EFF legal intern Simar Kaur also contributed to this article.

Americans’ First Amendment right to equal access to official government statements is violated by the Trump administration’s use of Truth Social’s preferential treatment scheme, which blocks people who won’t pay Trump’s company up to $100,000 a month for early access to government news, EFF told a federal court.

The First Amendment guarantees that members of the public have equal access to public officials’ public comments, we reminded the court.

EFF filed an amicus brief in support of a motion for a preliminary injunction in the lawsuit filed by The Intercept Media and the Freedom of the Press Foundation against President Trump and other administration officials. The lawsuit challenges their use of Truth Social as their primary social media method of making official announcements when that platform provides people who pay a fee for early access to such posts. 

Trump uses his Truth Social account as his primary means of communicating with the public, including to announce military operations and ceasefires, foreign and domestic policy, and the removal and appointment of heads of federal agencies. Earlier in the year, Trump Media, which owns Truth Social, announced “Truth API,” a service that provides investors early access to “market-moving” messages from the president and other high-ranking officials for a fee of up to $100,000 per month.

The plaintiffs, the Freedom of the Press Foundation and The Intercept, contend that the president and other officials’ preferred use of Truth Social with this service violates the First and Fifth Amendments of the Constitution. The plaintiffs are asking the court to immediately prevent the president from posting on Truth Social in a manner that allows him to profit from selling early access to government information.

EFF’s amicus makes two main points.

First, the brief establishes that social media is pervasively used by government officials and agencies as a medium for official communication with the public, including to disseminate critical public safety information and make official announcements.

Second, the brief explains that the challenged practice violates the First Amendment, which guarantees a right to access public officials’ public comments on equal terms with other members of the press and public. Giving some people preferential access must at a minimum be reasonably justified to satisfy First Amendment scrutiny, a test the administration does not meet.

Lining the president and his company's pockets is not a legitimate government interest for restricting timely access to the government's statements. Further, the fact that the public could ultimately access the information from other, less direct channels does not eliminate the need for First Amendment scrutiny; mere delays in timely access still trigger First Amendment scrutiny.

EFF has been advancing the First Amendment right of equal access to government’s public social media posts since at least 2018. We’ve argued that the right of equal access, which is well established in offline contexts, must apply to official government social media posts as well. This case presents an excellent opportunity for a court to directly adopt that position. 

EFF joined an amicus brief with ACLU, ACLU of D.C., National Press Photographers Association, and Professional Photographers of America to urge the D.C. Circuit to vacate an FAA drone flight restriction that violated the First Amendment right to record law enforcement. This is an important case—Levine v. FAA—challenging the ability of the government to punish drone pilots who record law enforcement officers engaged in official business. 

As we wrote about earlier this year, the FAA issued a flight restriction for drones that had effectively criminalized the recording of Department of Homeland Security officers, including immigration agents from ICE and CBP, and their vehicles (what the FAA called “mobile assets” including “ground vehicle convoys and their associated escorts”) even if the drone was over half a mile away. 

A drone operator, represented by the Reporters Committee for Freedom of the Press, sued the FAA in March [PDF]. But in April, the FAA rescinded the flight restriction. 

The petitioner argued in his opening brief that the court should evaluate the legality of the flight restriction even though it was withdrawn. Drone pilots could still be punished for violations that occurred when the flight restriction was in effect. And the FAA could reinstate the flight restriction at any time, given that the rescission did not seem to reflect “a true change of heart” but rather an effort by the agency to avoid judicial review. 

The amicus brief, filed in support of the petitioner, noted that drones are unique because they provide “perspectives that cannot be captured by ground-based imagery,” and they “are far more maneuverable than ground-level cameras, and they are both much cheaper and much safer than using a chartered plane or helicopter to record newsworthy events from above.” The brief highlighted that drones have captured “bird’s-eye images of protest activity” and “police uses of force against protestors,” and have “allowed journalists to provide the public with up-to-the-minute information about natural disasters without putting themselves in harm’s way.” 

The brief argued that using drones to capture images and video is information-gathering activity protected by the First Amendment (similar to using cell phones to record law enforcement). The brief also argued that the FAA’s flight restriction appeared to be issued specifically to ban the recording of immigration agents and thus hinder accountability for their enforcement actions—it surely wasn’t a coincidence that the FAA imposed “no-drone zones around all roving DHS patrols just as those patrols were provoking intense national backlash.” If that’s true, it would make the FAA’s action a content-based restriction on speech that is subject to strict scrutiny—the highest First Amendment standard—and presumptively unconstitutional. And even under less rigorous standards of First Amendment scrutiny, the flight restriction is unconstitutional because the FAA can’t articulate any valid governmental interest justifying such a sweeping restriction on speech. 

Resolving this issue to protect First Amendment rights is especially urgent as government agencies continue to sink billions of dollars into technology designed to counter drones—technology that could easily be deployed against journalists and other people hoping to use drones to document government abuse.  

We urge the D.C. Circuit to review the petition and to vacate the FAA’s flight restriction, which would send a message that the government can’t avoid accountability by punishing those who exercise their First Amendment rights. 

The EU Commission draft law to restrict young people’s access to the internet that it presented last week will come at a high cost: it will put online services behind age gates, expand the use of intrusive age verification, and undermine the privacy of all users. 

The EU Kids Act aims to protect children from risks associated with social media, video games, and AI systems by introducing age-based access rules, safety requirements, and stronger enforcement and oversight measures. It presents itself as building on the Digital Services Act (DSA) and puts into “hard law” some of the safety-by-design measures specified in the non-binding DSA guidelines on minors’ protection. 

The proposal is built around the following elements: social media age “delay”, safety by design, age assurance and parental responsibility, and strong enforcement. Each of these measures are concerning.  

Mandatory Age Gates for Social Media and Video-Sharing Platforms 

Following the advice of an expert panel, the proposal would create a phased access to social media and video-sharing platforms deemed risky—a threshold met simply by relying on personalized recommender systems or offering “uninterrupted content consumption”: no service accounts for children under 13; restricted accounts under tight parental supervision from 13 to 15; and autonomous accounts in a safe-by-design environment from 15 to 18. Full online access is therefore reserved for adults. 

However they’re designed, age gates undermine civil liberties, reduce safety, and create barriers to internet entry, often at the expense of marginalized groups.

If this sounds complex and like a compliance nightmare, that’s because it is. The access delay comes with privacy-intrusive age verification across the board, relying on the EU age verification scheme. For teenagers, this law means significant control in the hands of their parents, who must set up accounts and prove that they are, in fact, parents, adding yet another problematic layer of verification. 

In fairness, the Kids Act’s gradual approach at least appears to be designed with some proportionality considerations, rather than imposing a blanket social media ban. Just last month a French court declared such undifferentiated bans unconstitutional. The EU Kids Act distinguishes between age groups and certain services and follows a risk-based approach. This means, for example, that age verification is not required for existing accounts if the provider can tell with a “high degree of confidence” that the user is above the age threshold—a vaguely specified standard.  

Yet, the law still indiscriminately covers social media and video-sharing, with virtually all mainstream services being covered by the proposal. The broad scope also sits uneasy with the use of age thresholds, which remain a blunt proxy for maturity. What is more, by focusing heavily on safety and harms, the EU Kids Act pays little attention to the privacy and freedom of expression rights of users, as well as the right of children themselves to access information and to participate online. However they’re designed, age gates undermine civil liberties, reduce safety, and create barriers to internet entry, often at the expense of marginalized groups. They also create a powerful infrastructure for control and further entrench the power of big tech. 

The proposal exempts not-for-profit encyclopedias, scientific repositories and educational services, as well as open-source software-developing and-sharing platforms. However, no exceptions are foreseen for small and medium-sized enterprises, which will only foster the dominance of resource-laden tech companies that were already investing in similar measures. And we know that most companies are well-advised to play it safe and use privacy-unfriendly age checks across their platforms. 

Safety by Design Across Covered Services 

The proposal’s second pillar, “safety by design”, casts a wider net. It applies across social media, video-sharing, online games, AI companions, chatbots and even app stores—with varying requirements. Providers must generally make child-safe design the default and can relax from the requirements only if they use age assurance to establish that the user is an adult. 

For example, rules on addictive features such as infinite scrolling, safe account settings, and more choice over recommender systems are to provide a safe internet experience to young people. As regards AI companions and chatbots, the proposal requires companies to design their services to reduce minors’ exposure to emotional dependencies and harmful interactions. Online games are covered as well: they must come with contact protections. The law also makes app stores the gate keeper for age-appropriate access, based on an age-rating system. 

The devil of these measures lies in the details, but all of them raise fundamental rights concerns and some of them seem poorly suited, if at all, to the decentralized architecture of the Fediverse. The requirement for very large online platforms to set up compliance plans before rolling out new services raises additional questions about the risks of transplanting product-safety doctrines of conformity and risk control into speech regulation. Deciding what is “safe” can easily become a question of what content people can access or share.  

Next Steps  

By choosing to regulate all these aspects through the Kids Act, the Commission not only but creates a privacy minefield, it also intermingles the digital fairness agenda with the more fundamental-rights heavy questions of age assurance and access to information. An unfortunate policy choice that will politicize well-intentioned efforts to curb manipulative and addictive design practices (read our position on the DFA). 

It speaks volume that the Kids Act has not gone through a full impact assessment process, which would typically require a systemic check of alternative policy options and stakeholder consultations. Looking forward, we call on the EU lawmakers to pull the teeth of the most harmful suggestions and to make sure that the new measures don’t erode the fundamental rights of all users. 

A California law that prohibits teens from receiving recommended social media content from other social media users violates their First Amendment rights, EFF argued this week.

The case, Meta v. Bonta, challenges SB 976, which requires that teen social media users get their parents’ permission before seeing other users’ recommended speech on their social media feeds. The legal challenge to SB 976 has largely centered on how the law violates social media services’ First Amendment rights to curate user-generated content and present it as they see fit.

But the friend-of-the-court brief EFF filed along with the Center for Democracy & Technology and the Wikimedia Foundation shows that the law violates teen users’ First Amendment rights, too.

“SB 976 frustrates young people’s ability to use the internet to its full potential, prohibiting them from relying on tools that disseminate their speech and help them view and interact with other users’ speech,” the brief argues.

Recommendation systems have a dual purpose on social media: they help all users discover speech and content by other users, and to get their own speech in front of a wider audience.

“SB 976 creates significant, constitutionally violative, burdens on young users’ ability to read and comment on the news, discuss politics, find and share art, share their religious beliefs, or even practice their religion with fellow members of their faith,” the brief argues. “There is simply too much content on services for users to sift through manually, and young users may not know what to search for or even how to find content.”

Because SB 976 creates such broad burdens on teens’ ability to distribute and receive speech, it should be struck down on First Amendment grounds. But as EFF’s brief argues, the First Amendment doesn’t stop California and other states from passing laws that help all users, regardless of age, avoid major social media services’ harmful surveillance business models.

“One could imagine a law that required services to minimize the amount of data they collect, or limit using more invasive data analysis practices, such as tracking users across multiple services, analyzing keystrokes, and other surveillance-intensive practices,” the brief argues. “Such restrictions likely would serve the state’s aim of protecting all internet users—including minors—and would be more narrowly tailored to addressing the harms those practices cause than SB 976.”