The recently enacted TAKE IT DOWN Act makes it a federal offense to share online nonconsensual and explicit images, regardless of whether the images are real or computer generated. The law is intended to protect victims from online abuse, set clear guidelines for social media users, and deter “revenge porn” by targeting the distribution of real and digitally altered exploitative content involving children. While the 2019 Shield Act criminalized the sharing of intimate images with the intent to harm, the TAKE IT DOWN Act provides additional protections by establishing a removal system that allows victims to request removal of harmful and intrusive images, and mandates tech platforms to remove such images within 48 hours of receiving a takedown request from an identifiable person or authority acting on behalf of such individual. The law aims to respond to the recent era of artificial intelligence (“AI”) “deepfakes” or realistic, digitally generated or altered videos of a person, often created and distributed with malicious intent. Additionally, the law attempts to combat the rise of “nudification technology” used to create highly realistic and sexually explicit images and videos, by removing the clothes from original images of clothed people. Users of this technology can disseminate the images rapidly, broadly, and anonymously.

As summarized in detail here, President Trump’s recent executive order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “Order”) takes aim at non-compliant Diversity, Equity and Inclusion (“DEI”) programs in both the public and private sectors.  With the prospect of “civil compliance investigations” and other actions, the Order is a warning to private employers that have allegedly “adopted and actively use[d] dangerous, demeaning, and immoral race-and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA) that can violate the civil-rights laws of this Nation.” Many private employers have struggled with how to respond to the Order, particularly given the Order’s vagueness and contradictory state and local laws.  One of the questions that has emerged is how the Order impacts employers’ commercial free speech rights given the U.S. Supreme Court’s view that such rights are critical to the “uninhibited marketplace of ideas[.]” 

President Trump has issued a flurry of wide-ranging executive orders intended to shake up the employment landscape.  One of those orders, entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “Executive Order”), takes aim at non-compliant DEI programs and policies.  It also creates a momentous change in the federal contractor landscape by revoking Executive Order 11246, which has, for the past sixty years, served as the foundation for non-discrimination and affirmative action requirements in the federal contracting space.  Although the Executive Order’s mandates are vague in many places and raise more questions than they answer, at bottom, the Executive Order appears designed to attempt to effectively stamp out DEI programs and policies in the federal workforce, while putting private sector employers on notice and pushing them to proactively modify, narrow or even end their DEI initiatives.  But as we’ll discuss more below, these developments do not compel private employers to rescind their DEI programs and policies entirely; instead, employers should use the Executive Order as an opportunity to review their existing programs and policies to ensure that they (i) continue to align with their mission and organizational goals, (ii) are legally compliant in light of the change in administration, and (iii) whether subsequently modified or not, thereafter are effectively communicated to stakeholders.