New from the Institute for Free Speech
Amicus Brief: Maryland Online Speech Law a “Massive Overreaction”
The Institute for Free Speech today filed an amicus brief in the online speech and press rights case, The Washington Post, et al. v. McManus. The brief says that a Maryland law regulating virtually all online publishers of political speech is unconstitutional.
“Maryland’s law brazenly violates the First Amendment rights of Internet speakers,” said Institute for Free Speech President David Keating. “It forces major newspapers like The Washington Post to publish information about their advertisers, which is inimical to a free press. The law restricts every speaker wishing to get their message out online.”
The law was passed in 2018 as a purported response to foreign interference in U.S. election campaigns. It defines “campaign material” to include Internet content that “relates to” a candidate, prospective candidate, ballot measure, or prospective ballot measure. This vague and sweeping standard would regulate speech about nearly any topic related to government or public policy.
Citing free speech concerns, Maryland Governor Larry Hogan did not sign the bill but allowed it to become law. The Washington Post, The Baltimore Sun, and other news organizations soon sued the state. In January, the United States District Court for the District of Maryland, Southern Division, ruled in favor of the newspapers. The state then appealed to the Fourth Circuit Court of Appeals…
As the Institute’s brief states, Maryland “is not following the well-tread path of federal campaign finance laws. Instead, it is striking out on its own, intending to fight foreign expenditures by imposing broad disclosure burdens on social media and newsgathering organizations.” …
The brief calls Maryland’s regulation of online speech “novel and comprehensive” and “a massive overreaction.” It says the lower court’s ruling should be upheld.
This case concerns a sweeping regulation of political speech undertaken in the name of national security. JA 409; Op. Br. at 5-7; Ans. Br. 7-9. The Parties’ arguments focus, in large part, upon the correct standard of scrutiny. Should Maryland’s law by evaluated under “strict” or “exacting” scrutiny? But that question is not dispositive. The law fails under either standard.
Maryland’s law requires press entities and Internet advertisers to amass vast amounts of information-every buyer of advertisements and their underlying donors-in order to possibly find a Russian spy posing as an American. Maryland bears the burden of proof on this score, and even under exacting scrutiny, it failed to carry that burden. In fact, Maryland’s law is both overbroad and underinclusive. It regulates virtually all paid online political activity, but does not concern itself with the primary weapon used by the Russian Federation in 2016: free online content.
Ultimately, Maryland’s asserted interest in attacking foreign interference cannot survive serious scrutiny. Its law will do little to advance that cause while chilling political speech and association at the core of the First Amendment’s protections. Accordingly, regardless of the standard of First Amendment scrutiny, Maryland’s law cannot survive this Court’s review-either as a misguided national security measure or as a poorly constructed campaign finance law.
The Courts
Constitutional Law Prof Blog: Federal District Judge Finds Anti-Riot Act Violates First Amendment
By Ruthann Robson
In an Order in United States v. Rundo, United States District Judge Cormac J. Carney for the Central District of California dismissed an indictment against white supremacists Robert Rundo, Robert Bowman, and Aaron Eason, members of “Rise Above Movement” (RAM), concluding that the Anti-Riot Act, 18 U.S.C. §2101 violates the First Amendment as overbroad…
[M]ost troubling for Judge Carney was his interpretation that the statute “also criminalizes acts taken long before any crowd gathers, or acts that have only an attenuated connection to any riot, so long as the individual acts with the required purpose. See 18 U.S.C. § 2101(a). No violence even need to occur. A defendant could be convicted for renting a car with a credit card, posting about a political rally on Facebook, or texting friends about when to meet up.”
The problem for Judge Carney was that the statute has “no imminence requirement”: “The Anti-Riot does not require that advocacy be directed toward inciting or producing imminent lawless action. It criminalizes advocacy even where violence or lawless action is not imminent.” Thus, Judge Carney concluded that the Anti-Riot Act eviscerates the protections of speech in Brandenburg v. Ohio (1969). Further, Judge Carney rejected the government’s argument that the Anti-Riot Act did include an imminence requirement, characterizing this as requiring “grammatical gymnastics-and some degree of hand waving– ” which the Judge was not willing to do. Judge Carney pointed out that under the Anti-Riot Act, the statement in Hess v. Indiana (1973) (“we’ll take the streets later [or again]”) would be criminalized, despite the United States Supreme Court’s finding that such a statement did not meet the imminence requirement.
Finally, Judge Carney found that in balancing the “social costs” of upholding the statute or “striking it down,” there were other laws- including state statutes – that could protect the public from violence or public disturbances, while enforcing the Anti-Riot Act substantially infringed on the rights of free speech and freedom of assembly.
Online Speech Platforms
National Review: Social-Media Censorship Is the Product of Culture and Commerce
By David French
The First Amendment limits the government’s power to force a private corporation to provide a platform for speech it despises. Government regulation of media is an almost impossibly complex topic (if you want to dive into the topic in the social-media context, I can recommend this March 2019 analysis from the Congressional Research Service), but here’s a general principle – the more any social-media company curates its content, the more First Amendment protection it is likely to enjoy.
In a very direct way, as Facebook or any other social-media company works on its algorithms, tries to filter out fake news, and refines its community standards, it’s staking out its identity as a private actor making specific speech and membership choices to build a specific kind of private community.
Moreover, if the government launches other action (like, say, an antitrust investigation) in reprisal for social-media companies’ exercising their constitutional rights, then even that other action may well be shut down by federal courts.
But to say that there is no easy way to combat the challenge of social-media censorship is not to say there is no way at all. Persuasion, engagement, and market pressure are preferable to attempts to recruit the government to erode First Amendment protections that, in other contexts, stand as a firewall protecting conservative causes and conservative speakers from the emerging culture of coercion…
But what conservatives cannot and should not do is use the government to erode freedom for the alleged purpose of saving freedom. The alleged “easy” solution – the fast fix of federal legislation – is likely blocked by the First Amendment. Moreover, there’s something fundamentally entitled and not-conservative about claiming that you should have government-mandated access on terms you prefer to a platform you didn’t create, that’s maintained by people you oppose, and that you should have that access for free.
Human Events: Carlos Maza’s Reign of Terror
By Will Chamberlain
Is Steven Crowder actually demonetized on YouTube?
It’s hard to tell. Carlos Maza, a former Media Matters activist and current bad actor at Vox, decided that he had heard quite enough from the Mug Club proprietor. He launched a campaign to de-platform Crowder, compiling a video of Crowder’s “bullying” and rallying his journalist buddies to make it go viral.
At first, it looked like YouTube wouldn’t bend to Maza’s pressure campaign. In a threaded reply on Twitter, they explained that while they didn’t agree with Crowder’s speech, it wasn’t a terms of service violation. Maza and his buddies were not fans…
Then, within 24 hours, YouTube reversed themselves; saying that Crowder would in fact be demonetized. Then, a few hours later, they reversed themselves again; saying that Crowder would be re-monetized, so long as he removed one particularly pointed shirt from his merchandise store…
If we make platform access a civil right, Carlos Maza and his fellow aristocrats can whine and bleat all they want about how a conservative has been mean to them. None of it will matter. Companies won’t indulge them, because indulging them would be against the law. This is more than a way to protect conservative speech; it’s a way to free social media platforms from aristocratic influence.
YouTube’s social media team shouldn’t be freaking out over whatever Carlos Maza says, because a bad actor like Maza shouldn’t have any real power.
Slate: Bring Back the Golden Age of Broadcast Regulation
By April Glaser
What almost everyone would probably agree on is this: Social media platforms like YouTube are a mess, and every time they try to clean up their mess, they fail in one way or another. It may well be time for the government to do something, but many people assume that any resulting action would be a blow to free speech: Someone is bound to be silenced by overreaching feds.
But the history of how the U.S. government has regulated mass communication offers another way to understand the issue. Social networks are venues for small-scale communication, but they also serve as 10,000-foot-high podiums where people can broadcast ideas and reach millions in ways never before technologically possible. They’ve consolidated audiences, dominated users’ time, and come to play a central role in the flow of political information. Once we start to think about the technology like that, social media platforms look a lot more like communications infrastructure, like radio and television, than they do like a venue for passing notes or publishing casual missives.
For decades, radio and television followed regulations-hardly heavy-handed ones-meant to ensure they served the information needs of their audiences and did not actively harm political discourse. The public may not own the internet the way it does the airwaves, but they’re not completely dissimilar. The internet is a resource that was built by government researchers. Thinking about the largest internet platforms as a kind of infrastructure is a useful place to start considering what light-touch regulation over their broadcasting functions might look like. Social media platforms impact the public interest. And so they should serve it.
Los Angeles Times: YouTube’s purge of white supremacist videos also hits anti-racism channels
By Suhauna Hussain and Samantha Masunaga
A video published by the Southern Poverty Law Center was among those taken down after the company announced plans Wednesday to remove more videos and channels that advocate white supremacy.
The civil rights advocacy group received an email notification early Thursday that a video of journalist Max Blumenthal interviewing prominent British Holocaust denier David Irving was removed from the SPLC’s YouTube channel.
“We know that this might be disappointing, but it’s important to us that YouTube is a safe place for all. If content breaks our rules, we remove it,” YouTube said in the email.
A video channel tied to Cal State San Bernardino’s Center for the Study of Hate and Extremism also disappeared from YouTube, the center’s director, Brian Levin, said. YouTube declined to confirm whether the dozen or more academic videos were removed as part of the recent crackdown, but after the Los Angeles Times inquired, it said Thursday that it had reinstated the channel…
Another anti-racist group, One People’s Project, had an informational video removed from its YouTube page after Wednesday’s policy change, according to a report by the Daily Beast. A high school history teacher and a South African blogger were among others affected while attempting to counter white supremacy…
Other large internet platforms have fallen prey to the same types of errors. Trying to curb anti-gay posts, Facebook accidentally censored posts by LGBT users who use terms such as “queer.” Last year, some LGBTQ creators on YouTube raised concerns about their content being hidden, restricted to adult users or demonetized by the company, the Verge reported.
Wall Street Journal: Overthrow the Prince of Facebook
By Peggy Noonan
The House Judiciary Committee will hold antitrust investigations into big tech. Speaker Nancy Pelosi is warning that “unwarranted concentrated economic power in the hands of a few is dangerous to democracy.” Sen. Elizabeth Warren has made a splash with her pushback on big tech; Sen. Amy Klobuchar included it in her presidential announcement speech…
And Republican officials-they can’t help it, they don’t just rightly love business; they love big business, they love titans. It’s almost romantic: Look what people can do in America! He started it in his dorm room! And now we’re at lunch! …
Here’s what they should be thinking: Break them up. Break them in two, in three; regulate them. Declare them to be what they’ve so successfully become: once a pleasure, now a utility.
It all depends on Congress, which has been too stupid to move in the past and is too stupid to move competently now. That’s what’s slowed those of us who want reform, knowing how badly they’d do it.
Yet now I find myself thinking: I don’t care. Do it incompetently, but do something.
Why are Republicans so slow to lead? The Times quoted Republican Sen. Josh Hawley as saying “the dominance of big tech” is a “big problem.” They “may be more socially powerful than the trusts of the Roosevelt era, and yet they still operate like a black box.”
He’s right.
Lobbying
The Federalist: Lobbyists Should Be Allowed To Speak, Just Like Everyone Else
By Kyle Sammin
When Rep. Alexandria Ocasio-Cortez (D-N.Y.) and Sen. Ted Cruz (R-Texas) agree on something, our first reaction is likely to be that if such politically disparate people both like an idea, it must be good. The truth is often more sinister: the best way to get bipartisan majorities is to propose infringing the rights of an unpopular group of people.
That is exactly what is being proposed when Ocasio-Cortez and Cruz talk about barring former legislators from working as lobbyists. Any such bill would violate the First Amendment while doing nothing to clean up the political swamp in Washington…
Restricting the rights of an unpopular minority can be popular with a majority of people who don’t care to think things through, but that is precisely why they are protected in the Constitution…
If rights are guaranteed by the Constitution, limiting them requires a constitutional amendment. The Democrats acknowledged this when they voted (unsuccessfully) to reduce the free speech and free press protections of the First Amendment in order to overturn Citizens United v. FEC, a 2010 censorship case. Reducing the right to petition the government would require the same effort. Fortunately, respect for the Bill of Rights has become sufficiently ingrained in our culture that the thought of repealing it, even in part, gives most Americans pause…
Journalists often tell us that the freedom of the press is a grant of rights to a particular group-them. In reality, and as courts have repeatedly affirmed, the right is a right for all Americans to publish their ideas. It is the same with the right to petition the government: it belongs to all of us, not just those who do it for a living.
Tax-Financed Campaigns
Harvard Political Review: Seattle’s Radical Experiment
By Bridger Gordon
Wayne Barnett is the executive director of the program and was tasked with making democracy vouchers a reality. In an interview with the HPR, Barnett outlined three key goals for the program, two of which he said were met in the 2017 city council races. “One [of the goals] was to increase the number of people who could mount a credible campaign for office … One of the things you frequently hear from candidates is, ‘I can’t raise a quarter of a million dollars to mount a credible campaign for office.’ So this was intended to help campaigns for people without ample resources.”
“The second goal, which I think was also met, was to engage residents more in the early stages of the political process,” Barnett said. “Even if your name appears on the ballot, if you’ve never been able to afford a mailing or if you’ve never been able to afford to run a radio or a TV ad, chances are people aren’t going to know what you stand for. So this was a way to give citizens a larger voice in who was going to be able to mount a campaign. I think we tripled our highest number of contributors we’d ever seen before, so I think that’s a success.”
“The third goal, which I’m not sure is ever going to be an achievable goal, is to reduce the amount of money spent on political campaigns,” he added, “to get big money out of politics. On that front, that was not a success. We didn’t see this bring down the cost of campaigns.” …
He also cautioned that the program is expensive, and that other state or local governments considering similar programs have to weigh this cost alongside the anticipated benefits. To pay for the program, Seattle raised property taxes by $3 million per year.
The States
Oregon Public Broadcasting: Oregon House Passes Campaign Finance Limits
By Jeff Mapes
A bill that would impose the first limits on political donations in more than two decades passed the state House Thursday – as did a measure that would also require so-called “dark money” groups to disclose their large donors.
A three-bill legislative package, which now moves to the Senate, is aimed at ending Oregon’s status as one of the least regulated states in the country when it comes to the flow of political money…
[Rep. Dan Rayfield, D-Corvallis] brokered a compromise that would place a $2,800 per election limit on donations to statewide candidates, a $1,500 cap for state Senate races and a $1,000 limit on state House races.
In addition to House Bill 2714, the House passed two related bills:
– House Bill 2983 would require nonprofits that run their own politically-oriented advertising to report donors giving more than $10,000, if the nonprofit spends more than $100,000 on ads referring to statewide candidate or $25,000 on legislative and local races. This would make Oregon one of the few states to try to force the disclosure of the funders that give to these so-called “dark money” campaigns.
– House Bill 2716 calls for political ads to disclose the names of their largest donors.
Rayfield has been under fire by liberal campaign finance activists. They say his measure on limits, House Bill 2714, contains too many loopholes…
Legislative leaders are also working this year on a measure asking voters to amend the constitution to make it clear that campaign finance limits are legal.
Minnesota Public Radio News: Omar to pay penalty for campaign finance violations
By Briana Bierschbach
U.S. Rep. Ilhan Omar violated state rules when she used thousands of dollars of campaign funds to pay for personal out-of-state travel and help on her tax returns, according to a ruling from the Minnesota Campaign Finance and Public Disclosure Board on Thursday.
Omar, who was a first-term state representative at the time of the violations, must reimburse her former campaign committee $3,469 to cover those travel and legal costs. She must also pay the state a $500 civil penalty for using campaign cash to travel to Florida, where she accepted an honorarium…
“I’m glad this process is complete and that the Campaign Finance Board has come to a resolution on this matter,” Omar’s congressional campaign said in a statement.
“In addition to complying with the Board’s findings, I plan on closing the account from my Statehouse race and distributing the funds to organizations that help train first-time candidates to run for office-so that the next generation of candidates and their teams know how to adequately track and report campaign expenses,” she continued. “I also believe we need to dedicate more resources to our campaign finance agencies-and I look forward to supporting these efforts.”
