In the News
Three Martini Lunch (podcast): A Win for Free Speech, Retail Sales Soar, Playground Politics
Hosted by Greg Corombos and Jim Geraghty
Join Jim and Greg as they cheer a new rule which no longer requires many nonprofits to disclose donors to the IRS.
Guest: IFS Attorney Ryan Morrison
Listen on Spreaker.
New from the Institute for Free Speech
Yes, Politicians, “False” Speech About You Is Protected by the First Amendment
By Alex Baiocco
Over the past few months, President Trump’s reelection campaign has sued four different media organizations for defamation. In response to free speech advocates’ concerns that such legal action would chill constitutionally protected speech critical of the president, the campaign’s Senior Legal Advisor Jenna Ellis said, “False statements are not protected under the U.S. Constitution.”
Ironically, this statement is false.
Many false statements are protected by the First Amendment, for good reason. In the landmark 1964 case New York Times v. Sullivan, the Supreme Court recognized “[t]hat erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.'” Even more directly, a 2012 opinion noted that “[t]he Court has never endorsed the categorical rule . . . that false statements receive no First Amendment protection.”
While defamation is one of the few categories of unprotected speech, the Supreme Court has set very high standards for imposing defamation liability in the context of political speech. In Sullivan, the Court determined that an ad placed by civil rights advocates in The New York Times did in fact contain falsehoods. Yet it held that, in defamation suits brought by public officials, “[f]actual error, content defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements…” In order to win a defamation suit, a public official must not only prove the statement to be false, but also that the defendant knew it was false or recklessly disregarded the truth. These standards were later applied more broadly to “public figures.”
The Courts
Southern Illinoisan: Illinois GOP sues Pritzker seeking exemption from 10-person limit
By Rebecca Anzel, Capitol News Illinois
The Illinois Republican Party wants to be excluded from the state’s social gathering restrictions, as it alleged in a federal lawsuit that churches and political demonstrations already enjoy such exclusions…
“Political parties are for political expression what churches are for religious expression: the corporate manifestation of speech and interaction within a community of shared belief,” the Republican Party argued in its lawsuit…
“Yet, unlike churches, political parties are barred from gathering in groups greater than 10 under the governor’s executive order,” it continued. “And unlike protestors against police brutality, they have not been given an exemption based on his sympathy, recognition, and participation.”
Daniel Suhr, an attorney with the Chicago-based Liberty Justice Center and the party’s representative, said in a press conference Tuesday he is asking a federal judge to agree treating “political party gatherings differently from religious gatherings” violates the U.S. constitution…
“It is not the government’s job under the first amendment to favor one viewpoint over another,” Suhr said Tuesday. “We’re asking for the same fair treatment not to be based on the content of our speech, but rather to say every group that’s engaging in the public square deserves the same treatment from the government.”
CBS 12: Court allows social media case against lawmaker
By Jim Saunders, News Service of Florida
A federal appeals court has refused to dismiss a lawsuit filed against a state House member who blocked a constituent from the lawmaker’s Twitter and Facebook accounts.
A three-judge panel of the 11th U.S. Circuit Court of Appeals last week rejected arguments by Rep. Chuck Clemons, R-Newberry, that he should be shielded from the lawsuit filed by Gainesville resident Peter Attwood, who contends, in part, that the lawmaker violated First Amendment rights…
Attwood filed a lawsuit alleging that Clemons unconstitutionally blocked him from participating in public forums through Twitter and Facebook. U.S. District Judge Mark Walker refused to dismiss the case — a decision that was upheld Thursday by the appellate panel…
Clemons raised arguments that he should be shielded from the lawsuit because of sovereign immunity — which helps protect government officials and agencies from lawsuits. Also, he contended he should be protected by what is known as “legislative immunity,” which is designed to shield lawmakers from liability for acts such as votes on issues and statements during floor debates.
Congress
Axios: Exclusive: Hawley unveils bill targeting Big Tech’s shield
By Margaret Harding McGill
Sen. Josh Hawley (R-Mo.) Wednesday will introduce legislation that would give consumers grounds to sue companies like Facebook or Twitter over accusations of selective censorship of political speech…
The Limiting Section 230 Immunity to Good Samaritans Act would prevent major online companies from receiving the protections of Section 230 of the Communications Decency Act unless they revise their terms of service to include pledges to operate in good faith and details of their content moderation policies, according to Hawley’s office.
Section 230 protects website operators from lawsuits over user-generated content and empowers them to moderate content without losing that legal protection.
Under Hawley’s bill, users who believe the provider is not “operating in good faith” by consistently and fairly applying its content rules could sue for $5,000 and attorneys’ fees.
The bill is also sponsored by Republican Sens. Marco Rubio, Mike Braun and Tom Cotton, Hawley’s office said.
The legislation would only apply to websites or mobile apps with more than 30 million users in the U.S. in a month – or 300 million worldwide in a month – and more than $1.5 billion in global revenue.
Politico: Morning Tech
By Alexandra S. Levine
DEMOCRATS SET TO TAKE SOCIAL MEDIA TO TASK – Top Democratic lawmakers are expected to tear into social media companies’ efforts to combat online disinformation at a George Washington University virtual forum today focused in part on misleading Covid-19 news.
– The lineup includes a series of heavy hitters: Pelosi (D-Calif.), who recently blasted tech companies’ “complete failure to fight the spread of disinformation”; Rep. Jan Schakowsky (D-Ill.), whose House subcommittee is holding a June hearing on her and other lawmakers’ allegations that “social media platforms have failed to take sufficient steps to address disinformation”; and Sen. Richard Blumenthal (D-Conn.), who has skewered platforms’ handling of President Donald Trump’s posts. The event will also feature “real people who have been directly harmed” from the industry’s handling of misinformation, GW said.
– Also on the list: House Judiciary antitrust Chairman David Cicilline (D-R.I.), who…recently sponsored the so-called Protecting Democracy from Disinformation Act, a bill that would tighten restrictions on online political ad-targeting for platforms like Facebook…
DEMS TO FTC’S SIMONS: PUSH BACK ON TRUMP’S EXECUTIVE ORDER- Top House and Senate Democrats who oversee the FTC called on Chairman Joseph Simons to defend the agency’s independence from the White House following Trump’s executive order on social media. The executive order – signed after Twitter fact-checked the president’s tweet – called for the FTC to “consider taking action” against companies for restricting online speech. “The Federal Trade Commission is not an arm of the Presidency, and it cannot be pressed into service to retaliate against Donald Trump’s political rivals or to stifle critical speech,” wrote Schakowsky and Blumenthal, ranking members on the congressional subcommittees focused on consumer protection.
Fox News: Sen. Tom Cotton: Twitter tried to censor me – and they lost
By Sen. Tom Cotton
A Jacobin mob of left-wing thought police has risen up across our country. No statue, no movie, no cartoon is immune. Nor any op-ed. The New York Times, after publishing my op-ed about the Insurrection Act, capitulated to a woke mob of its employees.
But it’s not just the Times. I reveal here for the first time that the Twitter thought police also targeted me for expressing an opinion shared at that time by a majority of Americans. Here’s the behind-the-scenes story.
Independent Groups
Politico: Anti-super PAC candidate Amy Kennedy gets help from super PACs
By Matt Friedman
Two super PACs have recently spent money to help Democratic primary candidate Amy Kennedy In South Jersey’s 2nd Congressional District, even though she’s pledged to overturn the U.S. Supreme Court ruling that made super PACs possible…
The financial help from the two super PACs has opened Kennedy up to charges of hypocrisy by her primary opponents.
Online Speech Platforms
USA Today: Mark Zuckerberg: Historic Facebook campaign will boost voter registration, turnout and voices
By Mark Zuckerberg
Everyone wants to see politicians held accountable for what they say – and I know many people want us to moderate and remove more of their content. We have rules against speech that will cause imminent physical harm or suppress voting, and no one is exempt from them. But accountability only works if we can see what those seeking our votes are saying, even if we viscerally dislike what they say.
Ultimately, I believe the best way to hold politicians accountable is through voting, and I believe we should trust voters to make judgments for themselves. That’s why I think we should maintain as open a platform as possible, accompanied by ambitious efforts to boost voter participation.
By giving people a voice, registering and turning out voters, and preventing interference, I believe Facebook is supporting and strengthening our democracy in 2020 and beyond. And for those of you who’ve already made up your minds and just want the election to be over, we hear you – so we’re also introducing the ability to turn off seeing political ads. We’ll still remind you to vote.
NBC News: Google bans two websites from its ad platform over protest articles
By Adele-Momoko Fraser
Google has banned two far-right websites from its advertising platform after research revealed the tech giant was profiting from articles pushing unsubstantiated claims about the Black Lives Matter protests.
The two sites, ZeroHedge and The Federalist, will no longer be able to generate revenue from any advertisements served by Google Ads.
A Google spokesperson said in an email that it took action after determining the websites violated its policies on content related to race.
“We have strict publisher policies that govern the content ads can run on and explicitly prohibit derogatory content that promotes hatred, intolerance, violence or discrimination based on race from monetizing,” the spokesperson wrote. “When a page or site violates our policies, we take action. In this case, we’ve removed both sites’ ability to monetize with Google.”
Google’s ban of the websites comes after the company was notified of research conducted by the Center for Countering Digital Hate, a British nonprofit that combats online hate and misinformation. They found that 10 U.S-based websites have published what they say are racist articles about the protests, and projected that the websites would make millions of dollars through Google Ads.
Google blocked The Federalist from its advertising platform after the NBC News Verification Unit brought the project to its attention. ZeroHedge had already been demonetized prior to NBC News’ enquiry, Google said.
Federalist: Federalist Co-Founder Sean Davis Responds To NBC, Google Deplatforming Attempt
By Tristan Justice
On Tuesday, NBC News reported a story that Google banned The Federalist, along with the website ZeroHedge, from generating ad revenue based on a report by the network’s “verification unit” created with the UK’s “Center for Countering Digital Hate” complaining about the two websites exposing the mainstream media’s deliberate lying over recent protesting that has gripped the nation without citing the stories in question.
Google later released a statement debunking NBC’s reporting. Google said The Federalist had not been demonetized but that it was threatening to introduce sanctions on the website over third-party content in its comment sections. [Federalist Co-founder Sean] Davis told Tucker Carlson that in response, The Federalist has “temporarily” removed its comment section on pieces but pledged “they will be back.”
“Here we have a foreign unit, NBC that with the Orwellian name the ‘NBC News Verification Unit,’ the irony there is enough to make you laugh, seeking with another left-wing foreign group to de-platform an American media organization,” Davis said, after all kinds of allegations of electoral interfering by foreign entities were raised in the aftermath of 2016. “If this were a just world there would be accountability for that. There would be accountability for fake journalists who go around trying to destroy their competition for the crime of criticizing them.”
Davis emphasized that while The Federalist is a large enough website to weather the storm of big tech censorship, smaller groups don’t have the power to defend themselves from the left-wing cancel mob.
Techdirt: No, Google Didn’t Demonetize The Federalist & It’s Not An Example Of Anti-Conservative Bias
By Mike Masnick
So, earlier today, NBC reported that Google had “banned” two well known websites from its ad platform, namely The Federalist and Zero Hedge. The story was a bit confusing… [I]t turns out the story was highly misleading, though it will almost certainly be used to push the false narrative that the big internet companies are engaged in “anti-conservative bias” in moderation practices. But that’s wrong. Indeed, it appears what happened is exactly what Google has done to us in the past, in saying that because of certain comments people put on our stories, they were pulling any Google ads from appearing on that page. Now we’ve explained why this is a dumb policy, that only encourages bad comments on sites to try to demonetize them, but it’s not got anything to do with “anti-conservative bias.” Also, it’s just pulling ads from a single page, not across the board.
But that’s not how NBC presented it. Indeed, NBC’s coverage is weird in its own way. It took a report from a UK-based operation that put together a blacklist of websites it says should be “defunded” for “racist fake news.” Of course, “racist” is in the eye of the beholder, and “fake news” is not a very useful term here, but whatever. NBC reporters took this report and reached out to Google to ask about these particular pages, and that set off Google’s usual review processes, and the recognition that some of the comments on the page violated Google’s ad policies on “dangerous and derogatory” content (the same thing we got dinged for above)…
Of course, as the story got bigger and bigger and spun out of control, even Google had to come out and clarify that The Federalist was never demonetized, but rather that they called out specific comments that would lead to ads being pulled on that page.
Wall Street Journal: Civil Rights Groups Push for Facebook Ad Boycott
By Deepa Seetharaman
Several American civil-rights groups, including the Anti-Defamation League and the NAACP, are encouraging big advertisers to pull spending from Facebook Inc. to protest what they say is the company’s failure to make its platform a less-hostile place.
The campaign, to be announced early on Wednesday, comes after years of private discussions between these groups and Facebook, which the activists say have amounted to little change in the way the social-media giant enforces its policies around hate speech and misinformation. The groups took out a full-page ad in the Los Angeles Times on Wednesday urging advertisers to pull their spending on Facebook for July.
“Today, we are asking all businesses to stand in solidarity with our most deeply held American values of freedom, equality and justice and not advertise on Facebook’s services in July,” the ad says. “Let’s send Facebook a powerful message: Your profits will never be worth promoting hate, bigotry, racism, antisemitism and violence.”
By L. Brent Bozell III
Big Tech has already made its choice for president in November. Social media companies have thrown their support to former Vice President Joe Biden. They are doing it by disallowing President Trump from communicating with the American people.
It is the greatest form of censorship, not to mention election manipulation, this country has ever witnessed…
With less than five months to go before we vote, social media executives and their radical leftwing staffers… are determined to choose the next president – or better put, prevent Trump’s reelection. And if we let them, we’ll never have another free election anywhere.
Candidates and Campaigns
Washington Post: Elizabeth Warren said fundraisers would tear ‘this democracy apart.’ On Monday, she raised $6 million for Joe Biden.
By Annie Linskey
A reliable part of Sen. Elizabeth Warren’s pitch during her 14-month presidential bid came when she touted her refusal to hold high-dollar fundraisers for her campaign…
If she was successful, she said, the example would help end the hold that many liberals believe billionaires and millionaires have over the current political system…
“We’re tearing this democracy apart,” Warren told reporters…
On Monday night, however, Warren headlined a virtual fundraiser for Joe Biden… And in less than an hour, Warren raised $6 million for Biden’s campaign, making hers the highest grossing event that Biden has had to date…
Warren also plans to appear at an event to raise money next month for the Democratic Senatorial Campaign Committee, which will benefit a host of Democratic candidates, according to a person familiar with the schedule…
Biden [also] entered the presidential race pledging not to raise money via an allied super PAC, but after anemic fundraising, he dropped his opposition.
Now he’s the party’s presumptive nominee.
Warren also switched gears on super PACs…
A careful read of the February 2019 pledge Warren made on banning high-dollar fundraising reveals some types of money gathering weren’t mentioned…
Those omissions appeared intentional.
Washington Free Beacon: Pelosi Pours $180,000 Into Facebook Ads While Calling for Advertisers to Boycott Site
By Alana Goodman
House Speaker Nancy Pelosi called on advertisers to boycott social media networks unless the outlets agree to restrict “dangerous” political speech, even as her campaign spent over $180,000 on Facebook ads over the past week.
“Advertisers are in a position, they have power to discourage platforms from amplifying dangerous and even life-threatening disinformation,” said Pelosi at an online conference on social media hosted by George Washington University on Tuesday.
Pelosi said advertisers should use “a combination” of tactics to pressure social media companies to change their policies, including pulling ad revenue.
Pelosi spent $182,528 on Facebook ads over the past seven days, according to Facebook’s public database. The spending shows the value Democrats place on the platform as a political fundraising and organizing tool, even as they call for tighter speech restrictions on the site…
During the social media conference, Pelosi also read remarks from former Facebook employees who claimed the website “weaponized hatred” and “isn’t neutral.” …
[Similarly, Former Vice President Joe] Biden spent over $4.7 million on Facebook ads this month, the Washington Free Beacon reported, while blasting the website for allegedly allowing “threatening behavior and the spread of misinformation” from Trump.
The Biden campaign has been privately lobbying Facebook for stricter speech policies for months, but deployed its supporters against the social network last week after its demands were rebuffed, the New York Times reported.
The States
Politico: New Jersey Playbook
By Matt Friedman
Candidates for governor can now get up to $15.1M in public campaign funds, by POLITICO’s Matt Friedman: New Jersey’s 2021 gubernatorial candidates will each be eligible for just over $15 million in public funds next year, under new rules adopted by the state’s campaign finance agency. The New Jersey Election Law Enforcement Commission voted, 3-0, on Tuesday to increase the limits for how much the candidates can receive based on an inflation calculation that largely takes into account the cost of advertising.
