In the News
Lexology: Compliance Notes – Vol. 1, Issue 1
By Nossaman LLP
Political Speech & Campaign Advertisements
California: A California ballot committee, Yes on Prop B, asked the Ninth Circuit Court of Appeals to rule that San Francisco’s disclaimers for campaign ads are unconstitutionally long. The lawsuit says that such a lengthy disclaimer chills political speech and harms small campaigns that rely on cost-effective modes of communication. (Institute for Free Speech, Press Release)
Just the News: Censorship during pandemic creates new backlash against Facebook, YouTube
By Christian Toto
YouTube vowed to remove videos running counter to the World Health Organization (WHO), the U.N. system global health body which has peddled dubious information from the Chinese government about the country’s pandemic fight and echoed the regime’s claim the virus wasn’t transmissible by humans…
Free speech advocates understand the sensitivity of both the times and the task at hand. Still, they suggest such aggressive measures may not serve the public interest. In fact, they may backfire in some cases…
David Keating, president of the D.C.-based Institute for Free Speech, says blindly supporting government dictums can do a disservice to the public at large.
“To this day in the U.K. the official guidance is not to wear a mask [to prevent coronavirus transmission],” Keating says, citing Taiwan’s more successful pandemic fight credited in part by mask use. “Basically, the government is lying to people … they don’t want them buying medical-grade masks.”
“One thing we’ve learned over history is that governments often lie,” he says. “And WHO, while not being a government, shares many of the same characteristics.”
Keating suggests blindly following conventional wisdom can lead to other ill effects.
“What would have happened if these platforms had these kind of policies, blindly following government advice, in the Jim Crow era?” he asks. “Would they have taken down NAACP videos?”
New from the Institute for Free Speech
Stay-at-Home Orders and Freedom of Assembly
By Ryan Morrison and Alex Baiocco
A federal judge in Kentucky recently declared “constitutional rights still exist” and ruled that a mayor’s pandemic-related executive order violated the First Amendment.
While constitutional rights can’t be extinguished, temporary orders to protect public health, if neutrally applied, can prohibit people from gathering in the same physical space. In New Mexico, a federal judge rejected a First Amendment challenge to the state’s limit on the number of people who may gather in one building, holding:
The right to expressive association is not an absolute right and can be infringed upon if that infringement is (i) unrelated to the suppression of expressive association; (ii) due to a compelling government interest; and (iii) narrowly tailored.
Whether speech or assembly is for religious or secular purposes, government constraints on First Amendment activity in times of crisis still must face strict judicial scrutiny. As the federal judge in Kentucky noted, even as government pursues “a compelling interest of the highest order through its efforts to contain the current pandemic,” its efforts must be “‘narrowly tailored to advance that interest.'” Government cannot be “selective” in how it burdens First Amendment conduct.
The Courts
Washington Post: U.S. judge strikes down prohibitions on political speech for 1,100 federal court workers
By Spencer S. Hsu
A U.S. judge Wednesday prohibited an administrative agency for the federal judiciary from barring its 1,100 employees from engaging in virtually all forms of partisan political activity outside the workplace. The judge called the ban an excessive effort to protect courts from “hyper-partisanship” and attacks from members of Congress.
U.S. District Judge Christopher R. “Casey” Cooper of Washington granted summary judgment to two employees who sued in May 2018, represented by the American Civil Liberties Union of the District, challenging the sweeping new rules as violating their freedom of speech.
In a 46-page ruling, Cooper called the effort to protect the judiciary from perceptions of political influence “laudable.” But, the judge said, that intent did not justify a new code of conduct barring employees from participating in political activities open to virtually all other federal workers, including expressing views publicly or on social media about political candidates, attending events for political parties or candidates, joining parties or making donations….
ACLU-DC Legal Director Scott Michelman called the agency’s attempt to ban “a huge range of core political speech on the weakest of justifications” exactly the type of overreach the First Amendment exists to prevent. He said the ruling means federal court system workers can express their political views without risking their jobs.
Atlanta Journal-Constitution: Two who protested white nationalists suing for rights’ violations
By Chris Joyner
Two years ago, more than 700 uniformed police swarmed downtown Newnan in a massive, coordinated effort from state, county and city agencies that included assault weapons, armored vehicles and drones designed to keep the peace at a rally by the neo-Nazi National Socialist Movement. The black-clad NSM members numbered about two dozen, but their presence drew hundreds of counter-demonstrators from across the metro area, a handful of whom were arrested on a variety of minor charges.
Now two activists arrested April 21, 2018 in the counter-protest have filed federal lawsuits against Coweta County and the officers who arrested them, claiming the arrests violated their constitutional protections of freedom of speech and freedom from unreasonable searches and seizure.
“No matter what one thinks of the First Amendment and its reach, few would disagree that political speech lies at the core of what the First Amendment is designed to protect – an idea often emphasized by the US Supreme Court itself,” said Atlanta attorney Drago Cepar, who represents the two men bringing the lawsuits, activists Alan Hutzel and Daniel Hanley.
Hutzel was among a handful of activists arrested for violating the state’s anti-mask law even before the neo-Nazi rally began. The encounter was captured, in part, by a reporter for the Huffington Post who recorded an unidentified officer warning a crowd of counter-demonstrators.
NLRB
Reason (Volokh Conspiracy): Make an Anti-Union Joke, Prepare to Be Accused of an Unfair Labor Practice
By Jonathan H. Adler
When writers at Vox Media staged a walk-out as part of their unionization efforts, Ben Domenech, publisher of The Federalist, responded with a joke on Twitter: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.”
There’s no evidence anyone at The Federalist thought this was anything other than a topical joke, responding to a current event. Yet as Domenech recounts in the WSJ, a progressive writer and lawyer responded by filing unfair labor practice complaints with the National Labor Relations Board, and the NLRB pursued these claims with vigor, resulting in this decision against Domenech and The Federalist…
The free speech implications of this case are troubling for multiple reasons. First, this episode shows haw well-intentioned regulations can be weaponized for political purposes. The complainants had no interest in “protecting” Federalist workers-if they even know any. Their clear aim was to harass and punish ideological adversaries.
First Amendment
EFF: The Dangers of COVID-19 Surveillance Proposals to the Future of Protest
By Matthew Guariglia
Many of the new surveillance powers now sought by the government to address the COVID-19 crisis would harm our First Amendment rights for years to come. People will be chilled and deterred from speaking out, protesting in public places, and associating with like-minded advocates if they fear scrutiny from cameras, drones, face recognition, thermal imaging, and location trackers. It is all too easy for governments to redeploy the infrastructure of surveillance from pandemic containment to political spying. It won’t be easy to get the government to suspend its newly acquired tech and surveillance powers.
When this wave of the public health emergency is over and it becomes safe for most people to leave their homes, they may find a world with even more political debate than when they left it. A likely global recession, a new election season, and re-energized social movements will provide an overwhelming incentive for record numbers of people to speak out, to demonstrate in public places, and to demand concessions of their governments. The pent-up urge to take to the streets may bring mass protests like we have not seen in years. And what impact would new surveillance tools, adopted in the name of public health, have on this new era of marches, demonstrations, and strikes?
Wall Street Journal: The Looming Civil-Liberties Battle
By Joseph A. Ladapo
[A] substantial minority of Americans are concerned about the legitimacy of shutdown orders and the sensibility of extending them, with protests stretching from North Carolina to California. These protesters have largely been dismissed-or, worse, arrested and pursued for criminal prosecution. This will intensify concerns about heavy-handedness, energize the efforts of dissenters, and jeopardize the effectiveness of future public-health efforts…
Planning for the next phase of the pandemic will also heighten concerns and conflict over civil liberties. Health policy leaders have outlined a way forward that relies on widespread testing and contact tracing as prerequisites for lifting state shutdowns. Many governors, including California’s Gavin Newsom and New York’s Andrew Cuomo, have expressed similar sentiments.
But think hard about the details. Testing may be mandatory. Contact tracing may mean government tracking of cellphone data. How much privacy are individuals willing to forfeit for a virus that increasingly appears to pose little danger to a large percentage of the U.S. population? We will soon learn the answer.
Hays Post: Our First Amendment rights must survive COVID-19
By Gene Policinski
Can the government override our First Amendment rights with orders such as limits on public assemblies, faith-based gatherings and public protests during the COVID-19 pandemic?
The short answer is “yes … probably … in certain circumstances … within specific limits.”
Here’s what our public officials, should ask themselves – and what we should demand that they do – before using public health concerns as a reason to infringe on any of our core freedoms of religion, speech, press, assembly or petition.
Online Speech Platforms
RealClearPolitics: Tucker Carlson: Big Tech Using Coronavirus To Increase Their Power Over Americans
By Ian Schwartz
TUCKER CARLSON, FOX NEWS: Last night on this show, we played a clip from a nearly hour-long video produced by two physicians in California, Doctors Dan Erickson and Artin Massihi. Many of you had likely already seen it. The video had more than five million views on YouTube. In their presentation, the two doctors presented a flurry of data pointing to what we’re learning about this virus. They recited pages of government statistics, and then interpreted them in light of their own long clinical experience. At one point, they noted the newly-adjusted death rate in their state, which is much lower than anyone expected, and asked if government officials should change their policies based on the science…
Last night, the doctors’ video was pulled off YouTube. This wasn’t an accident…
The only justification for taking it down was that the two physicians had reached different conclusions from the people currently in charge. In other words, it was a form of dissent. YouTube, and its parent company Google, have now banned dissent. YouTube’s CEO has admitted that openly:
WOJCICKI: Anything that would go against World Health Organization recommendations would be a violation of our policy…
Like everyone else involved in global pandemic policy, the W-H-O has often been wrong in its recommendations. In mid-January, they told us that the coronavirus could not spread from person to person. In March, they told us that face masks didn’t work. Those lies were welcome on Google’s platforms. Doctors who are actually treating patients with the virus have been banned. So, no, this is not about science. Censorship never is. It’s about power.
Breitbart: YouTube: California Doctors’ Comments on Reopening the Country Are ‘Misinformation’
By Allum Bokhari
YouTube has released a statement on its decision to censor a video of two doctors in Bakersfield, California, making the case for an end to Chinese virus lockdowns.
In a statement provided to 23ABC, the local Bakersfield news station that uploaded censored video, the Google-owned platform said:
We quickly remove flagged content that violate our Community Guidelines, including content that explicitly disputes the efficacy of local healthy authority recommended guidance on social distancing that may lead others to act against that guidance.
However, content that provides sufficient educational, documentary, scientific or artistic (EDSA) context is allowed – for example, news coverage of this interview with additional context. From the very beginning of the pandemic, we’ve had clear policies against COVID-19 misinformation and are committed to continue providing timely and helpful information at this critical time.
YouTube has used the pandemic to increase its censorship and control over the flow of news. It recently introduced “fact check” labels next to videos, and its CEO has warned that any information that contradicts World Health Organization guidelines will be removed from the platform. Over the weekend, the platform took down a video explaining UV light treatment from a life sciences company that has partnered with Cedars-Sinai hospital in L.A.
The States
Willamette Week: Campaign Finance Reformers Sue Mayor Ted Wheeler’s Reelection Campaign Over Disputed Contributions
By Nigel Jaquiss
Mayoral candidate Sarah Iannarone and three other plaintiffs today sued the reelection campaign of Portland Mayor Ted Wheeler, alleging it knowingly violated a $500 contribution limit voters overwhelmingly approved in 2018.
The lawsuit, filed in Multnomah County Circuit Court, asks the court to enforce the $500 limit, which plaintiffs say went into effect Sept. 1, 2019.
The effect of that request would be to force the Wheeler campaign to give up about $175,000 in contributions, the cumulative amount he’s received in contributions above the $500 limit. The lawsuit alleges that accepting those contributions gave Wheeler an unfair advantage in the race.
“If [the Wheeler campaign] is allowed to retain and/or spend the unlawfully obtained funds, it and the incumbent mayor will receive an unfair advantage in current electoral contest, causing irreparable harm to plaintiffs’ legally recognized interests,” says the lawsuit…
The group Honest Elections Portland, which put contribution limits on the 2018 ballot, had previously warned Wheeler’s campaign that it believed the $500 limit was in effect, despite legal uncertainty over the Supreme Court case.
Wheeler’s campaign, which accepted individual contributions as large as $5,000 (Iannarone is relying on public financing for her campaign), ignored those warnings and banked on the 1997 law remaining in effect.
Daily Sentinel: Complaint filed against commissioner candidate Davis
By Charles Ashby
A complaint has been filed with the Colorado Secretary of State’s office alleging that Mesa County commissioner candidate Cody Davis improperly used county workers to help him campaign for that office.
Davis recently won top line in the Mesa County Republican Assembly for the June primary for District 1. His chief rival is state Sen. Ray Scott, R-Grand Junction.
As part of his campaign, Davis has been hosting a series of virtual “Conversations with Cody” with various people. Two of those events featured Jeff Kuhr, director of the Mesa County Department of Public Health, and several top officials with the county’s Department of Human Services, including Director Tracey Garchar.
In the complaint, filed April 15, Grand Junction resident Brian Timothy Fenwick alleges that those virtual sessions actually were “campaign events,” and having those county workers on his Facebook page constitutes an endorsement of his candidacy in violation of state campaign finance laws…
Davis said the video conversations are intended to help people understand what’s going on with the county’s response to the COVID-19 pandemic, and what they should do.
