In the News
Real America’s Voice News (Video): Former Federal Election Chair on freedom of speech
“People just don’t want to hear opposing views, and what we see is this tendency to try to silence rather than persuade.”
Former Federal Election Chair, Brad Smith discusses upcoming lawsuits in response to school boards silencing voices.
The Courts
Courthouse News: Federal judge lowers shield for motorists who unintentionally injure, kill rioters
By David Lee
U.S. District Judge Robin Cauthron ruled that provisions against street obstructions in [Oklahoma] House Bill 1674 likely violate free speech rights under the First Amendment and are likely unconstitutionally vague…
The law protects motorists who “unintentionally” injure or kill rioters as long as they have “a reasonable belief that fleeing was necessary to protect the motor vehicle operator from serious injury or death.” …
The law also imposes $5,000 in penalties against individuals who obstruct roadways and up to one year in state prison — a misdemeanor — plus up to $50,000 in penalties for organizations that conspire to obstruct roadways during a riot.
The Oklahoma State Conference of the NAACP sued the state on Aug. 30, arguing the law’s vagueness will impose a chilling effect on its political speech and organization of activities. Judge Cauthron seemingly agreed, rejecting the state’s argument that the organization-liability provision only targets conspiracy and rioting.
“Defendants’ arguments on conduct within reach of the organizational liability provision requires applying limitations to the statute that simply do not exist in the text,” the 15-page opinion states. “In reality, as demonstrated by plaintiff, the challenged provision will have a chilling effect on plaintiff’s protected speech activities.” …
“Plaintiff notes that the street obstruction provision reaches clearly protected actions such as approaching cars to hand out leaflets,” the opinion states. “The uncertainty of the phrase ‘reasonably inconvenient’ provides an avenue to criminalize First Amendment action just because that activity may be inconvenient to someone.”
Courthouse News: Jailed over Facebook taunts: Free-speech battle hits 1st Circuit
By Thomas F. Harrison
A man who was arrested for calling his local police chief a “coward” on Facebook provoked a sharp debate Thursday in the First Circuit over his claim that New Hampshire’s criminal defamation law is unconstitutionally vague.
The law makes it a crime to knowingly say something false that will subject someone to “hatred, contempt or ridicule” within the person’s “professional or social group.”
“How is law enforcement supposed to determine what would subject a person to hatred, contempt or ridicule?” U.S. Circuit Judge O. Rogeriee Thompson asked the parties assembled at the Boston courthouse this morning. “It’s odd in this political environment that that’s the standard.” …
Chief U.S. Circuit Judge Jeffrey Howard noted that, under New Hampshire law, a group can qualify if it’s “respectable.” He asked, “Does ‘respectable’ have a definition?”
“I’m not sure,” [Assistant Attorney General Samuel] Garland admitted. He suggested a Rotary Club or a church group.
“Doesn’t that give elevated protection to ‘recognized’ social groups and not others?” Thompson shot back…
A common criticism of criminal defamation laws is that they’re frequently used to silence political opposition, as they were in Henry VIII’s day. A study in a Texas law review found that nearly half of such prosecutions are “basically political,” and another study of 77 cases from 1965 to 2002 found 68.8% were about public figures and matters of public concern, with cops and politicians being the most frequent complainants.
Congress
By Jon Brown
Republican members of the House Judiciary Committee on Wednesday requested the assistance of the National School Boards Association (NSBA) for their probe into what they called “troubling attempts” by the White House and the Justice Department to target parents.
“We are investigating the troubling attempts by the Department of Justice and the White House to use the heavy hand of federal law enforcement to target concerned parents at local school board meetings and chill their protected First Amendment activity,” began the letter, which was signed by 19 members of Congress and addressed to NSBA president Viola Garcia and other officers of the organization’s board of directors…
After stoking outrage, the NSBA walked back its rhetoric, saying in an Oct. 22 memo that leaders “regret and apologize for the letter” and that “there was no justification for some of the language” used. Garland has also distanced himself from the letter’s language, though Republican members of the Senate Judiciary Committee excoriated him for it when he testified Wednesday.
The Hill: There’s no climate change exception to free speech
By Donald J. Kochan
Congress should craft sound climate change policy by encouraging robust debate. But climate change cannot be an excuse for subverting the Constitution. Yet, in a climate change hearing today, energy companies will be interrogated and required to justify their entitlement to First Amendment rights. This is a dangerous path, and not one that will advance any meaningful climate change solutions…
These companies are being summoned because they are not the right kind of speakers with the right kind of words about climate change, according to the committee leadership. The hearing and heavy-handed requests preceding it are designed to squelch the speech of some citizens. The executives called to testify have opinions that do not align with the pre-determined conclusions and policy preferences of powerful government leaders…
The committees also claim authority to scrutinize the speech included in “branding and lobbying.” Suddenly they are the self-appointed arbiters of good lobbying and bad lobbying. Lobbying can have all kinds of flaws, but it is lawful speech and part of the Founders’ design for citizens to have the power to educate their representatives.
Furthermore, labeling ordinary lobbying or public information material as “disinformation” simply because you disagree with the conclusions does not make that speech any less protected.
FEC
By Bryan Metzger
The Federal Election Commission has officially cleared Twitter of wrongdoing after the company refused to verify the account of a Republican congressional candidate with a history of controversial posts, according to documents made public this week.
The complaint was initially filed in October 2020 by a lawyer for Anna Paulina Luna, who unsuccessfully ran against Democratic Rep. Charlie Crist of Florida.
By verifying Crist but not her, Luna alleged, the platform was essentially making a prohibited corporate in-kind political contribution to her Democratic opponent and violating equal-access rules that typically apply to TV and radio broadcasters…
The FEC was ultimately unanimous in finding that Twitter did not violate the law, given its commercial interest in suppressing hateful speech.
“Twitter credibly asserts that it determined, in its business judgment, that Luna’s tweet and other activities violated its rules and that verification of her account and perceived endorsement thereof would have a detrimental effect on its brand and ability to maintain and attract advertisers,” five of the six commissioners wrote in a statement of reasons…
Interestingly, two of the commissioners argued in a separate document that being verified on Twitter shouldn’t even be considered a thing of value in the first place because even though it “may confer a certain level of public relevance, cachet, and clout” it can’t be bought and sold in a straightforward manner.
Candidates and Campaigns
Fox News: McAuliffe buys ‘fake news’ ads in effort to sway voters, Fox News investigation finds
By Rémy Numa
Former Gov. Terry McAuliffe has spent nearly $100,000 advertising “fake news” websites on Facebook during the Virginia gubernatorial campaign, Fox News can reveal.
The Democrat’s advertisements, which have been viewed up to 3.5 million times so far, are hidden on a Facebook page with a similar name to a local news website. The ads link to third-party websites that ostensibly publish local news, but exist to promote Democratic candidates. The websites have been widely described as disinformation and “partisan propaganda.” …
The McAuliffe campaign’s advertisements are sophisticated and opaque…
The advertisements generally contain a comment and a link to a mainstream news article that covers the campaign favorably. But sprinkled among the links to legitimate media are seven separate advertisements (and dozens of variations) that promote websites widely considered to be “fake news”.
