In the News

Washington Examiner: Social media crackdown raises free speech concerns

By Bradley A. Smith and David Keating

Recent decisions by social media companies to ban or suspend former President Donald Trump and others from their platforms are legally protected. The First Amendment restrains government, not private parties, from censoring speech.

Still, these actions should give us pause. Just because companies can censor speakers, that does not mean they should do so. The history of suppressing supposedly “dangerous” speech is rife with abuses and unforeseen side effects. The first point to note is that censorship undermines the very goals it is instituted to achieve. Those censored often come to see themselves as persecuted, hardening their convictions and increasing their fervor. In such a state, they can fall prey to leaders with extreme, dangerous ideologies. They can retreat into circles of conspiracies, feeding off of fear and anger in place of the public commons cooling influence. Open debate, where one can engage with dissent, or at least know what others are saying, is preferable to the secret malcontent fostered by censorship.

Supreme Court

Business Insider: Billionaire conservative megadonor Charles Koch is backing a group behind a Supreme Court case seeking to keep charitable donations secret

By Hayley Cuccinello and Juliana Kaplan

Now one of these Koch-affiliated groups is headed to the Supreme Court, which said on January 8 that it would hear its lawsuit against the state of California’s requirement that nonprofits disclose the names and addresses of people who have donated more than $5,000.
Based on how the court rules, the case could have sweeping ramifications for donor transparency and campaign finance…

Daniel Weiner, deputy director of the Brennan Center’s Election Reform program, told Insider that the groups involved in this particular case see ending disclosure laws as “the unfinished business of the Citizens United decision.” 

In fact, Citizens United cosigned a brief filed by the Free Speech Coalition in the current Supreme Court case.

The case features a petition from a charitable nonprofit, the Americans for Prosperity Foundation (AFPF), and amicus briefs from 22 other groups. AFPF and 15 of the amicus brief filers have received more than $35.3 million from Koch family foundations and two donor-advised funds known to be used by the Koch family since 2015, according to an analysis of IRS tax records by the Center for Media and Democracy. (AFPF is connected to the Charles Koch-backed Americans for Prosperity, or AFP.)

The groups’ day in court stems from a legal battle over one small aspect of California law, which currently requires that nonprofits disclose the names and addresses of people who have donated more than $5,000. AFPF has been fighting that requirement in court, citing free speech and threats to donors.

The Courts

Reason (Volokh Conspiracy): Pretrial Release Condition: Can’t Speak About “the [Capitol] Protest or the Matters Related to the United States Government”

By Eugene Volokh

Jeremy Chisenhall (Lexington Herald Leader) reports:

[Damon Michael Beckley, who was subjected to these conditions,] has been charged with unlawful entry of a restricted building and disorderly conduct on Capitol grounds, according to the FBI. He was filmed at the Capitol on Jan. 6, saying, “we aren’t putting up with this tyrannical rule. If we’ve got to come back here and start a revolution and take all of these traitors down, which is what should be done, then we will.” …

Other Kentucky residents charged in the riot face atypical constraints. Gracyn Courtright, a University of Kentucky student, can only travel to D.C. and West Virginia for court appearances and Kentucky for college classes, according to court records.

Robert L. Bauer was ordered not to attend or participate in any public rallies or protests as a condition of his release, according to court records. He was also barred from entering any state or federal Capitol grounds.

I did a bit of research back when there were stories about broad pretrial release restrictions on people arrested in the Oregon protests, and the matter is a bit complicated.

Portsmouth Press: Town Fights Back After ACLU Files Lawsuit, Claims Lawn Signs Are First Amendment Right

By Sandy McGee

On Saturday, the ACLU of Rhode Island announced that they filed a federal lawsuit challenging a Portsmouth town ordinance that bans the posting of political signs on residential property. The lawsuit is on behalf of town resident Michael DiPaola, who recently erected a series of signs on his property on Bristol Ferry Road that express “his opinions criticizing perceived selective and corrupt code enforcement by the Town.” …

[On] Jan 14, he was issued a notice of violation of the town’s zoning ordinance. The notice alleged that DiPaola failed to obtain a permit required to display the signs, that political signs were not a category of sign allowed to be displayed in residential areas, and that the display also violated a provision banning signs that “interfere with, mislead or confuse traffic.” He was given seven days to remove the signs or else face $500 a day fine for each sign left standing.
The lawsuit argues that the zoning ordinance violates DiPaola’s free speech rights under the First Amendment by, among other things, “permitting only signs with specified content to be erected; exempting certain permitted signs from the requirement of obtaining a permit; and prohibiting all other speech, including political speech.”…

On Saturday afternoon, the town of Portsmouth released its own statement, claiming the signs’ content was not the reason behind the notice of violation.

Reason (Volokh Conspiracy): Permit Requirements for Filming in National Parks Violate First Amendment

By Eugene Volokh

In this morning’s Price v. Barr decision, Judge Colleen Kollar-Kotelly (D.D.C.) held:

[1.] Filming, including for purposes of making a film that would be commercially distributed, is protected by the First Amendment.

[2.] The permit requirements are content-based, because:

[The requirements] do not apply generically to all commercial activity in national parks. To the contrary, the permitting regime applies to filming, a form of expressive speech, and specifically to a type of filming, “commercial filming.” 54 U.S.C. § 100905(a). Section 100905’s implementing regulations make this content-based distinction even more apparent, defining “commercial filming” as the “recording of a moving image by a person, business, or other entity for a market audience with the intent of generating income.” The application of § 100905’s permitting regime, therefore, necessarily turns on an assessment of whether the content of a film was meant to appeal to a market audience and generate income.

Congress

R Street: H.R. 1 Is a Direct Attack on Free Speech And States’ Rights

H.R. 1 is likely the most consequential piece of election-related legislation in years and mostly in a bad way. Let’s be clear: it should be easier to participate in elections and easier to talk about elections. Anything that does the opposite is a bad idea.

As an organization, R Street stands strongly for the cause of political reform, and we will always support good policy. H.R. 1 is not good policy. For example:

• It limits freedom of speech: The first amendment protects public speech and case law accords the most protection to political statements. While the internet does make broad circulation of ideas easier than ever before, reaching a true mass audience almost always requires spending money. Therefore, restricting money spent on political causes, while perhaps well-intentioned, also restricts speech. H.R. 1 only adds to the labyrinth of laws and regulations that govern spending money on political causes and it should be opposed for that reason alone. It’s through political speech that people can make their views known and can debate with each other. Less money for political speech means that whoever has power already is likely to keep it even if they use it in harmful ways.

• H.R. 1 would weaken organizations that are seeking to impact public policy in positive ways…

• It aims to forbid anonymous speech: Anonymous speech about political matters has played a vital role in America’s history…

Daily Caller: Three Ways The Biden Administration Will Attack Free Speech

By Dan Backer

Earlier this month, House Democrats reintroduced the disingenuously named “For the People Act,” which would only undermine the people’s right to engage in the political process. H.R. 1 would essentially serve as a ban on certain forms of political speech (read: conservative speech) by undoing the Citizens United decision.

Under the bill’s provisions, nonprofit organizations that make campaign-related disbursements of $10,000 or more in a given election cycle would be required to disclose their donors. How do you expect the Left to treat those donors, if they’re conservative? With kid gloves?

The Media

Tablet Magazine: Journalists Mobilize Against Free Speech

By Armin Rosen

These days, the American public distrusts the media more than it ever has.

Confronted with this crisis of legitimacy, today’s corporate media increasingly advances ideas that would delight would-be power trippers of any party-like establishing novel forms of government control over what you can see, read, and hear and identifying people with a broad range of unpopular or unapproved views as domestic terrorists. Public discourse is now a “conflict space” with social media serving as an “information warzone,” the public intellectual Peter W. Singer declared in an essay published a few days after the alternately scary and farcical Trump riot on Capitol Hill, seamlessly adapting a framework of state-level physical violence to a discussion of constitutionally protected speech.

In recent years the United States has seen more severe acts of political violence and deadlier riots than the events at the Capitol-but American guarantees of free speech apparently should not survive the shocking image of Nancy Pelosi’s office being ransacked. The notion that free expression is sedition’s handmaiden or that the prevention of treason should be a higher goal than the open exchange or exposure of allegedly dangerous arguments are not controversial views anymore; they pop up frequently, among putatively liberal-minded commentators in The Washington Post and The New York Times…

Here’s a look at other outlets and media figures who have gone into hall monitor mode, revealing themselves to be skeptics of the very system of law and custom that enables their profession to exist in the first place.

Lobbying

Washington Post: Amazon, Facebook, other tech giants spent roughly $65 million to lobby Washington last year

By Tony Romm

Amazon, Facebook, Google and four other top technology giants spent more than $65 million to lobby the U.S. government last year, shelling out record-breaking amounts in some cases to try to battle back antitrust scrutiny and new regulatory threats…

The tech industry’s sustained lobbying push reflects its souring reputation in Washington, where lawmakers last year continued to bear down on Amazon, Facebook, Google and their peers for their size, power and perceived missteps. Democrats and Republicans did not manage to advance some of their most ambitious proposals, including efforts to toughen antitrust laws and hold social-media sites more directly accountable for their content-moderation practices. But lawmakers say they plan to reengage on these debates this year, now that Biden is in the White House and Democrats control both the House and Senate.

“There’s a lot of concern with how tech companies are handling disinformation, there’s a lot of concern about the ways tech companies are handling privacy,” said Michael Beckel, the research director for Issue One, which advocates for an overhaul of the country’s campaign finance and ethics laws. “There’s a lot of policymakers and lawmakers on both sides of the aisle [that] are giving the tech industry more scrutiny. And with that increased scrutiny comes a desire to spend more on lobbying and make sure your side of the story is heard.”

Independent Groups

WUWM: Why A Northern Wisconsin Brewery Owner Started A Super PAC

By Audrey Nowakowski and Jack Hurbanis

In October of 2020, Minocqua Brewing Company owner Kirk Bangstad put up a large Biden-Harris sign outside of his brewery. Doing this in conservative northern Wisconsin quickly led to some pushback…

After being asked to take the sign down, as Oneida County claimed it violated a law regarding signs on buildings, Bangstad was informed that he could be fined up to $250 every day he didn’t remove the sign.

Although a 2015 Supreme Court decision made it illegal to regulate the size of political signs as it infringes on the right to free speech, Bangstad decided to share his predicament on Facebook to raise awareness and ask for support in order to raise $8,500 to keep his sign up until Election Day…

Bangstad’s story quickly went viral and was featured in the New York Times and Washington Post, gaining national attention. 

He decided to take that momentum further by creating the Minocqua Brewing Company SuperPAC, where 5% of profits will be dedicated to political action.

“I hated super PACs,” Bangstad admits. “Part of why I think America is in such a dark place right now is because of dark money but I was like, ‘I’m a corporation. Minocqua Brewing is a corporation, so why can’t I start a super PAC just like the Koch Brothers?’ I call it ‘dark money for good’,” says Bangstad.

Online Speech Platforms

Wall Street Journal: Small Sites Need Section 230 to Compete

By Mark Weinstein

Donald Trump and other politicians have called on Congress numerous times to revoke Section 230 of the Communications Decency Act. During the lame-duck congress, then-Senate Majority Leader Mitch McConnell even introduced a bill tying increased stimulus payments to the repeal of Section 230.

They’re rightly concerned about political bias and censorship by social-media companies. A 2020 survey by Pew Research found that 75% of Americans (including most conservatives and liberals alike) believe Facebook and Twitter censor political views. It is clear that social media must change before it destroys free speech, privacy and democracy. The problem is that revoking Section 230 would exacerbate censorship and reduce the competition that is the real solution.

I’m CEO of MeWe, a social network that competes directly with Facebook. We have millions of members, people of all political persuasions. Revoking Section 230 would significantly harm smaller companies like mine and new startups that compete with the tech giants.

Wall Street Journal: Online Speech Wars Are Here to Stay

By Andy Kessler

In our new slushy, snowflake-soaked society, some folks are offended by just about anything, and are quick to deploy torches and pitchforks to silence and cancel anything not currently considered politically correct. It’s worth reiterating: social media and all its benefits (ask small businesses) wouldn’t exist without Section 230. Instead of hiring hundreds of thousands of coders, Facebook and Twitter would instead be giant law firms forever fighting lawsuits.

Still, Facebook ran ads all fall practically begging for regulation. But any attempt to “fix” Section 230 would surely kill it. Legislation would be a bicameral camel-a horse designed by committee-trying to define community standards, hate speech, what “incites” riots, what constitutes “systemic” racism and on and on, with the inevitable loopholes for certain politicians and favored groups.

NBC News: Twitter launches ‘Birdwatch,’ a forum to combat misinformation

By Ben Collins and Brandy Zadrozny

Twitter unveiled a feature Monday meant to bolster its efforts to combat misinformation and disinformation by tapping users in a fashion similar to Wikipedia to flag potentially misleading tweets.

The new system allows users to discuss and provide context to tweets they believe are misleading or false. The project, titled Birdwatch, is a standalone section of Twitter that will at first only be available to a small set of users, largely on a first-come, first-served basis. Priority will not be provided to high-profile people or traditional fact-checkers, but users will have to use an account tied to a real phone number and email address.

“Birdwatch allows people to identify information in Tweets they believe is misleading or false, and write notes that provide informative context,” Twitter Vice President of Product Keith Coleman wrote in a press release. “We believe this approach has the potential to respond quickly when misleading information spreads, adding context that people trust and find valuable.”

While Birdwatch will initially be cordoned off to a separate section of Twitter, the company said “eventually we aim to make notes visible directly on Tweets for the global Twitter audience, when there is consensus from a broad and diverse set of contributors.”

New York Times: Trump Wants Back on Facebook. This Star-Studded Jury Might Let Him.

By Ben Smith

They meet mostly on Zoom, but I prefer to picture the members of this court, or council, or whatever it is, wearing reflective suits and hovering via hologram around a glowing table. The members include two people who were reportedly on presidential shortlists for the U.S. Supreme Court, along with a Yemeni Nobel Peace Prize laureate, a British Pulitzer winner, Colombia’s leading human rights lawyer and a former prime minister of Denmark. The 20 of them come, in all, from 18 countries on six continents, and speak 27 languages among them.

This is the Oversight Board, a hitherto obscure body that will, over the next 87 days, rule on one of the most important questions in the world: Should Donald J. Trump be permitted to return to Facebook and reconnect with his millions of followers?

The decision has major consequences not just for American politics, but also for the way in which social media is regulated, and for the possible emergence of a new kind of transnational corporate power at a moment when almost no power seems legitimate.