New from the Institute for Free Speech
New Anti-Privacy Law Could Seriously Harm New Jersey Organizations
By Meghan Brandabur
On June 17, New Jersey Governor Phil Murphy signed S. 150, sweeping legislation that requires nonprofit groups that speak about issues of public importance to expose the private information of their supporters in certain, complicated circumstances. Interestingly enough, S. 150 is an identical version of a bill (S. 1500), that Gov. Murphy conditionally vetoed just one month ago.
S. 1500 was introduced to crack down on speech by nonprofits about legislative and electoral issues. It proposed to do so by defining a newly created category of “independent expenditure committees” (IE committees), which are subject to many of the same disclosure regulations that candidates, PACs, and political party committees are forced to follow…
Notably, S.1500 was amended throughout the legislative process…to make activities focused on pending legislation or regulations subject to regulation as an “IE committee.”
The legislation further relies on (and amends) the existing definition of “political information” in New Jersey law, which “means any statement, including, but not limited to, press releases, pamphlets, newsletters, advertisements, flyers, form letters, Internet or digital advertisements, or radio or television programs or advertisements which reflects the opinion of the members of the organization on any candidate or candidates for public office, on any public question, or which contains facts on any such candidate, or public question whether or not such facts are within the personal knowledge of members of the organization.”
Due to S. 1500’s broad and vague language, many groups whose primary purpose doesn’t concern political campaigns – and that simply provide factual information on issues before the Legislature – are going to be unnecessarily harmed by its provisions.
Supreme Court
SCOTUSblog: Opinion analysis: Long-time prohibition on registration of scandalous and immoral trademarks is struck down
By Megan Carpenter
Writing for the majority, Justice Elena Kagan found that the “immoral or scandalous” bar discriminated on the basis of viewpoint and violated the First Amendment: “It distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. This facial viewpoint bias in the law results in viewpoint discriminatory application.” Justices Ruth Bader Ginsburg, Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh joined the majority opinion.
No one seemed to like the statute in its current form, although the justices expressed some discomfort with getting rid of it entirely, both during oral argument and in the Supreme Court’s divided opinions. For its part, the government argued that if the statute were upheld, it would interpret the provision more narrowly going forward. The government agreed that the statute as it has been interpreted incorporates viewpoint bias, yet suggested that the “immoral or scandalous” bar is capable of being limited in a way that would remove such bias – for example, by narrowing it to marks that are offensive or shocking because of their mode of expression, independent of viewpoint. The majority rejected this argument, noting that although the court may interpret ambiguous statutory language to avoid serious constitutional doubts, this provision was not ambiguous: “To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one.” …
Multiple justices explicitly raised or alluded to the possibility that Congress could move forward with a more carefully focused statute that does not discriminate on the basis of viewpoint.
The Courts
Courthouse News Service: Sixth Circuit Hears Case of Police Parody Facebook Page
By Kevin Koeninger
A parody Facebook account of an Ohio police department landed a local man in jail, but he was acquitted of a felony charge and his First Amendment lawsuit against the city and its police officers was heard Thursday in the Sixth Circuit.
In March 2016, Anthony Novak used his cellphone to create a satirical Facebook page for the Parma Police Department while he was waiting at a bus stop. He used the account to “anonymously voice his criticism and frustration on matters of public concern like the department’s policing priorities, racial sensitivity, and respect for civil rights, among others,” according to court records…
Parma Police Officer Thomas Connor monitored the parody page, sent several takedown requests to Facebook, and eventually received over 3,000 pages of records after he requested information from Facebook regarding the anonymous creator of the page.
Novak’s identity was among the records. Connor obtained a warrant and Novak was arrested and charged with disrupting public services, a felony.
The only evidence of disruption presented at trial was a series of phone calls made to the department by concerned citizens, and Novak was acquitted by the jury.
He then filed a civil rights lawsuit against the city of Parma, Connor and Officer Kevin Riley.
U.S. District Judge Dan Polster refused to dismiss most of Novak’s claims, ruling in April 2018 that parody is a constitutionally protected activity…
U.S. Circuit Judge Amul Thapar, an appointee of President Donald Trump who spoke frequently throughout the arguments, called some of the posts on the Facebook page ridiculous and asked how anyone could have thought the page was legitimate…
Attorney Subodh Chandra argued on behalf of Novak, telling the panel in his opening remarks that no American should fear prosecution for “mockery of the government.”
Congress
The Hill: Senators spar with Google exec over use of ‘persuasive technology’
By Harper Neidig
Lawmakers expressed disbelief on Tuesday when a Google executive told a Senate panel that the company does not use persuasive techniques targeted at its users.
Maggie Stanphill, Google’s director of user experience, during a Senate Commerce technology subcommittee hearing, told the panel, “No, we do not use persuasive technology at Google.”
At issue before the panel was how algorithms used by companies like Google, Facebook and others might influence their users.
But Stanphill’s statement prompted pushback from senators who had been scrutinizing the company over its content decisions on platforms like YouTube…
Sen. John Thune (R-S.D.), the chairman of the subcommittee, suggested that he was considering a bill that would tackle the issue and called for greater transparency from the industry.
“Congress has a role to play in ensuring companies have the freedom to innovate but in a way that keeps consumers interests and well-being at the forefront of their progress,” Thune said. “Consumers should have the option to engage with a platform without being manipulated by algorithms powered by their own personal data – particularly if those algorithms are opaque to the average user.
“Companies are letting algorithms run wild and only using humans to clean up the mess,” added [Sen. Brian] Schatz, the top Democrat on the panel. “Algorithms are amoral. Companies designed them to optimize for engagement as their highest priority, and in doing so eliminated human judgment as part of their business model.”
Free Speech
Courthouse News Service: Experts Address Legal Battles Between Free Speech, Tech Companies
By Nathan Solis
A tech giant’s influence on free speech, a defamation lawsuit against a Twitter cow and Donald Trump’s Twitter account were at the center of the First Amendment Roundup hosted by the Los Angeles County Bar Association…
Kelli Sager from Davis Wright Tremaine highlighted the California Supreme Court’s decision last year in a lawsuit between a Yelp user who left a bad review on a San Francisco-based attorney’s business page and the attorney. In Hassell v Bird, Dawn Hassell sued former client Ava Bird on defamation claims…
A state judge ruled Bird’s comments were defamatory and ordered Yelp to remove the comment, despite not being a named party. The California Supreme Court, in a narrow 4-3 decision, found that Yelp was not the publisher of the comments and protected under the Communications Decency Act.
While the court found in favor of Yelp, the dissenting opinions said there was a lack of remedy for taking down defamatory content…
“What resonates in the dissenters’ opinion is that it’s just not fair,” Sager said. “That they don’t’ have an ability to go after the ISP or the website. If there’s defamatory content, there should be a remedy. That tone, even though it’s not expressed directly, does give me some concern about how the court and these particular justices will address a similar case.” …
[Berkley School of Law Dean Erwin] Chemerinsky said a recent decision from the U.S. Supreme Court, Manhattan Community Access Corp. v. Halleck…could have had a much bigger impact on the tech industry.
“Had the case come out differently, it might have led strength to the argument that large companies like Facebook, Youtube and Google should have to comply with the First Amendment,” Chemerinsky said…
“I think it’s a court that very much sees a bright line between government conduct and private conduct. So long as it’s a private entity, the First Amendment doesn’t apply.”
Reason: The Moral Scolds of the New Illiberal Right Are Coming For Your Internet
By Peter Suderman
As National Review’s Charles C.W. Cooke wrote last week in a sharply argued piece, there is something profoundly incoherent to the post-liberal ideology, a lack of discrete and practical steps that might be taken to achieve their ends, or anything like a concrete sense of what that end might look like, were it to be achieved. It’s remarkably unclear what, exactly, the post-liberals actually want…
And yet it is possible to detect something that connects the post-liberal worldview, a shared sensibility that is, if not a platform or a program, at least a sort of guidepost suggesting a way forward. And that is an underlying sense of censoriousness. It is a prevailing belief that free expression has simply gone too far, and that the state should probably do something about it…
In Washington Free Beacon Editor Matthew Continetti’s recent taxonomy of the right, he identified Hawley as “closest the post-liberals have to a spokesman in the Senate,” noting that the young senator “has already established himself as a social conservative unafraid of government power.”
As if on cue, Hawley last week introduced a bill to revoke current protections afforded to large internet companies by Section 230, which essentially indemnifies tech businesses from material posted by their users. In order to keep those protections in place, Hawley’s proposal would force large tech companies to obtain a certification from the Federal Trade Commission that they are politically neutral…
[W]hen the government sets up a board of political appointees as the arbiter of what is and isn’t politically “neutral” on the internet’s largest platforms for personal expression, a recurring process that effectively determines their right to exist, it may not quite be censorship in the strictest sense-but it’s awfully close. It’s a way of giving the government control, a de facto veto power, over privately-owned forums for self-expression.
Online Speech Platforms
By Mahita Gajanan
Ravelry, a popular social network and online community for knitters and other needleworkers, has banned posts in support of President Donald Trump, saying his administration is “undeniably” supportive of white supremacy.
The website published a statement Sunday, outlining its new policy. ‘We cannot provide a space that is inclusive of all and also allow support for open white supremacy,” the statement read…
While Trump supporters themselves are not banned, they are asked to keep their political views to themselves. The statement noted: “We are definitely not banning conservative politics. Hate groups and intolerance are different from other types of political positions.”…
Ravelry’s choice to take a firm stance comes as a number of social media and tech giants, such as YouTube, Facebook, and Twitter, struggle to establish consistent messaging regarding hate speech and face criticism for allowing extremism…
Communities like Ravelry are better able to draw hard boundaries on what’s acceptable because they serve fewer people, according to Tiffany C. Li, an attorney and fellow at Yale Law School’s Information Society Project. Li says Ravelry can make decisions without receiving as much blowback as big platforms because their communities tend to have people with mostly similar views, whereas on places like YouTube or Twitter, people are more splintered.
“The issues with big social media companies are that they are moderating content in really different ways,” she says. “The rules are inconsistent, and they’re constantly changing.”
Li says Ravelry is fully within its rights to ban people from expressing support for Trump because it’s private, and not government owned.
By Stephanie Haney and George Martin
Secret footage released by Project Veritas shows Google’s Head of Responsible Innovation, Jen Gennai, saying: ‘We all got screwed over in 2016, again it wasn’t just us, it was, the people got screwed over, the news media got screwed over, like, everybody got screwed over so we’ve rapidly been like, what happened there and how do we prevent it from happening again.’
A company insider provided Project Veritas with documents outlining Google’s explanation of ‘algorithmic unfairness,’ which appeared to expose a liberal bent…
On Monday, Gennai addressed the video and elaborated on what she meant, writing: ‘Project Veritas has edited the video to make it seem that I am a powerful executive who was confirming that Google is working to alter the 2020 election. On both counts, this is absolute, unadulterated nonsense, of course.
‘In a casual restaurant setting, I was explaining how Google’s Trust and Safety team (a team I used to work on) is working to help prevent the types of online foreign interference that happened in 2016…’…
In a hearing on Tuesday, the Senate Commerce Committee examined how technology companies use algorithms and its influence on the public…
US Representative for Texas Louie Gohmert, a Republican, said the video of Gennai ‘shows Google’s biases are now a threat to a free and fair election,’ in a statement that reposted the Project Veritas story.
‘[T]hey hide behind the immunity given by Congress years ago when they were supposed to be a simple “town square” where everyone’s voice could be heard without biased results,’ Gohmert said…
‘This media giant’s “social justice narrative” should distress all Americans who value a free and open society. Google should not be deciding whether content is important or trivial and they most assuredly should not be meddling in our election process. They need their immunity stripped and to be properly pursued by class action lawsuits by those they have knowingly harmed.’
Candidates and Campaigns
Vox: 2020 Democrats’ campaign finance pledges, explained
By Dylan Scott
Vox surveyed all 24 Democratic presidential campaigns and received responses from all 24 of them. Every campaign that responded to us said it was refusing donations from corporate PACs. Most also said they were rejecting support from the fossil fuel industry and from registered federal lobbyists. A handful of them are forgoing support from Super PACs of any kind. Two candidates – Sens. Bernie Sanders and Elizabeth Warren – have sworn off high-dollar private fundraisers…
Vox asked every Democratic campaign to provide the promises they had made regarding which industries, groups, and people they would not accept financial support from. The inquiry was intentionally open-ended. Every campaign provided a response.
The promises generally covered four kinds of donations: from the fossil fuel industry, from corporate PACs, from all Super PACS, and from federal lobbyists…
Here are the raw tallies:
– 24 campaigns are rejecting donations from corporate PACs
– 19 campaigns are rejecting donations from the fossil fuel industry
– 13 campaigns are rejecting donations from federal lobbyists
– 9 campaigns are rejecting donations from all Super PACs
Some of the campaigns added other entities to their blacklist. Biden isn’t accepting money from “unions, federal contractors, national banks or foreign nationals.” South Bend, Indiana, Mayor Pete Buttigieg also rejects donations from the pharmaceutical industry. California Rep. Eric Swalwell doesn’t want support from “the NRA or tobacco industry.” New York City Mayor Bill de Blasio specified any lobbyists or businesses that do business with New York City in his response.
The States
WKZO Kalamazoo: McCann introduces legislation to reduce campaign contribution limits
By Jeana Gondek
Senator Sean McCann is introducing legislation that would reduce the allowable amounts of money that can be contributed to a candidate’s campaign…
This legislation would cut all campaign contribution limits to state-level candidates, campaigns, and Political Action Committees in half…
The legislation would also eliminate a provision that allows contribution limits to be adjusted based on inflation every 4-years without legislative action.
This means contribution limits would go back to where they were in 2013.
McCann says, “Elections should be decided by the strength of the candidate’s ideas and leadership, not by money…This legislation to cut our campaign contribution amounts is an important step in ensuring lawmakers are accountable to their constituents first.” …
Secretary of State Jocelyn Benson also released a statement supporting the legislation and adding,”Taking steps to reduce the influence of money in campaigns is common sense, and I commend Sen. McCann for his determination to strengthen the voice of Michiganders in our elections. Returning campaign contribution limits to the 2013 levels is an important move in the right direction. As part of a broader effort that includes measures to get at the unlimited, undisclosed dark money influencing our elections, this would go a long way toward restoring the public’s trust in government. I look forward to working with Sen. McCann and his colleagues from both sides of the aisle in efforts to modernize Michigan’s campaign finance system.”
Washington Post: Alabama and Texas are putting free speech at colleges in jeopardy
By Jonathan Friedman and Soraya Ferdman
Two bills recently signed into law in Alabama and Texas are similar to those enacted in Arizona, North Carolina and Louisiana in recent years….
But elements in this legislation could chill counter-speech and dissent. Of concern are provisions that direct colleges to establish “disciplinary sanctions” for those who “materially and substantially disrupt the free expression of others” (Alabama) or “unduly interfere with the expressive activities of others” (Texas).
While the language might seem reasonable to deter shouting, disrupting or preventing a speaker from being heard, it is vague in its implications and risks creating a mechanism for administrators to suppress legitimate speech. While claiming to prevent the “heckler’s veto,” these laws instead risk introducing a “speaker’s veto,” whereby one set of speakers can use the threat of discipline to chill those who speak out against them…
The point is not that there should be no firm lines or consequences for disruption, but that, as constitutional law experts Howard Gillman and Erwin Chemerinsky have pointed out, every case of student demonstration requires administrators to make “judgment calls.” Administrators should have the flexibility to balance competing speech rights and to consider a range of responses, with only some that are punitive.
Such judgment calls become more difficult when administrators have a political incentive to please partisan legislators who control their schools’ purse strings. And by prioritizing some forms of expression over others, these laws increase the likelihood that the protections afforded by the First Amendment will be invoked unevenly to the detriment of those who opt to engage in protest.
