In the News

Competitive Enterprise Institute: Reviewing SEC Climate Disclosure Comments

By Richard Morrison

The Securities and Exchange Commission’s solicitation to comment on [climate disclosure for public companies] generated a long list of…excellent comments…so I’d like to summarize a few more for future reference. (Summarized points and hyperlinks are mostly my own; refer to the full, linked comments for a more detailed discussion.) …

Ryan Morrison, Attorney, Institute for Free Speech (comment)

• The SEC does not have statutory authority to compel climate change disclosure, but even if it did, specific statutory authority would not resolve the First Amendment problemsthat any such rules would present.
• Requirements on companies to disclose information on environmental, social, and governance (ESG) topics have previously struck down by federal courts.
• Any SEC rule in this area would have to be relevant to a substantial government interest, directly and materially advance that interest, and be narrowly tailored. SEC’s current direction would likely not satisfy that test.
• The agency has less restrictive means to advance the same objectives, including existing voluntary standards, the current disclosure regime, and guidance that already addresses climate risks.

“[R]equiring a company to publicly condemn itself is undoubtedly a more effective way for the government to stigmatize and shape behavior than for the government to have to convey its views itself, but that makes the requirement more constitutionally offensive, not less so.”

New from the Institute for Free Speech

Campaign Finance Laws Scare Horror Game Developer into Early Retirement

By Scott Blackburn

On June 10, Twitter user @IAmGryphoneer (going then by the username “chief imagineering officer of antifa”) posted screenshots of publicly available campaign donation data obtained from OpenSecrets.org. His tweet showed that Scott Cawthon, the creator of Five Nights at Freddy’s, donated to many Republican politicians (and Democrat Tulsi Gabbard) – including former President Trump. An uproar followed, first on Twitter and then in the world of video game journalism. Cawthon’s contributions were viewed as evidence of many sins, but, in particular, animosity to the LGBTQ community, where Five Nights at Freddy’s has a large fan base.

Cawthon responded in a post on Reddit. He wrote, in part:

“I’d like to think that the last seven years would have given me the benefit of the doubt in regards to how I try to treat people, but there I was, trending on twitter for being a homophobe, getting doxed, with people threatening to come to my house. My wife is six weeks pregnant and she spent last night in fear because of what was being said online. She has already been struggling with her pregnancy so seeing her so afraid really scared me. All this because I exercised my right, and my duty, as an American citizen, to vote for and support the candidates who I felt could best run the country, for everyone, and that’s something that I won’t apologize for.”

In response to the threats and harassment he received, Cawthon has now retired from game design, and the release of the most recent installment in the series is in doubt.

Congress

The Hill: This week: Senate set for voting rights fight

By Jordain Carney

The Senate is set to vote Tuesday on a sweeping bill to overhaul federal elections, known as the For the People Act. The legislation is guaranteed to fail to get the 60 votes needed to advance past a GOP filibuster, with Republicans dug in against the bill. 

But Democrats are hoping to be able to unite their 50 members in support of it in an effort to put the political spotlight on Republican opposition. 

Senate Majority Leader Charles Schumer (D-N.Y.) said on Sunday that they were still working to win over the caucus’s lone holdout: Sen. Joe Manchin (D-W.Va.). 

“As we speak, we are working to come up with an agreement to compromise with Joe Manchin,” Schumer told reporters in New York…

Schumer is bringing an updated version…

Manchin backs tighter campaign finance requirements currently in the For the People Act, including requiring online and digital ads to disclose their source similar to TV and radio ads, enforcing tighter ethics requirements for presidents and vice presidents and requiring campaigns and committees to report foreign contacts. 

But he’s also recommending jettisoning one of the more controversial parts of the For the People Act, public financing of campaigns…

“I would make this observation about the revised version … all Republicans I think will oppose that as well if that were to be what surfaced on the floor,” Senate Minority Leader Mitch McConnell (R-Ky.) told reporters, referring to Manchin’s proposal.

Fox News: Kevin McCarthy rips Dems’ HR 1 bill: It goes against the Constitution

House Minority Leader Kevin McCarthy joined Brian Kilmeade on “Fox News Primetime” to discuss election integrity concerns over the Democrats’ proposed H.R. 1 bill.

MCCARTHY: H.R. 1 is the most important bill for the Democrats, that’s why it’s the number one bill. It has nothing to do about the pandemic, putting people back to work or kids back in school. It has everything to do about them keeping their power … It actually politicizes a bipartisan Federal Election Commission to weight it on the Democratic side. It takes hardworking taxpayer money and gives it to candidates not by a dollar for dollar, but six to one. So if AOC raises two hundred dollars online, you, the hardworking taxpayer, has to give her twelve hundred. It then goes against the Constitution, federalizes the campaigns, but then it goes around the states. 

Fox Business: Sen. Rubio on bill targeting Big Tech ‘monopolies’ over political censorship concerns

By Talia Kaplan

Sen. Marco Rubio, R-Fla., explained Thursday a proposed bill that targets Big Tech “monopolies” over political censorship concerns, stressing on “Mornings with Maria” that “this can’t continue.” 

Sen. Josh Hawley, R-Mo., introduced legislation Wednesday to give Americans the ability to sue major tech companies like Facebook, Google and Twitter if they engage in selective censorship of political speech.

The Limiting Section 230 Immunity to Good Samaritans Act, cosponsored by Rubio, Sen. Mike Braun, R-Ind., and Sen. Tom Cotton, R-Ark., would stop such companies from receiving immunity under Section 230 of the Communications Decency Act, unless they update their terms of service to promise to operate in good faith.

The bill would allow users to sue companies for breaching that contractual duty of good faith, and it would make them pay $5,000 plus legal fees to each user who prevails in a case against them…

Rubio then noted that if a newspaper were to publish something about a private citizen that is “damaging, you can sue them,” but “you can’t sue these companies.”

“They have to act in good faith and if they don’t, they should be liable just like a publisher is,” he stressed. 

Roll Call: House passes ESG, climate disclosure rules for public companies

By Laura Weiss

The House passed legislation Wednesday that would require public companies to report environmental, social and governance metrics, betting that shareholders will use the information to pressure corporations on climate risk and other issues important to Democrats.

The measure’s passage, on a 215-214 vote, marked the first time the chamber has passed sweeping legislation for transparency on sustainability issues. The package of bills would require disclosure of ESG metrics broadly and dictate specific reporting expectations on climate risks, political spending, CEO pay and taxation rates.

FEC

Cato Daily Podcast: Campaign Contributions and “Things of Value”

Hosted by Caleb O. Brown

Campaign finance laws are complicated. They leave well‐meaning people on the hook for potential criminal violations. Allen Dickerson of the Federal Election Commission details just one example.

Online Speech Platforms

The Verge: Facebook to update its community standards to clarify what it considers satire

By Kim Lyons

Following a recommendation from its Oversight Board, Facebook says it will update its community standards to be clearer about how it handles satirical content, the company said in a blog post.

“We’ll add information to the Community Standards that makes it clear where we consider satire as part of our assessment of context-specific decisions,” according to the post. “This change will allow teams to consider satire when assessing potential Hate Speech violations.”

The update comes after the Oversight Board determined that Facebook was wrong to remove a user’s comment with a reference to the Turkish government, based on the two buttons meme.