The Courts
Courthouse News Service: Baltimore Police Cannot Condition Brutality Settlements on Gag Orders
By Edward Ericson Jr.
The Fourth Circuit ruled 2-1 Thursday that Baltimore cannot buy the silence of victims of police brutality with legal settlements that include a nondisparagement clause.
The lawsuit began in 2012 when Ashley Overbey, a 25-year-old black woman, called police to report a burglary. Two officers beat her up and arrested her, and after those charges were dropped she sued and settled for $63,000.
Overbey’s story was featured in a 2014 Baltimore Sun article about the city’s excessive-force settlements, and when Overbey defended herself from racist trolls commenting on the newspaper’s now-shuttered online public comment forum, the city withheld half her settlement for violating the nondisparagement clause.
Joined by the Baltimore Brew, a web-based news outlet, and represented by the ACLU and lawyers from the Washington, D.C., firm of Crowell & Moring, Overbey sued the city again in 2017 to get her missing $31,500. A federal judge dismissed her claim, but on Thursday the Fourth Circuit reversed.
“We hold that the non-disparagement clause in Overbey’s settlement agreement amounts to a waiver of her First Amendment rights and that strong public interests rooted in the First Amendment make it unenforceable and void,” U.S. Circuit Judge Henry Floyd wrote, joined by Judge Stephanie Thacker. Judge Marvin Quattlebaum dissented.
Congress
Politico: How a widening political rift over online liability is splitting Washington
By Cristiano Lima
“Kill Section 230, You Kill the Internet,” columnist Andy Kessler warned last week in The Wall Street Journal, days after an industry-backed study predicted that abolishing the liability shield would wipe out “the best of the internet” – namely, online product reviews. And The New York Times last month published an “op-ed from the future” envisioning the heavily censored online world that loss of the protections would create.
Wyden, who co-wrote Section 230, also advanced the argument in an online “Ask Me Anything” session with Reddit CEO Steve Huffman in early June…
Senate Judiciary Chairman Lindsey Graham (R-S.C.) told reporters Tuesday he is considering legislation that would require companies to uphold “best business practices” to maintain their liability shield, subject to periodic review by federal regulators. Graham envisions determining those practices by gathering input from Washington and the tech industry. “As long as you keep up to date with what is expected in terms of best business practices, you can’t be sued,” the lawmaker said…
Another conservative tech critic, Rep. Matt Gaetz (R-Fla.), has floated the idea of repealing Section 230 entirely…
In an earlier interview with the tech site Recode, Pelosi accused online companies of failing to live up to the responsibility that goes along with their legal immunity.
“230 is a gift to them,” Pelosi said, adding that “it is not out of the question that that could be removed.” …
“I think a lot of the risk if it is a silver bullet is it hurts speech,” said Silicon Valley Rep. Ro Khanna (D-Calif.), who was one of just 25 members of the House to vote against the sex-trafficking measure. “The reason America thrived on the internet and Europe stagnated is because we have a First Amendment that respects speech.”
The Federalist: More Lawmakers Lean Toward Revoking Section 230 To Regulate Big Tech Companies
By Madeline Osburn
In Tuesday’s Senate hearing on online dangers for children, Graham said he would like to regularly audit tech companies, checking for compliance with best practices determined by a combination of industry, government, and nonprofit leaders.
“Things would change tomorrow if you could get sued,” he said. “You can have these liability protections, because we’d like to save the industry and protect it for competition, but you have to earn it.”
Cruz told The Blaze on Tuesday that if internet companies are refusing to be neutral, then they should lose the Section 230 exemption from liability.
“What’s happened is that [tech companies] have decided they don’t want to be neutral. They’re now admitting it, they’re not even pretending to be neutral,” Cruz said. “It seems to me that if they’re going to refuse to be neutral, if they’re going to engage in viewpoint discrimination, then they don’t deserve any special immunity from liability that Congress has given them.”
Many critiques on both sides have compared Hawley’s proposed legislation to the FCC’s Fairness Doctrine – the now-abolished federal policy requiring broadcasters to provide equal and balanced coverage of controversial issues. Cruz disagreed that the two were comparable.
“It’s not the fairness doctrine. The fairness doctrine is the FCC monitoring speech. This is simply saying we’re not going to give you a special benefit that no one else enjoys,” Cruz said. “This is ending a subsidy on big tech.”
FEC
Center for Public Integrity: FEC Gets New Internal Watchdog Following Tumultuous Search
By Dave Levinthal
The Federal Election Commission has a new inspector general – ending a tumultuous, 28-month period that included the de facto neutering of its office charged with investigating and defending against agency waste, fraud and abuse.
Christopher Skinner will begin work as the FEC’s inspector general on Aug. 5, the FEC today announced. Skinner served as deputy inspector general for the Office of Naval Research for six years, including one year as acting inspector general. Before that, he served as assistant chief of inspections for the Naval Facilities Engineering Command.
“Chris has a strong track record of promoting institutional integrity and we look forward to his leadership and oversight,” FEC Chairwoman Ellen Weintraub, D, said in a statement.
The Hill: Feds allow campaigns to accept discounted cybersecurity services
By Maggie Miller
The Federal Election Commission (FEC) on Thursday approved a request from a private company to provide discounted cybersecurity services to political campaigns, saying it did not violate campaign finance rules.
The decision came in response to a request from Area 1 Security, a California-based company, to offer cybersecurity services to federal political candidates and political committees at discounted rates.
The FEC, which has jurisdiction over campaign finance for presidential and congressional elections, decided the arrangement did not violate campaign contribution rules because the company offers similar discounted services to nonpolitical clients as well.
The decision allows the company to sell anti-phishing services to federal candidates and political committees for as little as $1,337 per year, according to the FEC.
The agency wrote that “doing so would be in the ordinary course of Area 1’s business and on terms and conditions that apply to similarly situated non-political clients.”
Trump Administration
Wall Street Journal: Trump’s ‘Social Media Summit’ Airs Grievances Against Big Tech
By Ryan Tracy
President Trump used a “Social Media Summit” at the White House Thursday to bond with some of his most provocative supporters over shared grievances against large technology companies whose representatives weren’t invited.
Mr. Trump attacked social-media companies he says are trying to silence individuals and groups with right-leaning views, without presenting specific evidence. He said he was directing his administration to “explore all legislative and regulatory solutions to protect free speech and the free speech of all Americans.”
“Big Tech must not censor the voices of the American people,” Mr. Trump told a crowd of more than 100 allies who cheered him on. “This new technology is so important and it has to be used fairly.”
Social-media companies Facebook Inc., Twitter Inc. and Alphabet Inc., owner of Google and YouTube, weren’t invited to Thursday’s event and have declined to discuss it. The platforms have previously denied political bias plays a role in how they oversee content. Mr. Trump promised to host social-media companies at the White House during the next month…
Mr. Trump thanked the crowd for “bypassing the corrupt establishment” and traditional media. Referring to social media bans or censored content, Mr. Trump said: “Some of you, I could almost understand” the need to restrict their posts, Mr. Trump said. “Some of you guys are out there…I mean, it’s genius, but it’s bad.” …
Mr. Trump acknowledged that social media had enabled him and others in the room to gain large followings, and signaled he understood that some pro-Trump content could cross a line.
Slate: Things Donald Trump Said Today, Verbatim [at “Social Media Summit”]
By Ashley Feinberg
But we run out of here… Shadow-banned, a hundred percent. You look at what’s going on. You know, I could go… The blocking, just the basic blocking of what we want to get out. The fact that they don’t let them join. They don’t. There was…. There’s no doubt in my mind that I should have millions and millions…
I have millions of people, so many people I wouldn’t believe it. But I know that we’ve been blocked. People come up to me, and they say, “Sir, I can’t, I can’t get you. I can’t follow you. They make it impossible.” These are people that are really good at what they do. They say they make it absolutely impossible. And you know we can’t have it. We’re not going to let it happen….
And we don’t want to stifle anything, we certainly don’t want to stifle free speech, but that’s no longer free speech.
See, I don’t think that the mainstream media’s free speech, either. Because it’s so crooked. It’s so dishonest. So to me, free speech is not when you see something good, and then you purposely write bad. To me, that’s very dangerous speech, and you become angry at it. But that’s not free speech. Somebody came to my office, I won’t say who, but a very big person. And I said OK, you don’t like the term fake news, which I think I get credit for. But I’m sure, if I said I get credit, they’ll say, “Thirteen years ago somebody came up with a term.”
I think I get credit-I’d be very proud to take it.
But I think I get credit. Now by the way, the worst fakers of all are using fake news. I saw the other day, on CNN-total fakes-I see on CNN, they go, “Fake news media has reported…” No, no, THEY’RE fake news media. They’ve turned it around. They’ve turned it around.
Internet Speech
Reason: The End of the Free Internet Is Near
By Declan McCullagh
Not too long ago, conventional wisdom held that the internet should enjoy minimal government oversight precisely because it was a technology that enabled open and free speech for everyone. The remedy for hateful and offensive remarks, that 1990s-vintage argument went, was more speech-or logging off.
This principle, which can be traced back through the writings of St. Thomas Aquinas and John Stuart Mill, was nicely captured in the U.S. Supreme Court’s 1997 decision striking down certain speech-chilling provisions of the Communications Decency Act. “Through the use of chat rooms,” Justice John Paul Stevens wrote, “any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.”
A generation later, Stevens’ argument has been not merely discarded. It has been inverted.
Politicians now insist that the internet should be subject to increased regulations precisely because it allows that hypothetical town crier to speak with a voice that resonates farther than it could from any physical soapbox. The possibility of freewheeling online discussions has been transformed, in other words, from virtue to vice. Platforms like Facebook and YouTube increasingly face demands that they restrict content. In some cases the demands are effected through public pressure, in others through outright government censorship.
The movement to stifle online expression is still in its early stages, but it represents a fundamental threat to the principles that have allowed the internet as we know it to grow and thrive. If these efforts continue, we may soon see the end of the free and open web.
Fundraising
Bloomberg: 2020 Democrats’ Cash Haul Stands at $99 Million and Counting
By Bill Allison
One advantage of the small-dollar-donor model is its efficiency. Those who can write $2,800 checks — the maximum an individual can give to a candidate during the primaries — tend to live in large cities like New York, Los Angeles, San Francisco, Chicago and Miami, forcing candidates off the trail to attend fundraisers in those places. That could be a liability during the condensed primary season that Democrats face early in 2020.
“There’s not very much time to raise money in $2,800 chunks,” said Michael Malbin, executive director of the Campaign Finance Institute, a non-partisan think tank that studies money in politics…
“Someone giving $18 can donate again 150 times over,” said Sarah Ford, a spokeswoman for Sanders’ campaign. She said $1 million a month is coming from those who have set up automatic, recurring donations. Overall, Sanders’ campaign has raised $36.2 million in 2019, more than any other Democratic candidate.
In the next two quarters, the presidential campaigns will be looking to take their fundraising to new heights. They might need it: Billionaire Tom Steyer, who began his presidential bid Monday, has said he’ll spend $100 million on television ads in pursuit of the nomination. He’s already ordered up $1.4 million worth of time in early primary states, well above what any other candidate has spent.
The States
Reason (Volokh Conspiracy): Wash. Sup. Ct. Upholds Campaign Finance Voucher Tax
By Eugene Volokh
Today’s opinion in Elster v. City of Seattle upholds the “Democracy Voucher Program,” under which a new property tax assessment (at a rate of two cents per $1000 of assessed value) “provides vouchers to registered municipal voters and qualifying residents,” which they “can give … to qualified municipal candidates, who then may redeem them for campaign purposes.” (“To be eligible to receive vouchers from municipal residents, municipal candidates must obtain a required number of signatures and contributions from qualified municipal residents.”)
The Court rejected a Janus compelled speech/funding argument, holding that the government may impose a fee that it then distributes in a viewpoint-neutral way to support private speech. I think that’s quite right, both under Board of Regents v. Southworth (2000), which upheld a public university’s system for funding student groups out of mandatory student fees, and by analogy to lots of other programs for government funding of private speech out of tax funds: As the court points out, for instance, the government prints at taxpayer expense ballot pamphlets with statements by ballot measure supporters and opponents.
Indeed, government programs that let students spend tax money for tuition at private schools (whether K-12 schools or colleges, as with the GI Bill and similar programs) are very similar: There too tax funds are used to support private speech that some taxpayers may disapprove of. But there’s no constitutional problem with that, and likewise there’s no problem with this.
I think Janus was mistaken (see Will Baude’s and my article on the subject), but I think this program is constitutional even accepting Janus.
Washington Post: Maryland Democrats file new complaint against Hogan campaign
By Associated Press
The Maryland Democratic Party has filed a second complaint alleging campaign finance violations against Republican Gov. Larry Hogan’s campaign, but the governor’s lawyer is calling it “a media stunt.”
The complaint filed Thursday with the state elections board is alleging “a number of suspicious” campaign donations from companies with similar names and addresses that would exceed legal amounts.
Chris Ashby, Hogan’s attorney, says there is “zero legal basis” for the complaint.
The complaints were filed after state Sen. Clarence Lam, a Democrat, wrote in The Baltimore Sun last month that Hogan has appointed board members to the University of Maryland Medical System who have donated to his campaign, including “some in apparent excess of campaign finance limits.” The board has been embroiled in a scandal involving self-dealing among board members.
