ICYMI
The Federalist’s Disappearing Comments Section Is a Preview of What Happens if We Revoke Section 230
By Luke Wachob
On Tuesday, NBC News reported that Google would ban two websites, ZeroHedge and The Federalist, from its advertising services. Such a ban could be an enormous blow to an ad-supported website. By some measures, Google Ads commands over 30% of the entire digital ad business worldwide.
A Google spokesperson added that The Federalist was in violation of its policies, not because of its articles, but because of content in its readers’ comments. The Federalist responded by immediately removing all user comments from its website. Google then said the matter was resolved, and the site would not be demonetized…
[C]onservatives should be asking: would revoking Section 230 make things any better?
The Federalist’s response suggests that it would not. The instant the site faced financial repercussions for the content of its user comments, it removed all user comments. It did not go through and separate good from bad. It just chucked all the comments out in one fell swoop.
While The Federalist plans to bring back its comments section in due course, it’s easy to see how others could make a different choice. If these incidents were to continue, many websites might decide that user comments aren’t worth the trouble. Especially if some group goes hunting for comments that violate Google’s rules (or even posts problematic comments themselves), hoping to damage a particular publication.
The stakes with Section 230 immunity are even higher than a loss of ad revenue. The risk to a platform is that it will be sued and have to pay out for illegal content that users are able to slip past the refs. The incentives to restrict speech will be stronger.
Trump Administration
Forbes: Trump Says He Wants To Punish Flag Burning With A Year In Prison
By Andrew Solender
At his rally in Tulsa on Saturday, President Trump said he wants to make flag burning a crime, punishable by one year in prison…
Trump. . . [called] on the senators in attendance, Sens. Jim Inhofe (R-Okla.) and James Lankford (R-Okla.), to propose legislation criminalizing flag burning, with jail time as a penalty.
“We ought to come up with legislation that if you burn the American flag, you go to jail for one year. One year,” Trump said, claiming that he’s “a big believer in freedom of speech,” but calling flag burning “desecration.”
Trump cited an incident at a protest in Portland as the inspiration for his proposal. “Two days ago, leftist protesters in Portland, Oregon ripped down a statue of George Washington and wrapped in an American flag, and set the American flag on fire,” Trump said to raucous boos from the crowd. “Democrat, all Democrat. Everything I tell you is Democrat,” he added.
Twitter users were quick to note the unconstitutionality of Trump’s proposal. “Someone should tell Trump that they once tried to have a law that criminalized flag burning but the Supreme Court struck it down in a decision that Justice Scalia joined,” historian Kevin Kruse noted.
By Talia Kaplan
“There’s something very disturbing about what’s going on,” Attorney General William Barr told Maria Bartiromo in an exclusive interview [about tech censorship. Barr explained:]
“To some extent there was a bait-and-switch over the past couple of decades.” …
He went on to say the tech companies got their “strong market position” by marketing themselves as “open to all comers.”
Barr noted . . .”they built up all their membership and their networks [by] saying, ‘We have a wide variety of views. People can come in and post their views and their positions and their statements.'”
“Then they’ve switched,” Barr added. “Now they’re being more selective and they’re starting to censor different viewpoints.”
[He said there is a ] “concentration of these very large companies that have that kind of influence on the sharing of information and viewpoints on our society.”
Barr explained that that is a “fundamental problem” because “our republic was founded on the idea, and the whole rationale was that there’d be a lot of diversity of voices and it would be hard for someone to be able to galvanize, big faction in the United States that could dominate politically and oppress a minority, and yet now we have with the Internet and with these big concentrations of power, the ability to do just that, to quickly galvanize people’s views because they’re only presenting one viewpoint and they can push the public in a particular direction very quickly.” …
He then said that “one way this can be addressed is through the antitrust laws and challenging companies that engage in monopolistic practices.”
The Courts
Law360: Trump Adds PAC To Claims Over ‘Manufactured’ Quote
By Christopher Cole
President Donald Trump’s campaign has added a progressive political action committee as another target of a defamation suit already leveled against an NBC affiliate in Wisconsin because the PAC produced and sponsored an ad that featured allegedly manipulated clips of Trump claiming the coronavirus was “a hoax.”
Trump’s reelection arm says Priorities USA Action belongs in the suit, which did not name the PAC when originally filed. The progressive organization…asked to join the case as an intervenor defendant May 12.
Donald J. Trump for President Inc. sued Northland Television LLC, which does business as WJFW-NBC, two months ago, saying it should not have broadcast Priorities USA’s ad, which the campaign says it knew or should have known used digital technology to “manufacture” a “blatantly false statement that was never said by” Trump.
In the latest pleadings, Trump’s campaign accused Priorities USA, which it called a “far-left super PAC,” of sponsoring “a false and defamatory statement” in a television ad that has been distributed via social media and broadcast through various media outlets, including television stations such as WJFW…
The suit is Donald J. Trump for President Inc. v. Northland Television LLC et al., case number 3:20-cv-00385, in the U.S. District Court for the Western District of Wisconsin.
Albuquerque Journal: Cowboys for Trump sues New Mexico’s secretary of state
By Elise Kaplan
Cowboys for Trump, a controversial grassroots group supporting the president, has moved its fight with the New Mexico secretary of state to federal court, alleging she violated their civil rights by mandating that they register as a political action committee and disclose their donors.
The dispute began last fall when Secretary of State Maggie Toulouse Oliver determined the group should be considered a political committee and in February fined the group $7,800 for not filing expenditure reports with her office.
A bill passed by the Legislature in 2019 required that organizations such as Cowboys for Trump be considered political committees, according to the lawsuit, which was filed in the U.S. District Court for New Mexico Thursday.
The group has undertaken cross-country horseback rides in support of the president, as well as rallies at the Roundhouse to protest abortion rights bills and border-related issues…
Colin Hunter, an attorney representing Cowboys for Trump, said the group does not support individual candidates and doesn’t get involved in state politics, so should not be considered a political action committee…
The lawsuit states that the plaintiffs are worried that if they have to disclose donors and the information is posted on the internet, their supporters will face “substantial personal and economic repercussions.”
“Across the country, individual and corporate donors to political candidates and issue causes are being subject to boycotts, harassment, protests, career damage and even death threats for publicly engaging in the public square,” the lawsuit states. “Plaintiffs fear that their donors may also encounter similar reprisals from activists if their donations are made public.”
Michigan Advance: Court rejects rehearing of GOP cases to bar redistricting commission
By Allison Donahue
Republicans have challenged the constitutionality of Michigan’s Independent Citizens Redistricting Commission, but the Sixth Circuit Court of Appeals has denied requests to rehear the cases en banc.
A 13-member commission of Democrats, Republicans and independents is supposed to draw lines for congressional, state House and state Senate districts after the 2020 census, something that was previously done by the Legislature.
Voters approved the change in Proposal 2 of 2018. More than 6,000 people have applied to be on the panel.
Tony Daunt, the Republican activist who filed the first lawsuit, argued that Democratic Secretary of State Jocelyn Benson excluded the plaintiffs from serving on the commission due to its eligibility criteria, which prohibit eight classes of individuals with certain current or past political ties from serving as a commissioner…
The second lawsuit, filed by the Michigan Republican Party, argued that the commission violated the First Amendment based on its selection process, composition and restrictions on the commissioners’ ability to speak publicly about redistricting matters.
In April, the court ruled against a preliminary injunction to stop implementation of the redistricting commission. On Friday, the court ruled that the issues raised in the petitions were already considered and did not need another hearing.
The petitions were circulated to the full court, but no judge requested a vote on the suggestion for a rehearing in front of the full 16-judge panel.
Voters Not Politicians, the group behind Proposal 2, claimed victory.
Albany Times Union: Trump supporters challenge Glens Falls law
By Wendy Liberatore
Supporters of President Donald Trump who are “tired of being bullied into silence by the progressive left” are taking legal action against the city, claiming it is violating their First Amendment right to free speech and peaceful assembly.
A lawsuit filed in U.S. District Court, Northern District of New York on Tuesday by the American Patriot Express seeks to declare a city law requiring a permit for rallies and marches with 25 or more people unconstitutional. The lawsuit claims the city has “unconstitutionally abridged” their rights to assemble. It also calls the law “unconstitutionally vague … overbroad” and states that that it “… censors speech based upon its content … and grants the city clerk limitless discretion through the permitting process.”
Senior Judge Lawrence E. Kahn signed an emergency temporary restraining order, halting enforcement of the local law until a decision can be made…
In addition to the number of people assembled, the law can impose a $250 fine for those who don’t comply. The lawsuit contends American Patriot Express has had to impose “self-censorship” over fears of being fined.
The law also calls for a protest organizer to apply for a permit at least 14 days in advance. However, a permit may take up to 28 days to issue. That’s a problem for the American Patriot Express, which coalesced spontaneously in response to the anti-Trump and/or Stefanik protesters’ actions. The lawsuit notes that the permitting time frame effectively silences the American Patriot Express.
Congress
Breitbart: Rep. Jim Banks: Election Is at Stake if We Don’t Rein in Big Tech Censorship
By Robert Kraychik
Political censorship from the world’s largest technology companies places elections at risk through manipulation of information, warned Rep. Jim Banks (R-IN), offering his comments on Thursday’s edition of SiriusXM’s Breitbart News Tonight with host Rebecca Mansour and special guest host John Hayward.
Google, Facebook, Twitter, and other technology companies regularly deploy censorship of political speech and expression under the guise of restricting “hate speech” or “misinformation.”
Political censorship and manipulation of information flows by large technology companies will escalate as 2020’s presidential election draws near, he predicted…
He said the Justice Department’s proposals to reform Section 230 of the Communications Decency Act hold promise in addressing “big tech’s editing and censoring content [that] come from conservatives.”
Banks said, “Recent academic studies show that Facebook alone, using their algorithms, could steer nearly a half a million votes in the upcoming election. This is what is at stake if we don’t do something about it, to rein in and hold these big tech platforms accountable for their actions, for their censorship, for their attacks on the First Amendment rights of all Americans.” …
Banks concluded, “Not just regulations for regulations sake, but with Section 230, this is about holding these companies liable for infringing upon the First Amendment rights of the American people. These are American companies that were built from American ingenuity and innovation, and they should uphold the same values that we expect.”
Disclosure
Barron’s: It’s Time for Boards and Institutional Investors to Act on Racial Justice
By Eleanor Bloxham and Bruce F. Freed
Companies spend millions each year on election-related political spending, either directly on state candidates or funneled through third party organizations including political action committees or trade organizations.
To address racial injustice, boards and their investors need to understand the potential and actual consequences of their company’s election-related spending and ensure those dollars advance rather than erode racial equity…
In contrast to corporate sponsored PACs funded by employees, company funds used for election-related spending ultimately come out of shareholders’ pockets.
These investors can make a difference by voting for shareholder proposals that encourage boards of invested companies to disclose and more effectively oversee the corporate funds they choose to use for election-related spending…
Headlines like “Meet the Fortune 500 Companies Funding the Political Resegregation of America” and “These Companies Support Climate Action, So Why Are They Funding Opposition To It?” along with fears of consumer boycotts have forced greater corporate and investor attention to the impacts of corporate election-related spending.
There is still much work to be done.
It is no coincidence that in the wake of the Supreme Court’s 2010 Citizens United decision, corporate political power has risen while the political power of African Americans has declined.
Online Speech Platforms
National Review: Vive la Liberté
By Kevin D. Williamson
In France, the Constitutional Council (something like our Supreme Court) has struck down a new set of regulations put forward by the government of President Emmanuel Macron that would have imposed heavy fines on technology companies if they were insufficiently energetic in taking down certain “hateful” content. Under the Macron rules, companies such as Facebook would have been legally responsible for doing that policing on their own initiative (as opposed to being directed to remove illegal content by a judge), and would have been given as little as one hour to act in some cases. It was an absurd proposal, though not quite as absurd as the German approach upon which it was based and which is standing law in that country…
This small victory for free speech in France does not put Europe on the road to a First Amendment. And that should be of interest to Americans, not only as a point of comparison but also for practical reasons: Companies such as Facebook endeavor to comply with the law in the countries where they operate, and corporations by nature prefer the bureaucratic qualities of conformity, homogeneity, and standardization. For much the same reason that most U.S. automobile companies have long built cars that satisfy California’s stricter air-pollution standards even when those cars are destined for Louisiana or North Dakota, firms such as Facebook have incentives to develop procedures that satisfy their most demanding regulators worldwide rather than their more permissive ones, and so it is likely that Americans relying on global technology companies will feel some influence from Berlin, Brussels – and Beijing.
National Review: Hands Off the Federalist
By The Editors
Media outfits that rely heavily upon the goodwill and cooperation of Google, Facebook, Twitter, etc., are making a very dangerous bet. These companies have shown time and again that they can be bullied and bullied fairly easily – by Beijing, by Brussels, and, most important, by their own employees. They are media companies of a kind, but what they mostly are is commodity eyeball aggregators with no abiding interest in journalism or democratic discourse and no real grounding in the history and culture of free speech and freedom of the press.
They are multi-multi-billion-dollar behemoths, but they are oddly easy to push around, if the right kind of person is doing the pushing. And the people at the Federalist aren’t the kind that the powers in Silicon Valley companies care about very much, even if they do take an occasional Jane Goodall-ish interest in conservatives.
The Left will try to shut down the Federalist, just as it has tried to cancel Tucker Carlson and Rush Limbaugh. We expect that National Review will be targeted in the same way in turn. We have been sounding the alarm about the authoritarianism and illiberalism of the Left for years, and the current nadir is surprising even to us.
Remember this: If they can do it to the Federalist, if they can do it to the New York Times, if they can do it to the University of Chicago, they can do it to you.
The States
San José Spotlight: San Jose measure falls short of signatures as mayor says it may violate First Amendment
By Adam F. Hutton
Days after San Jose Mayor Sam Liccardo questioned the constitutionality of a controversial ballot measure, elections officials announced Friday the initiative fell short of a threshold of signatures needed to qualify for the November ballot.
After more than a year of intense public debate on the future of San Jose’s local elections, Liccardo – during a program on public access television earlier this month – said the Fair Elections Initiative, proposed by the South Bay Labor Council, may violate the First Amendment.
The fiercely contested ballot measure would move mayoral and City Council elections to presidential election years and prohibit campaign contributions from some real estate developers, landlords and businesses with city contracts – and their lobbyists. Proponents of the measure say it will increase voter turnout and help stop pay-to-play politics in the city.
On Friday, Silicon Valley union leaders said they “are looking into their legal options,” to overturn the Registrar’s latest announcement that their petition fell 2,248 signatures short of the required 69,024…
In the past, the mayor and his allies on the City Council have said they opposed the measure because they feared presidential elections would overshadow local races. Other opponents, including The Silicon Valley Organization – the local chamber of commerce – have said the measure unfairly restricts campaign contributions from business owners and lobbyists, but not unions.
Myrtle Beach Sun News: Dark money? Ads attacking S.C. senator ‘paid for’ by organization that doesn’t exist
By David Weissman
During the days leading up to a runoff election for an Horry County state senate seat, local residents have been inundated by advertisements attacking the incumbent, Sen. Luke Rankin.
But the group claiming to pay for those ads doesn’t exist, and no can say for sure who is actually funding the effort…
John Crangle, the former executive director of Common Cause South Carolina, which advocates for transparency in campaign finance laws, said the state has a major issue with untraceable campaign donations because laws don’t limit the amount political action committees can spend and don’t require disclosure of donors to those committees.
The “dark money,” which refers to political spending from an undisclosed source, is rampant in South Carolina, Crangle said, though it usually goes to help incumbent candidates, so the anti-Rankin spending is unusual.
Comprehensive disclosure of campaign contributions is important, Crangle argued, because it shows who is supporting which candidates, and that support can impact a legislator’s actions in the General Assembly.
If [challenger John] Gallman wins, then Rankin would be the second consecutive legislator serving as chairman of the Senate Judiciary Committee to lose after a reported influx of dark money.
Cleveland.com: Ohio GOP votes to censure former chairman over pro-Joe Biden super PAC
By Seth A. Richardson
The Ohio Republican Party central committee on Friday voted to censure former Chairman Matt Borges for a number of actions they deemed detrimental to the party, including his recent founding of a super PAC supporting former Democratic Vice President Joe Biden’s presidential campaign.
Along with the PAC, the party cited an FEC violation and Borges’ continued criticism of Republican President Donald Trump as reasons to censure the former chairman and strip his “chairman emeritus” status. The resolution passed without opposition, demonstrating how the party apparatus once dominated by Borges and other allies of Republican Gov. John Kasich, a Trump detractor, now is firmly in support of the president…
Along with the super PAC, the resolution to censure Borges introduced at the beginning of a state GOP meeting on Friday listed a Federal Election Commission violation that cost the party a $100,000 civil penalty under his watch.
