In the News
The Insider (Heritage Foundation): The Enemies of Free Speech Are Targeting the Internet
By Matt Nese and Luke Wachob
A closer look at the “Honest Ads Act” reveals it is nothing like its marketing suggests. Rather than a defense against foreign meddling in elections, the bill applies to Americans who use the internet to speak with other Americans about political affairs and the issues of the day. It has gone nowhere in Congress, so far, but it has inspired a plethora of state-level imitators-some of which have been signed into law. These bills represent some of the most serious threats to free speech rights today.
The basic structure of these online speech laws is the same. Each expands the types of ads regulated by the government, often going so far as to regulate any paid ads about any “national legislative issue of public importance.” The bills frequently require inflexible disclaimers that could make many smaller online ads impractical. Especially as online
technology continues to develop, it may be impossible for speakers to comply with these static disclaimer requirements. The bills would also require groups running political and issue ads to file complex reports with the government-sometimes including donor disclosure (surprise, surprise). Of course, there are substantial fines and penalties for violations, even minor ones, and the potential for politically motivated investigations.The end result? The internet would become less useful to grassroots campaigns and average Americans trying to speak. At the same time, such restrictions would pose little obstacle to well-funded interest groups and candidate campaigns; they can better afford to pay for the legal guidance needed to navigate a more heavily regulated internet.
Los Angeles Times: Trump said it’s OK to take campaign dirt from foreign powers. Is it legal?
By Melissa Gomez
“My view is that an in-kind contribution has to have some determinate economic value,” [Daniel P. Tokaji, a law professor at Ohio State University,] said.
Brad Smith, a law professor at Capital University in Ohio and a former FEC chairman, agreed, saying that conversations with foreign nationals are not unlawful. But if those talks involve a foreign government agent going out and spending money to compile information on a candidate’s behalf, it could be, he said…
During the interview, Stephanopoulos brought up the example of Al Gore’s campaign receiving a debate prep book stolen from the campaign of George W. Bush, his opponent in the 2000 presidential election. The Gore campaign turned the materials over to the FBI.
But the situation isn’t comparable, Trump replied. Smith, the former Republican FEC chairman, agreed.
“If you get a confidential document, that you know has been either stolen or leaked in violation of confidentiality privileges, I could see that being a very different reaction,” Smith said.
Nonetheless, Smith found Trump’s remarks troubling.
“I think it’s legitimate for Americans to be concerned that the president is perhaps too cavalier about foreign sources,” he said.
The Courts
Bloomberg Law: Deflate the Rat? Labor Board Asks Court to Stop Union Protest
By Andrew Wallender
The federal labor board is asking a judge to bar Scabby the Rat, the inflatable union protest icon, from being used in picketing of three Staten Island supermarkets.
The National Labor Relations Board is seeking a temporary restraining order against Construction and General Building Laborers’ Local 79 that would bar all protests against the ShopRite stores for five days, including the use of inflatables. The NLRB is investigating whether the union’s protest is operating outside federal labor laws…
The court hearing in New York is the latest front in a long-running effort by Republican-controlled labor boards to rid the use of inflatables in union protests.
NLRB General Counsel Peter Robb, a Trump administration appointee, has aggressively pursued multiple cases involving inflatable rats, cockroaches and other creatures since taking office. He’s seeking a reinterpretation of federal labor laws that in certain cases would classify the use of inflatables as “unlawful coercion” of businesses that don’t directly employee protesting workers and overrule First Amendment considerations…
The actions by the General Counsel’s office are unlike anything union attorney Tamir Rosenblum has ever seen. He represents Local 79…
“It’s really, really, super aggressive,” Rosenblum said. “And we’re just scratching our head. Because what are you saying? The law is settled at this point, not just First Amendment law but the extant case that’s governing at the board.” …
An attorney representing the grocery stores where the protests are taking place said that the union’s tactics were a classic case of secondary boycott…
“A neutral employer should not be dragged into labor disputes,” attorney Robert Pettigrew said. “And in doing so, you’re engaging in unlawful activity. So the tension there is the middle ground in terms of at what point is this conduct no longer protected by the First Amendment and becomes unlawful.”
Congress
By Mary Catherine Wellons
[Sen. Josh] Hawley, a tech critic, introduced legislation on Wednesday that would remove the immunity big technology companies receive under Section 230 of the Communications Decency Act of 1996. The CDA protects online platforms such as Facebook, Twitter and Google’s YouTube from liability for the content users post. However, companies will be able to earn immunity from the crackdown if they submit to audits every two years to prove their algorithms and content-removal practices are “politically neutral.”…
Immunity certification would require a super-majority vote by the FTC…
Proponents of maintaining Section 230 immunity argue that it does not only protect tech companies. The Electronic Frontier Foundation has argued that it also protects traditional media companies for liability for comments that users post on their websites, for instance.
Americans for Prosperity, a policy group funded by the libertarian Koch family, issued a statement this week in anticipation of the bill, saying: “Eroding the crucial protections that exist under Section 230 creates a scenario where government has the ability to police your speech and determine what you can or cannot say online. Senator Hawley has argued that some tech platforms have become too powerful, but legislation like this would only cement the market dominance of today’s largest firms.”
The Internet Association, a lobbying group whose members include Google and Facebook, also criticized the bill.
“This bill forces platforms to make an impossible choice: either host reprehensible, but First Amendment protected speech, or lose legal protections that allow them to moderate illegal content like human trafficking and violent extremism. That shouldn’t be a tradeoff,” said Michael Beckerman, president and CEO of the Internet Association.
Reason: Josh Hawley Introduces Bill to Put Washington In Charge of Internet Speech
By Elizabeth Nolan Brown
Sen. Josh Hawley (R-Mo.) is introducing legislation to clamp down on free expression online, under the pretense of fighting tech-company “bias” against Republicans.
Hawley’s solution is to amend Section 230 of the Communications Decency Act, a measure that prevents individual users of internet platforms and the companies that run them from being treated as legally indistinguishable from one another. Without it, digital companies and the users of their products (i.e., all of us) could be sued in civil court or subject to state criminal prosecution over content and messages created and published by others…For some Republicans leaders-chief among them Hawley-this has led to the truly Orwellian tack of trying to convince conservative internet users that taking away protection for online speech will somehow allow them to speak more freely. That’s the nonsensical proposition at the heart of Hawley’s new legislation, misleadingly called the “Ending Support for Internet Censorship Act.”
The measure would give the government control over online speech by denying Section 230 protections to platforms that don’t hand over an array of private intellectual property and satisfactorily prove to a bunch of partisan political appointees that they are operating in a “politically neutral” manner. Essentially, Hawley wants to revive the old Fairness Doctrine-a policy that was roundly denounced by conservatives for its chilling effect on free speech and its propensity to further marginalize non-mainstream voices-and apply this cursed policy paradigm to anything online…
[T]he only viable path for tech companies would be to censor vastly more political speech, not less.
Washington Examiner: Ending immunity for Facebook, Twitter, and YouTube would result in more censorship, not less
By Philip Klein
[I]t seems to me that if social media firms are worried about being liable for user generated content, they’re likely to be more aggressive in taking down any vaguely political content, out of fear that it could put them in legal jeopardy. They aren’t likely to respond by being more open to controversial posts from all sides…
Partisan control of the FTC changes from administration to administration, and there’s no objective criteria for determining political neutrality. So this would leave decisions about political content on social media up to the arbitrary judgment calls of federal regulators.
I get that conservatives are frustrated about bias shown in decisions to ban or suspend users, but this response would only lead to a more restrictive speech code.
Techdirt: Congress Now Creating A Moral Panic Around Deepfakes In Order To Change CDA 230
By Mike Masnick
[L]ast week, Rep. Adam Schiff held a hearing on “deep fakes” with a part of the focus being on why we should “amend” (read: rip to shreds) Section 230 of the Communications Decency Act to “deal with” deep fakes…
One of the speakers was law professor Danielle Citron, who has been a long time supporter of amending CDA 230 (though, at the very least, has been a lot more careful and thoughtful about her advocacy on that then many others who speak out against 230). And she recommended changing CDA 230 to deal with deep fakes by requiring platforms take responsibility with “reasonable” policies…
[D]efining “reasonable moderation practices” in law seems like a very, very dangerous idea. “Reasonable” to whom? And how? And how can Congress demand reasonable rules for moderating content without violating the 1st Amendment? I don’t see how any proposed solution could possibly survive constitutional scrutiny.
Finally, and most importantly, Citron is just wrong to claim that the current structure “leaves platforms with no incentive to address destructive deepfake content.” As I said, I find Citron to be more thoughtful and reasonable than many critics of Section 230, but this statement is just bonkers. It’s clearly false, given that YouTube has taken down deepfakes and Facebook has pulled them from algorithmic promotion and put warning flags on them…
And, importantly, section (c)(2) of CDA 230 is there to encourage this kind of experimentation by the platforms. They are given the benefit of not facing liability for moderation choices they make, which is actually a very strong incentive for those platforms to experiment and figure out what works best for them and their particular community.
Daily Caller: Sen. Cruz On Doctored Pelosi Video: ‘Free Speech Is Messy’
By Chris White
“At the end of the day free speech is messy,” Cruz said in an interview with The Washington Post, referring to a doctored viral video published in May that was designed to make Pelosi appear drunk. He added: “If something is fraudulent, I think that’s a basis for taking something down.” …
The Texas Republican did not elaborate on whether the video was fraudulent. His comments come after Democrats and media pundits urged Facebook and Twitter to nix the video. Both companies refused, with Facebook arguing that the company does not have a policy requiring content to be factual…
Cruz believes that Facebook, Twitter, and other Silicon Valley giants are systematically biased against conservatives. His office has not yet provided a comment to The Daily Caller News Foundation about whether the video should be removed.
Online Speech Platforms
American Enterprise Institute: Let’s not ruin the internet over flukey ‘bias’ incidents like the recent one on Pinterest
By James Pethokoukis
Different platforms have different content moderation policies, but they all share the problem of moderating that mass of content as well as “having policies … perennially in a state of reactive catch-up,” notes an excellent Slate piece on the content moderation policies of the various companies.
Yet that’s not a bad thing. The cycle of content moderation controversy, public backlash, then companies altering their stances may be more feature than bug and a crucial component of a useful feedback loop, notes journalist Will Oremus. (It sorts of reminds of Amar Bhidé’s work on innovation that stresses the role of early adopter consumers to provide ongoing feedback on new tech products and services.) As Oremus writes in a recent piece, “Consistency is a virtue, but so are responsiveness and adaptability. We need standards, and we need transparency – but ultimately, we’ll always need the backlashes, too.”
Every problem doesn’t demand a Washington policy response. That sort of reactiveness can make things worse (such as ill-considered calls to change Section 230 of the Communications Decency Act). This is especially the case when the problem really isn’t much of a problem at all.
Forbes: Would Breaking Up Digital Platforms Enhance Free Speech?
By Mark MacCarthy
Conservative commentators such as Peter Van Buren routinely criticize social media for deplatforming conservative commenters. Van Buren’s fix is to break up tech.
The idea is simple enough. Removing speakers from digital platforms only works, says Van Buren, because platforms are “near-monopolies; no one cares who gets kicked off MySpace. If you end the monopolies, you defang deplatforming.” Decisions to delete, delay, or demote controversial material would matter less if antitrust put an end to “social media megacompanies, with none big enough to effectively silence any significant amount of speech…” …
Moreover, it is hard to see U.S. antitrust regulators seeking to establish and maintain a digital platform market comprised exclusive of small platforms. For one thing, network effects really do push users toward a dominant platform. A breakup would, therefore, require constant supervision to prevent the reemergence of giant platforms.
This supervisory role is worth considering. But it is really the jurisdiction of a specialized regulatory agency, not a generalized antitrust enforcer…
To address the concerns of those on the right and the left about platform censorship it might be useful to contemplate ways to create positive obligations for platforms to keep their users informed, to vindicate the right of users access to diverse information and political perspectives…
The need to address the content moderation practices of platform is the free speech issue of our time. Rules designed for earlier media cannot simply be copied and applied as a template to the new technological and economic affordances of digital platforms. But examining earlier media regulation for lessons for the digital age in a way that draws on a positive progressive vision of the First Amendment might be a way forward.
Corporate Speech
Washington Post: The Technology 202: Amazon is clapping back at politicians on Twitter
By Tom James, AP
Amazon’s public relations Twitter account is starting to look a lot more like a political rapid response unit…
The company clapped back yesterday at Rep. Alexandria Ocasio-Cortez (D-N.Y.) and defended its $15 minimum wage for workers after she criticized Amazon chief executive and Washington Post owner Jeff Bezos for paying people “starvation wages” in an interview over the weekend…
That’s part of a broader pattern: The company has also sought to fact-check statements from 2020 hopefuls in between tweets promoting one-day shipping and its Kindle devices. It disputed former vice president Joe Biden’s comments last week about how much it pays in taxes and pushed back in April on Sen. Elizabeth Warren’s criticism of its treatment of competing sellers on its platform…
Amazon appears to be realizing that a quiet playbook doesn’t work as the concentration of corporate power becomes a key 2020 issue for Democrats on the campaign trail — who have no qualms with singling out specific companies.
“[Amazon] can’t afford to be passive about it,” said Larry Parnell, an associate professor of strategic public relations at George Washington University. “Corporate America is finding that engaging in the political process – like it or not – is part of doing business.”
Other tech giants such as Google and Facebook have also been in politicians’ line of fire, but their Twitter accounts have not sought to take them to task on issues of the day. But Parnell says that makes them “easy prey” for politicians…
“Amazon is simply correcting the record when high-profile candidates or elected officials make statements about the company that are either incorrect or misleading,” said a person familiar with the company’s thinking. “Errors and misunderstandings become accepted truths if they go uncorrected.” …
“It’s probably the new normal,” Parnell said. “Amazon is at the forefront of something here that we’ll see more of.”
Taxpayer-Financed Campaigns
Washington Post: Voters in Seattle getting $100 each to donate to candidates
By Tom James, AP
“It gives candidates the chance to say, ‘I’m going to raise my money by speaking to my constituents,’ rather than dialing for dollars to big out of state donors,” said Ian Vandewalker, a campaign finance expert with the Brennan Center for Justice at New York University.
Gillibrand has said a federal campaign financing system modeled on the Seattle program could distribute $200 per voter in what she called “Democracy Dollars” so voters could individually finance presidential and congressional races…
The program has seen some speedbumps. Its first year didn’t yield a dramatic increase in donor diversity, with participation highest among older voters and in majority-white neighborhoods.
The program also stumbled in accessibility. Roughly half the candidates who said they wanted to use the vouchers didn’t make it through the qualification process, and others ran into delays getting the money in time to compete.
The city said it has since taken steps to address diversity and accessibility.
Meanwhile, the Pacific Legal Foundation, a libertarian-leaning group, has sued to halt the program on behalf of two Seattle residents. The program is funded by a special property tax, and the lawsuit says it’s a violation of taxpayers’ rights to use the money to fund candidates they may not support.
And even advocates who back campaign finance reform more broadly say translating the Seattle program to the national stage raises unanswered questions.
Scaling a municipal voter campaign finance system to the federal level would be a challenge, Vandewalker said, and a voucher program would likely require more administrative work and be generally more complicated than other more popular public finance models, like funds-matching programs.
In Seattle, the 2017 program cost about $1 million in administrative costs alone, before a single voucher was even turned in.
The States
By Matt Arco
Gov. Phil Murphy has it dead wrong, state Senate President Stephen Sweeney told NJ Advance Media on Tuesday.
Sweeney, New Jersey’s top state lawmaker, insists there was no deal in place to give Murphy, a fellow Democrat, political cover last week as the governor avoided the embarrassment of state lawmakers overriding his veto of a “dark money” bill – something a Garden State governor hasn’t suffered in more than two decades.
Murphy on Monday signed the same bill he’d vetoed last month, and said in a statement that he approved the measure “based on an express commitment from my colleagues in the Legislature” to make changes he wanted before it goes into effect…
Murphy wants to spare grassroots organizations and progressive groups from revealing their donors.
But Sweeney on Tuesday again insisted there was no deal. And he’s so adamant there wasn’t a deal that he said he has no plans to hold a vote on the changes Murphy wants before the end of the month – something the governor said was part of the agreement.
“There was no reason for me to make any deal,” Sweeney, D-Gloucester, said. “We had the votes to do an override. All I’ve said is if there’s any unintended consequences, then we would adjust it.”
Not only will Sweeney not call a vote on Murphy’s changes by the end of the month, he said he won’t do it before the newly signed law goes into effect in October.
“No,” Sweeney responded when pressed if there would be a vote in the state Senate on revisions to the bill Murphy signed.
“It hasn’t even been enacted yet. What am I fixing right now? What’s broken? What’s wrong with it?” Sweeney asked. “There was no need for a deal.”
