We’re Hiring!
Summer Associate Legal Fellowship
The Institute for Free Speech Summer Associate Legal Fellowship is a unique opportunity for law students to explore a career in public interest and First Amendment law. The program is open to students who will finish their first or second year of law school by the summer of 2021.
Fellows are expected to work full time for 10 weeks in our Washington, D.C. area headquarters, but other arrangements may be available to especially outstanding candidates. In light of the ongoing pandemic, the possibility remains that fellows will work remotely for some or all of the summer fellowship.
Fellows are eligible to earn $10,000 in salary for their 10 weeks of employment.
During the fellowship, students will work with Institute for Free Speech attorneys for a portion of their time. Each fellow will also be expected to complete a project. Applicants are encouraged to be creative in suggesting a project as part of their application. While many projects may produce papers suitable for publication, we will consider any project related to protecting or advancing First Amendment rights.
[You can learn more about this role and apply for the position here.]
In the News
Business Insider: How Trump could mount a presidential campaign even if he’s banned from office
By Dave Levinthal
Here’s a longshot but still plausible scenario: US senators from both parties gang up to convict former President Donald Trump of inciting a fatal insurrection in their workplace. Then they ban him from ever again running for federal office.
Could Trump still try to mount a 2024 presidential campaign anyway?
Quite possibly, three former Federal Election Commission chairpeople tell Insider. At least for a while…
[T]he FEC is the place where this kind of question would go for debate should Trump make such a move.
But…[the FEC] lacks power to evaluate declared candidates’ eligibility for office, including that of former presidents…
There are some possible solutions…
The FEC, for its part, could attempt to pass a…rule in a bid to prevent ineligible candidates from forming candidate committees.
Or it might try to “administratively terminate” any new presidential campaign committee Trump decided to form, doing so on the grounds that Trump couldn’t hold office.
“But what would that mean?” asked former Republican FEC Chairman Bradley Smith, who now leads the Institute for Free Speech, a nonprofit organization that supports political campaign deregulation. “He could then form ‘Donald Trump for President Super PAC’ and take unlimited contributions. Since the FEC would have ruled he wasn’t a candidate, he wouldn’t have to worry about coordination or anything else.”
ICYMI
H.R. 1 and S. 1 Resource Guide (2021)
H.R. 1 and S. 1, better known as the “For the Politicians Act,” would impose sweeping new restrictions on speech about campaigns and public affairs. These radical bills would greatly harm the ability of Americans to freely speak, publish, and organize into groups to advocate for better government and the causes of their choice…
The provisions in H.R. 1 and S. 1 are so complex and open to so many possible interpretations that the Institute’s views may well understate the chill this legislation would impose on speech. To this end, the Institute for Free Speech has published numerous resources that highlight the many First Amendment problems in both bills.
Unless otherwise noted, the resources below refer to the version of H.R. 1 introduced by the U.S. House of Representatives in 2019. As many provisions in both 2021 bills are identical to their 2019 counterpart, the overarching arguments remain relevant. However, in the interest of accuracy and public awareness, the Institute for Free Speech is working to update these resources. All updated – and new – resources on H.R. 1 and S. 1 will appear below. This page will be updated on a regular basis.
DOJ
Politico: Social media ‘influencer’ charged with spreading 2016 election disinformation
By Cristiano Lima
A Florida man with a big social media following was arrested on federal charges Wednesday on accusations that he used platforms such as Twitter to conduct a targeted voter suppression campaign in 2016, including with tweets urging people to “Avoid the Line. Vote from Home.”
The arrest marks a rare instance of an individual facing criminal charges over a disinformation campaign carried out on prominent social media platforms.
The FBI arrested Douglass Mackey, known as “Ricky Vaughn,” on accusations of conspiring to deprive individuals of their right to vote through “coordinated use of social media to spread disinformation,” according to a complaint filed in the Eastern District of New York.
Reason: Sedition Cases Against Capitol Rioters ‘Will Bear Fruit Very Soon,’ Says FBI
By Elizabeth Nolan Brown
On Tuesday, the Department of Justice announced that it will bring sedition charges against people who stormed the U.S. Capitol on January 6. The punishment for seditious conspiracy is up to 20 years in prison…
Calls for sedition charges haven’t stopped with people who stormed the Capitol, with some raising the possibility of sedition charges against politicians who spread election fraud conspiracy theories or encouraged people to come to D.C. to protest…
“Sedition prosecutions in the U.S. have a particularly shameful history,” as Bloomberg’s Noah Feldman pointed out last fall in a piece titled “Sedition laws are the last resort of weak governments.”
Not only is their historical use full of horror stories, but their very nature makes them ripe for abuse at any time, as a catchall threat against anyone who challenges government policy or criticizes government actions. They can also be used to escalate criminal acts at any protest around the country into a federal case, as former Attorney General William Barr endorsed last year.
Many of the people who stormed the Capitol deserve some charges, and seditious conspiracy might seem as good as any at a glance. But reviving the use of sedition charges like this could backfire against free speech and protests more broadly.
Independent Groups
Bloomberg: Watchdog Group to Track Hiring of Top Ex-Trump Aides
By Ben Brody
Companies that hire people who worked as top aides to former President Donald Trump will be identified by a new liberal watchdog group formed to track the employment of ex-senior administration officials.
The Campaign Against Corporate Complicity, which kicks off Tuesday, said it’s building a list of former officials and aides who were involved in what the group says were the Trump administration’s most controversial actions…
The Campaign Against Corporate Complicity was formed by two public-interest groups in Washington, American Oversight and Accountable.US, which specialize in public records requests and research. Although they call themselves non-partisan, they count significant staffing from Democratic and progressive groups and don’t disclose funding…
The group also urges companies to “demand clear, evidence-based answers to whether a former official participated in enabling, crafting, implementing, or defending a concerted effort to shatter democratic norms and spread hate,” according to a letter addressed to “America’s CEOs.” The CACC will also consider “high-paying speaking fees, consultancies, book deals, or jobs in the boardrooms and corner offices,” the letter said…
Former government staffers are worried about their professional futures now that they’re branded with the “Scarlet T” of working for Trump, Bloomberg has reported, and some lower-ranking staffers have said they’ve had offers withdrawn.
Online Speech Platforms
Axios: Facebook to downplay politics on its platform
By Sara Fischer
Facebook CEO Mark Zuckerberg on Wednesday said the company will dial back on pushing political groups and content to users…
On a call to investors, Zuckerberg said that the company will stop providing recommendations for users to join civic and political groups on a long-term basis.The company had done so temporarily leading up to the U.S. election last year. Zuckerberg said Facebook plans to extend this policy globally as well.
Facebook also plans to take steps to reduce the amount of political content in the News Feed, although Zuckerberg didn’t provide any details about how it plans to do so.
He said users don’t want politics and fighting to take over their experience on the app.
There has been a trend across society that a lot of things have become politicized and politics have had a way of creeping into everything,” Zuckerberg said. “A lot of the feedback we see from our community is that people don’t want that in their experience.”
“We have to balance this carefully because we do have deep commitment to free expression,” he added. “If people want to discuss [politics] or join those groups, they should be able to do that. But we are not serving community well to be recommending that content right now.”
NBC News: Facebook’s ‘Oversight Board’ overturns 4 cases in first rulings
By Dylan Byers
Facebook’s Oversight Board on Thursday issued its first round of decisions, overturning several decisions by the company to remove posts for violating policies on hate speech, violence and other issues…
Thursday’s decisions offer a sign that the social media giant’s newly formed “Supreme Court” intends to err on the side of free speech.
“For all board members, you start with the supremacy of free speech,” Alan Rusbridger, one of the 20 board members and the former editor-in-chief of The Guardian, said in an interview before the decisions were made public. “Then you look at each case and say, what’s the cause in this particular case why free speech should be curtailed?”
The Atlantic: The Great Free-Speech Reversal
By Genevieve Lakier
There is a rich historical irony to the fact that today, conservatives are the ones who argue most forcefully that the decisions by private companies to “deplatform” certain speakers threaten what President Donald Trump described in 2020 as the “bedrock” American right to freedom of speech. Until very recently, this was an argument made almost exclusively by those on the left…
Although some of the bills that have been proposed to rein in social-media companies’ power are certainly poorly drafted and could easily be abused by self-interested politicians, advocates on the left should not give up on the possibility of using regulation to protect freedom of speech on the platforms. Designing nondiscrimination rules that can work effectively in social media’s new technological environment will be no easy feat. But that does not mean it cannot be done. There is no reason Congress could not impose minimum procedural requirements on the platforms when they act to remove their users’ speech.
The Verge: Social justice groups warn Biden against throwing out Section 230
By Adi Robertson
A group of 75 activist groups and nonprofits have urged against sweeping changes to Section 230 of the Communications Decency Act, warning that it could silence marginalized communities while making online moderation harder.
“Section 230 is a foundational law for free expression and human rights when it comes to digital speech,” the letter says… “Overly broad changes to Section 230 could disproportionately harm and silence marginalized people, whose voices have been historically ignored by mainstream press outlets.”
The letter is signed by a variety of groups supporting racial justice, sex workers’ rights, and free speech online – including the Wikimedia Foundation, Fight for the Future, and the Sex Workers Outreach Project. It’s addressed to Congress and the administration of President Joe Biden, both of which have shown an appetite for changing Section 230…
The letter also notes that Section 230 lets companies remove objectionable posts without fear of lawsuits from disgruntled users. Amazon, for instance, invoked it to defend suspending the social network Parler over violent threats. “Congress should act to address the harms of Big Tech through meaningful legislative action on data privacy, civil rights and others fronts, and enforcement of existing antitrust laws. But uncareful efforts to poke holes in Section 230 could result in the exact opposite outcome,” write the authors.
Candidates and Campaigns
Vox: What happened when a beloved mom influencer donated to Trump
By Rebecca Jennings
On January 19 and 20, parenting forums and new mom group chats lit up after word began spreading on Twitter, Instagram, and Reddit that [Cara] Dumaplin and her pediatrician husband had donated in total around $2,000 to various Trump campaigns in 2019 and 2020, according to [FEC] data…
Taking Cara Babies’ star has risen directly alongside the importance of Facebook groups for new parents. For the many new parents who’d paid to take her online sleep courses, which range from $179 to $319, the Trump donation news came as devastating. “We put our trust in her when we were at our lowest and vulnerable,” says Katelyn Esmonde, a mother and postdoctoral fellow at Johns Hopkins…
[M]any parents say they’ll boycott Taking Cara Babies; some have also requested refunds. Other popular parenting Instagram accounts have made statements on their Stories to note that they disagree with Dumaplin’s beliefs. Dumaplin’s publicist emailed Vox a statement, writing, “Between 2016 and 2019, I made a series of donations (totaling $1,078) to the Trump campaign. As with many citizens, there were aspects of the Trump administration that I agreed with and some that I disagreed with.”…
Then, the right-wing outlet the Federalist picked up the story. The resulting article is predictable; it frames Dixler Canavan as part of a “blue check” mob out to bully and dox an innocent baby expert. Yet “doxxing,” or revealing someone’s home address or otherwise personal information and thereby exposing them to potential harm, is misleading. People had posted the screenshot of the election campaign database, which included Dumaplin’s address (Dixler Canavan was not one of them), but the information was already public.
The States
Iowa Capital Dispatch: Bill to protect donor privacy brings together conservative and progressive groups
By Kathie Obradovich
Interest groups from opposite ends of the political spectrum, including the Christian conservative Family Leader and LGBTQ advocacy organization One Iowa, joined together Wednesday in support of a bill aimed at a common goal: protecting the privacy of their donors.
The bill also had the support of ACLU of Iowa, Iowans for Tax Relief, Iowa Safe Schools and Americans for Prosperity, among others.
“… We’re on the opposite sides of a lot of issues, but we have the same sort of existential threat from those who don’t like us,” Chuck Hurley of Family Leader told a three-member Iowa Senate subcommittee that met online Wednesday.
Keenan Crow of One Iowa agreed: “We are in support of this bill as well, I think it’s always a very interesting position that we’re in, we’re on the same side as the Family Leader and several other groups.”
Senate Study Bill 1036 would prevent government agencies from seeking “personal information” such as donor lists from tax-exempt nonprofit organizations and making that information public.
Pete McRoberts of ACLU of Iowa, who spoke in favor of the bill, said there has been a movement in some states, including Iowa, to treat donations to nonprofit organizations more like political donations that are routinely disclosed.
