New from the Institute for Free Speech
A Threshold for Violating Your Rights Still Violates Your Rights
By Alex Baiocco
Supporters of H.R. 1, called S. 1 in the Senate, have consistently told the American people that the bill does not restrict speech. Yet the chief proponent of the bill’s nonprofit donor exposure provisions in Congress, Senator Sheldon Whitehouse, predicts (beginning at 10:10) that two-thirds of spending on communications affected by those provisions “goes away” if the bill becomes law. After the bill narrowly passed the House with bipartisan opposition, Speaker Nancy Pelosi celebrated that she and her allies have a better chance of passing their pet policies if certain speakers are “not weighing in,” in a direct reference to the silencing effect of the bill’s disclosure provisions. Put another way, less speech will enter the public square as a direct result of H.R. 1, and those supporting the bill know it.
According to the bill’s backers in Congress, the suggestion that H.R. 1 would violate First Amendment rights is a “myth” because “disclosure requirements only apply to groups that spend $10,000 or more on campaign disbursements” and because the federal government will only collect and publicly expose the names and addresses of Americans giving $10,000 or more to such groups. First, characterizing the broad categories of speech that would trigger donor disclosure under the bill as “campaign disbursements” or “election spending” is incredibly misleading. Speech about legislation would trigger the requirements if federal regulators decide the communication could be perceived as promoting or criticizing an elected official. Speech about unelected judicial nominees would also trigger the requirements. Second, a $10,000 threshold by no means negates any First Amendment harms.
Supreme Court
Washington Post: A court case on the right to anonymity makes liberals and conservatives unlikely allies
By Kathleen Parker
It is rare these days to find anything that unites liberal and conservative groups in common cause, but a Supreme Court case may have done just that.
The justices heard oral arguments Monday in a case that’s been winding its way through the court system for years. The story began when the California attorney general’s office asked nonprofit charities to provide names and addresses of top donors — and the amount of their contributions — upon registering with the state.
The state attorney general at the time, Xavier Becerra — who is now President Biden’s secretary of health and human services — argued that the state needed the information to aid in charitable fraud cases, should they arise. The Americans for Prosperity Foundation and the Thomas More Law Center are now challenging the rule with the support of dozens of other nonprofits that have filed amicus briefs with the court…
What makes this case so interesting is that a number of liberal organizations that also rely on donors known and unknown — the NAACP Legal Defense and Educational Fund, the ACLU and the Human Rights Campaign among them — have filed amicus briefs supporting the AFPF…
In the United States, charity has been key to civic engagement and countless strides forward; anonymity, in many cases, makes people more likely to give. This seems to be something the right and left agree on.
Politico: Supreme Court grapples with free speech case involving student’s Snapchat outburst
By Josh Gerstein
The Supreme Court’s first big student free-speech case of the internet era appeared to divide the justices on Wednesday about whether to issue a sweeping ruling bringing First Amendment law for schools into the social media age or settle for a much more modest decision.
The case, framed as a test of school officials’ power to regulate student speech on the web, stems from a profane but mundane lament on Snapchat by a Pennsylvania ninth-grader, Brandi Levy, about being denied a spot on the varsity cheerleading squad.
SCOTUSblog: Whitehouse alleges “demonstrably false” fact-finding by conservative justices
By Kalvis Golde
Sen. Sheldon Whitehouse continued his effort this week to highlight what he views as problematic behavior by the Supreme Court.
As chair of the Senate Judiciary Committee’s subcommittee on federal courts, the Democratic senator from Rhode Island alleged in a hearing on Tuesday that Republican-appointed justices on the court violated the general principle against appellate fact-finding in two of the most high-profile and hotly debated rulings issued by the Roberts court: Citizens United v. Federal Election Commission and Shelby County v. Holder. Tuesday’s hearing came six weeks after Whitehouse convened a hearing on efforts of large political donors to influence the Supreme Court.
In general, Supreme Court justices, like all appellate judges, are not supposed to resolve purely factual disputes. Instead, Whitehouse said, they should look to trial courts for the factual record of a given case, and to the legislature for the factual findings that lawmakers made when passing a law.
Whitehouse alleged that the factual underpinnings of Citizens United and Shelby County have since been proven false. Because those underpinnings were found anew in the Supreme Court, instead of in the lower courts or in Congress, he argued, the legitimacy of the decisions is up for debate.
Biden Administration
The Hill: Biden calls on Congress to pass voting, elections reform bills
By Max Greenwood
In his remarks to a joint session of Congress, Biden boasted that the 2020 election had seen the highest turnout in modern history despite the challenges posed by the coronavirus pandemic. But instead of being celebrated, he said, the right to vote “is being attacked.”
“If we truly want to restore the soul of America, we need to protect the sacred right to vote,” Biden said. “More people voted in the last presidential election than any time in American history in the middle of the worst pandemic ever.”
He called on Congress to quickly pass H.R. 1, a wide-reaching elections reform bill already approved by the House, and the John Lewis Voting Rights Act, which would strengthen or reinstate parts of the 1965 Voting Rights Act.
“Congress should pass H.R. 1 and the John Lewis Voting Rights Act and send them to my desk right away,” Biden said. “The country supports it, and Congress should act now.” …
While polling suggests that the bills have broad support among Democrats — and have some report from a few Republicans — they face an uphill battle in the Senate, where Democrats hold only a one-vote advantage due to Vice President Harris’s ability to break a tie.
Candidates and Campaigns
Wall Street Journal: Your Woke Money Is No Good Here
By Ted Cruz
For too long, woke CEOs have been fair-weather friends to the Republican Party: They like us until the left’s digital pitchforks come out. Then they run away. Or they mouth off on legislation they don’t understand—and hurt the reputations of patriotic leaders protecting our elections and expanding the right to vote. Enough is enough. Corporations that flagrantly misrepresent efforts to protect our elections need to be called out, singled out and cut off.
In my nine years in the Senate, I’ve received $2.6 million in contributions from corporate political-action committees. Starting today, I no longer accept money from any corporate PAC. I urge my GOP colleagues at all levels to do the same.
Online Speech Platforms
Politico: What I Learned on My Quest to Fix America’s Social Media Problem
By L. Gordon Crovitz
When political scientist Francis Fukuyama and his team of researchers last year began studying the dominance of platforms Facebook, Google/YouTube and Twitter, they first thought this was a problem for antitrust laws and regulations to solve. But in the end they concluded that being big was not what made these platforms bad. Instead, it’s the algorithms powering these platforms that cause “social harms, including loss of privacy and monopolization and manipulation of attention, and political harms, including threats to democratic discourse and deliberation and, ultimately, to democratic choice in the electoral process.”
The root of the issue is how the platform algorithms maximize usage. The more engagement and more time spent by users, regardless of the truth or harm of the content being consumed and shared, the more advertising revenue. Their algorithms learned that misinformation grabs people’s attention best, which is why their recommendation engines send people down rabbit holes of Covid-19 hoaxes, QAnon conspiracies and divisive Russian disinformation operations…
To counter this, Fukuyama and his colleagues proposed something called “middleware” as a reform to Section 230 of the Communications Decency Act of 1996 — the law that immunizes digital platforms from the duties of care under the common law that hold other industries responsible for the foreseeable harms they cause. (Unlike newspapers and broadcasters, internet companies can’t be sued for falsehoods and misinformation they publish and promote.)
Protocol: Facebook briefly censors, then restores, #ResignModi posts
By Issie Lapowsky
Facebook spokesperson Andy Stone said Wednesday that the company had restored posts with the hashtag #ResignModi, which call for the resignation of India’s prime minister, that had been temporarily blocked by the social network.
“This hashtag has been restored, and we are looking into what happened,” Stone said. Later, Stone said the company had blocked the hashtag “by mistake, not because the Indian government asked us to.”
The States
MTFP: Effort to investigate environmental groups voted down
By Amanda Eggert
A measure introduced late last week by Sen. Duane Ankney, R-Colstrip, that would have directed the Department of Justice to investigate environmental groups is likely dead after a free conference committee voted to strike it from House Bill 693. Among other things, Ankney’s amendment would have empowered the Department of Justice to investigate environmental groups’ membership lists, funding, engagement in political speech, and influence on the government’s regulatory or permitting actions.
Bay News 9: Florida House OKs bill banning social media deplatforming
By Troy Kinsey
The Florida House approved legislation aimed at barring social media companies from deplatforming political candidates, a measure initially called for by Gov. Ron DeSantis that is now eligible for his signature.
The governor’s request for a crackdown came in the wake of former President Donald Trump’s suspension from Facebook and Twitter in January. The companies said Trump had violated their policies by posting content that had the potential to incite violence.
But Republicans have accused the platforms of censoring political speech. Under the measure, they would be forbidden to suspend the accounts of candidates for more than 60 days before an election has been resolved.
“If you vote against this bill, you’re voting against freedom of speech. You’re voting against equal protection. You’re voting for censorship,” Rep. Thad Altman (R-Melbourne) argued during a lengthy floor debate.
By David Jacobs, The Center Square
A Louisiana Senate committee voted Wednesday to allow Louisiana residents to sue social media companies they believe intentionally deleted or censored their political or religious speech.
Senate Bill 196 by Sen. Jay Morris, R-West Monroe, targets sites with at least 75 million members, specifically Facebook, YouTube and Twitter. The plaintiff could claim actual damages and punitive damages up to $75,000.
“It’s just the freedom to express one’s political and religious opinions,” Morris said.
Morris’ bill is a Louisiana version of the Stop Social Media Censorship Act. Chris Sevier, who supports the act in various states, said 29 states have considered similar legislation, though none have enacted it into law.
Sevier said the bill would fall under a “state law exemption” under Section 230 of the Communications Decency Act, which might otherwise protect social media companies from liability. He argued the websites have engaged in deceptive trade practices by claiming they were creating a “modern-day digital public square” but censoring certain users.
Butler County Journal-News: Butler County lawmaker says proposed bill on rioting and looting laws supports free speech
By Michael D. Pitman
A pair of southwest Ohio lawmakers say a bill they introduced designed to strengthen laws around riots and looting, but the ACLU of Ohio says many of these laws already exist, and bolstering penalties likely won’t impact the outcomes.
HB 109 is jointly sponsored by Ohio Reps. Cindy Abrams, R-Cincinnati, and Sara Carruthers, R-Hamilton, who say their bill is in response to the summer protests and looting that took place in Columbus three days after George Floyd’s May 25 death in Minneapolis, Minn. while police custody…
HB 109 would create a new criminal charge, riot assault, which would be applied if a person engaged in an aggravated riot recklessly causes physical harm that is punishable by a fifth-degree felony. Charges would elevate to a fourth-degree felony if the alleged assault is against a law enforcement officer and a third-degree felony if the law enforcement officer is seriously injured.
The bill’s sponsors say this bill also protects the First Amendment rights of peaceful protestors, but Abrams said “it does say that when misconduct occurs, when the law is broken, those responsible will be held accountable.”
