The Supreme Court
Reason: Alito Faults Supreme Court for Refusing to Hear ‘Disfavored Speech’ Case
By Damon Root
Last week, the U.S. Supreme Court declined to hear a pair of cases that together raise fundamental questions about what sort of protections the First Amendment offers to journalists and pundits who weigh in on controversial issues…
The cases are National Review, Inc. v. Mann and Competitive Enterprise Institute v. Mann. At issue are several blog posts written by the columnists Rand Simberg and Mark Steyn and published by the Competitive Enterprise Institute (CEI) and National Review… As Justice Alito put it, Simberg and Steyn “employed pungent language, accusing Mann of, among other things, ‘misconduct,’ ‘wrongdoing,’ and the ‘manipulation’ and ‘tortur[e]’ of data.”
Mann responded by suing for defamation in the District of Columbia’s Superior Court. Mann later prevailed at that court, and then prevailed again at the U.S. Court of Appeals for the District of Columbia Circuit, which rejected an attempt by CEI and National Review to have the cases thrown out on the grounds that Mann’s litigation violated a D.C. law which blocks defamation suits if the offending speech was made “in furtherance of the right of advocacy on issues of public interest.” Now that the Supreme Court has declined to take up the cases on appeal, the defamation suits will go to trial.
In his dissent from the denial of certiorari, Justice Alito criticized that outcome as constitutionally suspect and faulted the Court for sending a dangerous message about its overall commitment to free speech principles. “The freedom of speech and the press are most seriously implicated,” Alito wrote, “in cases involving disfavored speech on important political or social issues.”…
[A]s Alito pointed out, “a journalist who prevails after trial in a defamation case will still have been required to shoulder all the burdens of difficult litigation and may be faced with hefty attorney’s fees.” Such costs “may deter the uninhibited expression of views that would contribute to healthy public debate.”
Online Speech Platforms
Reuters: U.S. Democratic Panel Flags Misinformation Concerns to Facebook
By Kanishka Singh
Facebook’s policy on paid political advertisements has flaws that allow the spread of false information, the U.S. Democratic National Committee has said in a letter to Sheryl Sandberg, a top official of the social media giant.
Facebook has been reviewing its policies following criticism from lawmakers and regulators over a decision not to fact-check ads run by politicians, with Chief Executive Mark Zuckerberg saying it does not want to stifle political speech.
In the letter that Reuters obtained on Tuesday, the U.S. Democratic Party’s administrative and fundraising body has flagged its concerns to Sandberg, Facebook’s chief operating officer, and sought more transparency.
“[W]e have significant remaining concerns about Facebook policies that allow the platform to be used to spread misinformation and undermine our democracy,” the committee’s chief executive, Seema Nanda, wrote in the Nov. 21 letter.
“Considering Facebook’s enormous financial resources and the stakes of the upcoming elections, we’d ask that you dedicate additional capacity to enforce your terms of service against these types of malicious actors,” Nanda added.
A meeting of DNC representatives and Facebook took place last month ahead of the 2020 U.S. presidential primary season, the letter said.
Buzzfeed News: This Man’s Post Was The First To Be “Corrected” By Facebook Under Singapore’s Fake News Law
By Cameron Wilson
Alex Tan heard the news secondhand that the Singaporean government was using its fake news law against him. A friend contacted Tan over Messenger on Nov. 28 to tell him Singaporean media outlets were reporting one of his Facebook posts had been determined as fake news, and that he had been issued with a “correction direction”.
The direction, which ordered Tan to edit the post to say it contained false information, is a newly-acquired power for the Singaporean government. It arises from the recently passed Protection From Online Falsehoods And Manipulation (POFMA) Act. The penalty for not following such an order can be up to a year in prison and a SG$20,000 (US$14,600) fine.
Tan, who is an Australian permanent resident, has run the anti-Singaporean government blog States Times Review and its Facebook page…since 2015.
The correction direction (and an accompanying post on a government website) referred to a Nov. 23 post on Tan’s Facebook page that alleged a Singaporean whistleblower had been arrested. The Singaporean government said no such arrest was made…
In an interview with BuzzFeed News, Tan conceded the claim about the arrest (which was based on a tip-off) may not be accurate, calling it “sensationalised”…
“Basically, on the same day [I became aware of the order], I put up a post saying that I wouldn’t comply with orders from a foreign government,” Tan said…
[O]n Nov. 29, Shanmugam instructed the POFMA office to order Facebook to correct the post…
A Facebook spokesperson confirmed the company had complied with the order.
Washington Post: YouTube says viewers are spending less time watching conspiracy videos. But many still do.
By Greg Bensinger
The Google-owned company said Tuesday it had pared by 70 percent the average time U.S. viewers spend watching videos that it deems “borderline” content, such as those peddling miracle medical cures or flat-earth conspiracy theories…
YouTube said it was pushing users toward videos from more-reliable news sources, pointing to Fox News and Brazilian radio outfit Jovem Pan as examples…
YouTube has historically given wide latitude to creators in the name of free speech, although it is legally permitted to prohibit whatever content it wishes. It does not permit hate speech but defines that narrowly as content that promotes violence or hatred of vulnerable groups…
Congress could help untangle the thicket of varying policies by passing laws that require transparency from YouTube and other tech firms, said Jeffrey Chester, executive director of the Center for Digital Democracy, an electronic rights organization. “You can’t put the future of democracy into the hands of companies that are dependent on advertisers for their business,” he said.
To help direct viewers to more-reliable information, YouTube said it has been showing users snippets of text news articles that it verifies as accurate, particularly following breaking news events, or displaying “information panels” that provide additional context.
Free Speech
Reason (The Volokh Conspiracy): “Broke Ass Phone” Wins Right to Have Commercial Sign With Its Name
By Eugene Volokh
In Broke Ass Phone v. Boardman Township Zoning Board of Appeals, released yesterday, the Board denied Broke Ass Phone a permit for a sign that contained the business’s name. Unconstitutional, said the Ohio Court of Appeals, in an opinion by Judge Gene Donofrio, joined by Judge Cheryl L. Waite:
The restriction at issue, Article XII, Section (H)(C)(3), states: “No signs, billboards or advertising device of any kind are permitted which contain statements, words or pictures of obscene, pornographic, immoral character or which contain advertising that is false.”…
In this case the use of name Broke Ass Phone on a commercial sign is not obscene, pornographic, or immoral. Simply said, the language used on the sign does not fit into the category of language the restriction was meant to prohibit…
Judge Carol Ann Robb dissented:
I disagree that we have to view the word in context and when doing so, that indicates the name “Broke Ass Phone” cannot be found as a matter of law to be either obscene or immoral. If context was all that was necessary, then if the company’s name was “Fucked Up Phone” that would be sufficient to require that name to be allowed on a sign as commercial speech. Similar to the phrase “broke ass,” the phrase “fucked up” also means “badly” or “really” broken…
I think the correct analysis would have been that, even if “Ass” is viewed as offensive (because it’s a mildly vulgar reference to a butt), that would not be a basis for restricting otherwise protected speech, including commercial speech. As the Court held in Bolger v. Youngs Drug Prods. Corp. (1983) (a case involving contraceptive advertising),
[O]ffensiveness [is] “classically not [a] justificatio[n] validating the suppression of expression protected by the First Amendment. At least where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression” [citing, among other cases, Cohen v. California, “the Fuck the Draft” case].
Candidates and Campaigns
FiveThirtyEight: Michael Bloomberg Outspent The Entire Democratic Field In TV Ads Last Week
By Nathaniel Rakich
Over the past week, two ads have blanketed the television airwaves, introducing Americans to Democrats’ newest presidential candidate, former New York City Mayor Michael Bloomberg. From Saturday, November 23 through Sunday, December 1, those ads aired 19,006 times for an estimated $23.7 million, according to data from Kantar/Campaign Media Analysis Group…
In fact, in just over a week, Bloomberg spent more than one-third of what the rest of the Democratic field has spent all year long. Only fellow billionaire-turned-candidate Tom Steyer has spent more than Bloomberg…
[A]ccording to CMAG, it probably is the most money any candidate has ever spent on TV in a single week in a primary election. Simply put, we have no idea how Bloomberg’s spending will affect the primary because we have no precedent for it…
It’s worth remembering, however, that presidential campaigns aren’t decided, or even predominantly waged, on TV. Political scientists who have studied the question have found that television advertising has only modest effects on people’s vote choice. Heavy campaign spending also yields diminishing returns… Finally, researchers have persistently found that the effect of political TV advertising is short-lived – so any polling bump Bloomberg gets today may not matter if it doesn’t survive until the primaries. Perhaps the real question is whether Bloomberg is planning on, or is even capable of, sustaining this level of spending for the next three months.
The States
Syracuse.com: $100K in campaign cash to gov, mayor, county exec is routine business expense, Cor says
By Tim Knauss
When company executives from Cor Development listed their expenses for a big Syracuse development project, they included money they had paid for engineering, an asbestos survey, and legal fees. Standard stuff.
And then there was this: $114,825 for political contributions to two governors, a mayor and a county executive…
It was an unusual acknowledgement — because it was in writing — that business executives viewed political donations as a cost of doing business.
“It’s crazy,” said Blair Horner, executive director of New York Public Interest Research Group. “It shows how corrupt the system is, that everybody views it as the campaign financing system is just the cost of doing business in the state, and If you don’t cough up the money, you’re at a disadvantage.”…
There was nothing illegal about Cor’s campaign contributions. But the letter offers a rare glimpse of the company’s unabashed treatment of political donations as project expenses…
If Cor’s campaign cash was intended to ensure support from elected officials, it sometimes failed. Miner, the former Syracuse mayor, initially supported Cor’s development of the Inner Harbor but later sued the company in a bitter dispute over tax breaks….
“People have often described it to me as the cost of doing business. It’s sort of like a corruption tax,” Horner said.
The Fulcrum: Baltimore ready to join the movement for public election financing
By Sara Swann
The [Baltimore]City Council approved legislation Monday creating a system of public matching funds for people running for local office who forswear donations from political action committees, corporations or unions – or from constituents wanting to give more than $150. Unless Democratic Mayor Jack Young rejects the bill, which seems unlikely, the system will take effect in the 2024 municipal campaign…
After three-quarters of voters supported a 2018 ballot measure to reform campaign finances in Maryland’s biggest city, the council drafted the bill that’s now on the mayor’s desk…
Under the bill, candidates would have to display some support from the electorate before claiming taxpayer money – at least 500 contributions totaling $40,000 for mayoral aspirants, for example, and 150 donations amounting to $5,000 for council candidates.
The maximum donation from an individual would be $150, which would receive a $625 match. Mayoral candidates would get a headstart of $200,000 once they qualify. But above that the amount of matching funds would be capped at $1.5 million for mayoral candidates and $125,000 for council candidates.
Overall, this new system is anticipated to cost the city $2 million or a bit more each election.
San Diego Union-Tribune: Oceanside Unified changes public comment rules following complaint by ACLU
By Deborah Sullivan Brennan
The Oceanside Unified School District Board of Education has revised its rules for public comment after the American Civil Liberties Union warned the district to stop restricting public speech.
The changes, approved last month, address complaints that the board improperly restricted the time allowed for speakers, and that some members of the public were prevented from commenting. The ACLU reviewed the revised policy this week and said it had no further comments on the issue, but would keep an eye on the district’s compliance…
In September, the nonprofit sent a letter to the school board and superintendent describing possible violations of the Brown Act, the California law that requires open meetings of local agencies, and safeguards the public’s right to participate and speak at those events…
The previous policy set a total time limit of 20 minutes for comment on any given agenda item, effectively excluding some speakers once that time limit was reached. Although the board may legally reduce the total time each speaker receives from three minutes to two, or even one, it cannot exclude anyone from commenting at a public meeting.
