Supreme Court
SCOTUSblog: Petitions of the week
By Andrew Hamm
Facebook Inc. v. Duguid
19-511
Issues: (1) Whether the Telephone Consumer Protection Act of 1991’s prohibition on calls made using an “automatic telephone dialing system” is an unconstitutional restriction of speech, and if so whether the proper remedy is to broaden the prohibition to abridge more speech; and (2) whether the definition of ATDS in the TCPA encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.”…Reisman v. Associated Faculties of the University of Maine
19-847
Issue: Whether it violates the First Amendment to designate a labor union to represent and speak for public-sector employees who object to its advocacy on their behalf.Dyroff v. Ultimate Software Group Inc.
19-849
Issues: (1) Whether Section 230(c)(1) of Title 47 of the U.S. Code is a limitation on the definition of a publisher under certain other prohibitions, or a broad grant of immunity to covered publishers; and (2) whether “publisher” in Section 230(c)(1) is limited to the exercise of traditional editorial functions, such as deciding to accept or reject a submission…Force v. Facebook Inc.
19-859
Issues: (1) Whether Section 230(c)(1) of Title 47 of the U.S. Code is a limitation on the definition of a publisher under certain other prohibitions, or a broad grant of immunity to covered publishers; and (2) whether “publisher” in Section 230(c)(1) is limited to the exercise of traditional editorial functions, such as deciding to accept or reject a submission.
The Courts
Vox: Kansas’s ag-gag law has been ruled unconstitutional
By Kelsey Piper
Kansas cannot bar people from conducting undercover investigations on factory farms, a federal court in Kansas ruled Wednesday.
For nearly 30 years – since 1990 – a Kansas state law made it illegal to take photographs or record video in a factory farm or slaughterhouse “with the intent to damage an enterprise conducted at the animal facility.”
The law was the earliest example of what are now called “ag-gag” laws, which criminalize undercover investigations, often by animal welfare groups, that reveal abuses on farms. Since Kansas’s law was enacted, half a dozen states have passed such laws – and more have considered it. Legislators have been forthright about their motives: They’re worried that evidence of what goes on on these farms will outrage Americans, so they want to ban it.
So far, the courts aren’t impressed. Last year, the federal court for the southern district of Iowa ruled that Iowa’s ag-gag law was unconstitutional. On Wednesday, a federal judge in Kansas agreed. “The prohibition on taking pictures at an animal facility regulates speech for First Amendment purposes,” the court concluded, dismissing arguments that prohibiting the taking of pictures did not constitute a restriction on speech.
Even worse from a constitutional standpoint, the restriction on speech is not viewpoint-neutral, the court concluded: “The law plainly targets negative views about animal facilities and therefore discriminates based on viewpoint.”
Washington Post: The FISA court has taken steps to correct the Carter Page abuses. But more reform is needed.
By Editorial Board
The shock waves continue to reverberate from Justice Department Inspector General Michael Horowitz’s Dec. 9 report on major flaws in the federal government’s secret surveillance of former Trump campaign official Carter Page. Mr. Horowitz found that FBI officials repeatedly misled or misinformed judges of the Foreign Intelligence Surveillance Court (FISC) to obtain its permission for the surveillance of Mr. Page. Now the FISC has revealed that the Justice Department itself has acknowledged it had no legitimate legal basis for at least the last two of four surveillance warrants it obtained against Mr. Page in 2016 and 2017. That admission came in a previously classified letter the department sent the FISC on the day Mr. Horowitz’s report came out. Its publication should add to the urgency with which the executive branch, Congress and the FISC address the problems Mr. Horowitz identified…
Congress, too, has a responsibility to weigh in on this critical civil liberties issue – and the impending expiration of key provisions of the Foreign Intelligence Surveillance Act (FISA) in March provides an opportunity to do so. If the Page case illustrates anything, it is the fact that no U.S. citizen, of any political party, is immune to unwarranted surveillance by a misguided or overzealous FBI. Reform, therefore, should be a bipartisan cause.
Republican Sen. Steve Daines (Mont.) and Democrat Sen. Ron Wyden (Ore.) have proposed a bill that would inject a greater degree of transparency and rigor into the FISC’s internal processes.
Washington Examiner: Tulsi Gabbard just the latest politician to abuse courts over political disputes
By Ari Cohn
As a First Amendment attorney, I know that [Rep. Tulsi] Gabbard’s lawsuit [against Hillary Clinton] is not the craziest defamation case ever brought. It will nonetheless face substantial obstacles as it winds its way through the courts. The entire affair is political and doesn’t belong in the courts anyway…
[T]he highest hurdle Gabbard will have to clear is proving “actual malice”…
This high legal standard applied to defamation cases brought by public officials reflects, as the Supreme Court noted in New York Times v. Sullivan, our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”…
Chilling debate and curtailing the public’s ability to freely discuss issues pertaining to elected officials and candidates without fear of a ruinous lawsuit is a far worse fate than the risk of false information occasionally gaining traction. The true threat to the functioning of our democracy is the notion that the boundaries of acceptable political discourse should be determined not by the public but rather by a continuous stream of headline-seeking defamation lawsuits.
First Amendment
Washington Examiner: Liberal legal establishment wrongly attacks conservative Federalist Society
By Quin Hillyer
Not content with stifling dissent at overwhelmingly leftist law schools, the progressive legal establishment is now threatening to trample conservative judges’ freedom of association. Their proposal should be shot down, and its remains should be buried.
The proposal comes from the Committee on Codes of Conduct of the Judicial Conference of the United States. It would allow judges and their clerks to be members of the notably liberal American Bar Association, but not members of the conservative Federalist Society or the left-wing American Constitution Society. As the Federalist Society has been longer-established, and is seen as far more influential than the ACS, so most observers see this proposal as aimed squarely at the Federalist Society.
National Review: An Executive Order against Antisemitism Is Being Used to Justify Censorship
By Samantha Harris
[Trump’s Executive Order against antisemitism] directed federal agencies, in considering whether conduct was antisemitic, to consider a very specific definition of antisemitism and very specific examples of it. Those examples include protected political speech, such as “drawing comparisons of contemporary Israeli policy to that of the Nazis” and “denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.”…
[R]equiring the government to even consider someone’s political views to determine whether or not their conduct is punishable is a recipe for disaster – and will ultimately only hurt the people it was intended to help. Do we really want the federal government defining all of the world’s -isms? What happens when President Joe Biden issues an executive order on Islamophobia directing the government to consider things like “denying the Palestinian people their right to self-determination” or “drawing comparisons between Hamas and the Nazis” as evidence of a prohibited anti-Muslim or anti-Arab motive?…
When we open the door to drawing distinctions among speakers based on their political views, that door will not easily be closed again – and all of our rights are at risk.
Congress
Politico: Morning Agriculture
By Ryan McCrimmon
A bipartisan group of senators are asking FDA Commissioner Stephen Hahn to crack down on the use of dairy terms like milk and butter for non-dairy products. Senators led by Tammy Baldwin (D-Wis.) and Jim Risch (R-Idaho) said dairy farmers have been “waiting for action” since the agency launched a review of how to enforce dairy labeling rules under former Commissioner Scott Gottlieb.
Citizens United
Las Vegas Review-Journal: Campaign police still smarting over Citizens United
By Editorial Board
In Citizens United, the high court ruled 5-4 that the Bill of Rights protects independent political expenditures as a form of expression. For the past 10 years, however, progressives have excoriated the ruling as a threat to democracy. A Brennan Center release calls the decision “deeply flawed.” Congressional Democrats have – for the first time in our nation’s history – proposed amending the First Amendment as a means of blunting the decision.
With this in mind, it’s worth revisiting the details of the case…
[F]ederal campaign regulators effectively banned a movie and its promotion. How does that comport with the First Amendment’s free-speech protections?…
[D]eputy solicitor general for the Obama administration told the justices that McCain-Feingold gave the government the authority to ban certain politically themed books or pamphlets and even the electronic distribution of offending publications. It could also be illegal, the government lawyer argued, for a corporation or union to hire an author to write such a book.
It is against this backdrop – faced with a law that government regulators claimed empowered them to censor certain viewpoints – that a majority of the Supreme Court issued its decision. “If the First Amendment has any force,” Justice Anthony Kennedy wrote, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech.”
A decade later, this defense of freedom and liberty remains a controversial concept in some quarters. It shouldn’t be. For those who value free expression, the anniversary of Citizens United should be cause for celebration. Meanwhile, those who continue to rail about the decision bear the burden of explaining how outlawing political publications and censoring issue-oriented movies align with democracy and freedom.
Independent Groups
Roll Call: Super PACs after 10 years: Often maligned but heavily used
By Kate Ackley
Despite [Minnesota Democrat Rep. Angie] Craig’s opposition to the [Citizens United] decision, her candidacy has benefited from ad buys by super PACs. The solicitation from her campaign illustrates both the toxicity of big political money and the backlash to it that has led to a rise in small-dollar contributions. It also speaks to the tricky relationship Democrats have with super PACs: They say they want to do away with them, but the party relies heavily on them too…
“We’re on track to have record-breaking super PAC spending,” said Michael Toner, who leads the election law and government ethics practice at law firm Wiley…
Toner, a Republican former chairman of the Federal Election Commission, said the presidential campaigns will drive much of the super PAC spending but so will marquee Senate races in states such as Maine, Iowa, Colorado, Arizona and North Carolina. House races, too, are likely to see an uptick in super PAC spending, he predicts.
“We are definitely seeing an increase in candidate-specific super PACs down ballot,” Toner said. “At the U.S. Senate or U.S. House level, if you’ve got a well-funded super PAC, it can have a big impact.”
Media
Washington Post: Edward Snowden: Trump has created a global playbook to attack those revealing uncomfortable truths
By Edward Snowden
[T]hough the Obama White House used the Espionage Act to charge more reporters’ sources than all previous administrations combined, it drew the line at directly prosecuting those reporters and their news organizations…
The Trump administration, however, with its disdain for press freedom matched only by its ignorance of the law, has respected no such limitations on its ability to prosecute and persecute, and its unprecedented decision to indict a publisher under the Espionage Act has profoundly dangerous implications for national security journalists around the country. Though I believe that Greenwald would have reported the mass surveillance story even if it meant risking prison time, can we say the same of every member of the press?…
[T]he charges against each of these men have been widely recognized for what they are: efforts to deter the most aggressive investigations by the most fearless journalists, and to open the door to a precedent that could soon still the pens of even the less cantankerous. In the hours after each set of charges was announced, dozens of civil liberties groups and publishers came forward to denounce them and to decry the chilling effect they were intentionally engineered to produce.
The most essential journalism of every era is precisely that which a government attempts to silence. These prosecutions demonstrate that they are ready to stop the presses – if they can.
Wall Street Journal: China’s Censorship Helps Spread the Virus
By Paul Wolfowitz and Max Frost
[W]hen the Spanish flu broke out amid World War I. In the U.S., government officials and the press did all they could to play it down lest it hurt the war effort. While the Los Angeles health chief declared there was “no cause for alarm” and the Arkansas Gazette described the disease as the “same old fever and chills,” people were dying by the thousands.
The name “Spanish flu” was a misnomer. In the countries where it originally surfaced-France, China and the U.S.-the news was suppressed by censorship and self-censorship to maintain wartime morale…Not until King Alphonse XIII of neutral Spain fell ill did news of the virus spread widely.
Between the spring of 1918 and early 1919, three waves of Spanish flu tore across the planet, facilitated by censorship and secrecy. The results were catastrophic: 50 million people were killed world-wide, including nearly 700,000 Americans.
Because the Chinese Communist Party cares more about its social control than the well-being of China’s people, a similar situation is imaginable today…
China has no independent media and strict censorship even in peacetime…
Meanwhile, Chinese police are interrogating people for “spreading rumors” on social media about the virus…On Jan. 10, a government expert told the state network CCTV that the virus was “under control” and a “mild condition.” Wuhan’s bestselling newspaper didn’t put the outbreak on its front page until nearly three weeks after the first cases.
Washington Examiner: Bloomberg News runs first investigative story on company owner and presidential candidate
By Naomi Lim
After months of hand-wringing over how it would cover its boss, Bloomberg News ran a story questioning how 2020 Democrat Michael Bloomberg would pay for campaign spending promises.
Bloomberg News reported over the weekend that the billionaire co-founder and CEO of Bloomberg LP’s delay in putting out his tax plan was fueling uncertainty regarding how he would pay for the pitches he is making to Democrats…“The media has started to notice, as one recent Associated Press article led off by noting the lack of details about paying for a promise to create millions of new jobs,” Bloomberg News reporter Mark Niquette wrote…
Bloomberg’s decisions both to seek the 2020 Democratic nomination and curtail Bloomberg News reporters’ ability to investigate his rivals, extending his policy of banning stories on his family or foundation, was met with derision from his staff and former employees – but was defended by Bloomberg.
“They get a paycheck. But with your paycheck comes some restrictions and responsibilities,” he told CBS News last December.
IRS
Law 360: Donor Reporting Requirements Don’t Need Relaxing, IRS Told
By Theresa Schliep
A proposal to relax donor reporting requirements for some nonprofit organizations would encourage foreign meddling in U.S. elections and anonymous campaign spending, a campaign finance group has said.
Eliminating rules requiring some tax-exempt entities to report donor names and addresses would embolden foreign interference and anonymous spending in elections, the Campaign Legal Center said in a letter to Internal Revenue Service Commissioner Chuck Rettig that was released Wednesday and dated Jan. 17. The current requirements are constitutional, the letter said.
The group requested permission for a representative to speak at an IRS hearing on the proposal scheduled for Feb. 7.
The U.S. Department of the Treasury proposed rules in September to eliminate some reporting requirements for nonprofits.
Online Speech Platforms
Time: The Growing Threat to Free Speech Online
By David French
[W]hat if I told you that as we lurch from crisis to crisis there is a slow-building, bipartisan movement to engage in one of most significant acts of censorship in modern American history? What if I told you that our contemporary hostility against Big Tech may cause our nation to blunder into changing the nature of the internet to enhance the power of the elite at the expense of ordinary Americans?
I’m talking about the poorly-thought-out, poorly-understood idea of attempting to deal with widespread discontent with the effects of social media on political and cultural discourse and with the use of social media in bullying and harassment by revoking or fundamentally rewriting Section 230 of the Communications Decency Act…
Celebrities have their own websites. They’re sought after for speeches, interviews, and op-eds. Politicians have campaigns and ad budgets, and they also have abundant opportunities to speak online and in the real world. If they succeeded in making social media companies liable for users’ speech, they would pay no meaningful price. You would, however. Your ability to say what you believe, to directly participate in the debates and arguments that matter most to you would change, dramatically.
Reason: Joe Biden Wants To Destroy Free Speech on Social Media
By Eric Boehm
In an interview with the New York Times’ editorial board, former Vice President Joe Biden made his most stringent call yet for cracking down on free speech on the internet…
“Section 230 should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms,” says Biden.
When the Times’ Charlie Warzel points out that Section 230 is “pretty foundational” to the modern internet, Biden takes his personal disagreement with Zuckerberg and blows it up into a policy that would destroy free speech for all internet users.“That’s right. Exactly right. And it should be revoked. It should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false, and we should be setting standards not unlike the Europeans are doing relative to privacy,” Biden says. “You guys still have editors. I’m sitting with them. Not a joke. There is no editorial impact at all on Facebook. None. None whatsoever. It’s irresponsible. It’s totally irresponsible.”
Biden goes on to say that both Zuckerberg and Facebook should be held civilly liable for false information posted on the platform, and even leaves open the possibility that Zuckerberg could somehow be held criminally liable. All of this, Biden says, is because Facebook ran “Russian ads” during the last presidential campaign.
Candidates and Campaigns
WBUR News: Warren To Bloomberg: ‘Let Reporters Do Their Jobs’
By Kimberly Atkins
In a twitter thread yesterday, [Senator Elizabeth] Warren blasted a Bloomberg News policy that bars reporters from investigating Bloomberg. She also pointed to an ABC News report that Bloomberg’s former mayoral race opponent Mark Green filed an FEC complaint alleging the policy amounts to “illegal corporate in-kind contributions” to billionaire former New York mayor’s presidential campaign. Bloomberg’s campaign declined to comment.
“If Michael Bloomberg wants to be the Democratic nominee, he should let reporters do their jobs and report on him, and everyone else, as they see fit,” Warren tweeted. “And he should divest from Bloomberg News so there’s no question about his influence over news coverage of presidential candidates.”
Earlier this week Warren criticized the 45-day extension Bloomberg received to file his personal financial disclosure, telling reporters in Iowa: “If he has entanglements with China, serious conflicts of interest, business interests in other parts of the world or other corporations when are we going to know about that? Not until after Super Tuesday. That is not how democracy is supposed to work, and we need to shut that down.”
The States
WXYZ Detroit: Ballot initiative aims to tighten lobbyist influence on Michigan lawmakers
By Max White
The Coalition to Close Lansing Loopholes, from Progress Michigan, launched a ballot initiative on Thursday that would tighten rules for lawmakers and lobbyists in Lansing…
The details for the proposal [include]… [r]equir[ing] an identifier on all public communications which urge the general public to influence public officials[.]
Courthouse News Service: California Republican Pushes Journalist Carve-Out in Gig Worker Law
By Nick Cahill
[A] state lawmaker on Thursday proposed exempting freelance reporters and newspaper distributors from a new labor law that has many industries scrambling to protect their business models…
Republican state Sen. Patricia Bates is pushing back on a union-backed bill that cleared the Legislature last fall and took effect this month. Referred to as the Dynamex law, Assembly Bill 5 establishes a three-prong test that companies must meet in order to classify workers as independent contractors and not employees.
Bates, R-Laguna Niguel, says the law has cost hundreds of freelance journalists contracts already in 2020 and wants to exempt them…
Under Bates’ Senate Bill 868, freelance journalists would be allowed to surpass the 35-story hard cap set by AB 5 and remain independent contractors…
Senate Bill 867 would permanently exempt newspaper distributors and carriers from AB 5. Toward the end of the legislative session, lawmakers approved a one-year freeze to allow the industry to adapt to the contentious law.
ABC News 10: Proposal to ban foreign-influenced companies from contributing to political campaigns in N.Y.
By Sarah Darmanjian
Wednesday the Governor’s Office released a proposal that would stop companies with foreign influences from making contributions to political elections in the state.
The Governor’s Office said current campaign finance laws in the U.S. prohibit foreign nationals from giving money to any city, state or federal political campaign.
This new legislation would extend the ban to corporations owned or run by foreign nationals. The Governor included the proposal in the FY 2021 Executive Budget…
The proposal would ban foreign-influenced corporations if they meet the following criteria:
- If a single foreign entity controls 5% ownership.
- If more than 10% ownership in aggregate by two or more foreign entities.
- If more than 10% of a corporation’s board members are foreign nationals, or a foreign national participates in the decision making with respect to a corporation’s political activities in the U.S.
