In the News
Yale Law School’s Floyd Abrams Institute for Freedom of Expression: Commercial Speech and the First Amendment (2020)
THE FIFTH ANNUAL
COMMERCIAL SPEECH AND THE FIRST AMENDMENT
June 2, 2020…
10:45 – Noon Regulating Political Advertising Online: Is disclosure still the key?
In the wake of the 2016 election, states are getting more aggressive in regulating online political advertising, including by trying to shift some of the disclosure and record-keeping burdens onto the media platforms that host political ads, as opposed to just the advertisers themselves. The Fourth Circuit recently held that Maryland’s attempt to do so was unconstitutional. What are the boundaries of the state’s power to require disclosures under the First Amendment?
Panelists:
-Richard H. Pildes – Sudler Family Professor of Constitutional Law, NYU Law School, New York, NY
-Daniel I. Weiner – Deputy Director, Election Reform Program, Brennan Center for Justice, Washington, DC
-Allen Dickerson – Legal Director, Institute For Free Speech, Washington, DC
Moderator:
-Paul Safier – Of Counsel, Ballard Spahr LLP, Philadelphia, PA
Constitutional Chats: Censorship in Social Media (w/ Bradley A. Smith)
Hosted by Janine Turner and Cathy Gillespie
This Saturday’s hot topic: Censorship on Social Media
This Saturday’s Constitutional Expert: The Honorable Bradley A. Smith, Founder, Institute for Free Speech
Bradley A. Smith is the Chairman And Founder of the Institute For Free Speech. He is a former Chairman of the Federal Election Commission and is currently the Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law at Capital University Law School. Brad is a cum laude graduate of Harvard Law School and Kalamazoo College and holds an honorary doctorate from Augustana College. Click here to read more about Brad Smith and the Institute for Free Speech!
New from the Institute for Free Speech
IRS Privacy Reform a Long-Sought Victory for Free Speech
The Institute for Free Speech released the following statement in response to today’s announcement that the IRS finalized a rule to protect the privacy of nonprofit donors.
“This is a great day for free speech. Americans can now support advocacy groups without worry that the IRS is looking over their shoulder. That will encourage more people to give and protect groups that criticize government,” said Institute for Free Speech President David Keating.
“The IRS doesn’t use this information to enforce the tax code. And the risk of accidental disclosures is higher than ever in the internet age. The Treasury deserves praise for enacting this reform and protecting Americans’ privacy. Everyone has the right to support social causes without being harassed,” said Keating…
The Institute for Free Speech filed two sets of comments in support of the rulemaking and testified before the IRS in February. The Institute’s comments noted that in the landmark case Buckley v. Valeo, the Supreme Court observed that it had “repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.”
The new rule will still require nonprofits to list the largest amounts they receive from donors in public tax documents, but will discontinue the unnecessary and harmful disclosure of donor names and addresses to the IRS.
To read the new rule, click here. To read the Institute’s comments, click here and here.
Trump Administration
Wall Street Journal: Trump Considers Forming Panel to Review Complaints of Online Bias
By John D. McKinnon and Alex Leary
President Trump is considering establishing a panel to review complaints of anticonservative bias on social media, according to people familiar with the matter, in a move that would likely draw pushback from technology companies and others.
The plans are still under discussion but could include the establishment of a White House-created commission that would examine allegations of online bias and censorship, these people said. The administration could also encourage similar reviews by federal regulatory agencies, such as the Federal Communications Commission and the Federal Election Commission, they said.
“Left-wing bias in the tech world is a concern that definitely needs to be addressed from our vantage point, and at least exposed [so] that Americans have clear eyes about what we’re dealing with,” a White House official said.
Mr. Trump has long expressed that viewpoint, and in a recent Twitter post indicated that a plan to address complaints of bias is in the works.
“The Radical Left is in total command & control of Facebook, Instagram, Twitter and Google,” Mr. Trump tweeted May 16, adding that his administration is “working to remedy this illegal situation.” …
The American Civil Liberties Union’s senior legislative counsel Kate Ruane said any moves by the government carry significant risk of misfiring because of the companies’ free-speech rights and other concerns.
The Courts
The Hill: Appeals court denies lobbyists’ efforts to access small-business loan program
By Harper Neidig
A federal appeals court on Tuesday rejected an effort by a group of lobbyists and political consultants to obtain access to the Paycheck Protection Program (PPP) and its emergency loans for small businesses hit by the coronavirus pandemic.
A three-judge panel on the D.C. Circuit Court of Appeals upheld a federal judge’s decision not to grant a request by the American Association of Political Consultants (AAPC) for a preliminary injunction against the Small Business Administration (SBA), which oversees the lending program.
In a three-page decision, the panel rejected the group’s argument that excluding lobbyists and political consultants from the loans violated the First Amendment.
“Because appellants’ have not demonstrated that they are likely to succeed on their constitutional claims, the district court’s denial of appellants’ motion for a temporary restraining order and preliminary injunction was appropriate,” the judges said in their order…
Congress has appropriated a total of $670 billion for the PPP and made most small businesses eligible to receive loans from the program. SBA regulations restrict the agency from lending to groups engaged in lobbying or political work.
The AAPC argues that their industry has been severely damaged by the economic downturn caused by the pandemic and that denying political groups and lobbyists loans violates their constitutional rights…
The decision on Tuesday can be appealed.
WTVQ: Appeals Court Hints At Ruling In Favor Of Tossing Mass Gathering Order
By Steve Rogers
Although it wasn’t filed publicly until Tuesday, four Kentucky men won a victory of sorts Saturday when a panel of the Sixth Circuit Court of Appeals overturned a lower court and granted an injunction stopping the state from enforcing Gov. Andy Beshear’s mass gatherings order to stop a protest the men were organizing Saturday at the state Capitol…
Citing a previous ruling in a similar complaint brought by Maysville Baptist Church that led to the opening of in-person church services in the state, the three-judge panel said the same exemptions cited in that ruling applied to the protest…
“In addition, the Order is not narrowly tailored: it fails to define the size of the mass gathering that is permitted or allowed. Furthermore, they claim, the Order has been used to foreclose alternative means of communication. When protestors in cars attempted to drive around the Capitol they were blocked by the Kentucky State Police,” the three judges wrote…
“The protestors are likely to succeed in showing that the Order is a content-based restriction. In an earlier case, we held that the Order likely discriminated against religion because the Order at that time permitted citizens to gather in retail stores and airports so long as they practiced social distancing, but did not permit them to gather for religious services. The same logic applies here-and indeed with more force. Because the Order permits citizens to gather in retail stores, airports, parking lots, and churches, but does not permit them to gather for a protest, it discriminates against political speech,” the judges continued.
“During the pendency of this appeal, the state is enjoined from prohibiting protesters from gathering for drive-in and drive-through protests, provided the protesters practice social distancing and otherwise comply with the Order’s regulations on lawful gatherings,” they concluded.
Wisconsin Public Radio: Federal Lawsuit Challenges Local Stay-At-Home Orders
By Shawn Johnson
Opponents of Wisconsin’s overturned “Safer at Home” order have turned their attention to the local health orders that sprung up to replace it, filing a federal lawsuit Wednesday that seeks to strike the local restrictions down.
The lawsuit was filed by a group of 17 plaintiffs including salon owners, a pastor, a protest organizer and a candidate for Congress, all of whom argue that the local orders infringe in some way on their First Amendment rights.
The Wisconsin Supreme Court struck down the statewide stay-at-home order on May 13, ruling that Gov. Tony Evers’ administration exceeded its authority when it issued the order unilaterally…
Several counties and municipalities issued their own restrictions immediately after the Supreme Court’s ruling, but many backed off, citing legal concerns…
The federal lawsuit filed Wednesday contends those local orders effectively resurrect the statewide order the Wisconsin Supreme Court struck down.
“The Local Orders continue to violate, Plaintiffs’ first amendment rights to freedom of assembly, freedom of speech, the right to petition the government for a redress of their grievances, and the equal protection of the laws,” states the lawsuit…
Among the plaintiffs is Madison Marie Elmer, one of the organizers of the April 24 protest against “Safer at Home” that drew more than a thousand people to the grounds of the Wisconsin Capitol. Elmer argues that the original “Safer at Home” order infringed on her First Amendment right to peaceably assemble and that the Dane County order is continuing that restriction.
CBS Baltimore: Group Appeals Order In Favor Of Maryland Coronavirus Lockdown Rules
By Associated Press
Several state lawmakers, religious leaders and other plaintiffs are appealing a federal judge’s refusal to strike down a stay-at-home order and other restrictions that Maryland Gov. Larry Hogan imposed in response to COVID-19…
The 4th U.S. Circuit Court of Appeals opened a docket for the case on Friday…
On Wednesday, U.S. District Court Judge Catherine Blake in Baltimore denied the plaintiffs’ request for a temporary restraining order blocking enforcement of Hogan’s lockdown orders…
The lawsuit’s plaintiffs include Del. Dan Cox, a Frederick Republican. Cox claims he was threatened with criminal prosecution if he attended or spoke at a May 2 rally protesting Hogan’s lockdown orders…
The judge also rejected the plaintiffs’ argument that requiring face coverings to be worn on public transportation and in retail stores violates their freedom of speech.
Reason (Volokh Conspiracy): ACLU’s Argument Against Puerto Rico’s “Fake News” Ban
By Eugene Volokh
The ACLU just filed its motion for a preliminary injunction in this case, which I blogged about Wednesday. Here is the heart of the argument:
Plaintiffs Sandra D. Rodríguez-Cotto and Rafelli González-Cotto move for a preliminary injunction against two provisions of the Law of the Puerto Rico Department of Public Safety, both of which make it a crime to share false information about emergency conditions in Puerto Rico…
The Challenged Provisions violate the constitutional rights to free speech, a free press, and due process. First, the Challenged Provisions criminalize a substantial amount of core speech on matters of immense public concern, in violation of the First Amendment. Although they ostensibly apply only to false information about emergency conditions in Puerto Rico, they do not require the government to demonstrate that the defendant published the information with actual malice-i.e., that the defendant knew the speech to be false or acted with reckless disregard as to falsity. Without this essential safeguard, the Challenged Provisions may be used to prosecute reporters and other members of the public for inadvertent inaccuracies or even for true speech that casts the government and its officials in a negative light, as Puerto Rico’s former criminal defamation law was used to prosecute reporters who exposed police misconduct.
Right to Protest
Gothamist: Lawsuit Prompts New York State To Allow Gatherings Of Up To 10 People
By Jen Chung
On Friday, Governor Andrew Cuomo eased rules on gatherings, now allowing a maximum of 10 people to convene for non-essential reasons. The decision was prompted by a lawsuit filed by the New York Civil Liberties Union, which argued that the governor’s executive orders had banned First Amendment activities, like protesting the state’s lockdown…
The NYCLU, on Friday, sued the state on behalf of Linda Bouferguen, who has been arrested twice for anti-lockdown protests outside of City Hall in lower Manhattan this month.
By late Friday afternoon, Cuomo signed the the new order which “permit[s] any non-essential gathering of ten or fewer individuals, for any lawful purpose or reason, provided that social distancing protocols and cleaning and disinfection protocols required by the Department of Health are adhered to.” …
“We’re glad to see the governor reverse course on his executive order from last night. The right to protest and exercise free speech is the foundation of all our other liberties, and during a crisis is exactly when we need to be most vigilant about protecting it. Health experts, elected officials, and police officers all agree that people can be outside safely while practicing social distancing, and it’s critical that lawmakers create guidelines and direct law enforcement uniformly,”[Christopher Dunn, the NYCLU’s Legal Director] said on Friday.
Donor Privacy
The Hill: IRS reduces donor disclosure requirements for some tax-exempt groups
By Naomi Jagoda
The Treasury Department and IRS on Tuesday released final regulations under which certain tax-exempt groups will no longer be required to provide the names and addresses of major donors on annual returns filed with the IRS…
Conservative groups and Republican politicians expressed support for the proposed rules. They argued that removing the requirement to report the names and addresses of donors helps protect taxpayers’ First Amendment rights and that such information is not needed for tax administration purposes. They also expressed concerns that the the donor names and addresses could be inadvertently made public…
Treasury and the IRS said in their guidance document Tuesday that “Congress has not authorized the IRS to enforce campaign finance laws” and that the IRS is generally prohibited from disclosing donors’ names and addresses to federal agencies for non-tax investigations, “except in narrowly prescribed circumstances.” …
Sen. Ron Wyden (Ore.)…blasted the final rules in a statement on Tuesday.
“The Trump administration has opened the flood gates to dark money pouring into our election system just months before Donald Trump is on the ballot. We’re in the midst of a global pandemic and once-in-a-lifetime economic crisis and the Trump administration is prioritizing boosting the president’s political prospects with shady cash,” Wyden said. “In finalizing this rule, the Treasury Department ignored the concerns of election security experts-anything to allow hostile foreign interests and groups like the NRA to further undermine our democracy.”
Congress
Ars Technica: Proposed bill would ban microtargeting of political advertisements
By Kate Cox
Lawmakers now want to…make this kind of microtargeting for political advertising against the law. Rep. Anna Eshoo (D-Calif.) today introduced a bill that would amend federal election law to do just that.
The proposed Banning Microtargeted Political Ads Act would do exactly what it says. Platforms and campaigns covered by the law, and their agents, would be prohibited from targeting “the dissemination of a political advertisement” to “an individual or specific group of individuals on any basis.”“Microtargeting political ads fractures our open democratic debate into millions of private, unchecked silos, allowing for the spread of false promises, polarizing lies, disinformation, fake news, and voter suppression,” Eshoo said in a written statement. “With spending on digital ads in the 2020 election expected to exceed $1.3 billion, Congress must step in to protect our nation’s democratic process.” …
Several digital rights and advocacy groups and academics applauded the bill, as did commissioner Ellen L. Weintraub of the Federal Election Commission, who has been an outspoken critic of Facebook’s political advertising policies…
“This is an important issue, and I’m glad to see it getting more attention,” Weintraub said of Eshoo’s bill. “The microtargeting of online political ads threatens the united character of our United States.”
Rep. David Cicilline (D-R.I.) also said last week he plans to introduce a bill that would restrict targeting of political ads. Cicilline’s bill, like Eshoo’s, would permit targeting by location and would also allow targeting by age and gender.
Online Speech Platforms
Politico: In a first, Twitter adds fact-check labels to Trump tweets on voting fraud
By Cristiano Lima
Twitter for the first time added fact-check labels to a pair of tweets by President Donald Trump that boosted unsubstantiated claims about voting fraud on Tuesday, a move that comes as the social media network faces intense scrutiny of its handling of the president’s feed.
Twitter’s label does not directly declare the tweets false, but points anyone reading them to news reports that contradict the president’s assertions.
The action comes as the tech company faces rising pressure to crack down on the president’s Twitter account, which in recent days has posted a flurry of baseless tweets riling fears about widespread voter fraud and a series of posts stoking conspiracy theories about the death of a former staffer to MSNBC host Joe Scarborough when he served in Congress. Twitter said earlier Tuesday that it would not take down the tweets about the deceased staffer.
The two missives – in which Trump claimed earlier Tuesday without evidence that mail-in ballots in California are likely to be “substantially fraudulent” – now display a notice directing Twitter users to “Get the facts about mail-in ballots.” The label links to a Twitter events page that notes that Trump’s claims “are unsubstantiated,” citing news outlets including CNN and the Washington Post, and adds, “Experts say mail-in ballots are very rarely linked to voter fraud.”
Twitter spokesperson Katie Rosborough said in an email to POLITICO that the posts “contain potentially misleading information about voting processes and have been labeled to provide additional context around mail-in ballots.”
Wall Street Journal: Facebook Executives Shut Down Efforts to Make the Site Less Divisive
By Jeff Horwitz and Deepa Seetharaman
A Facebook team had a blunt message for senior executives. The company’s algorithms weren’t bringing people together. They were driving people apart.
“Our algorithms exploit the human brain’s attraction to divisiveness,” read a slide from a 2018 presentation. “If left unchecked,” it warned, Facebook would feed users “more and more divisive content in an effort to gain user attention & increase time on the platform.”
That presentation went to the heart of a question dogging Facebook almost since its founding: Does its platform aggravate polarization and tribal behavior?
The answer it found, in some cases, was yes.
Facebook had kicked off an internal effort to understand how its platform shaped user behavior and how the company might address potential harms. Chief Executive Mark Zuckerberg had in public and private expressed concern about “sensationalism and polarization.”
But in the end, Facebook’s interest was fleeting. Mr. Zuckerberg and other senior executives largely shelved the basic research…and weakened or blocked efforts to apply its conclusions to Facebook products.
Facebook policy chief Joel Kaplan, who played a central role in vetting proposed changes, argued at the time that efforts to make conversations on the platform more civil were “paternalistic,” said people familiar with his comments.
Another concern, they and others said, was that some proposed changes would have disproportionately affected conservative users and publishers, at a time when the company faced accusations from the right of political bias…
Mr. Kaplan in a recent interview said he and other executives had approved certain changes meant to improve civic discussion.
The Verge: YouTube is deleting comments with two phrases that insult China’s Communist Party
By James Vincent
YouTube is automatically deleting comments that contain certain Chinese-language phrases related to criticism of the country’s ruling Communist Party (CCP). The company confirmed to The Verge this was happening in error and that it was looking into the issue…
But if the deletions are the result of a simple mistake, then it’s one that’s gone unnoticed for six months. The Verge found evidence that comments were being deleted as early as October 2019, when the issue was raised on YouTube’s official help pages and multiple users confirmed that they had experienced the same problem.
Comments left under videos or in live streams that contain the words “共匪” (“communist bandit”) or “五毛” (“50-cent party”) are automatically deleted in around 15 seconds, though their English language translations and Romanized Pinyin equivalents are not…
Google has frequently been criticized for accommodating the wishes of the CCP by censoring content. Most notably, it created a prototype search engine known as Project Dragonfly that complied with Chinese state censorship. The project, which was never deployed, is part of the company’s long-running struggles to enter the Chinese market.
The States
People United for Privacy: Oklahoma takes action to protect citizen privacy
Governor Kevin Stitt has signed into law a bill that ensures the privacy of Oklahoma citizens and protects their First Amendment right to support causes and the organizations advocating for those causes.
House Bill 3613 prevents state government entities from forcing nonprofits to publicly disclose personal information about their supporters. The legislation received strong bipartisan support, passing the Senate 43-2 and the House 77-13.
Oklahoma is the fifth state to enact citizen privacy protection after Arizona, Mississippi, Utah and West Virginia.
