In the News
New York Daily News: Trump, not Twitter, is the biggest threat to free speech
By David Keating
As we get closer to the 2020 election, Twitter has decided to police President Trump’s speech, and perhaps that of other officials. The company’s plan is unwise, but a far worse outcome would be a government effort to bar it.
This week, Twitter added a link to a compilation of its own facts to two of Trump’s tweets about mail-in ballots. Trump responded by accusing Twitter of stifling free speech and interfering in the 2020 election…
The only threat to the First Amendment here is the president’s threat to retaliate against Twitter. Private companies have the right to speak. Social media companies have the right to set policies for speech on their platforms. The government has no power to punish a company for fact-checking or editorializing about the president…
Many conservatives and some liberals understand and support the Constitution’s protection for speech by corporations, recognized by the 2010 Supreme Court ruling Citizens United vs. Federal Election Commission, which allowed corporations to independently support or oppose candidates. Along with other key precedents like New York Times vs. Sullivan, Citizens United protects Twitter’s speech.
Center for Responsive Politics: Election spending boosted by secret money tops $100M as IRS ends donor reporting rules
By Karl Evers-Hillstrom
The IRS finalized a rule this week that will exempt some dark money groups from disclosing their donors to the IRS. Many 501(c)(4) nonprofits affected by the new rule already don’t disclose their donors to the public. But some experts have expressed concern that the elimination of donor reporting could hurt government investigators’ efforts to uncover the illegal use of foreign money in U.S. elections…
The Treasury Department noted the rule would prevent the IRS from leaking confidential donor information as the agency did in 2013…
Conservative groups attempted to eliminate nonprofit donor reporting to the IRS through the courts but judges repeatedly ruled that government requests for the names of donors are not a violation of the First Amendment.
David Keating, president of the Institute for Free Speech, which argues against campaign finance restrictions, said this week the rule “will encourage more people to give and protect groups that criticize government.”
Trump Administration
Wall Street Journal: The Twitter Fairness Doctrine
By The Editorial Board
President Trump, personally piqued by a “fact check” that Twitter added to two of his tweets, now wants to pare back the liability protections that have helped the internet flourish for 24 years. This is a mistake, and it would drag the federal government into regulating online speech, aiming for some nebulous “neutrality.”
The executive order that Mr. Trump signed Thursday is aimed in particular at Section 230 of the Communications Decency Act. That 1996 law lets websites moderate posts by users without risking liability for the content. Without this shield, a company like Yelp might be sued by every business that gets a bad review. The Journal might be sued for something in the comments section…
Section 230 says internet platforms, acting in good faith, can nix anything they find “obscene,” “harassing,” or “otherwise objectionable, whether or not such material is constitutionally protected.” Mr. Trump’s order calls on regulators to clarify when content moderation might be considered in bad faith, such as if it’s “pretextual,” inconsistent with the terms of service, or performed without giving users “adequate notice, reasoned explanation, or a meaningful opportunity to be heard.”
Cato Institute: Trump’s Social Media Order Rewrites Internet Law by Decree
By Will Duffield
[A] draft of the forthcoming executive order seems to slyly misunderstand Section 230, reading contingency into its protections. Let’s take a look at the statute and the relevant sections of the proposed executive order to see how its interpretation errs…
The statute contains two parts, (c)(1) and (c)(2). Subsection (c)(1) prevents providers of an “interactive computer service,” be they Twitter, or a blog with a comments sections, from being treated as the publisher of their users’ speech. 230 (c)(2) separately addresses providers’ civil liability for actions taken to moderate or remove content.
The executive order obfuscates this distinction, presenting (c)(1) as contingent on (c)(2). The EO contends that “subsection (c)(2) qualifies that principle when the provider edits content provided by others.” This is simply incorrect. Subsection (c)(2) protects platforms from a different source of liability entirely. While the first subsection stops platforms from being treated as the publishers of user speech, (c)(2) prevent platforms from being sued for filtering or removal. Its protections are entirely separate from those of (c)(1); dozens of lawsuits have attempted to treat platforms as the publishers of user speech, none have first asked if platforms’ moderation is unbiased or conducted in good faith. Even if a provider’s moderation were found to breach the statute’s “good faith” element, it would merely render them liable for their moderation of the content in question, it wouldn’t make them a publisher writ large.
National Review: Trump’s Illiberal Internet Fairness Doctrine
By David Harsanyi
Section 230 wasn’t passed to regulate fairness or neutrality of political speech on platforms – a nebulous and unenforceable demand, even if it had been – but to allow websites to deal with online indecency…
What right does the executive branch of the United States government have to collect speech complaints? What does “censorship” even mean when it relates to a private company? Is a fact-check by Twitter an act of “censorship?” Is shutting down a Nazi troll account or a Chinese propaganda account an act of censorship? The administration risks creating new methods to chill speech without benefiting open debate.
After all, when was the last time government intervention made speech more free or fair? Have conservatives forgotten that Citizens United was a decision sparked by bureaucrats who used existing election laws, passed in effort to ensure more “fairness,” to ban political speech? Have they forgotten that how easily IRS officials tasked as arbiters of that fair speech can abuse their power?
Maybe they’ll remember when Attorney General Kamala Harris is overseeing the White House Office of Digital Strategy and regulating online speech.
Business Insider: An FCC commissioner slammed Trump’s executive order on social media, calling it an attempt to turn the FCC into ‘the President’s speech police’
By Aaron Holmes
A draft of President Donald Trump’s executive order targeting social media companies is already getting feedback from the Federal Communications Commission, with commissioners split along party lines over the proposal…
Commissioner Jessica Rosenworcel, a Democrat, harshly criticized the order in a statement Thursday, framing it as a threat to free speech.
“This does not work. Social media can be frustrating. But an Executive Order that would turn the Federal Communications Commission into the President’s speech police is not the answer,” she said. “It’s time for those in Washington to speak up for the First Amendment. History won’t be kind to silence.”
Meanwhile, Republican FCC commissioner Brendan Carr voiced support for the executive order in an interview with Yahoo Finance, arguing that Section 230 should be reexamined if not overhauled.
“I think given what we’ve seen over the last few weeks, it makes sense to let the public weigh-in and say ‘is that really what Congress meant’ when they passed and provided those special protections,” Carr said.
Commissioner Mike O’Rielly, another Republican, said on Twitter that he sees both sides of the debate and urged his followers to “take [a] deep breath.”
The Courts
Wiley’s Election Law News: FEC’s Prosecutorial Discretion Considered by Federal Court, Again
By Lee E. Goodman and Jeremy J. Broggi
The U.S. Court of Appeals for the District of Columbia Circuit heard arguments in Citizens for Responsibility and Ethics in Washington (CREW) v. Federal Election Commission (FEC) on April 24, 2020. The case involves CREW’s challenge to the FEC’s dismissal of CREW’s complaint against a now-defunct conservative 501(c)(4) organization, New Models, alleging the organization became a “political committee,” or PAC, by contributing to several independent super PACs. Because the FEC dismissed for legal reasons “and in exercise of our prosecutorial discretion” the case implicates an important and ongoing dispute in the D.C. Circuit involving the reviewability of the FEC’s exercise of prosecutorial discretion when the agency pairs that discretion with substantive legal reasoning.
Media
Reason (Volokh Conspiracy): Washington Judge Rejects Lawsuit Over Fox News’ Supposed Coronavirus Misrepresentations
By Eugene Volokh
From today’s opinion by Judge Brian McDonald:
On April 15, 2020, WASHLITE filed a first amended complaint alleging that Fox violated the Consumer Protection Act …. The complaint alleges that in February and March 2020, hosts and guests on Fox’s programs falsely described the coronavirus as a “hoax” and falsely minimized the threat of the coronavirus and COVID-19…
WASHLITE…argues that Fox, as a cable programmer, does not have the same First Amendment rights accorded to newspapers and broadcast television stations…
These assertions do not hold up to scrutiny…
[A]s the Supreme Court recognized, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” …
I think this is generally quite right, certainly as to the “cable television is unprotected” argument (see this post) and likely also as to the “false statements about epidemics are unprotected” argument (see this post). I also think the alleged misinformation on Fox’s part consisted of expressions of opinion, not false statements of fact (see this post), but the judge’s reasoning here made it unnecessary for him to decide that.
CNN: Arresting reporters at a protest is an affront to the First Amendment
By Brian Stelter
When a journalist is arrested at a protest, the free and fair gathering of the news is arrested, too.
That’s one of the reasons why these infringements on press freedom are relatively rare in the United States — and why Friday’s brief arrest of a CNN crew in Minneapolis was so egregious.
“Police may not prevent journalists from covering protests if the journalists are in a place where the public is allowed, and they are not disrupting or interfering with law enforcement. Simply being near a protest or other newsworthy event is not a crime,” the Reporters Committee for Freedom of the Press states in its guide to covering protests.
Live video from correspondent Omar Jimenez and the CNN crew showed that they were not interfering with law enforcement…
Despite this, Jimenez was taken into custody along with producer Bill Kirkos and photojournalist Leonel Mendez.
The Reporters Committee guide states that “police cannot arrest journalists in retaliation for negative coverage or to prevent reporting on a public demonstration.”
But to many viewers who saw the arrest take place live on air, that’s exactly what it looked like.
Congress
By Charles Creitz
[Rep. Matt Gaetz, R-Fla., told “Tucker Carlson Tonight”] that tech companies “buy off” members of Congress in order to maintain special privileges that local newspapers and television stations do not have.
“That’s why the president’s executive order is one very important next step,” he said. “If we just wait around, big tech will steal this election from Donald Trump and the American people.” …
Gaetz said he and Sen. Josh Hawley, R-Mo., have already filed legislation to change Section 230 to label entities like Twitter as “publishers.”
“[They] are not the unbiased platform they are,” said Gaetz, who added that he will file a complaint with the Federal Election Commission on Friday due to what he described as social media companies’ transgressions against Trump.
“Big tech companies have a tremendous amount of influence over Congress, which is one reason why I don’t take their PAC money or anyone else’s federal PAC money. But on the question of what has to be done … If someone is going to assert that they are a nonbiased neutral platform we should not just take that as an article of faith.”
The Hill: Progressives raise alarm over letting lobbying groups access PPP funds
By John Bowden
Anti-lobbying activists are sounding the alarm over efforts on Capitol Hill to let lobbying groups access emergency loans meant for small businesses…
Competing proposals from Rep. Chris Pappas (D-N.H.) and Sen. Ted Cruz (R-Texas) would allow local chambers of commerce and trade associations…to tap into the Paycheck Protection Program…
“Every dollar that goes into lobbying groups like AHIP, PhRMA…gets used to influence public policy in some way,” Andrew Perez, executive director of the Democratic Policy Center, told The Hill…
He added[,] “These groups also don’t just influence policy through direct lobbying: They host luxury conferences, they pay for ads and grassroots outreach, and they funnel money to other groups to run advocacy campaigns that serve their business interests.”
David Sirota, who was a speechwriter for Sen. Bernie Sanders’s (I-Vt.) 2020 presidential campaign, also attacked the idea.
“Allowing corporate lobbying organizations and dark money groups to grab this money is akin to feudal lords gorging themselves at a lavish banquet, and then also raiding the last basket of bread that starving peasants are relying on to survive outside the palace walls,” Sirota wrote of Pappas’s bill…
The legislation introduced by Pappas would make local chambers of commerce and trade associations with fewer than 300 employees eligible for PPP funds, but it would prohibit that money from being used to support the paycheck any federally registered lobbyists.
Slate: The Right-Wing Legal Network Is Now Openly Pushing Conspiracy Theories
By Dahlia Lithwick and Richard L. Hasen
While the Federalist Society continues to claim officially that it plays no role whatsoever in politics, policy, or judicial nominations, and the group itself scrupulously avoids taking stances on issues like voter fraud, Leonard Leo-who until recently ran operations at the Federalist Society-has developed a network of political groups, none of which disclose their donors, funded at about a quarter of a billion dollars. So far, that effort has been mostly directed at seating deeply conservative judges on the federal bench for decades to come. But there is a new initiative afoot: an effort to engage in political dirty tricks to manipulate democracy itself…
As an eye-opening new report released Wednesday by Sens. Chuck Schumer, Debbie Stabenow, and Sheldon Whitehouse contends, Leo, who is still co-chairman of the Federalist Society, is now spearheading an all-out effort to capture the federal judiciary and to seat judges who are likely to rule in favor of those secret monied interests. That is more of an investment plan than a means of preserving an independent judiciary.
Online Speech Platforms
Wall Street Journal: Twitter Flags Trump Tweet About Minneapolis Protests for ‘Glorifying Violence’
By Newley Purnell
Twitter placed a notice on a tweet from President Trump, shielding it from view for breaking what the company said are its rules about glorifying violence.
Mr. Trump’s tweet was a comment on the violent protests in Minnesota. The post can now only be seen after users click a box with a notice saying it violated Twitter’s rules against encouraging violence, but it otherwise remains visible.
“We’ve taken action in the interest of preventing others from being inspired to commit violent acts, but have kept the Tweet on Twitter because it is important that the public still be able to see the Tweet given its relevance to ongoing matters of public importance,” Twitter said on its official communications account.
This is the first time such a step has been taken against a head of state for breaking Twitter’s rules about glorifying violence, a company spokesman said.
The company said users’ ability to interact with the tweet will be limited, and that users can retweet it with comment, but not like, reply to, or otherwise retweet it.
“…These THUGS are dishonoring the memory of George Floyd, and I won’t let that happen. Just spoke to Governor Tim Walz and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, the shooting starts. Thank you!,” Mr. Trump’s tweet said.
Hollywood Reporter: Twitter CEO Responds to Trump: “We’ll Continue to Point Out Incorrect or Disputed Information About Elections”
By Abid Rahman
Twitter CEO Jack Dorsey reaffirmed the company’s commitment to fact check information related to elections despite a fierce reaction from the Trump administration over a pair of Donald Trump’s tweets that were flagged as misleading on the platform.
After a storm of criticism from the president’s allies and threats from Trump himself to regulate social media companies via executive order, Dorsey tweeted…that Twitter will “continue to point out incorrect or disputed information about elections globally. And we will admit to and own any mistakes we make.”
“This does not make us an “arbiter of truth.” Our intention is to connect the dots of conflicting statements and show the information in dispute so people can judge for themselves. More transparency from us is critical so folks can clearly see the why behind our actions,” Dorsey wrote.
National Review: The Folly of Twitter’s Fact-Check Policy
By David Harsanyi
Once Twitter begins tagging some tweets and not others with “what you need to know,” it will be staking out partisan positions. The Trump tweets that precipitated its first election-related fact-check are a good example of this…Twitter decided to inaugurate its policy by alleging that Trump had dishonestly claimed that mail-in ballots would lead to “a Rigged Election.”
Even if this contention were entirely baseless, it would be as untrue as saying Russia rigged the election – a claim that politicians such as Adam Schiff and Nancy Pelosi, along with most major media outlets, have been making for years. But while the president’s rhetoric about voting is debatable, it is also well within the normal parameters of contemporary political discourse…
Which brings us to the problem: Whom will Twitter designate as its judge? Its fact-checking page redirects users to debunkings of the president’s tweets by partisan operatives such as Vox’s Aaron Rupar and CNN’s Daniel Dale – two figures who possess no expertise gauging policy outcomes and who are quite often dishonest and misleading themselves. As for CNN, the Washington Post, Vox, HuffPost, and the other outlets featured on the page – they deceive their audiences with far more sophistication than the president. These outlets like to appeal to the authority of experts, but not experts whose conclusions contradict their own. There is a reason we debate issues rather than appoint Truth Magistrates to hand down verdicts: For the most part, politics is a dispute not over facts but over values.
The States
Wall Street Journal: New York City Mayor’s Race Feels the Impact of the Coronavirus
By Katie Honan
[One] major change for this election is the new [New York City] campaign-finance laws, which makes small-dollar donations more valuable with a new 8-to-1 matching program introduced before the pandemic…
The program can be a boon for lesser-known candidates such as [mayoral candidate] Dianne Morales. “The matching funds program is such a great potential leveler for a candidate like myself, in terms of making it possible,” said Ms. Morales…
Candidates will be first eligible for funds from the program in December based on their campaign-finance filings due in July-money that is usually raised during the spring. There are other opportunities for campaign payouts, but the first one is significant.
But Ms. Morales has essentially stopped campaigning, shifting instead to the immediate needs in her community of Bedford-Stuyvesant, Brooklyn…
“The current crisis has significantly hindered the initial spirit and intention behind the matching program in terms of someone like me specifically,” she said.
The best-known, best-funded candidates so far are those already in public office…
These candidates also have more name recognition.
“You have a natural role in a crisis, you have a natural platform you can be focused on whether it’s mutual aid or legislation to help people,” said Monica Klein, a political adviser who worked on [two] de Blasio mayoral campaigns.
