Free Speech

First Amendment Watch: From Liberty Tree to Taking a Knee: America’s Founding Era Sheds Light on the NFL Controversy

By Stephen Solomon

Symbolic speech as a form of protest, like taking a knee at a football game while others stand for the National Anthem, enjoys a long history in America. It’s been a powerful form of political expression going back to the protests in the colonies in the 1760s against British oppression. Various forms of symbolic expression-liberty trees, liberty poles, effigies of hated politicians, even the use of the number 45-brought multitudes into the political sphere and was critical in building opposition to British rule. Much of this symbolic expression was controversial and even offensive but a powerful form of protest then and now.

New York Times: The Law Is on the N.F.L. Players’ Side

By Benjamin Sachs and Noah Zatz

As National Football League owners and players’ union representatives meet in New York today and tomorrow to discuss the players’ recent demonstrations – the kneeling, linking arms or raising fists during the national anthem – they should know how the law views these protests. This will not only tell them what the league lawfully can do; it also will reveal something about American values.

There has been some confusion about the law and the anthem protests. Because the First Amendment generally treats government and corporate power differently, allowing a business to impose on its workers what the government could not demand from its citizens, many people assume the N.F.L. has the legal authority to “bench” the protesters, as the Dallas Cowboy owner Jerry Jones threatened, or to say, in the words of President Trump, “Get that son of a bitch off the field right now, out, he’s fired.”

But in this case, that analysis is mistaken. In fact, a confluence of bedrock laws are on the players’ side. Stifling the protests would be illegal.

First Amendment

Newseum Institute: The First Amendment Receives a C+ in Fall Report Card

By Lara Nott

Our panelists based their grades on their analysis of the events that have occurred since our last report card was released, in July of this year…

Freedom of speech lost many points this quarter because of hostile attitudes toward free expression from two groups that may not share anything else in common – college students and the Trump administration.

As for freedom of assembly, the events of Charlottesville loomed large in that area. Many of our panelists noted that the violence that occurred there has led to an erosion of public support for freedom of assembly, and to state and local governments taking actions to restrict this right. Unsurprisingly, assembly tumbled from a B- to a C this quarter. This quarter it has the lowest grade point average of all of the freedoms of expression, taking the spot previously held by freedom of the press.

The press rating may surprise those who see the ongoing attacks by President Trump against the news media – in particular, his tweets suggesting a review of NBC’s “government operating license.” But that threat is hollow, since television networks are not licensed by the government. Trump’s bluster has yet to be backed up by legal action.

Internet Speech Regulation

New York Times: As U.S. Confronts Internet’s Disruptions, China Feels Vindicated

By Steven Lee Myers and Sui-Lee Wee

[Zhao Jinxu] is one of a battalion of online “supervisors” whom Weibo, one of China’s biggest social media platforms, announced last month it would hire to help enforce China’s stringent limits on online content.

For years, the United States and others saw this sort of heavy-handed censorship as a sign of political vulnerability and a barrier to China’s economic development. But as countries in the West discuss potential internet restrictions and wring their hands over fake news, hacking and foreign meddling, some in China see a powerful affirmation of the country’s vision for the internet.

“This kind of thing would not happen here,” Mr. Zhao said of the controversy over Russia’s influence in the American presidential election last year…

In the weeks leading up to the major party congress that opens in Beijing on Wednesday, the country’s internet regulator, the Cyberspace Administration of China, has issued a raft of new regulations.

One, which took effect last week, holds the creators of online forums or group chats responsible for their users’ comments.

Another bans anonymous users, a blow at the bots and deceptive accounts – like those on Facebook and Twitter – that distributed false stories aimed at American voters.

Slate: Should Political Ads on Facebook Include Disclaimers?

By April Glaser

Congress could certainly step up and require a disclaimer rule for online political ads and override the chance of the FEC issuing another split vote. There’s legislation in the works now, detailed by Democratic Sens. Mark Warner and Amy Klobuchar last month, that could do just that. But their bill would only cover ads bought by an entity that spends more than $10,000 on online ads. In September, Facebook said that of the $100,000 likely Kremlin-backed political ads it ran last year, 50 percent cost the advertiser less than $3, and for 99 percent of the ads, less than $1,000 was spent. Which means that lots of small groups could still be able to buy plenty of ads without much scrutiny.

Even if the FEC doesn’t have a strong track record regulating internet companies, and even if Congress’ solution may be full of convenient loopholes, that doesn’t mean that significant public pressure can’t beget political change…

The pubic has until Nov. 9 to submit comments to the FEC about whether internet companies should be required to include a disclaimer on election ads about who paid for them. 

FCC

Politico: FCC chairman defends First Amendment after Trump broadcaster threats

By Margaret Harding McGill

“I believe in the First Amendment,” Pai said at a telecom law event in Washington, without mentioning Trump by name. “The FCC under my leadership will stand for the First Amendment, and under the law the FCC does not have the authority to revoke a license of a broadcast station based on the content of a particular newscast.” …

Asked if there’s a role for the FCC in deciding what is “fake news” and doing something about it, Pai answered, “Traditionally that has not been within the FCC’s jurisdiction,” adding, “I’m a lawyer by training, of course. I tend to hew as closely as I can to the terms of the Communications Act and of course to other applicable legal principles, and so that’s the standard that we adopt, at least, going forward.” …

Pai on Tuesday called the fairness doctrine “an affront to the First Amendment to have the government micromanaging how much time a particular broadcast outlet decided to devote to a particular topic” and an “administrative nightmare” that forced FCC employees to spend countless hours listening and logging broadcast content.

The Courts

National Constitution Center: Justice Department insists Trump Twitter account is private

Back in July, the Knight First Amendment Institute at Columbia University filed a lawsuit on behalf of seven plaintiffs in the United States District Court For The Southern District Of New York. The group of Twitter users said their constitutional rights were violated after they were blocked by Trump or his surrogates from following the President’s social media account…

On October 13, the Justice Department made its case about a lawsuit that it claims is meritless because it is based on Trump’s routine use of Twitter as a private matter.

“According to the plaintiffs, the management of his personal Twitter account has become state action, and his use of standard Twitter features is now constrained by the limitations of the First Amendment that apply to government action in a public forum,” said the legal team, led by Acting Assistant Attorney General Chad Readler.

Readler made several constitutional arguments that refuted the claims made by the former Trump Twitter followers. “It would flout the separation of powers for the Court to issue an order limiting the President’s discretion in managing his Twitter account,” said Readler.

The States

U.S. News & World Report: West Virginia AG Says Election Pamphlet Law Unconstitutional

By Associated Press

West Virginia Attorney General Patrick Morrisey says a state law prohibiting anonymous election pamphlets is unconstitutional.

Morrisey issued the opinion Tuesday in response to a request by Secretary of State Mac Warner. Both are Republicans.

Morrisey says the state law “violates the First Amendment because it is overbroad and not narrowly tailored to a compelling state interest.” Morrisey says a federal court decision in West Virginia in 1996 found an older version of the same law about freedom of expression prohibitions concerning anonymous pamphlets was unconstitutional.

Secretary of State spokesman Steven Allen Adams says residents and political candidates had raised concerns about 2017 municipal election campaign materials such as yard signs, pamphlets and placards that didn’t indicate who paid for them.

Philly Voice: Philadelphia should reject taxpayer-funded political campaigns

By Beth Anne Mumford

The arguments in favor of this public financing initiative include “leveling the playing field” and “getting big money out of politics.” Giving campaigns access to public financing, supporters say, will reduce special interest influence on politicians and citizens will get competitive elections with better candidates.

Too bad these lofty promises never come to pass.

Seattle instituted a “democracy voucher” public financing scheme for the city’s most recent election. It did not go quite as planned…

Instead of leveling the playing field and helping lesser-known candidates, incumbents and well-connected politicians raked in the voucher funds while other candidates were left with little to show for their efforts…

New York City, which Philadelphia’s program would most closely emulate, has also failed to deliver results. According to the New York City Campaign Finance Board, “the program’s requirements, instead of helping to ‘level the playing field,’ appear to have contributed to greater disparities between office holders’ and challengers’ campaign finances and … the Public Fund has helped to finance possibly unnecessary campaign expenses and uncompetitive campaigns.”

U.S. News & World Report: Ethics Measure Backers to Submit Signatures for 2018 Ballot

By Associated Press

Supporters of a proposed government ethics constitutional amendment say they’re set to turn in more than 50,000 signatures to put the measure on the 2018 ballot.

Amendment backers plan to submit the signatures Wednesday to the Secretary of State’s office. Represent South Dakota says the proposal would protect the state’s initiative and referendum process, combat corruption and hold politicians accountable.

The initiative would tighten campaign finance and lobbying restrictions, create an independent ethics commission and prevent the Legislature from altering or rejecting laws approved by voters without returning to the ballot, among other provisions.

Supporters need nearly 28,000 valid signatures for the amendment to go before voters in the 2018 election. The amendment would replace a voter-imposed ethics overhaul that South Dakota lawmakers repealed this year.