New from the Institute for Free Speech
Green v. Pierce County: Petition For Writ Of Certiorari
The internet’s democratization of news-gathering and publication hinges on two established First Amendment doctrines.
First, the Press Clause belongs to everyone. Our country does not know of an official or semi-official state-endorsed press, possessing special privileges to control the flow of information and opinion. Anyone is free to gather information and use it to publish news and commentary. Second, speaker discrimination is often acknowledged as content-based discrimination. Courts understand that state favoritism of some speakers invariably reflects state favoritism of those speakers’ messages, viewpoints, and priorities.
As Americans have taken to the online public square, the First Amendment has assured that they enjoy equal unimpeded rights to gather the news and report it to their fellow citizens.
Spooky Spending? Halloween Maybe, But Not Virginia Campaigns.
By Nathan Maxwell
This year’s Virginia gubernatorial race is already reportedly the most expensive in state history. Frontrunners Terry McAuliffe and Glenn Youngkin have raised a combined $115 million, an amount unfathomable to most. Spooky? Meh. We’re spending $10.14 billion to celebrate Halloween, and there are a thousand millions in a billion.
Money-in-politics hand-wringing might make for good headlines, but it rarely makes for good stories. Instead, it usually just generates alarm where there shouldn’t be any. It also fails to provide a frame of reference, like the far greater amounts we spend on frivolous items like jack-o’-lanterns and cat ears…
Maybe it isn’t all that meaningful to describe a race as “expensive” or to remark at its “cost,” as if informing and motivating millions of voters should (or can) happen for free. More suitably, I’d say the Virginia gubernatorial race has generated $115 million worth of public engagement, and that’s a good thing.
Yes, Virginia’s gubernatorial race is more expensive than ever. But increased civic participation is something to celebrate, and we have much spookier spending habits than engaging in political speech.
Supreme Court
Washington Post: The Supreme Court should hesitate before striding into this free speech minefield
By George F. Will
[David] Wilson, who perhaps thinks niceness is overrated, does not play nicely with the other eight members of the Houston Community College System’s board of trustees. In 2018, the board, which has a tarnished recent history, reciprocated his antagonism, censuring him for having sinned against collegiality by things he had said and done…
If the Houston board, a government entity, had confined itself to calling Wilson a stinker and a meanie, this would merely have been government exercising its right to speak its mind. Wilson could have replied that “sticks and stones may break my bones, but words can never hurt me.” But the board accompanied the censure with tangible penalties, including denying him reimbursement for travel expenses and making him ineligible to be a board officer. These penalties could be considered unconstitutional retaliation intended to chill his future speech. Nevertheless, the Supreme Court should hesitate before striding into this minefield.
A district court rejected Wilson’s flimsy argument that the censure by itself violated his First Amendment right of free speech, as though disapproval of his speech interfered with his speaking. So, he turned to the U.S. Court of Appeals for the 5th Circuit. It got things exactly wrong.
The 5th Circuit majority said the censure alone was retaliation against constitutionally protected speech, and — non sequitur alert — therefore was unconstitutional…
Dissenting, Judge Jones said, in effect: Good grief, a government entity expressing its disapproval of speech by a member of the entity does not suppress the member’s speech. Jones seemed to think that both the board and its tormentor need a timeout to compose themselves, and she cautioned courts that treating the board’s dispute as a justiciable matter will draw courts into refereeing — on the basis of improvised principles — innumerable such intramural squabbles. Jones wrote:
Ed. note: The Institute for Free Speech filed an amicus brief in support of the respondent, Mr. Wilson, with the ACLU and The Rutherford Institute. Read it here.
Internet Speech Regulation
Washington Post: Do Facebook’s failings really prove we need government more involved in online speech?
By The Editorial Board
The trouble lies at the very core of Facebook’s design. Tinkering around a site’s edges by punishing certain types of content can achieve only so much when the essential features privilege engagement above all else. Facebook today plays a game of whack-a-mole in which misinformation, hate and more pop up everywhere in an algorithmically amplified frenzy, no matter how motivated the firm is to take it down. The idea that the government should start playing that same game instead, however, could introduce new problems without solving those we already have.
Look at Vietnam, where Facebook last year buckled to demands from the ruling Communist Party to stifle dissident speech. Or Russia, immersed in a clampdown on Internet freedom that recently resulted in Apple and Google agreeing to remove a strategic voting app developed by the imprisoned opposition leader Alexei Navalny. Look at India, Turkey and more, writing similar strictures that give whoever’s in political power say over these vital mediums for communication, too.
All this may seem far away from the United States not only geographically but also philosophically — yet it was not so long ago that the then-occupant of the Oval Office was threatening to “close down” social media sites after Twitter added a fact-check label to his tweets. Even the best-case scenario of regulation that tells sites what content they can and can’t allow merely replaces Silicon Valley executives with Washington officials without fixing what’s broken.
Online Speech Platforms
Washington Post: Twitter amplifies conservative politicians. Is it because users mock them?
By Megan A. Brown, Jonathan Nagler, and Joshua Tucker
Twitter reported last week that its timeline algorithm is more likely to amplify right-wing politicians than left-wing politicians.
The social media company prioritizes content (presenting it higher in the timeline) if it thinks that you are more likely to engage with that content, based on your past behavior or what other readers have been interested in. These algorithms remain highly controversial, because in some cases they can promote harmful information. According to documents leaked by whistleblower Frances Haugen and outside academic research, for example, Facebook’s algorithms appear to have led to increased outrage on the platform, incentivizing people to post controversial content (and then argue about it).
Why would Twitter’s algorithms promote conservative politicians? Our research suggests an unlikely but plausible reason: It’s because they get dunked on so much. Our data shows that conservative politicians in the United States are more likely than their peers to — in Twitter slang — be “ratioed.”
For people who don’t use Twitter, that term may require some explanation. When a tweet receives more quotes and replies than direct retweets — meaning users are commenting on the tweet rather than just bringing it to the attention of their followers — it often indicates that the tweet was unpopular, or a bad take that many Twitter users mock. (The “ratio” refers to the degree to which the direct retweets are outnumbered by commentary.) But Twitter’s algorithms may interpret the unpopularity of conservative politicians’ tweets as increased engagement, and therefore decide to amplify them.
The States
Politico: ‘Threats of violence’: School boards curb public comments to calm raucous meetings
By Andrew Atterbury and Juan Perez, Jr.
Parents in one Kentucky school district must communicate with their school board via email after a meeting devolved into a shouting match. In northern Virginia, school officials restricted who is eligible to speak at their meetings. A Florida school board is considering shortening public comment to one minute per person.
School leaders nationwide are beginning to eye ways to rein in public commentary at local meetings in an effort to quell raucous crowds over hot-button issues like mask mandates and critical race theory…
In Brevard county, for example, the board is proposing rules to prevent speakers from raising signs during meetings, limit the number of speakers and how much time they have when a large number of people are scheduled to weigh in on an issue. Some parents say the new policy would restrict their freedom of speech and further disenfranchise community members who are losing trust in the school board…
State Rep. Randy Fine (R-Palm Bay) filed a criminal complaint against Brevard’s board earlier this month claiming it violated Florida’s open government laws by clearing a public school board meeting that had turned rowdy and not allowing anyone back inside. Fine says the board is made up of “tinpot dictators” who are afraid to face the public over their decisions, including the school mask mandate that goes against the DeSantis administration’s rules.
