In the News
WORLD: Donor privacy under attack
By Steve West
When donors give money to a nonprofit, they don’t expect the organization to make their personal information public. And most nonprofit groups prohibit disclosing donor details. But elected officials in recent years have worked to erode that privacy under the guise of exposing the influence of “dark money” on causes or elections.
Oklahoma, Utah, and West Virginia have passed laws in 2020 to protect donor information, and Louisiana and Tennessee are considering similar bills…
In Citizens United v. Schneiderman, the 2nd U.S. Circuit Court of Appeals rejected a challenge to a New York law requiring groups to disclose their donors to the state annually. A conservative advocacy group that produced Hillary: The Movie and other media groups claimed the state had a vendetta against it. The appeals court said the concern did not measure up to the “clear and present danger” that faced NAACP donors in the 1950s. The 9th Circuit rejected similar challenges to California’s disclosure law in Americans for Prosperity Foundation v. Becerra and Institute for Free Speech v. Becerra. The court found that the state had a sufficient interest in keeping nonprofit groups “honest.” Plaintiffs in those cases have appealed to the Supreme Court.
Trump Administration
Wall Street Journal: Trump Criticizes 75-Year-Old Buffalo Protester Injured After Shove by Police
By Catherine Lucey and Jimmy Vielkind
President Trump criticized a 75-year-old protester who was captured on video bleeding from his ear after police officers in Buffalo, N.Y., shoved him to the ground, suggesting without providing evidence that the activist could instead be an “ANTIFA provocateur.”
Mr. Trump tweeted Tuesday that Martin Gugino “was pushed away after appearing to scan police communications in order to black out the equipment. @OANN I watched, he fell harder than was pushed. Was aiming scanner. Could be a set up?” …
Kelly Zarcone, an attorney for Mr. Gugino, said he had been moved out of the intensive care unit but is still hospitalized and needs to rest.
“Martin has always been a PEACEFUL protestor because he cares about today’s society,” she said in a statement. “No one from law enforcement has even suggested anything otherwise so we are at a loss to understand why the President of the United States would make such untrue accusations against him.”
The Courts
National Law Journal: DC Circuit Says Postal Service Can’t Ban Custom Stamps for Political Views
By Jacqueline Thomsen
The U.S. Court of Appeals for the D.C. Circuit on Tuesday struck down the U.S. Postal Service’s ban on political content featured on custom stamps as unconstitutional.
Anatol Zukerman in 2015 submitted a piece of art to a vendor in the postal service’s custom stamps program. The art depicts Uncle Sam with a snake labeled “Citizens United,” in reference to the U.S. Supreme Court ruling allowing corporations and unions to make political donations, and the caption “Democracy Is Not For Sale.” The vendor rejected the design due to its political design, under the USPS custom stamp program’s policy against “political” content.
However, Zukerman and a Washington, D.C., art gallery he collaborates with alleged he found many stamps created through the program that featured political content, such as stamps for candidates such as Sen. Bernie Sanders and then-candidate Donald Trump, and sued over the policy…
A three-judge panel of Judges Merrick Garland, Neomi Rao and Senior Judge Harry Edwards unanimously ruled to reverse U.S. District Judge Christopher “Casey” Cooper’s dismissal of the claims. Edwards wrote in the panel opinion that the U.S. Supreme Court’s ruling in Minnesota Voters Alliance v. Mansky requires the postal service to create standards on what political content is and is not allowed, which USPS policy failed to do…
The panel did not issue a broad ruling on the merits of Zukerman’s claim that the policy constitutes viewpoint discrimination, remanding it to the district court to further develop the record. However, Edwards wrote “these allegations pass the ‘most basic … test for viewpoint discrimination,’ which is ‘whether-within the relevant subject category-the government has singled out a subset of messages for disfavor based on the views expressed.'”
Courthouse News: Treatment of the Press
A federal court in Minnesota denied injunctive relief to journalists challenging the treatment by law enforcement of members of the media reporting on events in Minneapolis after the death of George Floyd.
The judge, noting that several members of the press sustained severe injuries and were allegedly threatened or subject to unlawful arrests, says they “deserve better.” But police have not used tear gas or rubber bullets since May 31 and injunctive release is not necessary at this time.
Congress
National Review: GOP Senators Ask FCC to ‘Clearly Define’ Section 230 Protections for Big Tech
By Tobias Hoonhout
Four Senate Republicans sent a letter to the Federal Communication Commission (FCC) on Tuesday asking for the agency to act on President Trump’s executive order regarding tech censorship by “clearly” defining Section 230 liability protections for social media platforms.
Senators Marco Rubio (R., Fl.), Kelly Loeffler (R., Ga.), Kevin Cramer (R., N.D.), and Josh Hawley (R., Mo.) asked FCC chairman Ajit Pai to address “a lack of clear rules” and the “judicial expansion” of Section 230 of the Communications Decency Act, which protects platforms from civil liability in instances when third-party posts contain false or misleading information…
Republicans argue that the law has been abused in regard to political speech, where social media companies “blur the lines between distributor and publisher by favoring one political point of view over another.”
Kentucky Today: Politicians can’t pick and choose from First Amendment
By Sen. Mitch McConnell
It is becoming clear to many Americans, including many who appreciate and applaud the recent protests, that our national life during this pandemic has slid toward a double standard.
For weeks, state and local leaders put normal American life totally on ice and asked citizens to prioritize fighting the virus.
For weeks, the mainstream media heaped scorn on any small citizen protest, outdoor gathering, or even the suggestion that other important values might require a reappraisal of certain restrictions.
The American people did their part. They made necessary sacrifices that clearly helped the country and they’re ready to continue doing their part as our re-opening carefully proceeds.
But now, many Americans feel they’ve just seen those fastidious regulations and that puritanical zeal disappear in an instant because a new cause has emerged that powerful people agree with…
I have no criticism for the millions of Americans who have peacefully demonstrated in recent days. Their cause is beyond righteous. It is the inconsistency from leaders that has been baffling…
Politicians are now picking and choosing within the First Amendment itself…
These governments are acting like the coronavirus discriminates based on the content of people’s speech. But alas, it’s only the leaders themselves who are doing that…
Politicians do not get to play red-light, green-light within the First Amendment.
The Bill of Rights is not some a-la-carte menu that leaders may sample as they please.
Right to Protest
Time: Civil Rights Groups Urge U.N. Human Rights Council to ‘Urgently’ Meet on U.S. Police Violence
By Jamey Keaten, Associated Press
The American Civil Liberties Union says relatives of George Floyd and three other black people who were killed by police have joined some 600 rights groups to demand the top U.N. human rights body “urgently” convene a special session to look into a rise of police violence and repression of protests in the United States…
The groups want an independent investigation into the recent killings of unarmed black people in the United States, as well as one into “violent law enforcement responses to protests.” …
“It’s time the United States face the same scrutiny and judgment it is quick to pass on to other countries,” said Jamil Dakwar, who heads the ACLU’s human rights program.
Washington Post: Badge-less police officers are showing up at protests. It’s dangerous.
By Garrett M. Graff
Scores of armed, helmeted men in blue and olive drab shirts took up positions around the nation’s capital last week, many without uniforms, badges or formal markings. They seemed to be police – but were they really? …
In the midst of generational unrest, it is not unreasonable to ask: Are these officers the vanguard of a new U.S. secret police, another step down the path toward authoritarianism? After all, what are secret police other than anonymous agents of the state charged with intimidating and silencing dissident citizens? …
This development is dangerous – for public safety, for free speech and for democracy. “The No-Badge practices seem designed to instill fear and to intimidate people from exercising rights protected by the First Amendment,” said Jameel Jaffer, the executive director of Columbia University’s Knight First Amendment Institute, which sent a letter of objection to Attorney General William P. Barr. “They also conceal information that the public has a right to know. There is no legitimate justification for these practices, and they should have no place in any free society…
[T]here is a dramatic difference between undercover operations targeting illegal activities of a specific kind and anonymous federal forces ringing the White House and providing “security” at constitutionally protected gatherings. In a democracy, after all, it’s the police who are meant to answer to the protesters – not the other way around.
By Nick Pinto
The New York City Police Department may be violating a 35-year-old agreement meant to keep the police from investigating individual’s protected political speech, according to the lawyers who negotiated it.
In a letter sent to the police department’s legal counsel Monday, the lawyers raise concerns…that the NYPD’s Intelligence Division, along with the FBI, have been questioning protesters arrested on curfew violations about their political sympathies and affiliations, along with their social media behavior…
In raising these questions, the NYPD wades into one of the thorniest and most long-standing problems in its lengthy history: its recurrent tendency to police political dissidents. In the early years of the 20th Century, the NYPD maintained a unit that went after communists, anarchists, and Italians. In subsequent decades, the unit evolved into the “Radical Bureau,” which kept tabs on communist New Yorkers.
By the 1960s, the unit was called the “Bureau of Special Services,” and it was spying on nearly every political organization New Yorkers could come up with. As that surveillance and interference came to light, it gave rise to a lawsuit named after one of the plaintiffs, Barbara Handschu. After more than a decade, in 1985 the lawsuit produced a consent decree in which the police committed not to investigate people’s political, ideological or religious behavior unless they have good cause to think that person is committing a crime.
Media
ProPublica: The Police Have Been Spying on Black Reporters and Activists for Years. I Know Because I’m One of Them.
By Wendi C. Thomas
On Aug. 20, 2018, the first day of a federal police surveillance trial, I discovered that the Memphis Police Department was spying on me.
The ACLU of Tennessee had sued the MPD, alleging that the department was in violation of a 1978 consent decree barring surveillance of residents for political purposes…
It’s been more than a year since a judge ruled against the city, and I’ve never gotten a clear answer on why the MPD was monitoring me. Law enforcement also was keeping tabs on three other journalists whose names came out during the trial. [Officer] Reynolds testified he used [a] fake [social media] account to monitor protest activity and follow current events connected to Black Lives Matter.
My sin, as best I can figure, was having good sources who were local organizers and activists, including some of the original plaintiffs in the ACLU’s lawsuit against the city.
New York Times: An Arrest Warrant from Liberty University, For Me
By Julia Rendleman
The person on the phone was calling to warn me: The police for Liberty University, the private evangelical college in southern Virginia, had gone to the authorities and had a warrant for my arrest for trespassing.
I am a freelance photographer for The New York Times, and I had recently taken pictures for an article about the decision by Jerry Falwell Jr., the president of Liberty University, to keep the school partially open during the growing Covid-19 pandemic.
Liberty asserted that they had recently changed policies and only staff, students and those conducting “University business” were permitted on campus…
[A week after completing the assignment], the news of the warrant for my arrest appeared on Twitter… I received more hateful emails than I ever had in my life.
One read: “You media scum are indeed the ‘enemy of the people’ – it’s about time some Justice was served against your non stop continual attacks against Conservatives. You feel you can act with impunity while hiding behind the 1st Amendment.” …
The New York Times hired a local attorney to represent me…
After a few weeks, my attorney called. The prosecutor had agreed to dismiss the case. I didn’t think about Mr. Falwell too much, though. I felt he was just using me for what I represented. It wasn’t personal.
Washington Post: The New York Times’s self-inflicted fiasco
By Kathleen Parker
When the New York Times leadership recently apologized to the paper’s staff for running an op-ed by Sen. Tom Cotton (R-Ark.), the enemies of “fake news” high-fived, and free speech collapsed from embarrassment.
Heaven forbid an opinion on a newspaper’s op-ed page should offend someone. It’s one thing to disagree on the merits of an opinion; it’s quite another to have published an opinion column, then criticized the column and then made a senior personnel decision in part because the column was published in the first place.
The Times’s editorial page editor, James Bennet, once a potential executive editor candidate, resigned over what should have been a blip on the continuum of lessons learned. This unnecessary spectacle isn’t only disappointing but also portends the gradual shrinking of the free marketplace of ideas…
Cotton’s essential argument was that an “overwhelming show of force” was needed as the protests unfolded and that President Trump should invoke…the Insurrection Act to “restore order to our streets.” Bad idea, Tom. See how easy that was? I for one am glad to know what’s inside Cotton’s cerebral cavity…
There are many reasons and ways to disagree with Cotton’s ideas and the way he presented them without censorship as prequel or apology as sequel…
It doesn’t take much courage to join a gang and cancel an opinion – or ruin a career. It does take great courage, on the other hand, to stand alone against a tide of pitchfork-wielding Twitter tyrants and defend a free exchange of ideas, even if some of them are bad.
By Mike Masnick
On Friday we wrote about the uproar regarding the terrible op-ed piece by Senator Tom Cotton in the New York Times, calling for the use of the US military against protesters in the US. There was widespread anger against the decision to run the op-ed, and then a backlash from some who argued that this showed the people complaining about it were somehow “unwilling to listen” to viewpoints they disagreed with. In my piece, I argued that if the NY Times didn’t publish my op-ed on why the Opinions Editor James Bennet was an incompetent dweeb, then clearly, they hated free speech and were unwilling to confront difficult ideas.
Over the weekend, the news came down that Bennet had resigned, leading to a new round of hand-wringing from people who want to appear to be among the Serious Thinkers™, fretting that American newsrooms were “becoming college campuses” full of “safe spaces” and “political correctness.” …
[W]hile some people were freaking out about so-called “censorship,” the issue was actually about editorial discretion — which is something wholly different. When you consider every act of editorial discretion to be the same as censorship, then the real problem is on your end. You can disagree with the decision (in either direction) and speak out about it (because there are many ways to speak out these days). But a single platform choosing to publish a terrible, disingenuous op-ed whose entire point appeared to be to piss people off, and then the person in charge resigning following the controversy, has nothing at all to do with censorship or safe spaces or avoiding difficult conversations.
Online Speech Platforms
New York Post: GOP candidate: Facebook is ‘defending terrorists’ by censoring Antifa warning
By Joshua Rhett Miller
A GOP congressional candidate in Georgia said Facebook is “defending terrorists” by removing a campaign video of her holding an AR-15 rifle as she warns Antifa to stay out of her state.
Marjorie Taylor Greene, a businesswoman vying in Tuesday’s primary to succeed US Rep. Tom Graves in Georgia’s 14th Congressional District, posted the spot on Facebook on June 2, telling the far-left militant group to “stay the hell out of northwestern Georgia” while on the porch of a local business.
Two days later, the platform removed the video, saying it violated company policies against promoting the use of firearms, Fox News reports.
“We’ve seen it time after time again, where conservative Americans put their thoughts, their feelings and their expressions and their beliefs on social media platforms like Facebook and Twitter, but yet our posts get deleted and we get censored,” Greene told Fox News Monday…
In a statement to Fox News, Facebook defended removing the campaign spot.
“We removed this ad, which advocates the use of deadly weapons against a clearly defined group of people, for violating our policies against inciting violence,” the tech giant said.
Greene countered Facebook’s response by accusing the company of siding with “terrorists” while denying that she was inciting violence.
Candidates and Campaigns
Techdirt: Trump Campaign Gets Parody Cartoon Taken Down Off Redbubble Over Trademark Claim On MAGA Hats
By Timothy Geigner
Whatever your politics, it simply can’t be denied that on First Amendment grounds, our current president and his organizations have an abysmal reputation on matters of free speech, so long as that speech could potentially pierce the notoriously thin skin of Donald Trump.
This continues to today, of course. You can see it when there are executive orders issued just because social media companies point the public to facts about the President’s claim. You can also see it more recently in the Trump campaign issuing a takedown with Redbubble for a parody cartoon over the trademark on MAGA hats…
Frankly, “absurd” doesn’t even begin to describe it. All kinds of speech are protected by the First Amendment, whatever the trademark rights any holder might have. Political speech is probably more revered in that regard than any other speech. The very idea that an artist couldn’t create parody art that comments on a particular public figure and/or his or her voting block is so completely the antithesis of American history that one should really just have to yell something like, “The Federalist Papers!” at this sort of thing and be done with it.
This country was built on political parody. And, frankly, cartoon parody in particular. The Trump campaign does, or at least should, know this. Redbubble does too, which explains the fairly very good mea culpa that it issued when the site reinstated the cartoon.
