New from the Institute for Free Speech
Federal Court Follows Institute for Free Speech’s Advice in CLC v. FEC
By Tyler Martinez
Last week, we detailed why we filed an amicus curiae brief in support of the FEC in Campaign Legal Center v. Federal Election Commission. We informed the U.S. District Court for the District of Columbia that the FEC lacked a quorum at the time CLC filed its complaint and motion for default judgment and that a new commissioner had just been confirmed by the Senate, allowing the Commission to defend itself.
On June 3, 2020, the court entered an order recognizing the facts highlighted in the Institute’s brief. The court stayed the default judgment motion “in light of the fact that the Federal Election Commission lacked a quorum at the time the plaintiff’s motion was filed.” The federal court gave the FEC until July 20th to reply to the show cause order.
We hope the FEC takes the opportunity. Days after our brief was filed, James E. “Trey” Trainor III took office, restoring the Commission’s quorum. The rule of law prevailed, and the process Congress created can work as designed.
Since the order was paperless and only available behind the paywall of PACER, we reproduce the full order below:
MINUTE ORDER (paperless) STAYING the plaintiff’s 12 Motion for Default Judgment Against Defendant Federal Election Commission (“Pl.’s Mot.”), in light of the fact that the Federal Election Commission lacked a quorum at the time the plaintiff’s motion was filed, see Pl.’s Mot. at 3-4; and EXTENDING the defendant’s deadline to respond to the Court’s May 14, 2020 Order to Show Cause until July 20, 2020. Signed by Chief Judge Beryl A. Howell on June 3, 2020. (lcbah3) (Entered: 06/03/2020)
Supreme Court
SCOTUSblog: Petitions of the week
By Andrew Hamm
The petitions of the week are below the jump:
Hunt v. Board of Regents of the University of New Mexico
19-1225
Issue: Whether the Board of Regents of the University of New Mexico violated Paul Hunt’s clearly established rights as a private citizen under the First Amendment by punishing him for his off-campus, political speech.
Congress
Axios: Scoop: White House taps Hawley to take aim at tech shield
By Margaret Harding McGill
At the request of the Trump administration, Sen. Josh Hawley (R-Mo.) is working on new legislation targeting the tech industry’s liability shield, a source familiar with the effort told Axios.
The Hawley bill will be an additional threat against platforms like Facebook and Twitter following President Donald Trump’s executive order aimed at curbing their legal protections from content posted by users.
The legislation would open platforms to legal liability if they enforce their terms of services in unequal or uneven ways, including by making politically motivated moderation decisions.
That would be a reversal from the broad immunity from lawsuits over both user-posted content and making moderation calls like taking down posts and banning user accounts that platforms have under Section 230 of the Communications Decency Act of 1996.
Hawley and his office have had multiple conversations with senior White House and Justice Department on revisiting Section 230, the source said. They have shared draft text of the measure with other Senate offices seeking cosponsors, and the bill could be introduced as early as next week.
Multichannel News: Hill Schedules Hearing on Online Disinformation
By John Eggerton
The House Communications and Consumer Protection Subcommittees will hold a joint hearing on “Disinformation Online and a Country in Crisis.”
The date is June 24, but other details are to be determined, or at least revealed.
The hearing was announced Thursday (June 11) by Energy & Commerce Committee Chairman Frank Pallone (D-N.J.), Communications Subcommittee Chair Mike Doyle (D-Pa.) and Consumer Protection Subcommittee Chair Jan Schakowsky (D-Ill.).
The crisis is both COVID-19 and the current national reckoning, sometimes violent, over some police treatment of minorities.
“Social media platforms have failed to take sufficient steps to address disinformation while the President is actively promoting dangerous falsehoods and conspiracies,” said the legislators. “The country needs and deserves better, and we look forward to hearing from experts on what can be done to minimize, and ultimately end, the spread of dangerous disinformation and misinformation online.”
Buzzfeed News: Lawmakers Call For Halt To Covert Surveillance Of Protesters By DEA
By Jason Leopold and Anthony Cormier
The Justice Department temporarily expanded the [Drug Enforcement Administration’s] power to collect information on protesters – and to share that intelligence with other law enforcement agencies and make arrests for non-drug-related crimes – last weekend. The measure [was] first reported by BuzzFeed…
In a letter sent to Barr and Timothy Shea, the acting administrator of the DEA, Democratic Reps. Jerry Nadler and Karen Bass on Friday called the expansion of the drug agency’s powers “antithetical to the American people’s right to peacefully assemble and to exercise their Constitutional rights without undue intrusion.” …
On Monday, Democratic Reps. Andy Levin, Jamie Raskin and Ilhan Omar, who represents Minnesota, sent their own letter to Barr demanding he rescind the expanded surveillance powers granted to the DEA and “ensure that DEA activities do not exceed the scope of authority granted to the agency by Congress.” …
Separately, Democrats on the House Oversight Committee sent a letter Friday to Chad Wolf, the acting director of the Department of Homeland Security, about the agency’s use of a Predator drone, as well as immigration and border agents to “surveil and intimidate peaceful protesters.”
Media
Wall Street Journal: The Media’s Self-Censors
By Daniel Henninger
In the past week, the editorial page editor of the New York Times, the editor of the Philadelphia Inquirer and the editors of Bon Appétit magazine and…website Refinery 29 have been forced out by the staff and owners of their publications for offenses regarded as at odds with the beliefs of the current protests.
It is impossible not to recognize the irony of these events. The silencers aren’t campus protesters but professional journalists, a class of American workers who for nearly 250 years have had a constitutionally protected and court-enforced ability to say just about anything they want.
Historically, people have been attracted to American journalism because it was the freest imaginable place to work for determined, often quirky individualists. Suddenly, it looks like the opposite of that…
The ingeniousness of this strategy of suppression and shaming is that it sidesteps the Supreme Court’s long history of defending opinion that is unpopular, such as its 1977 decision that vindicated the free-speech rights of neo-Nazis who wanted to march in Skokie, Ill. But if people have shut themselves up, as they are doing now, there is no speech, and so there is “no problem.”
Free speech isn’t dead in the United States, but it looks like more than ever, it requires active defense.
Online Speech Platforms
Bloomberg: Snap CEO Says Exercising Free Speech Rights by Limiting Trump
By Sarah Frier
Snap Inc. Chief Executive Officer Evan Spiegel said the company was exercising its First Amendment right to free speech when it decided not to amplify President Donald Trump’s content to a broader audience — and he’s surprised other social media sites aren’t willing to do the same…
“I’ve been surprised that other platforms are less willing to exercise their First Amendment rights to decide what’s right and wrong,” Spiegel said in an interview. “We would be devastated if we felt like our products were being used to do bad things in the world.”
After two of Trump’s tweets about mail-in voting were fact-checked by Twitter, the president issued an executive order aiming to remove legal protections from technology companies regarding content posted on their sites. Spiegel said the White House is aware of Snap’s position. “The government is explicitly threatening private platforms about exercising their First Amendment rights,” he said.
Ars Technica: Zoom cites Chinese law to defend censorship of human rights activists
By Timothy B. Lee
On multiple occasions in recent weeks, Zoom has reportedly suspended accounts or disrupted meetings involving critics of the Chinese government. In an emailed statement, Zoom didn’t deny the censorship. Instead, the company claimed that as a “global company” it was obligated to comply with the law in countries where it operates-including China…
Some of the people affected were in the United States, which has robust legal protections for free speech.
In one incident in early June, Zoom deactivated the account of Zhou Fengsuo, a leader of the 1989 Tiananmen Square protests who now lives in California. The move came days after Zhou participated in a Zoom meeting commemorating the Tiananmen Square protests, which ended in a massacre of protesters by the government on June 4, 1989. Zoom later restored Zhou’s account.
Washington Post: Amazon, Facebook and Google turn to deep network of political allies to battle back antitrust probes
By Tony Romm
Amazon, Facebook and Google turn to deep network of political allies to battle back antitrust probes Under the withering microscope of government watchdogs, tech giants including Amazon, Facebook and Google have funded a bevy of political groups that have helped push positive polling and engaged in other fingerprint-free tactics designed to deter regulators who are seeking to break up or penalize the industry.
Candidates and Campaigns
By Ted Johnson
Joe Biden’s presidential campaign launched an online petition and open letter targeting Facebook’s policies, telling CEO Mark Zuckerberg that the platform has taken “no meaningful action” to root out misinformation.
In the letter, the Biden campaign writes that Facebook “continues to allow Donald Trump to say anything – and to pay to ensure that his wild claims reach millions of voters. SuperPACs and other dark money groups are following his example. Trump and his allies have used Facebook to spread fear and misleading information about voting, attempting to compromise the means of holding power to account: our voices and our ballot boxes.”
Among other things, the Biden campaign wants Facebook to stop “amplifying untrustworthy content and promptly fact-checking election-related material that goes viral.” They also propose a two-week pre-election period during which all political advertisements must be fact checked, and for rules that “prohibit threatening behavior and lies about how to participate in the election.” …
“We live in a democracy, where the elected officials decide the rules around campaigns,” [Facebook] said in a statement. “Two weeks ago the President of the United States issued an executive order directing federal agencies to prevent social media sites from engaging in activities like fact-checking political statements. This week, the Democratic candidate for President started a petition calling on us to do the exact opposite.”
Washington Free Beacon: Maine Dem Reports Mysterious Payments to Dark Money Group Behind Disastrous Iowa Caucus App
By Joe Schoffstall
Maine Democratic Senate candidate Sara Gideon reported paying thousands of dollars to ACRONYM-the dark money group that came under fire over a botched Iowa Democratic caucus app-but the group denies receiving the cash or providing services to Gideon’s campaign…
“ACRONYM did not provide the Gideon campaign with software or services during that time period and has not received any of those payments you flagged from the Gideon campaign,” Kyle Tharp, ACRONYM’s vice president of communications, told the Washington Free Beacon.
Unlike previous groups’ payments to ACRONYM, Gideon’s expenditures were not marked to the group’s principal Washington, D.C., address, but to an Alexandria, Va., address. That address is registered to Amanda Bowen, treasurer of ACRONYM’s affiliated super PAC, PACRONYM, and corporation records list it as ACRONYM’s mailing address…
Gideon has taken a hardline stance against secret money in politics. She issued calls to overhaul the campaign finance system and to require dark money groups to disclose their donors. ACRONYM-part of a massive 2020 election effort funded by the largest Democratic dark money donor network-does not disclose its donors.
The Hill: Trump rally sign-up includes disclaimer about potential COVID-19 exposure
By Brett Samuels
Those wishing to attend President Trump’s rally next week in Oklahoma must agree not to sue the Trump campaign or host venue in the event they contract the coronavirus.
The Trump campaign on Thursday formally announced that the president’s first rally in three months will take place June 19 in Tulsa. The page for guests to sign up for free tickets to the event includes a disclaimer related to the virus.
“By clicking register below, you are acknowledging that an inherent risk of exposure to COVID-19 exists in any public place where people are present,” the statement reads.
“By attending the Rally, you and any guests voluntarily assume all risks related to exposure to COVID-19 and agree not to hold Donald J. Trump for President, Inc.; BOK Center; ASM Global; or any of their affiliates, directors, officers, employees, agents, contractors, or volunteers liable for any illness or injury.” …
The campaign is not expected to require guests to wear masks or socially distance at the event, as Trump has chafed at the optics of both.
The States
Cincinnati Enquirer: Ohio lawmakers reject attempt to ban Confederate flag at county fairs
By Jessie Balmert
Ohio lawmakers rejected a proposal to ban the flag at county fairs.
Rep. Juanita Brent, D-Cleveland, proposed banning the sale or display of the Confederate battle flag at Ohio’s county and independent fairs. The Ohio State Fair banned the sale of Confederate flag merchandise in 2015…
As more and more organizations and states remove the Confederate flag, the question remains: Does banning that flag violate the First Amendment?
Maybe. Courts have said that governments can regulate their use of the Confederate flag. A 2015 U.S. Supreme Court decision found Texas did not violate the First Amendment by refusing to allow a specialty license plate featuring the flag.
California was allowed to ban the sale or display of Confederate flag merchandise sold by government agencies. But an artist won a lawsuit permitting him to display a Civil War painting featuring the flag at a state-sponsored fair in 2016.
“If the county fair is considered a public forum or a limited public forum in which free speech is permitted, the government cannot have a restriction based on the content of the speech,” attorney Subodh Chandra told The Enquirer. “I suspect that courts might find a ban on the racist Confederate flag to be problematic at a county fair.”
If the case went to court, opponents of the flag could argue that the flag, and its historical use in terrorizing minorities, is similar to burning a cross, which is illegal, Chandra said.
Another possible legal argument: Ohio has an interest in banning racial discrimination at county fairs, Chandra said. “After all, the government wants everyone to feel welcome, and the Confederate flag is unmistakably and indisputably a symbol of slavery.”
Chattanoogan: Rep. Hakeem: General Assembly Legislative Update
By Rep. Yusuf Hakeem
This week the House has been extremely busy debating numerous pieces of legislation in committee and on the House floor. There were several notable bills that I wanted to share, and publicly state my position. HJR 0809, introduced by Rep. Keisling, requests the United States Congress convene an Article V Convention to propose an amendment to the United States Constitution reforming our campaign finance system. HJR 0809, after a spirited debate on both sides of the aisle, ultimately failed with 14 Ayes, 77 Nays, and 5 Present Not Voting. I had several concerns with the Resolution that lead me to vote against it. First, I was highly concerned with the possibility of a runaway convention that could completely change our constitution. Second, there is no way of telling when precisely the convention will take place as it would require other states to pass a similar resolution.
Oregonian: Oregon redistricting campaign hopes huge mailing will help initiative qualify for November ballot
By Hillary Borrud
Oregon voters by the hundreds of thousands are receiving letters asking them to help get an independent redistricting proposal on the November ballot, as coronavirus social distancing guidelines largely rule out traditional signature gathering strategies.
Initiative Petition 57 would transfer the once-a-decade job of redrawing Oregon’s legislative and congressional district lines from the state Legislature to a new 12-member commission…
[T]he initiative faces opposition from some of the state’s political heavyweights. A lawyer for Becca Uherbelau, executive director of the nonprofit Our Oregon, repeatedly weighed in with detailed explanations why Secretary of State Bev Clarno should not allow the initiative to proceed or should change the ballot language…
After the state Supreme Court on March 26 upheld the ballot title written by Attorney General Ellen Rosenblum’s administration, Uherbelau and Emily McLain, executive director of Planned Parenthood Advocates of Oregon, filed a lawsuit seeking to stop the redistricting commission initiative from proceeding.
Through their lawyer, Uherbelau and McLain argued it violates a procedural requirement in the Oregon Constitution that initiatives only amend one provision of the constitution at a time. For example, they claim the initiative would not only switch redistricting from the Legislature to the independent commission, it would also restrict Oregonians’ constitutional rights to free speech by barring political insiders including elected officials, lobbyists and political party leaders from serving on the commission.
