Supreme Court
SCOTUSblog: In Austin sign spat, court declines to strike down billboard regulation under First Amendment
By Amy Howe
The Supreme Court on Thursday ruled that a city ordinance that treats signs differently depending on whether they have a connection to the site where they are located is content-neutral – that is, it does not regulate speech based on content – and therefore not subject to strict scrutiny, the most stringent constitutional test. By a vote of 6-3, the justices sent the challenge to the ordinance in Austin, Texas, back to the lower courts for them to consider whether the sign code can survive under a less rigorous test. The decision was a victory not only for Austin but also for the tens of thousands of other municipalities with similar sign ordinances.
The dispute before the court in City of Austin v. Reagan National Advertising began when Reagan National, an outdoor advertising company, applied for permits to convert existing billboards to digital displays, which allow them to change the images that are shown every few seconds.
The Courts
Reason (Volokh Conspiracy): Eleventh Circuit Strikes Down Univ. of Central Florida’s “Discriminatory Harassment” Speech Code
By Eugene Volokh
An excerpt from today’s Eleventh Circuit decision in Speech First, Inc. v. Cartwright (written by Judge Kevin Newsom and joined by Judge Stanley Marcus and District Judge Richard Story), which generally strikes me as quite right:
Wall Street Journal: Fusion GPS’s ‘Attorney-Client Privilege’ Cover
By Kimberley A. Strassel
This month Mr. Durham asked a federal judge to compel Fusion, the DNC and the Clinton campaign to hand over documents for the judge to review in chambers…
On what grounds do the parties refuse to produce the documents? In a flurry of filings Tuesday by Fusion GPS, the Clinton campaign, the DNC, Mr. Joffe and Perkins Coie, they explain that—contrary to public record, sworn testimony, news articles, books and the findings of federal investigators—Fusion was retained not to do oppo-research, but to “support” Perkins Coie’s “legal advice” to Democrats, and its documents are therefore covered under attorney-client privilege…
For years Democrats and Republicans alike have listed controversial contractors as “legal services” to avoid disclosure, and the practice is now on display given the Clinton campaign’s reckless decision to push the tactic to extremes by wrapping in the FBI and provoking a national crisis. Mr. Durham is performing the dual service of unraveling the Russia hoax and exposing a longtime Washington racket.
Congress
Politico: Capitol Police’s new vetting practices raise ‘First Amendment concerns,’ whistleblowers’ lawyer says
By Betsy Woodruff Swan and Daniel Lippman
Lawmakers have raised questions about the Capitol Police’s expanded scope of intelligence gathering. Those concerns, however, come in the wake of criticism that the department was insufficiently aggressive in monitoring threats to Congress before Jan. 6.
Civil liberties advocates renewed their own First Amendment complaints in recent days about the new allegations regarding Capitol Police.
Faiza Patel, co-director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law, said in an interview that it is troubling for police to scrutinize the social media accounts of people who aren’t suspected of crimes.
“Unless the police suspect these people of wrongdoing, this type of probing is a serious incursion on freedom of speech, association, and religion,” she said.
Online Speech Platforms
The Hill: Obama points finger at tech companies for disinformation in major speech
By Rebecca Klar
Former President Obama placed blame on tech companies for failing to address the disinformation problem he said the industry has amplified during a speech Thursday at Stanford University.
The new information ecosystem, fueled by the rise of dominant social media platforms, is “turbocharging some of humanity’s worst impulses,” he said in the roughly hourlong speech.
“But not all problems we’re seeing now are an inevitable byproduct of this new technology. They’re also the result of very specific choices, made by the companies that have come to dominate the internet generally, and social media platforms in particular. Decisions that intentionally or not have made democracies more vulnerable,” he said.
Certain features, such as the “veil of anonymity” online, have compounded the problem, he said…
Without going into specific detail, Obama offered support to plans to reform Section 230 of the Communications Decency Act, which gives tech companies a legal liability shield from content posted by third parties…
“These companies need to have some other North star other than just making money and increasing market share. Fix the problem that in part they helped create, but also to stand for something bigger,” he said.
New York Times (“On Tech”): The YouTube rabbit hole is nuanced
By Shira Ovide
Perhaps you have an image in your mind of people who get brainwashed by YouTube.
You might picture your cousin who loves to watch videos of cuddly animals. Then out of the blue, YouTube’s algorithm plops a terrorist recruitment video at the top of the app and continues to suggest ever more extreme videos until he’s persuaded to take up arms.
A new analysis adds nuance to our understanding of YouTube’s role in spreading beliefs that are far outside the mainstream.
A group of academics found that YouTube rarely suggests videos that might feature conspiracy theories, extreme bigotry or quack science to people who have shown little interest in such material. And those people are unlikely to follow such computerized recommendations when they are offered. The kittens-to-terrorist pipeline is extremely uncommon…
(You can read the research paper here. A version of it was also published earlier by the Anti-Defamation League.)
Washington Post: Who’s afraid of Elon Musk?
By Jason Willick
Silicon Valley insiders recoiled in horror at Elon Musk’s bid to buy Twitter and loosen the platform’s controls on political speech, which have led most prominently to the banning of former president Donald Trump and the suspension of the New York Post. Musk’s offer may be a bluff, of course. But the financial maneuvering appears to be ongoing, and the erratic tycoon was taken seriously enough to trigger a media-messaging blitz opposing the sale. It has revealed a case against Musk that is, for the most part, specious and self-serving. Let’s take a closer look at the talking points.
The States
Institute for Justice: IJ Defends a Community Activist Against a Village Attorney’s Frivolous and Retaliatory Defamation Lawsuit
By J. Justin Wilson
Does the First Amendment protect your right to criticize public officials without being subject to frivolous lawsuits?
That is the question raised by a court filing made today by the Institute for Justice (IJ)—a national public interest law firm that litigates to protect American’s First Amendment rights—on behalf of Kelly Gallaher, a Mount Pleasant, Wis., community activist who has been slapped with a frivolous defamation suit by Mount Pleasant Village Attorney Chris Smith. Claiming that Kelly’s email to local journalists and accompanying social-media posts caused him “emotional distress,” Chris Smith filed a six-page lawsuit demanding punitive damages for Kelly’s criticism and her “hundreds of posts on social media . . . [about] Village policies, politics, officials and employees” that “portray[] Mount Pleasant officials or employees negatively.” IJ is asking the trial court to throw the lawsuit out and vindicate Kelly’s–and everyone’s–fundamental right to criticize government officials.
New York Times: Disney to Lose Special Tax Status in Florida Amid ‘Don’t Say Gay’ Clash
By Brooks Barnes
Disney employs 38 lobbyists in Florida’s capital. Each election cycle, the company gives generous campaign contributions to Florida candidates on both sides of the political aisle. Its theme park megaresort near Orlando attracts around 50 million visitors a year, powering a Central Florida tourism economy that annually generates more than $5 billion in local and state tax revenue.
The upshot: Disney usually gets whatever it wants in Florida.
That era ended on Thursday, when the Florida House voted to revoke Disney World’s designation as a special tax district — a privilege that Disney has held for 55 years, effectively allowing the company to self-govern its 25,000-acre theme park complex. The Florida Senate voted on Wednesday to eliminate the special zone, which is called the Reedy Creek Improvement District. Having cleared the way to this outcome with a formal proclamation, Gov. Ron DeSantis will almost certainly make the measure official by adding his signature. It would take effect in June next year.
The swift effort to dissolve Reedy Creek by Florida Republicans has been widely seen as brazen retaliation after Disney, Florida’s largest private employer, paused political donations in the state and condemned a new education law that opponents call “Don’t Say Gay.”
National Review: Farewell to Free Speech, Say Florida Republicans
By Jason Lee Steorts
A few thoughts on the state’s soft-authoritarian temper-tantrum.
- I don’t assert that the revocation of Disney’s special district violates the First Amendment in a legally actionable way. Nor do I think revocation of a privilege constitutes censorship. But what’s at issue is more than “a culture of free expression,” i.e., an environment in which private actors do not retaliate against other private actors for their speech. (Criticism does not count as retaliation, by the way.) This was a use of state power to punish private speech.
Axios: States’ next tech target: Regulating online speech
By Ashley Gold
Bills introduced in states including Ohio, Alabama and Tennessee have attempted to prohibit companies from removing users’ legal speech. Other states’ bills seek to prohibit algorithmic curation or create transparency requirements.
There’s been an exponential increase in the scope of state legislative activity on such issues, Mark Brennan, a partner at Hogan Lovells who counsels clients on tech regulation, told Axios.
But no one is getting it right, Brennan said: “Frankly, states have a pretty bad track record in putting together regulation in this space.”
Context: Section 230 of the Communications Decency Act, which largely protects online platforms from being liable for what people post, pre-empts state laws. And some attempts to regulate content have run afoul of the First Amendment.
