Supreme Court

The Hill: Clarence Thomas signals interest in making it easier to sue media

By John Kruzel and Harper Neidig

Supreme Court Justice Clarence Thomas on Monday expressed a desire to revisit a landmark 1964 ruling that makes it relatively difficult to bring successful lawsuits against media outlets for defamation…

It’s unclear how much traction his argument is getting among the other five conservative justices. While none of his colleagues joined Thomas in dissenting on Monday, Justice Neil Gorsuch wrote an opinion last year concurring with his call to revisit the New York Times v. Sullivan decision.

National Review: Justice Thomas, Alone, Wants to Revisit New York Times v. Sullivan

By Dan McLaughlin

Thomas is right that the constitutional foundations of New York Times v. Sullivan are dubious and ought to be considered more closely. This is not only an argument from the right: If the Court were to follow Democrats’ demand to overrule Citizens United and reject the notion of corporations having First Amendment rights, it would have to overturn New York Times v. Sullivan, which deals explicitly with how to prove the actual-malice state of mind of a corporate defendant. That being said, there would be some significant stare decisis arguments for retaining New York Times v. Sullivan, given that the standard has proven workable in practice, and it is far from clear what would replace it. This is likely to remain a constitutional windmill that is impervious to Thomas’s jousting.

Election Law Blog: Does Today’s Second Amendment Decision Affect the First Amendment and thus Election Law?

By Ned Foley

In his opinion for the Court in the NY gun case, Justice Thomas says that means-ends inquiry will not be part of Second Amendment analysis. On page 15 of his opinion, he goes on to say that this approach “accords with” the Court’s “freedom of speech” precedents. I confess I found that passage perplexing as means-ends inquiry is a familiar, indeed standard, part of free speech jurisprudence. Strict scrutiny is one form, for content-based regulation of speech. Intermediate scrutiny is another, for time, place, and manner regulations. Precedents going back to the Warren Court, like O’Brien v. United States, and even earlier, explore how the means-end inquiry should be conducted with respect to various aspects of free speech regulation (like the symbolic speech issue of burning a draft card in O’Brien itself).

The Courts

WFSU: A judge has denied a request to block Florida’s pending “Stop WOKE Act”

By News Service of Florida

A federal judge Monday rejected arguments by attorneys for teachers, a student and a diversity consultant that he should block a controversial new state law that restricts the way race-related concepts can be taught in classrooms and workplace training.

Chief U.S. District Judge Mark Walker issued a 23-page order that largely denied a request for a preliminary injunction against the law, which is slated to take effect Friday. Walker, however, did not rule on an injunction request by a University of Central Florida professor, after ordering attorneys to file additional briefs.

Congress

Breitbart: Republicans Condemn Verizon, ‘Big Telecom’ for Entertaining Democrat Censorship Demands

By Allum Bokhari

Last year Democratic Reps Anna Eshoo (D-CA) and Jerry McNerney (D-CA), both of whom sit on the House Commerce Committee which oversees the FCC, wrote to the largest cable and Satellite companies including DirecTV, Verizon, Comcast, and Cox, stating: “We are concerned about the role” each distributor “plays in disseminating misinformation to millions of [its] subscribers, and we write to you to request additional information about what actions [each distributor] is taking to address these issues.”

They specifically targeted Fox News, Newsmax, and the One America News Network…

Instead of fighting back against this intimidation, many of the telecom giants played along with the Democrats’ false narrative. Verizon’s corporate website now includes “A Guide to Misinformation” which gives instructions on how its users can complain to tech companies to demand censorship. Since the Democrats’ letter, DirecTV has dropped One America News and some smaller cable distributors have dropped Newsmax.

In a comment to Breitbart News, Rep. Elise Stefanik (R-NY), the third-ranking Republican member of congress in the House of Representatives, condemned telecom companies for caving into censorship demands.

“Big telecom is acting like Big Tech, de-platforming and censoring conservatives,” said Rep. Stefanik. “This sort of bias is deeply concerning.”

FEC

Axios: Scoop: Google moves to keep campaign messages out of spam

By Ashley Gold

Google has asked the Federal Election Commission to green light a program that could keep campaign emails from ending up in spam folders, according to a filing obtained by Axios.

Why it matters: Google has come under fire that its algorithms unfairly target conservative content across its services, and that its Gmail service filters more Republican fundraising and campaign emails to spam.

Republican leadership introduced a bill this month that would require platforms to share how their filtering techniques work and make it illegal to put campaign emails into spam unless a user asks.

How it works: Google’s pilot program, per the June 21 filing, would be for “authorized candidate committees, political party committees and leadership political action committees registered with the FEC.”

It would make campaign emails from such groups exempt from spam detection as long as they don’t violate Gmail’s policies around phishing, malware or illegal content.

Daily Beast: Campaign Finance Watchdog Lets Giuliani Pal Off the Hook After His Felony Conviction

By Roger Sollenberger

Last October, a federal jury convicted Rudy Giuliani associate Lev Parnas on criminal campaign finance charges for concealing the source of a $325,000 contribution to a group backing then President Donald Trump.

But seven months later, according to a decision that hasn’t yet been made public, the Federal Election Commission—the agency tasked with civil enforcement of campaign finance regulations—failed to muster enough votes to enforce the same law…

FEC Commissioner Ellen Weintraub, a Democrat who voted in favor of taking action against Parnas, pushed back on the notion that the ruling played to Parnas’ favor, and warned against reading too far into the top-line statements in the short letter of notice.

Weintraub told The Daily Beast that some commissioners prefer to refrain from further action after a criminal prosecution. The complete file is more complex, she said, cautioning that Parnas’ defense team “should not view this as an exoneration.”

Online Speech Platforms

The Hill: Don’t let Facebook off the hook for Jan. 6

By Katie A. Paul

Numerous reports have documented the pivotal role that Facebook played in spreading the conspiracy theories, calls for violence and far-right militia activity that fueled the mob attack on Congress. The company even ran ads for military gear next to election misinformation by extremist groups — essentially stoking and profiting off the insurrection.

For Facebook, this is a problem that has been building for years. The Tech Transparency Project collected and analyzed more than three years’ worth of news reports about content on Facebook that violated the company’s policies. We found that roughly 70 percent involved violence and incitement, including threats and physical assaults. Another large category included hate speech and other objectionable content.