In the News
Graydon: Judge Amy Coney Barrett and the First Amendment
By Jack Greiner
I’ve been wondering about how Judge Barrett might view the First Amendment and other matters that might affect the journalists I work with. So I was pretty excited when I saw this headline: “Would Justice Amy Coney Respect Press Freedom?” I was hoping it would shed light on the subject. Unfortunately, it really didn’t. The premise is essentially that President Trump appointed her, and President Trump hates the press, so look for anti-press rulings.
A more accurate assessment comes from The Institute for Free Speech. And their report is that she is really a blank slate. She’s been a Judge on the Seventh Circuit Court of Appeals since 2017, and in that time has apparently not written on the issue. It appears that she didn’t weigh in as an academic either.
I do think there are some pressing issues in the First Amendment world, not the least of which is the future of New York Times v. Sullivan – the 56 year old precedent that is the foundation for First Amendment jurisprudence in the world of journalism. Judge Barrett’s former boss, Justice Antonin Scalia was not a fan of the holding, nor is Justice Thomas.
So, it might be nice to ask Judge Barrett in her confirmation hearing just what she thinks about the holding in that case. Was it correctly decided? If not, why not? And what should the court have done?
Supreme Court
SCOTUSblog: Relist Watch: Worst Monday in October
By John Elwood
The Supreme Court began October 2020 with black crepe still draped over an empty bench as, for only the second time in its history, it began a sitting of remote telephonic arguments. But though they were down a member and working remotely, the justices went efficiently about their business, relisting 15 cases involving a host of issues…
Mckesson v. Doe, 19-1108
Issue: Whether the First Amendment and the Supreme Court’s decision in NAACP v. Claiborne Hardware Co. foreclose a state law negligence action making a leader of a protest demonstration personally liable in damages for injuries inflicted by an unidentified person’s violent act there, when it is undisputed that the leader neither intended, authorized, directed, nor ratified the perpetrator’s act nor engaged in or incited violence of any kind.
(relisted after the Sept. 29 conference)[Ed. note: The Institute for Free Speech filed an amicus brief in support of the Petitioner in the case.]
Politico: Barrett speaks with key Senate Dems amid calls to delay her hearing
By Marianne Levine
Democrats on the Senate Judiciary Committee spoke by phone Wednesday to Judge Amy Coney Barrett, despite their widespread opposition to confirming her to the Supreme Court.
Barrett spoke with six Democrats on the Committee: Ranking member Dianne Feinstein of California, as well as Sens. Patrick Leahy of Vermont, Dick Durbin of Illinois, Amy Klobuchar of Minnesota, Sheldon Whitehouse of Rhode Island and Chris Coons of Delaware, according to a White House spokesperson. Barrett spoke with Sen. Cory Booker of New Jersey last week…
Coons told reporters after his call with Barrett that she did not commit to recusing herself from cases related to the upcoming election…
“She made no commitment to recusal,” Coons said. “She went through what the factors are for recusal and said it would essentially depend on the circumstances for any judge to make any recusal decision.”
Whitehouse, meanwhile, said he spoke to Barrett in order to “plant a seed of awareness” about the influence of dark money and the impact that groups like The Federalist Society and the Judicial Crisis Network have on the Supreme Court.
“I wanted the call because I wanted to walk her through the case of how these entities that are all around the court are funded and what it is that they seek to accomplish through the influence they are extending over the court,” Whitehouse said in an interview.
The Courts
Wichita Eagle: Federal judge upholds Kansas’ polling place ‘buffer zone’ after ACLU lawsuit
By Katie Bernard
A federal judge Wednesday upheld Kansas’s 250-foot “buffer zone” that prohibits electioneering near polling places during elections.
The law was challenged by the ACLU last year on behalf of several individuals and Kansas for Change, a marijuana advocacy group. They claimed the law unconstitutionally allowed election officials to ban political speech near polling places, including on private property, by prohibiting any activity that could become a “nuisance.”‘
The lawsuit was brought against the Kansas Secretary of State, the Kansas Attorney General and the Johnson County Election Commissioner.
Most states have laws limiting advocacy for candidates or ballot questions near polling places, and the Supreme Court has upheld state laws that establish a 100-foot buffer zone.
In Wednesday’s ruling, Judge Holly Teeter said existing rulings on electioneering practices demonstrated the constitutionality of Kansas’s law.
Teeter disputed the ACLU’s arguments that Kansas’s buffer zone was too large, too vague and allowed for suppression of speech on private property.
She wrote that, while buffer zones must have a size limit, the law does not specify how big the limit could be. Furthermore, she said electioneering laws do not need to be tailored to specific types of speech and that the Kansas law did not punish a “substantial amount” of speech on private property.
Teeter also ruled that the plaintiffs did not have standing to challenge Johnson County’s specific policy because they could not establish actual injury.
Courthouse News: Federal Judge Skeptical of DC’s Religious Restrictions for Covid
By Megan Mineiro
Capitol Hill Baptist Church, an 850-member evangelical congregation, accused the District of Columbia of disparate First Amendment treatment of worship services and anti-racism protests, challenging the city’s ban on indoor and outdoor religious gatherings of more than 100 people due to Covid-19…
[A]n attorney for D.C. Mayor Muriel Bowser argued Wednesday that the city, relying on science and data, has adopted “narrowly tailored” policies that actually allow for more relaxed restrictions for worship services…
But U.S. District Judge Trevor McFadden pressed the city on the limits of its ban on First Amendment protected gatherings.
The Trump appointee said it appeared as though Bowser planned to maintain the limitations on worship gatherings until a Covid-19 vaccine was widely available, noting that the church may still be restricted as to how it can worship into summer 2021.
He also questioned how large-scale protests carry fewer risks than a church service. The city, notably, argued it had no control over demonstrations held on federal land, such as the National Mall and Lafayette Park.
Referring to a video of Bowser at an anti-racism protest in June cited by the plaintiffs, the judge said: “You certainly cannot tell me that the protesters were socially distanced. There were hundreds, if not thousands of people all crammed together.”
When [the attorney] said that “the singing is a particular concern” at workshop gatherings, as well as members who are eager to see one another not adhering to social distancing, the judge said people are yelling and chanting at protests, asking where the difference lies.
NPR: Judge Orders Twitter To Unmask FBI Impersonator Who Set Off Seth Rich Conspiracy
By Bobby Allyn
A federal judge in California has ordered that Twitter reveal the identity of an anonymous user who allegedly fabricated an FBI document to spread a conspiracy theory about the killing of Seth Rich, the Democratic National Committee staffer who died in 2016.
The ruling could lead to the identification of the person behind the Twitter name @whyspertech. Through that account, the user allegedly provided forged FBI materials to Fox News. The documents falsely linked Rich’s killing to the WikiLeaks hack of Democratic Party emails in the lead-up to the 2016 election.
While Twitter fought to keep the user’s identity secret, U.S. Magistrate Judge Donna Ryu in Oakland, Calif., ordered on Tuesday that the tech company must turn over the information to attorneys representing Rich’s family in a defamation suit by Oct. 20…
Twitter fought to have the subpoena killed. In court filings, attorneys for the social media giant claimed such a disclosure would violate the First Amendment rights of a user to be anonymous.
“Twitter’s primary goal is to ensure that the subpoena not be used to chill anonymous speech that does not rise to the level of defamation,” Schwartz wrote in a motion to have the subpoena thrown out.
Right to Protest
Courthouse News: San Francisco Sued Over Use of Video Surveillance on Protesters
By Nicholas Iovino
Activists claim in a new lawsuit that the San Francisco Police Department violated a local ordinance by tapping into a network of 400 private surveillance cameras to spy on Black Lives Matter protesters this year.
The police department received real-time access to a camera network operated by the Union Square Business Improvement District, a private business association, during racial justice protests in late May and early June, according to records obtained by the Electronic Frontier Foundation.
“This surveillance invaded protesters’ privacy and chilled them from organizing or participating in future protests,” said attorney Matt Cagle of the ACLU of Northern California in a video statement Wednesday.
Lead plaintiff Hope Williams, a 30-year-old racial justice activist and San Francisco resident, claims the police department’s actions violated the city’s surveillance technology law passed in 2019, which requires the police to seek approval from Board of Supervisors before acquiring or using surveillance technology.
“I am a plaintiff in this lawsuit because I want to defend the rights of protesters and hold the police accountable for breaking the law,” Williams said in a video statement Wednesday.
The police department maintains it used the technology legally because an exception in the law allows it to temporarily use surveillance technology when responding to “exigent circumstances.”
The Media
Wall Street Journal: How Russia Today Skirts High-Tech Blockade to Reach U.S. Readers
By Keach Hagey, Emily Glazer, and Rob Barry
On any given day over the past two years, visitors to the home page of RealClearPolitics were likely to see its famous average of political polls, a roundup of news and center-right commentary-and, near the bottom, a link or two to stories from RT.com.
The provenance of the RT headlines was obscured. Readers didn’t immediately know they were clicking on headlines from a Russian state-backed publication that American intelligence officials considered the Kremlin’s “principal international propaganda outlet.” The news organization, once known as Russia Today, was a central player in Russia’s efforts to disrupt the 2016 U.S. presidential election.
The U.S. intelligence community’s assessment of the Russian efforts created a backlash against social-media companies, which were accused of providing platforms for a misinformation campaign aimed at influencing voters. Facebook Inc., Twitter Inc. and others have since implemented changes to limit the reach of state-run media.
Yet RT continues to draw a large American audience, helped unwittingly by some of America’s most prominent conservative websites. The reason: Those news outlets agreed to join a distribution network that allows other members’ content to be displayed on their home pages.
The company responsible for RT’s presence on RealClearPolitics is Mixi.Media. Since its launch in 2018, Mixi has assembled a network of right-leaning publishers, including National Review, The Daily Caller and Newsmax, as well as mainstream sites like RealClearPolitics.
Online Speech Platforms
Wall Street Journal: Facebook to Suspend U.S. Political Ads on Election Day
By Jeff Horwitz
Facebook said it would suspend indefinitely all political and social-issue advertising in the U.S. after the polls close Nov. 3, in its latest move to combat potential confusion and abuse related to the election.
The policy, disclosed Wednesday, adds to an announcement by Chief Executive Officer Mark Zuckerberg last month that Facebook will bar new political ads in the week leading up to Election Day and flag any candidates’ premature claims of victory. He said at the time that he worried about an increased risk of civil unrest given the division over the presidential race and the potential for a delayed outcome…
In Wednesday’s update, Facebook also said it would add restrictions to posts about poll-watching operations that use militarized language or suggest an aim to intimidate voters…
After Wednesday’s announcement, Tim Murtaugh, Trump campaign spokesman, said it was “glaringly obvious that this new policy is specifically targeted at the President’s campaign” because the campaign’s volunteers are referred to as an “Army for Trump.”
Reporting by Matt Taibbi: After the QAnon Ban, Who’s Next?
By Matt Taibbi
The Q ban pulls the curtain back on one of the more bizarre developments of the Trump era, the seeming about-face of the old-school liberals who were once the country’s most faithful protectors of speech rights.
Bring up bans of QAnon or figures like Alex Jones (or even the suppression or removal of left-wing outlets like the World Socialist Web Site, teleSUR, or the Palestinian Information Centre) and you’re likely to hear that the First Amendment rights of companies like Facebook and Google are paramount. We’re frequently reminded there is no constitutional issue when private firms decide they don’t want to profit off the circulation of hateful, dangerous, and possibly libelous conspiracy theories.
That argument is easy to understand, but it misses the complex new reality of speech in the Internet era. It is true that the First Amendment only regulates government bans. However, what do we a call a situation when the overwhelming majority of news content is distributed across a handful of tech platforms, and those platforms are – openly – partners with the federal government, and law enforcement in particular?
In my mind, this argument became complicated in 2017, when the Senate Intelligence Committee dragged Facebook, Twitter, and Google to the Hill and essentially ordered them to come up with a “mission statement” explaining how they would prevent the “fomenting of discord.”
Platforms that previously rejected the idea they were in the editing business…soon were agreeing to start working together with congress, law enforcement, and government-affiliated groups like the Atlantic Council. They pledged to target foreign interference, “discord,” and other problems…
Does any of this make “private” bans of content a First Amendment issue?
Courthouse News: Feds Seize Over 90 Fake News Sites Belonging to Iran
By Carson McCullough
The U.S. government has seized nearly 100 domain names used by a branch of Iran’s armed forces that officials said Wednesday were being used to conduct a disinformation campaign featuring fake news sites targeting the United States and other countries.
Iran’s Islamic Revolutionary Guard Corps has long been recognized as a prominent arm of the Iranian government and was officially designated as a terrorist organization by the United States government last year.
It found its online influence diminished Wednesday when U.S. officials took control of 92 domain names previously controlled by the organization, according to law enforcement officials.
In an announcement made in part by U.S. Attorney David Anderson, officials seized the websites after evidence came to light that they were being utilized by IRGC to spread Iranian propaganda.
Seizure documents state that at least four of the captured domain names falsely masqueraded themselves as legitimate news outlets but were in fact being used to target the United States and attempted to influence domestic and foreign policy through misinformation – a direct violation of the Foreign Agents Registration Act.
PACs
Norfolk Daily News: Questions arise over cooperative’s donation to election campaign
By Chris Dunker
With the 2020 election cycle on the horizon, a political committee was organized last year to back candidates for the Nebraska Public Power District board who were in favor of an “all-of-the-above energy mix” rather than renewable resources.
The driving purpose behind Nebraskans for Reliable and Affordable Electricity, according to its website, is to counter the “tens of thousands of dollars in out-of-state money” spent in support of candidates who favor expanding wind and solar generation.
But a startup loan to the committee from Nebraska Electric Generation and Transmission – a private cooperative of rural public power districts – has raised questions from NPPD board members and ratepayers about whether public money is being used to back political campaigns.
The States
Columbus Dispatch: Failed candidate sues Larry Householder, claiming HB 6 dark money was used to defame him
By Randy Ludlow
A Columbus-area pastor who lost his Ohio House Republican primary bid to a Team Householder candidate is suing the former speaker, FirstEnergy and other parties tied to the House Bill 6 scandal for defaming him.
Bobby Mitchell filed an amended lawsuit Tuesday in Fairfield County Common Pleas Court in Lancaster seeking more than $850,000 in damages for “funding false and malicious smear campaigns” against him and other GOP candidates.
As alleged by federal authorities, Mitchell contends indicted Rep. Larry Householder, R-Glenford, participated in a criminal racketeering scheme and used dark money allegedly provided by FirstEnergy and related entities to smear and defeat him.
Detroit News: Michigan secretary of state refers GOP press release for ‘misinformation’ investigation
By Craig Mauger
Michigan Secretary of State Jocelyn Benson’s office has referred a press release by the state’s Republican Party about an unlocked ballot drop box for investigation “as election misinformation.”
Los Angeles Times: Giant Trump sign appears – and is swiftly taken down – in Sepulveda Pass
By Hayley Smith
A large “Trump” sign that appeared overnight in the Sepulveda Pass hills near the 405 Freeway was promptly taken down by authorities Tuesday morning.
The sign was made of large white capital letters similar to those of the iconic Hollywood sign and was reportedly spotted just before 7 a.m.
There’s little information about who placed the sign, but Lauren Wonder, chief public information officer for the California Department of Transportation, said it was on private property…
For that reason, she said, Caltrans workers “laid it down so it wasn’t a visual distraction” but did not completely remove it.
“This was a life and safety issue because there were concerns about distracted driving,” Wonder said.
