New from the Institute for Free Speech
A Biden-Zuckerberg Alliance Against “Misinformation” Should Scare Everyone
By Luke Wachob
On Thursday afternoon, White House Press Secretary Jen Psaki revealed that the Biden administration is in “regular touch” with social media platforms to identify posts the government believes should be taken down.
“We’re flagging problematic posts for Facebook that spread disinformation,” Psaki said.
She went on to criticize Facebook for not banning 12 people she claims are responsible for almost 65% of anti-vaccine misinformation on social media. Psaki lectured that it is “important for platforms to take faster action” to remove content the government flags as misinformation.
It goes without saying, thankfully, that the First Amendment prohibits the government from censoring speech, even speech it classifies as “misinformation.” In asking Facebook to remove specific posts and accounts, the Biden administration is requesting a private company act on its behalf and exercise a power it is expressly denied by the Constitution.
The danger to free speech should be clear. The federal government possesses enormous power. Once it chooses targets, it has many carrots and sticks to corral them. If the government can intimidate private parties into doing what it cannot do directly, then its power is effectively limitless.
Events
Republican National Lawyers Association: RNLA Webinar: Online Censorship of Conservatives: How Should We Respond?
Friday, July 16th at 2:00 PM ET
Join the RNLA for an in-depth discussion on the latest actions by Silicon Valley to censor conservative voices online.
Our speakers will address competing perspectives on how the federal government should respond and whether further regulation of the tech industry is necessary.
Featured Speakers:
Joel Thayer
Principal, Thayer, PLLC
Thayer focuses his practice on telecommunications, regulatory and transactional matters, as well as privacy and cybersecurity issues.
&
Scott Blackburn
Research Director, Institute for Free Speech
Blackburn is responsible for spearheading the Institute’s short-term and long-term research efforts on the costs and benefits of campaign finance laws and regulations on free political debate and free association.
This webinar is for RNLA members and invited guests.
Congress
Bloomberg: Manchin Says No Filibuster Exception for Voting Rights Bill
By Sophia Cai
Senator Joe Manchin said he wouldn’t carve out an exemption to the chamber’s filibuster rule for voting rights legislation, effectively dashing chances that Democrats could maneuver around Republican opposition to overhauling the nation’s elections laws.
The West Virginia Democrat made the remarks after meeting with a group of Texas House Democrats who left the state to stall a vote on Republican-backed legislation that they say would restrict voting.
“Forget the filibuster,” Manchin told reporters after the meeting.
Supreme Court
By Joan Biskupic
Justice Stephen Breyer has not decided when he will retire and is especially gratified with his new role as the senior liberal on the bench, he told CNN in an exclusive interview — his first public comments amid the incessant speculation of a Supreme Court vacancy.
Far from Washington and the pressures of the recently completed session and chatter over his possible retirement, Breyer, a 27-year veteran of the high court, said Wednesday that two factors will be overriding in his decision.
“Primarily, of course, health,” said Breyer, who will turn 83 in August. “Second, the court.”
The Courts
The Lens: Two city employees file First Amendment lawsuit against city over social media restrictions
By Michael Isaac Stein
Two employees of the city of New Orleans filed a federal lawsuit on Thursday alleging that their First Amendment rights are being violated by a city policy on employee social media use. The policy dictates, among other restrictions, that city employees are not allowed to “engage or respond to negative or disparaging posts” about city government.
“The City of New Orleans has adopted an employee conduct policy that violates the free speech rights of all City employees,” the suit said. “An employee can be fired for any speech critical of the City— regardless of whether that speech pertains to or has any impact upon the person’s job. The Policy also provides for discipline or termination if an employee engages in “offensive” speech, which is undefined by the Policy, and is a term so vague that employees cannot know what speech might get them fired.”
Reason (Volokh Conspiracy): Sixth Circuit Rejects Constitutional Challenge to Mandatory Bar Membership in MIchigan
By Jonathan H. Adler
Today the U.S. Court of Appeals for the Sixth Circuit rejected a constitutional challenge to Michigan’s requirement that attorneys licensed in the state maintain a their membership in an integrated bar.
Judge Moore’s opinion for the Court in Taylor v. Buchanan begins:
“Attorneys in Michigan, like those in most other states, must join an integrated bar association in order to practice law. In this suit, Lucille S. Taylor, a Michigan attorney, argues that requiring her to join the State Bar of Michigan violates her freedom of association, and further that the State Bar of Michigan’s use of a portion of her mandatory membership dues for certain advocacy activities violates her freedom of speech. The district court rejected Taylor’s First Amendment claims, holding that they are foreclosed by two Supreme Court decisions that have not since been overruled.”
FEC
Chicago Tribune: FEC rules US Rep. Robin Kelly cannot raise money for nonfederal candidates, leaving her largely a figurehead as Illinois Democratic chair
By Rick Pearson
The Federal Election Commission ruled Thursday that U.S. Rep. Robin Kelly cannot be involved in raising or spending money for state and local office candidates in her new role as Illinois Democratic chair, relegating her largely to figurehead status within the party.
[As] a federal officeholder, she is bound by federal laws on raising campaign cash that are stricter than those of the state…
Under the FEC’s 5-1 ruling, the state Democratic Party must create a special committee to oversee state fundraising for nonfederal campaigns with no involvement by Kelly. Some Democrats have estimated that 83% of the funds raised by the state party are for nonfederal state and local candidates…
In its ruling, the FEC followed a recommended draft order that acknowledged the state party can raise funds in amounts and from sources prohibited for federal candidates.
But, it said, that would only be permitted if “the nonfederal account is administered by a special committee without the review or approval of Congresswoman Kelly and Congresswoman Kelly has no role in the appointment of any member of the special committee.”…
Ellen Weintraub, a Democratic commissioner from New York, was the lone vote against the ruling. A strong supporter of federal campaign finance laws, Weintraub said she had concerns about a federal officeholder serving as leader of an organization that could raise money outside of federal limits, even if that is done through a special committee.
The Hill: Watchdog files FEC complaint against super PACs linked to congressional leaders
By Karl Evers-Hillstrom
The Campaign Legal Center on Thursday accused political action committees with close ties to congressional leaders of violating election laws.
The nonpartisan watchdog group filed a Federal Election Commission complaint against 18 super PACs that collectively poured $200 million into competitive elections from 2017 to 2020 while allegedly concealing their ties to Washington groups.
Political operatives launched these super PACs shortly before key elections with names that suggested local ties, such as “Keep Kentucky Great” and “Texas Forever.”
In reality, the complaint states, they were funded by groups like the Senate Leadership Fund, which is affiliated with Senate Minority Leader Mitch McConnell (R-Ky.), and the Senate Majority PAC, which is affiliated with Senate Majority Leader Charles Schumer (D-N.Y.).
By timing the release of their ads just before voters went to the polls, the complaint states, the super PACs delayed revealing their donors until after Election Day, obscuring their connections to Washington leaders.
The Campaign Legal Center said the super PACs violated election rules that require political committees to disclose their ties to affiliated groups.
Biden Administration
New York Times: The U.S. surgeon general accused social media companies of not doing enough to stop the spread of Covid misinformation.
By Sheryl Gay Stolberg and Davey Alba
President Biden’s surgeon general on Thursday used his first formal advisory to the United States to deliver a broadside against tech and social media companies, which he accused of not doing enough to stop the spread of dangerous health misinformation — especially about Covid-19…
His report called on all Americans to take pains to share accurate information, and said the United States needs “an all-of-society approach” to combat the problem.
But at Thursday’s White House press briefing, Dr. Murthy joined the White House press secretary, Jen Psaki, and made clear that tech and social media companies were his target, saying they have a singular responsibility to be more aggressive in fighting misinformation and citing Facebook by name.
New York Post: White House ‘flagging’ posts for Facebook to censor over COVID ‘misinformation’
By Steven Nelson
The demand for censorship — and [White House press secretary Jen] Psaki’s admission of government involvement — follows a series of flip-flops from health officials who contradicted themselves throughout the pandemic on issues such as mask efficacy, as well as censorship of claims that later gained credibility, such as the theory that COVID-19 leaked from a Chinese lab.
“We are in regular touch with the social media platforms and those engagements typically happen through members of our senior staff and also members of our COVID-19 team — given as Dr. Murthy conveyed, this is a big issue, of misinformation, specifically on the pandemic,” Psaki said.
She added: “We’ve increased disinformation research and tracking within the Surgeon General’s Office. We are flagging problematic posts for Facebook that spread disinformation.”
Psaki added, “it’s important to take faster action against harmful posts … and Facebook needs to move more quickly to remove harmful violative posts.”
Free Speech
Primary Sources Podcast: (Ep. 3) Secrecy, Repression, and The Espionage Act Century feat. Carey Shenkman
Passed during World War I, the Espionage Act was President Woodrow Wilson’s “firm hand of repression” that he used to silence antiwar voices.
Touted as a law against spies and saboteurs, the Espionage Act has in fact been a tool to control the flow of information and suppress dissent. Over the interceding years, the Espionage Act became a way to retaliate against those who publish “official secrets.” Today it is the government’s go to weapon against national security whistleblowers and even journalists who uncover abuses of power.
Host Chip Gibbons is joined by human rights attorney Carey Shenkman to learn more about the ignoble history of the Espionage Act and its century of silencing those who dissent on US national security policy.
The States
By Laurel Rosenhall
In the months before California lawmakers in June granted prison guards a $5,000 bonus and an 8% raise over the next two years, the guards’ union made a few charitable donations. The recipients included two nonprofits run by the very legislators who were preparing to vote on the pay hikes…
Donations like this — from groups that lobby the Legislature, to nonprofits controlled by legislators, their staff and family members — have been under scrutiny by California’s political watchdog since CalMatters reported last year that they’ve become an increasingly common way for politicians to raise and spend money outside the limits of the state’s strict campaign finance laws.
The investigation found a dozen nonprofits run by state lawmakers and their staffs had reported raising nearly $3 million in 2019; that a nonprofit tied to the legislature’s technology caucus was keeping its donations secret; and that a lawmaker — now-Attorney General Rob Bonta — routinely asked interest groups to donate to his personal foundation as well as to nonprofits that employed his wife…
Now, after a year of reviewing whether to change the rules governing the transactions known as “behested payments,” on Thursday the Fair Political Practices Commission is scheduled to discuss new regulations:
Honolulu Civil Beat: The Legislature Just Reduced Transparency In Hawaii Elections
By Sandy Ma
The Hawaii Legislature’s hasty override of Gov. David Ige’s veto of Senate Bill 404, relating to electioneering communications, is bad policymaking. SB 404 will reduce transparency in Hawaii’s elections and further erode the people’s trust in Hawaii’s political process and our elected officials.
SB 404, when it moved through the 2021 Legislature, received relatively little attention; it was a housekeeping administrative measure. The Legislature took the opportunity, on its own against the testimony of good government groups and watchdog agencies, to amend SB 404 to eliminate disclosures that must be made by candidates and reduce disclosures that must be made by special interest groups, or PACs and SuperPACs.
The result of the Legislature’s veto override of SB 404 is that the public will not know who is trying to influence their vote — which candidate or special interest group is telling them to vote for or against a candidate in the critical period right before an election…
Under SB 404, no candidates will need to file electioneering communication disclosures and significantly fewer electioneering communication disclosures will have to be filed by special interest groups, given that only one will be required to be filed once the $1,000 threshold is reached.
Valley Breeze: Parts of Lincoln’s political sign ordinance won’t be enforced
By Nicole Dotzenrod
The American Civil Liberties Union of Rhode Island recently settled a lawsuit with the town of Portsmouth on behalf of a resident who had been ordered to remove signs from his property. Michael DiPaola argued that the town had infringed upon his right to free speech protected under the First Amendment. The signs posted on his property were not in support of a particular candidate, but rather opining on DiPaola’s ongoing beef with zoning officials.
As a result of the settlement, Portsmouth can’t continue to enforce its ordinance as it’s currently written.
Richard Sinapi, an attorney for the ACLU, called the judge’s decision “an important victory for free speech,” noting that “courts have regularly held that political signs on residential property are a form of unique expression entitled to the highest degree of protection under the First Amendment.”…
Asked how the settlement might impact Lincoln as the town gears up for a special election, Town Solicitor Tony DeSisto said the First Amendment does provide protection for political lawn signs.
The town’s rule that political signs are permitted only 30 days prior to an election “is not allowable under case law, and will not be enforced,” DeSisto said.
