In the News
Just the News: School boards face lawsuits, recalls for censoring public comments on hot-button issues
By Greg Piper
Pennsylvania school districts are reeling from a preliminary injunction issued last month against a policy that prohibits speech the school board deems “offensive,” “intolerant,” “verbally abusive” or “irrelevant,” among other vague terms.
U.S. District Judge Gene Pratter also banned the Pennsbury School Board from requiring speakers to announce their address before giving remarks.
The Institute for Free Speech (IFS), which is representing community members, including a former school board member, who have been “repeatedly censored,” is now trying to hold district and board officials personally liable for First Amendment violations…
Pratter’s Nov. 17 memorandum suspending the “challenged policy terms” opens by quoting the play “Inherit the Wind,” a fictionalized version of the 1925 Scopes “monkey” trial about the teaching of evolution in public schools. “You don’t suppose this kind of thing is ever finished, do you?” a character says…
Because Pennsbury is not backing down, an eventual final ruling would apply to every school board within the Eastern District of Pennsylvania’s jurisdiction, from Philadelphia to Lancaster.
The injunction suggests that any district relying on the Pennsylvania School Boards Association’s model policy is legally vulnerable, Philadelphia-area school districts solicitor Jeffrey Sultanik told the Inquirer…
IFS is [also] suing Florida’s Brevard County School Board for a policy banning “personally directed” comments to stop criticism but not praise.
Congress
The Hill: House goes after Trump with bill to curb presidential abuses of power
By Cristina Marcos
The legislation, titled the Protecting our Democracy Act, passed almost entirely along party lines by a vote of 220-208…
Democrats compared the legislative package to the campaign finance and ethics reforms made in the aftermath of the Nixon administration…
A provision of the bill would require the president and vice president, as well as major-party candidates for those offices, to release ten years’ worth of tax returns to the Federal Election Commission (FEC). And if they refused to disclose the returns, the Treasury Department would be required to provide them to the FEC, which would make them public.
Another provision of the bill would require political committees to report to the FBI and FEC about certain foreign contacts. And in turn, the FBI would have to inform congressional intelligence committees about any reported contacts…
Despite Democrats’ control of both chambers of Congress and the White House, the bill faces long odds for advancing in the Senate given a likely GOP filibuster…
Schiff urged his Democratic colleagues across the Capitol to establish an exemption to the filibuster for bills related to voting rights and protecting democracy.
“I think any delay in passage of these democracy reforms continues to put our country at risk and this experiment in self-governance at risk,” Schiff said.
Roll Call: House ‘democracy’ bill would cap executive power, expand disclosure
By Kate Ackley
For its part, the White House issued a statement of administration policy saying it supported the measure. “Our constitutional structure is designed to preserve democracy and prevent authoritarianism,” the statement said. “That promise is imperiled when a President places himself above the law, disregards the separation of powers, retaliates against legitimate whistleblowers, allows corruption to take hold, or enables foreign interference in our elections.” …
[Vice President Kamala Harris] said ensuring every American had access to the right to vote is “a top priority” for the Biden administration. Many activists pushing for Congress to overturn state laws that impose new restrictions on voting, however, have said Biden needs to do more, and have called on him to pressure the Senate to eliminate its 60-vote filibuster rule for legislation.
Candidates and Campaigns
Rolling Stone: Big Law Firms Promised to Punish Republicans Who Voted to Overthrow Democracy. Now They’re Donating to their Campaigns
By Andy Kroll
Campaign finance experts say the firms’ decision to resume giving illustrate the hollowness of their original pledge to freeze or reassess their giving. It’s also a reflection of a broken and money-rotted political system, in which companies and law firms with business before the government use campaign donations to buy access to policymakers.
“Law firms, especially these big high-powered firms in and around D.C., play a critical role in the fundraising system here,” says Robert Maguire, research director for CREW. “It seems from the outside that these firms feel like they can’t stop giving, in the same way some of the companies themselves feel like they can’t stop giving, because it’s what gives them a seat at the table. And if you’re not at the table, you’re on the menu.” …
Fred Wertheimer, president of the clean-government group Democracy 21, says it’s “perfectly predictable” that law firms, just like big corporations, reverted back to donating to lawmakers who’d imperiled democracy and to the political committees that back those politicians. “It’s all because of the role that money plays in the political process,” Wertheimer says. “Donating gets them access to officeholders, and they need that access to serve their clients.”
Wertheimer added that Big Law’s Sedition Caucus funding was as much a condemnation of our money-soaked political system than of the firms themselves. “It’s only partially their fault,” he says. “Congress has created a system where they’ve told people, ‘You want access? You want influence? It take money.’
Online Speech Platforms
Protocol: How political advertisers skirted Facebook’s rules in 2020 — and got away with it
By Issie Lapowsky
Now, a new study by researchers at New York University and KU Leuven in Belgium suggests that the vast majority of the time Facebook has to [identify what is a political ad], it makes the wrong call.
The researchers analyzed 189,000 political ads from around the world that Facebook needed to make an enforcement decision on between July 2020 and February 2021. They found that Facebook misidentified a whopping 83% of those ads.
According to the study, 117,000 of those ads clearly fell under Facebook’s definition of a political ad, but went undetected by Facebook. Another 40,000 ads were flagged as political, but the researchers say they clearly were not. For example, some ads run by Sen. Elizabeth Warren and Alaska Rep. Don Young were not marked as political, while ads for a “silky peanut butter pie” recipe and a Ford pickup truck listing were…
But perhaps the most glaring issue the researchers found was related to Facebook’s much-debated decision to ban political ads leading up to and immediately following the U.S. election in 2020. According to the study, more than 1,000 advertisers who had run nothing but political ads prior to the ban were able to continue running ads — more than 70,000 of them — during the ban. This, the researchers argue, suggests that some political advertisers stopped self-reporting their ads to evade Facebook’s ban — and Facebook failed to stop them.
These failures, the researchers argue, suggest that Facebook needs a new approach to enforcing this policy that is consistent across borders and includes penalties for advertisers who don’t self-report. Right now, there are some penalties for advertisers that skirt these rules, but the researchers argue they’re not adequately enforced.
Internet Speech Regulation
New York Times: Social Media Companies Want to Co-opt the First Amendment. Courts Shouldn’t Let Them.
By Jameel Jaffer and Scott Wilkens
In two cases that could have sweeping implications for free speech online, social media companies including Facebook, YouTube and Twitter are challenging new laws in Florida and Texas that limit their ability to decide which content appears on their platforms.
The companies are right that the laws violate the First Amendment, but some of the arguments they are making are deeply flawed. If these arguments get traction in the courts, it will be difficult for legislatures to pass sensible and free-speech-friendly laws meant to protect democratic values in the digital public sphere…
The power that a few technology companies wield over public discourse is a real problem, but the two states’ laws are less an effort to address this problem than an attempt to punish certain social media companies for their supposed political views.
Cato: Force v. Facebook Revisited
By Will Duffield
In its 2019 Force v. Facebook decision, the United States Court of Appeals for the 2nd Circuit held that Section 230 shielded Facebook from liability for speech selected for display by an algorithm. Many falsely assume that Force v. Facebook was wrongly decided or that the 2nd Circuit’s decision is an injustice that must be rectified with legislation. This view was voiced loudly in the House Energy and Commerce Committee last week, where witnesses echoed Judge Robert Katzman’s partial dissent in Force, arguing that “shielding internet companies that bring terrorists together using algorithms could leave dangerous activity unchecked.” Two bills before the committee, H.R. 2154, the “Protecting Americans from Dangerous Algorithms Act,” and H.R. 5596, the “Justice Against Malicious Algorithms Act of 2021,” are explicitly intended to overturn Force v. Facebook, making platforms liable for algorithmically selected user speech.
However, critics of Force v. Facebook have failed to seriously grapple with the effects of making platforms liable for speech selected or curated by algorithms. To understand the implications of this sweeping proposed change, it is worth revisiting plaintiffs’ arguments in Force.
The States
Colorado Newsline: ‘Dark money’ group behind conservative ballot measures ordered to pay fine, disclose donors
By Chase Woodruff
The Colorado secretary of state’s office has ordered a conservative nonprofit that bankrolled several recent statewide ballot measures to pay a $40,000 fine and disclose the sources of its contributions.
The order, issued on Dec. 8 by the secretary of state’s Elections Division, found that the conservative group Unite for Colorado violated state campaign finance law by failing to register as an issue committee before backing Propositions 116 and 117 in 2020…
The order follows a complaint filed in August by Scott Wasserman, president of the progressive Bell Policy Center and a frequent opponent of the conservative ballot measures…
“This case presents an important issue in Colorado: may an organization that raises and spends multiple millions of dollars in support of or opposition to several statewide ballot measures, engaging in substantial efforts to persuade citizens what to vote on and how, legally do so without disclosing to the public where the money is coming from or where it is going?” reads the secretary of state’s order.
Oregon Live: Oregon good government groups file initiatives to cap campaign contributions, shed light on ‘dark money’
By Hillary Borrud
Oregon voters could get a chance to decide whether to cap political donations and mandate transparency on who truly pays for political ads, under three proposed ballot initiatives filed this week…
In recent meetings, the unions and progressive political groups indicated they were concerned about two aspects of the initiative proposals in particular, [Jason Kafoury, a chief petitioner and member of the group Honest Elections] said: provisions that would require disclosure of major donors to political nonprofits buying ads and allow people to get a court to weigh in on alleged campaign finance violations. Currently, it’s up to the partisan elected secretary of state to decide if a candidate or entity violated Oregon campaign finance laws.
“From a good government standpoint, our perspective was we’re not convinced the secretary of state is going to adequately investigate these claims,” Kafoury said…
The need to advise large donors that their contributions might trigger advertising disclosure requirements, which the current proposals would necessitate, would pose a burden on political committees, [Christel Allen, executive director of reproductive rights group Pro-Choice Oregon] said. But, she said, that warning could be critical, as some donors highly value their privacy. “When it comes to those of us who work to defend abortion access, unfortunately our opponents have a history of violence,” she said.
Imani Dorsey, interim executive director of the small political nonprofit Washington County Ignite, said the group spent between $15,000 and $20,000 on elections in 2020. The organization works to build a leadership pipeline from young people who are Black, indigenous and people of color as well as LGBTQ. Dorsey said small groups like hers are already tight on resources and complying with new political spending regulations would reduce their ability to fulfill their mission. “The provisions in the measures would just make things really hard and add administrative things we aren’t able to accommodate,” Dorsey said. “We really see this as an equity thing.”
