In the News
Reason (Volokh Conspiracy): Equal First Amendment Rights Coming for Non-Media Speakers in Oregon?
By Eugene Volokh
I noted in December that the UCLA First Amendment Amicus Brief Clinic filed an amicus brief, in Lowell v. Wright in this case, on behalf of the Institute for Free Speech; the Electronic Frontier Foundation; Profs. William Funk (Lewis & Clark), Ofer Raban (U. of Oregon), and Kyu Ho Youm (U. of Oregon); and bloggers Prof. Glenn Harlan Reynolds, Howard Bashman, SCOTUSblog, and me.
This morning, the Oregon Supreme Court has announced that it will review the decision below, and therefore consider the issue. Here again is our brief supporting the petition for review; I expect that we will refile a version of this brief in the coming weeks, at the merits stage of the case:
Introduction
This case presents three important related questions:
(1) Does Oregon law unconstitutionally deny ordinary Oregonians the protections offered by Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974), which limits presumed damages in libel cases brought by private figures?
(2) Does Oregon law unconstitutionally discriminate in this respect against ordinary speakers, denying them the same First Amendment rights that the institutional media enjoy?
(3) Is it unsound for Oregon law to differ from the Ninth Circuit precedent that covers virtually identical lawsuits that happen to be within the federal courts’ diversity jurisdiction?
New from the Institute for Free Speech
Analysis: H.R. 1’s Speech Provisions are Unconstitutional and Harmful to Democracy
The Institute for Free Speech published an analysis today of three major sections of H.R. 1 that would trample on First Amendment rights. The provisions would invade the privacy of nonprofits and their supporters, discourage online political speech, and compel groups to parrot long, government-mandated messages in their communications. The bill is expected to receive a House floor vote the week of March 1.
“Calling this bill the ‘For the People Act’ is Orwellian. It would give politicians more power while suppressing the speech of the people,” said Institute for Free Speech President David Keating. “A more accurate title would be the ‘For the Politicians Act.'” …
Authored by Senior Fellow Eric Wang, the Institute’s analysis finds that H.R. 1 would foist enormous regulatory compliance costs and liability risks on Americans who speak about government or join together in support of a cause. It would create a complex web of overlapping regulations by slapping together several pre-existing bills rather than consolidating them into one coherent proposal. The result would be a boon for politicians and campaign finance lawyers, but a nightmare for Americans trying to exercise their First Amendment rights.
“Buried in H.R. 1’s nearly 800 pages is a censor’s wish list of new burdens on speech and donor privacy. It proposes a democracy where civic engagement is punished and where fewer people have a voice in our government, our laws, and public life,” said Wang…
To read the Institute’s analysis, click here. To access all of the Institute’s resources on H.R. 1 and S. 1, click here.
Analysis of H.R. 1 (Part One): “For the People Act” Is Replete with Provisions for the Politicians
By Eric Wang
This analysis examines Title IV, Subtitles B (“DISCLOSE Act”), C (“Strengthening Oversight of Online Political Advertising”; formerly known as “Honest Ads”), and D (“Stand by Every Ad”) of Division B of H.R. 1 (117th Congress)…
H.R. 1’s substance further underscores how the bill would help politicians and campaign finance attorneys more than it would benefit the public. The bill would greatly increase the already onerous legal and administrative compliance costs, liability risk, and costs to donor and associational privacy for civic groups that speak about policy issues and politicians. Organizations and their supporters will be further deterred from speaking or be forced to divert additional resources away from their advocacy activities to pay for compliance staff and lawyers. Some groups will not be able to afford these costs or will violate the law unwittingly. Less speech by private citizens and organizations means politicians will be able to act with less accountability to public opinion and criticism. Consequently, citizens who would have otherwise heard their speech will have less information about their government.
Congress
Wall Street Journal: Inside the Mind of a Biden Regulator
By The Editorial Board
In our age of a powerful administrative state and weak Congress, some of the most consequential government officials are the little-known heads of alphabet-soup federal agencies. One of them is the Consumer Financial Protection Bureau (CFPB), which was designed as its own regulatory fiefdom insulated from accountability. So it’s worrying that President Biden’s nominee to head the agency wants the administrative state to extend its reach into political speech.
Mr. Biden sent the nomination of Rohit Chopra…to the Senate last week. Senators who want to understand Mr. Chopra’s thinking about the role of regulators in American democracy might crack open a report he co-authored in 2018 for the Roosevelt Institute. It envisions an unaccountable Washington “corruption” czar writing rules, issuing fines and working his will over politicians, think tanks and nonprofits…
Mr. Chopra’s proposed “Public Integrity Protection Agency” (PIPA), where the director would serve as many as 10 years, “subject to removal proceedings similar to that of a federal judge”-that is, effectively untouchable by the elected branches.
Unlike the CFPB, which regulates commerce and loans, Mr. Chopra’s even-less-accountable PIPA would regulate core political activities. The report proposes new restrictions on advocacy, declaring that the “use of think tanks and other nonprofit organizations to further the economic interests of its benefactors through policy research should be impermissible.”
Glenn Greenwald: Congress Escalates Pressure on Tech Giants to Censor More, Threatening the First Amendment
For the third time in less than five months, the U.S. Congress has summoned the CEOs of social media companies to appear before them, with the explicit intent to pressure and coerce them to censor more content from their platforms…
House Democrats have made no secret of their ultimate goal with this hearing: to exert control over the content on these online platforms. “Industry self-regulation has failed,” they said, and therefore “we must begin the work of changing incentives driving social media companies to allow and even promote misinformation and disinformation.” In other words, they intend to use state power to influence and coerce these companies to change which content they do and do not allow to be published…
[T]he key point raised by these last threats from House Democrats is an often-overlooked one: while the First Amendment does not apply to voluntary choices made by a private company about what speech to allow or prohibit, it does bar the U.S. Government from coercing or threatening such companies to censor. In other words, Congress violates the First Amendment when it attempts to require private companies to impose viewpoint-based speech restrictions which the government itself would be constitutionally barred from imposing.
The Courts
PPLI: Can You Paint A Slogan On City Streets?
By Barnaby Zall
Last summer, street mural painting became a very big legal controversy. Can you paint a popular, but unofficial slogan on city streets? After all, huge “Black Lives Matter” slogans appeared on city streets across the country.
On February 18, 2021, Judge Lorna Schofield of the U.S. District Court for the Southern District of New York handed down a decision in Women for America First v. DeBlasio, which denied a request to paint a mural on a Brooklyn street conveying a different message (“Engaging, Inspiring and Empowering Women to Make a Difference!”) from a recent “Black Lives Matter” mural which had been painted by private citizens, but then “adopted” by New York City’s Mayor Bill DeBlasio. Judge Schofield said that, though the original BLM painters had been private, the Mayor’s adoption of the street painting (and expanding painting to all five boroughs) was an endorsement sufficient to convert the original mural into government speech. “The New York City government preserved the Murals and played a role in the creation of the six later murals.” Slip Op. 3.
But ordinarily, no. And the reason why is complicated, because sometimes the answer is yes. It matters whether you’re asking about sloganeering in the streets or on the streets. And it matters who is doing the painting: private citizens or the city. And it matters if the city adopts the painted slogan, even after the fact, as its own “government speech.”
Online Speech Platforms
Politico: Facebook political ad ban blocks pro-vaccine messages
By Darius Tahir
Facebook’s efforts to police online ads for vaccine misinformation are unintentionally blocking messages from cities, health care providers and community and faith-based groups promoting Covid shots.
Paid-for messages from at least 110 groups aimed at raising awareness of how the vaccines work or where to get inoculated were flagged and sent to Facebook’s register of political messages, a POLITICO review of barred ads dating from last September shows.
Sponsors of the ads have the option of appealing but say the process may prove too burdensome while they deal with the halting distribution of vaccines and respond to new more contagious strains of the virus…
The restrictions “made it very difficult for the township in our efforts to inform our residents about important information regarding Covid-19 registration and updates,” said Mary Hastings, executive administrator of Orland Township, Illinois, which had two ads blocked this month. “This is very unfair.”
A California Medical Association ad promoting an event this month with White House vaccination coordinator Bechara Choucair also ran afoul of Facebook’s ad filters. Anthony York, an association spokesperson, said the appearance by a Biden administration official may have triggered the ban.
Associated Press: YouTube removes Ohio committee video, citing misinformation
By Farnoush Amiri
Legislative testimony made Wednesday in support of a GOP-backed effort to limit public health orders made by Ohio’s governor was removed from YouTube after the service deemed it contained COVID-19 misinformation.
The Google-owned platform said it removed content that was uploaded this week to The Ohio Advocates for Medical Freedom channel for violating the company’s terms of services.
The video showed Thomas Renz, an attorney for Ohio Stands Up, a citizen group, make the opening testimony during a House committee hearing on a bill that would allow lawmakers to vote down public health orders during the pandemic.
In the more than 30-minute testimony, Renz made a number of debunked or baseless claims, including that no Ohioans under the age of 19 have died from COVID-19 – a claim that has been debunked by state data.
“We have clear Community Guidelines that govern what videos may stay on YouTube, which we enforce consistently, regardless of speaker,” Ivy Choi, a spokesperson for Google, told The Associated Press. “We removed this video in accordance with our COVID-19 misinformation policy, which prohibits content that claims a certain age group cannot transmit the virus.”
Fox News: Inside Wikipedia’s leftist bias: socialism pages whitewashed, communist atrocities buried
By Maxim Lott
Big tech has faced repeated accusations of bias and censorship, but one platform has escaped much scrutiny: Wikipedia.
The online encyclopedia, which claims “anyone can edit”, is the 13th most popular website in the world, according to Alexa’s web rankings. Google gives it special placement in search results.
But critics – including Wikipedia co-founder Larry Sanger – tell Fox News that many Wikipedia pages have become merely left-wing advocacy essays.
“The days of Wikipedia’s robust commitment to neutrality are long gone,” co-founder Larry Sanger said.
“Wikipedia’s ideological and religious bias is real and troubling, particularly in a resource that continues to be treated by many as an unbiased reference work,” he added.
Wikipedia pages related to socialism and communism contain stark examples.
The two main pages for “Socialism” and “Communism” span a massive 28,000 words, and yet they contain no discussion of the genocides committed by socialist and communist regimes, in which tens of millions of people were murdered and starved.
New York Times: Don’t Go Down the Rabbit Hole
By Charlie Warzel
Michael Caulfield, a digital literacy expert at Washington State University Vancouver, knows all too well that at this very moment, more people are fighting for the opportunity to lie to you than at perhaps any other point in human history.
Misinformation rides the greased algorithmic rails of powerful social media platforms and travels at velocities and in volumes that make it nearly impossible to stop. That alone makes information warfare an unfair fight for the average internet user. But Mr. Caulfield argues that the deck is stacked even further against us. That the way we’re taught from a young age to evaluate and think critically about information is fundamentally flawed and out of step with the chaos of the current internet.
“We’re taught that, in order to protect ourselves from bad information, we need to deeply engage with the stuff that washes up in front of us,” Mr. Caulfield told me recently. He suggested that the dominant mode of media literacy (if kids get taught any at all) is that “you’ll get imperfect information and then use reasoning to fix that somehow. But in reality, that strategy can completely backfire.”
In other words: Resist the lure of rabbit holes, in part, by reimagining media literacy for the internet hellscape we occupy.
Candidates and Campaigns
Wall Street Journal: Big Tech Employees Opened Wallets for Biden Campaign
By Brody Mullins and Emily Glazer
Employees of big technology firms were a key source of contributions for Joe Biden’s presidential campaign, newly released campaign finance records show, eclipsing donations from employees at traditional Democratic fundraising sources such as banks and law firms.
Employees of Google’s parent, Alphabet Inc., and Microsoft Corp. , Amazon.com Inc., Apple Inc. and Facebook Inc. were the five largest sources of money for Mr. Biden’s campaign and joint fundraising committees among those identifying corporate employers, according to a Wall Street Journal analysis of campaign finance reports.
Mr. Biden’s presidential campaign received at least $15.1 million from employees of those five tech firms, records show…
The findings come as Republicans have asserted that the big tech companies are biased against them, including allegations that companies with online platforms such as Facebook and Google censor online content to favor liberal views…
Facebook, Google and other tech platforms have in the past denied that the politics of their employees affects how they run their businesses.
The States
Cheyenne Post: Bouchard, Greater Cheyenne Chamber of Commerce Face Off Over Gun Claims
By Ellen Fike
The Greater Cheyenne Chamber of Commerce is taking on a Wyoming nonprofit organization for allegedly using dark money over last year’s election cycle.
The chamber sent a letter to the Wyoming Secretary of State and Attorney General offices about the Wyoming Gun Owners Association regarding alleged electioneering while not being registered with the SOS as a political action committee.
The chamber argued WYGO was required to register with the secretary of state’s office to run ads supporting or opposing candidates or issues.
“During Anthony [Bouchard]’s election in Laramie County last year, he was saying some things about his opponent that were outright lies,” [Cheyenne Chamber of Commerce President Dale] Steenbergen said. “That’s illegal in Wyoming law. We saw a number of issues, so we called a bunch of attorneys that were involved with the chamber and asked them to look into it.” …
Steenbergen doesn’t think the election officials will determine what WYGO did was legal, but if they do, he and the chamber will begin work on campaign finance reform.
“We’re very concerned about this, because if a state can’t keep its election climate in a good place, that’s bad for business,” he said. “We want integrity in the election process and we’re asking for that to happen.”
Reason: School Board Mocks Parents Who Support Reopening: ‘They Want Their Babysitters Back’
By Robby Soave
A northern California school board discussed ways to limit the public’s ability to speak at meetings and mocked parents who desperately want schools to reopen.
“They want their babysitters back,” Lisa Brizendine, a trustee of Oakley Union Elementary School District, told her colleagues during a pre-meeting session that they believed was not open to the public.
School board member Kim Beede mentioned a negative interaction with a frustrated parent, then described her own mindset: “Bitch, if you are going to call me out, I am going to fuck you up.”
Another member of the board theorized that parents want their kids to go back to school so they can spend the day getting high.
The board also discussed whether it would be possible to change the public comment portion of their meetings so that members of the public would be cut off automatically after three minutes of speaking time.
Roughly eight minutes of footage were recorded before the board members realized that they were not alone…
School Superintendent Gregory Hetrick released a public apology.
Associated Press: New legislation would protect drivers who hit protestors
By Sean Murphy
When massive demonstrations against racial injustice erupted across the nation last summer, protesters used an increasingly common tactic to draw attention to their cause: swarming out onto major roads to temporarily paralyze traffic.
This method sometimes resulted in searing images of drivers plowing through crowds, causing serious injuries and in some cases, deaths.
Now, Republican politicians across the country are moving to stop the road-blocking maneuver, proposing increased penalties for demonstrators who run onto highways and legal immunity for drivers who hit them. The bills are among dozens introduced in Legislatures aimed at cracking down on demonstrations.
“It’s not going to be a peaceful protest if you’re impeding the freedom of others,” said Rep. Kevin McDugle, the author of an Oklahoma bill granting criminal and civil immunity to people who drive into crowds on roads…
But critics say the proposals are only designed to intimidate people, not to solve a problem.
“The biggest concern is that they chill speech and they chill folks gathering to protest,” said Nicole McAfee, policy director for the Oklahoma chapter of the American Civil Liberties Union.
Hartford Courant: Profane anti-Biden flag causing controversy in Connecticut, around the nation
By Jesse Leavenworth
Flags flying outside two homes in Plymouth proclaim in stark – and some have complained, vulgar and inappropriate language – the residents’ rejection of the November election results and President Joe Biden.
About a half mile apart in the town’s Terryville section, both banners hang below American flags and state in bold, white letters on blue background, “F—- BIDEN,” and below that, in smaller type, “And … you for voting for him!”
Plymouth police Capt. Edward Benecchi said residents have complained, saying neighborhood kids and students passing on school buses should not have to see such profanity.
But Benecchi said police consulted with the state’s attorney’s office in New Britain and found “we are unable to intercede as it would violate (the residents’) First Amendment right to free speech.”
