined by the President to present a significant threat to the National Security of the United States” is covered.

That the president could take unilateral action to decide what’s a threat prompted the following from Taibbi.

As Newsweek reported, the bill was fast-tracked after a secret “intelligence community briefing” of Congress led by the FBI, Department of Justice, and the Office of the Director of National Intelligence (ODNI). The magazine noted that if everything goes as planned, the bill will give Biden the authority to shut down an app used by 150 million Americans just in time for the November elections.

Say you’re a Democrat, however, and that scenario doesn’t worry you. As America This Week co-host Walter Kirn notes, the bill would give a potential future President Donald Trump “unprecedented powers to censor and control the internet.” If that still doesn’t bother you, you’re either not worried about the election, or you’ve been overstating your fear of “dictatorial” Trump.

We have two decades of data showing how national security measures in the 9-11 era evolve. In 2004 the George W. Bush administration defined “enemy combatant” as “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States.” Yet in oral arguments of Rosul et al v Bush later that year, the government conceded an enemy combatant could be a “little old lady in Switzerland” who “wrote a check” to what she thought was an orphanage.

I share this because I worry greatly about government overreach when it comes to censoring U.S. citizens on social media. If you’re not, you should be. The court on Monday heard arguments on a censorship case involving the government and social media. I would also recommend reading reporting from Taibbi and others on the Twitter Files, which you can find here, here and here.

Speaking of censorship by public officials of citizens on social media …

Supreme Court clarifies when public officials can block citizens on social media

Chris Teale of Route 50 breaks down the much anticipated (at least, by gov comms types) of the Supreme Court ruling March 15 on social media content moderation. SCOTUS put it in black and white that public officials can block someone on their personal social media accounts or delete their comments if they are not acting on behalf of the state.

My two takeaways:

1. Distinction Between State Action and Private Conduct: Justice Amy Coney Barrett, writing for the court, emphasized that public officials, like any private citizens, have their own constitutional rights. The critical distinction between permissible and impermissible actions hinges on whether the official acted in a state capacity or a private capacity when blocking individuals or deleting comments. Barrett noted officials need to keep clear lines of distinction between personal and public accounts. “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability,” she wrote.

2. About Those ‘Personal Accounts’: It will be interesting to see how a lower court applies the SCOTUS ruling to a related case. “In O’Connor-Ratcliff v. Garnier, a lower court judge found that the actions of two trustees of the Poway Unified School District, who blocked two parents after they criticized them on their personal social media accounts, constituted government action,” Teale writes. “The plaintiffs, parents Christopher and Kimberly Garnier, argued that the two trustees, Michelle O’Connor-Ratcliff and T.J. Zane, used their accounts to communicate to constituents the actions of the school board, including inviting them to public meetings, asking for comments on issues before the school board and posting photos of themselves visiting classrooms in their official capacity. The Garniers frequently commented on the posts and wrote lengthy criticisms of their work, prompting the two trustees to block them.”

To me, the best thing about the case is that it makes it clear that blocking users or deleting comments is a definite no-no when talking about government business on social media. The second-best thing is that you don’t lose your first amendment rights just because you work for the government.

A look at state lawmakers’ efforts to overhaul their open records laws

A Route 50 article marks Sunshine Week by highlighting various state efforts to overhaul open records and open meetings laws, emphasizing the conflict between transparency advocates and government concerns.

The fights in state capitols frequently pit reporters and watchdog groups against government officials. The good-government groups worry about the vanishing paper trail as elected officials and public administrators rely more heavily on text messages, video calls and hard-to-monitor apps to discuss important policy questions. State and local leaders worry about for-profit companies that mine public records for their own business purposes, inundating government workers with cumbersome requests. And politicians worry how increased scrutiny could affect their careers.

Here are three highlights:

1. Colorado’s Open Meetings Law Changes: Governor Jared Polis signed a bill allowing the General Assembly to conduct small group, aka “serial,” meetings without a majority present and exempting digital messages between lawmakers from being considered a “meeting,” sparking criticism for reducing transparency. Emails and text messages from legislators could still be accessed via public records laws, according to the Denver Post article linked to above. I’ll be interested in how this plays out. I understand the desire for elected folks to have the ability to talk business outside of the traditional public meeting forum, i.e. via email and texts, but boy does that look like a situation ripe for abuse.

2. New Jersey’s Open Records Law Overhaul Paused: After facing backlash from various groups, legislative leaders decided to slow down proposed changes to the state’s open records law. “The sponsors of the effort … described the revisions as a way of modernizing the state’s open records law,” the Route 50 article states. “They said private data brokers are requesting information on dog licenses or real estate transactions, which can occupy town officials for hours at a time. Those commercial requests account for half of all records requests, county officials said.” On the other hand, legislators did not talk to “people who actually file [records] requests,” according to a journalist. Here’s hoping the pause produces better legislation.

3. Nebraska Supreme Court Ruling on Public Records Fees: The court upheld a decision allowing state agencies to charge substantial fees for reviewing public records, a move criticized for potentially limiting media and public access to important government information. “The high court upheld a $44,103 charge to The Flatwater Free Press to get documents related to nitrate contamination in groundwater,” the article notes. If you think that fee is excessive, join the club. The Nebraska Department of Environment and Energy initially estimated the charge would be around $2,000. The linked article notes the newspaper’s stories on nitrate contamination “(i)ncluded … a story concerning contamination near hog barns operated by the family of Gov. Jim Pillen, a story the governor said should be discounted because the author was from “communist China” — a comment that sparked a firestorm of calls for an apology.” I understand it can take significant — and valuable — staff time to respond to open records requests. But this case stinks worse than a pig in slop. Here’s hoping the Nebraska legislature steps in to fix this.

In Other’s Words

Since we’ve spent some time on the topic of social media and what government should (or shouldn’t) do about it, I share this quote from Andrew Sullivan, who writes the Weekly Dish, one of my favorite political newsletters. He was lamenting the crisis of attention and how these social media platforms so successfully distract us from meaningful connections.

How can we unscramble our fevered politics without addressing our psychological and spiritual dysfunction? How do we heal a culture we are constantly distracting ourselves from? How do we break out of passive narcissism into more active, sustaining social lives? … (W)e will not fix our politics until we heal our culture; and we will not heal our culture until we have regained control of our technology, which is currently driving us mad.

José Andrés, chef and founder of World Central Kitchen, on the best advice he ever got from a boss.

As a teenager, I worked for the legendary Ferran Adrià at El Bulli—one of the most creative people ever. One day I was frying artichokes and he had an idea to add gelatin to the hot oil. We thought he was crazy! And he was: It exploded everywhere. But from that idea, he created some incredible dishes. He wasn’t afraid to fail, which inspired me to always take risks.

Finally, here’s another gem from James Clear, author of Atomic Habits¹.

Don’t worry about being the most interesting person in the room, just try to be the most interested person in the room. 

• The interested person asks about others and leaves a good impression because people like talking about themselves. 

• The interested person is genuinely curious about someone’s craft and learns a lot about how things work. 

• The interested person engages with more people and—because opportunities come through people—is more likely to catch a lucky break. 

In general, the interested person learns more and tends to be well-liked. And in the long run, it’s hard to keep down someone who is well-learned and well-liked.

Onward and Upward.

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