In the News

USA Today: China’s Internet censors know how to block Russian interference

By Eric Wang

China censors any agitators, foreign or domestic, on social media. Politically sensitive topics like Tibetan self-determination, the Tiananmen Square demonstrations, or resistance against the Communist Party are off-limits. Of course, the Great Firewall also completely blocks access to Facebook, Twitter, and thousands of other websites. Through these measures, Chinese citizens can rest assured that they are free from foreign interference… 

Emulating China’s disregard for free speech may seem like mere satire for Americans. But is it? There is always risk for overstatement when resorting to “slippery slope” arguments. But recent calls to regulate online political speech by foreign interests directed at Americans seem to articulate no bounds. There is a real risk that a rush to regulate will threaten basic civil liberties…

Recent debates show the difficulty in blocking foreign nationals from speaking without also compromising Americans values. For example, consider immigration. Many of those publicly voicing support for the Deferred Action for Childhood Arrivals (DACA) policy have been undocumented immigrants. Some of the most vociferous opponents of the Trump administration’s “travel ban” have been citizens of affected countries. Could we prevent these foreign nationals from speaking to American voters about these issues during election season, and would that not end up stifling part of the debate? 

CCP

Reduction in Political Speech Under Connecticut’s Tax-Financing Program is Nothing to Cheer

By Joe Albanese

Connecticut legislators recently hit a bump in the road in their effort to defund a state program that provides taxpayer funding to political campaigns. Organizations like the National Institute on Money in State Politics (NIMSP) hailed this development in a post touting the reduction of “special interest” influence in elections after the program was implemented in 2008. NIMSP bases this claim on a hefty 98% decline in the amount of “non-individual” contributions to winning candidates, from an average of $2.1 million from 2000 to 2006 to $34,412 from 2008 to 2016 (although, notably, such contributions had already fallen 34% from 2002 to 2006) …

The question is: does this mean that Connecticut’s tax-financing system really reduces the “potential costs of corruption” and allows lawmakers to “[do] what is right instead of what a big donor may think is best,” as the State Elections Enforcement Commission claims? … 

In an October 2012 report, we found that the voting patterns of legislators participating in Connecticut’s tax-financing program did not become less friendly to “special interests” beginning in 2008. In fact, their voting records show they may have fallen more in line with “special interests” overall after the passage of tax financing. Nor has CCP found any reduction in lobbyist or “special interest” influence in other tax-financing states. 

First Amendment

Wall Street Journal: Justice Holmes’s Free-Speech Lesson

By Richard Dooling

Along with absolute certainty comes the understandable impulse to regulate or ban the speech of your opponent. Why allow evil and ignorant people to infect others with falsehoods and dangerous ideas? Why not take away the licenses of broadcasters whose news departments have the wrong slant? Why not make hate speech illegal?

Almost a century ago, Justice Oliver Wendell Holmes Jr. , wrestled with similar questions in a pair of Espionage Act cases. Holmes was absolutely certain that in most cases individual rights are subordinate to the needs of the state, and that the First Amendment did not protect an American citizen named Charles Schenck from prosecution for printing and mailing circulars opposing the draft…

Nine months later, in Abrams v. U.S., Holmes changed his mind about the First Amendment…

Holmes’s dissent in Abrams gave birth to modern First Amendment jurisprudence, with its veneration for the marketplace of ideas. He began by observing that it makes perfect sense to persecute people for their opinions: “If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.” The problem, Holmes realized, is that we are almost always absolutely certain of our premises, but sometimes we are wrong.

Columbia Journalism Review: Trump’s threats amount to a First Amendment violation

By Trevor Timm

There’s a compelling argument Trump is in violation of Constitution right now-after he crossed the line from criticism of protected speech to openly threatening government action.

There’s plenty of case law on this subject from the Supreme Court to appeals courts around the country. Most recently, in a case in the Seventh Circuit called BackPage LLC vs. Thomas Dart, Sheriff of Cook County, Illinois, just-retired Judge Richard Posner articulated exactly why Trump may already be running afoul of the First Amendment merely through his threats…

Posner, citing several decades of case law, made it clear that if the Sheriff can’t sue or prosecute Backpage for legitimate violations of the law, he can’t then turn around and use his power as a government official to make threatening statements in an attempt to censor them in other ways:

“a public official who tries to shut down an avenue of expression of ideas and opinions through ‘actual or threatened imposition of government power or sanction’ is violating the First Amendment. American Family Association, Inc. v. City & County of San Francisco, 277 F.3d 1114, 1125 (9th Cir. 2002).”

Wired: Should Facebook and Twitter be Regulated Under the First Amendment

By Lincoln Caplan

Are social media platforms like Twitter subject to the First Amendment? Is there a right to free speech on social media owned by private corporations?

The Knight First Amendment Institute thinks so. In July, the institute sued the president, his director of social media, and his press secretary to unblock the blocked. By banning these users based on views they expressed about tweets by the president, the Institute argues, Trump violated the users’ right to free speech…

What happens online is enormously important when it comes to having an informed citizenry.

And that’s where the hidden influence of supposedly neutral online platforms has attracted the attention of First Amendment revisionists. Olivier Sylvain of Fordham Law School argues that, rather than the “passive conduits” they claim to be, social media platforms are often active shapers of the content posted by their users…

For that reason, he goes on, the broad interpretation that courts have given the Communications Decency Act is often wrong, since it’s based on the mistaken premises that social media platforms are not publishers, speakers, or otherwise producers of content.

The Media

Reason: FCC Chair Preemptively Rubbishes Trump’s Dumb Tweet About Challenging Media Licenses

By Matt Welch

Press freedoms (including to the freedom to write mean-spirited things about politicians without being rung up for sedition) are not “disgusting”; they are part of what Made America Great In the First Place (#MAGIFP). But by stomping up and down on the right’s preexisting anti-media button, Trump is helping to smoke out a fundamental incoherence among his base. Namely, that many red-hatters imagine themselves as fighting the real battle for free speech against an increasingly censorious, monolithically leftist, three-headed media/entertainment/academia monster. And their hero is so narcissistically combative, historically incurious, and blasé about government overreach that he’s actually talking about bringing back the fucking Fairness Doctrine.

The #NeverTrump Republican political consultant Rick Wilson is fond of saying that Trump ends up ruining everything he touches. That’s more sour than my take-after all, Trump has decisively touched his own regulatory state, with such salutary picks such as Ajit Pai. But I think we may soon conclude that just when conservatives were inching tantalizingly close to the free-speech high road, their hero led them down a Culture War highway to hell.

Internet Speech Regulation

National Review: What Russia’s Facebook War Didn’t Do

By Jonathan S. Tobin

[W]hat we now know about the Russian campaign is that it was not only far more diffuse than a mere pro-Trump effort but that their efforts were also merely a faint echo of broader trends that were being far more successfully exploited by Americans. Outrage over a foreign power’s engaging in such activities is entirely justified. But in order to believe that it was the Russians who were, as the Times claims, reshaping American politics, you’d have to ignore the fact that Trump was sowing dissension with divisive statements and taking advantage of existing cultural and political fault lines in American society long before the Russians were investing in Facebook accounts…

The real question to ask about this story is what exactly the Russians were doing to expose the seamy side of American politics that wasn’t already being done by Republican and Democratic operatives, not to mention the presidential candidates? Trump and everyone else dragging the 2016 election into the sewer needed no lessons in divisiveness from Russians who were merely recycling popular memes and sometimes doing so without properly translating them into English.

Daily Caller: Congress’ Facebook-Shaming Threatens Free Speech

By Dan Backer

The Left’s newfound targeting of digital ads sacrifices common sense and threatens free speech for the sake of political retribution. The 3,000 or so Facebook ads recently handed over to Congress amount to little more than a drop in the ocean of 2016 political spending, which hovered around $7 billion…

The Democrats’ recklessness brings more questions than answers. How do you regulate ideas, whether liberal or conservative, devoid of any political context? How vast a government bureaucracy will it take to police the Internet? Will federal bureaucrats follow California’s lead and grant themselves the power to impose jail time for Orwellian “crimethink”?

This is quintessential thought policing, whereby partisan legislators animated by their dismal approval ratings aim to control the ideas available to everyone else. For those offended by certain speech online, the solution is simple: Click away. But any attempt to censor online content is an attempt to deny us the ability to encounter potentially “offensive” ideas because someone other than you knows better what you can and should be exposed to.

Candidates and Campaigns

Washington Post: Facebook’s Sheryl Sandberg criticizes Twitter over political ad censorship

By Hamza Shaban

“Marsha Blackburn ran an ad, which is launching her campaign for Senate. And in that ad there’s a lot of positions that people don’t like – that I don’t like,” Sandberg said in an interview withAxiosthat was broadcast on Facebook Live. “But the question is: should divisive political or issue ads run? Our answer is yes.”…

During Thursday’s interview, Sandberg said that Facebook allows such divisive, issue-based ads, “because when you cut off speech for one person, you cut off speech for all people.” In fact, the Blackburn ad is running as a sponsored post on Facebook.

Sandberg went on to say that ads, just like unpaid content, are important to free expression. “[W]hen Twitter took down the ad, they said, ‘Well, she can run the free content, but she can’t run the ad.’ But we all know that her ability to get that message out does depend on having access to ads,” she said. “We don’t check the information people put on Facebook before they run it, and I don’t think anyone should want us to do that.”

Supreme Court

CNN: Gorsuch v. Roberts: The rookie takes on the chief

By Joan Biskupic

Today, the dynamic between Gorsuch and Roberts is especially intriguing. They are similar in many respects, with sterling resumes, parallel professional experience and strong conservative views.

Yet Gorsuch is not a ready ally of the chief. They have seemed in different orbits so far, on substance and style.

After his Senate confirmation last April, Gorsuch skipped the first scheduled justices-only meeting even though Roberts encouraged him to attend. He fired off a raft of dissenting opinions, some that seemed to scold his colleagues. He has dominated oral arguments, cutting off and correcting other justices, expounding on the scope of the Constitution…

Vanderbilt University law professor Timothy Meyer, a former clerk who testified on Gorsuch’s behalf last spring, defended Gorsuch’s robust approach and cautioned that it is difficult to know how relationships will evolve once the newness of the ninth justice wears off.

“He should be asking questions,” Meyer said. “There are no rules about not asking questions. I was really surprised to see the negative reaction that drew.”

The States

New Boston Post: Massachusetts’ Top Court to Rule On Union Campaign Donation Loophole

By Evan Lips

A right-leaning fiscal watchdog that has spent the last several years trying to overturn Massachusetts’ ban on campaign donations from business owners announced Thursday that its case will be decided by the state’s top court…

State campaign finance law allows labor groups, even those based out of state, to flood Massachusetts political campaigns with donations of up to $15,000. In-state businesses, however, are barred from paying anything to prop up candidates. Donations from individuals, meanwhile, are capped at $1,000.

Last April, Superior Court Judge Paul Wilson ruled in favor of unions and their allies in the Democratic Party when he determined that the law does not unconstitutionally discriminate against a business’s right to equal protection or free speech…

“Massachusetts is the most lopsided state in the country for how unions and employers are treated in state campaign finance law,” the Massachusetts Fiscal Alliance said in a recent written statement… “Our hope is that [the state Office of Campaign and Political Finance] will administratively close the loophole, which would drop the lawsuit, save taxpayer money, and prevent another tainted election.”

Santa Fe New Mexican: Proposal to end disclosure requirements for city ballot initiatives draws criticism

By Tripp Stelnicki

A proposed change to the city campaign code would remove a disclosure requirement for people and groups spending on advertisements for ballot initiatives. It was a move opponents on Thursday said would flood the ballot-measure questions with so-called dark money and amounted to a capitulation to a lawsuit facing the city.

An Albuquerque nonprofit that opposed Mayor Javier Gonzales’ unsuccessful sugary-drink tax earlier this year has sued the city in federal court, arguing the reporting requirement infringes on constitutionally protected speech and violates nonprofit donors’ privacy.

The new ordinance, which would strip mention of ballot initiatives from the section of the city code covering campaign finance reports, is indeed intended to limit the city’s exposure in the Rio Grande Foundation’s pending suit, Councilor Carmichael Dominguez said.