Ed. note: The Media Update will be on vacation Friday, July 3. Happy Independence Day from all of us at the Institute for Free Speech!
New from the Institute for Free Speech
“Revoke 230”: The Two Words That Could Destroy the Internet
By Nathan Maxwell
Removing liability protections for internet platforms is a dangerous move in itself, but conditioning them upon a provider’s treatment of political speech is constitutionally (and practically) unenforceable. Twitter has the right to freely associate, and that is a right independent of Section 230. No one, especially the government, has a First Amendment right to the unconstrained use of a private company’s service.
Stripping Section 230’s protections from internet companies may drive them to stop fact-checking President Trump’s tweets and cease favoring some political messages over others, but if doing so trades companies’ actual First Amendment interests for our fictional ones, can we really call it a win for liberty and freedom of speech and association? If no liability protections mean more moderation and less user speech, political or otherwise, are we really championing open discourse?
Scrapping Section 230 would not solve a First Amendment violation, but if its replacement is not carefully drafted, it could surely produce one. And it would likely be disastrous for the future of political speech on the internet.
The Courts
New York Times: Immigration Judges Challenge Justice Department Over Policy Gagging Them From Public Speech
By Reuters
U.S. immigration judges asked a federal court on Wednesday to strike down a new Justice Department policy barring them from speaking publicly about immigration law or even about how the coronavirus pandemic has affected detained immigrants.
The lawsuit on behalf of more than 460 immigration judges was filed in the U.S. District Court for the Eastern District of Virginia by Columbia University’s Knight First Amendment Institute.
It alleges that a January 2020 policy violates their rights by banning them from speaking publicly, even in cases where they make it clear they are not speaking as representatives of the Justice Department.
The policy requires all immigration judges, who work for the Justice Department and are not part of the federal judiciary branch, to get departmental clearance before they speak with journalists, at bar associations or law school events about immigration legal issues or any other topic…
“As the Supreme Court has repeatedly held, people do not surrender their free-speech rights when they accept government employment,” the complaint says. “They retain their rights, as citizens, to speak on matters of public importance, and the government can silence them only if it can show that its interest in doing so outweighs the employee’s interests in speaking and the public’s interest in hearing what they have to say.”
Reason (Volokh Conspiracy): Out-of-School K-12 Student Speech Can’t Be Punished Even If It Causes “Disruption” at School
By Eugene Volokh
Students, the Supreme Court has held, do not “shed their constitutional rights to freedom of speech … at the schoolhouse gate.” Even at school and in school-sanctioned and -supervised activities, students can’t be punished for their speech unless (1) it’s highly disruptive (Tinker v. Des Moines Indep. School Dist.), (2) vulgar (Fraser v. Bethel School Dist. No. 403), or (3) encourages illegal drug use in a nonpolitical way (Morse v. Frederick). ((4) Their speech in school-organized programs, such as school newspapers can also be restricted, Hazelwood School Dist. v. Kuhlmeier.)
But what if the students are speaking outside the schoolhouse gate, outside school-sanctioned and -supervised activities, and outside school publications? It’s fairly well settled that exceptions (2) through (4) don’t apply there, but what about (1)-what if off-campus speech causes on-campus disruption?
In yesterday’s B.L. v. Mahanoy Area School Dist., Third Circuit Judge Cheryl Krause joined by Judge Stephanos Bibas held that such speech is fully protected, which is to say that it can’t lead to discipline unless it falls within a First Amendment exception (such as for threats) or can otherwise be restricted under the same rules applicable to ordinary citizens. Other circuits, however, disagree. Here’s the court’s explanation, which strikes me as quite sound:
We hold today that Tinker does not apply to off-campus speech-that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur….
From the outset, Tinker has been a narrow accommodation: Student speech within the school context that would “materially and substantially interfere[ ] with the requirements of appropriate discipline” is stripped of the constitutional shield it enjoys “outside [that] context.”
Courthouse News: Judge: CNN Can Shield Reporting From Congressman Nunes
By Adam Klasfeld
In a First Amendment victory for the network, CNN can protect its newsgathering from Trump-loyalist Congressman Devin Nunes until a federal judge decides whether to dismiss the litigation-happy representative’s case.
“I’m quite concerned about the broad scope of discovery sought by plaintiff [Rep. Nunes],” U.S. Magistrate Judge Ona Wang said in a telephone conference on Tuesday afternoon.
In 28 separate requests to the network, Nunes demanded that CNN turn over its notes, communications and other documents related to prominent U.S. and Ukrainian officials implicated in the impeachment saga. Those requests included three present or former Democratic members of Congress – ex-Representative Katie Hill and sitting Representatives Adam Schiff and Maxine Waters.
Nunes also demanded information on his current political opponent Phil Arballo and Trump’s rival, former Vice President Joe Biden…
During the height of the impeachment inquiry, Nunes sued over CNN’s reporting that he met with Ukraine’s former prosecutor general Victor Shokin in Austria to get dirt on Biden and his son, Hunter. The congressman filed his lawsuit in Virginia, before a federal judge there cited “significant concerns about forum shopping” to take advantage of the state’s permissive libel laws and transferred the case to New York.
Immediately seeking to dismiss the lawsuit upon its transfer, CNN warned about the threat to press freedom in allowing a U.S. congressman to force a news organization to crack open its reporters’ notebooks in a case involving a president.
Dallas Morning News: Dallas protesters challenge constitutionality of Texas’ anti-riot law in suit, saying they were falsely arrested
By Miles Moffeit and Dianne Solis
In a bid to persuade courts to declare Texas’ anti-rioting law unconstitutional, three protesters sued the city of Dallas on Tuesday saying police erroneously used riot charges and another offense to jail them, violating their free-speech rights…
The lawsuit, filed in the U.S. District Court in Dallas, marks the first Texas effort in roughly 40 years to test the legitimacy of the anti-rioting statute, arguing that the law is overly broad and can snare innocent people…
Defenders of anti-riot laws say they are needed to crack down on organized violence. But since the early civil rights movement, critics have accused police of exploiting the law to silence and intimidate peaceful protesters, violating their Fourth Amendment rights against illegal seizure and First Amendment rights to free speech and assembly.
”This legal effort is so much bigger than the three of us,” said [plaintiff Lily] Godinez, 20, who was holding a Black Lives Matter sign when she was tackled by officers and jailed, according to her and her cousin. “I’m doing this to protect my sisters and others who want to peacefully protest in the future without having their rights stripped away.”
Congress
CNBC: Democratic bill would require dark money judicial groups to reveal donors
By Brian Schwartz
Democratic lawmakers introduced a bill Thursday that would require “dark money” judicial groups to reveal their donors after playing an outside role during a recent run of Supreme Court confirmation hearings.
Sens. Dianne Feinstein and Sheldon Whitehouse, both members of the Senate Judiciary Committee, filed the bill titled the “Judicial Ads Act.”
The bill, co-sponsored by eight other Democratic lawmakers, demands that groups which spend $50,000 in a calendar year on advertisements linked to federal judicial nominations to release the names of their donors who give over $5,000. These organizations have always kept their donors anonymous.
It would also require advertisements connected to judicial confirmations to disclose who is funding the spot and would ban foreign nationals from funding advertisements related to a judicial nomination…
“The American people have a right to know who is trying to influence judicial nominations,” Feinstein said. “Our bill would help shine light on the process, requiring major donors to these campaigns to be identified and removing the serious potential for undisclosed conflicts of interests.” …
The bill is back by the Campaign Legal Center, Citizens for Responsibility and Ethics in Washington, the Project on Government Oversight, Public Citizen, Democracy 21 and End Citizens United.
The Hill: Language to boost election security removed from Senate intelligence legislation
By Maggie Miller
A measure that would require presidential campaigns to report attempts by foreign nationals to interfere in elections was removed from the Senate’s bipartisan Intelligence Authorization Act, Sen. Mark Warner (D-Va.) said Tuesday.
The clause was based on Warner’s Foreign Influence Reporting in Elections (FIRE) Act, which requires presidential campaigns to report all contacts with foreign nationals seeking to interfere in the election process to both the FBI and the Federal Election Commission.
The Intelligence Authorization Act will be included in the Senate version of the 2021 National Defense Authorization Act (NDAA), but according to Warner, the FIRE Act clause was taken out as part of a “backroom deal” in order to get the intelligence legislation included in the must-pass defense funding bill.
Warner announced he was proposing the legislation as a separate amendment to the NDAA in order to force members of the Senate to vote on the record about where they stood on election security. The Senate this week is debating its version of the 2021 NDAA.
Wall Street Journal: Sheldon Whitehouse’s Favors
By The Editorial Board
Rhode Island Senator Sheldon Whitehouse makes a habit of accusing his opponents of corruption. So let’s take a look at an example of the Senator’s political mediation that Mr. Whitehouse would surely denounce if the facts involved someone he disliked…
Mr. Whitehouse accuses companies, judges and others of corruption on an almost daily basis without any evidence. He claims the Supreme Court under Chief Justice John Roberts has a “stunning record of partisan judicial activism,” which he says is bought and paid for by “dark money” donors.
This month he smeared federal appellate Judge Neomi Rao for her opinion supporting Michael Flynn’s request for a writ of mandamus to dismiss his case: “‘Judge’ Rao delivers the coverup she was put on the court for.” Never mind that her opinion was joined by Judge Karen Henderson. Was she part of a coverup too?
Mr. Whitehouse’s smears are based on less evidence than the facts of his favors for Utilidata and the contributions the company’s executives delivered to his campaign. The Senate Ethics Committee should open an investigation.
Online Speech Platforms
The Hill: Facebook claims it ‘does not profit from hate’ in open letter
By Chris Mills Rodrigo
Facebook published an open letter Wednesday saying it does not benefit from hateful content as a campaign for advertisers to boycott the platform for its failure to moderate racist, sexist and otherwise objectionable content builds steam.
“I want to be unambiguous: Facebook does not profit from hate,” Nick Clegg, the company’s vice president of global affairs and communications, wrote in the letter. “Billions of people use Facebook and Instagram because they have good experiences – they don’t want to see hateful content, our advertisers don’t want to see it, and we don’t want to see it. There is no incentive for us to do anything but remove it.”
Clegg said that more than 100 billion messages are sent on the company’s platforms every day, making it difficult to catch all the content that violates its policies.
“Unfortunately, zero tolerance doesn’t mean zero incidences,” he wrote. “With so much content posted every day, rooting out the hate is like looking for a needle in a haystack.” …
“We may never be able to prevent hate from appearing on Facebook entirely, but we are getting better at stopping it all the time,” Clegg concluded.
New York Times: Bogus Ideas Have Superspreaders, Too
By Shira Ovide
This past week (and forever), internet companies have been trying to figure out how to handle posts that can encourage violence, contribute to social division and harassment, or spread false information about elections or other high-stakes topics.
When online companies make these decisions, they largely consider the substance of the message, divorced from the messenger, to decide whether a post is harmful and should be deleted or hidden.
But whether they intend it or not, celebrities, politicians and others with large online followings can be superspreaders – not of the coronavirus but of dangerous or false information. And I wonder whether these prominent people need to be held to stricter rules…
[H]ere are a few ideas:
What if once you reach a half-million followers or subscribers, if you share something that fact checkers deem a hoax, or if you post something that brushes close to the internet companies’ existing rules against hate speech, you get a strike against you? (YouTube has a system like this.)
If you collect enough strikes, the punishment could be lower distribution in Facebook’s feed, for example, or you could be blocked from retweets.
These influential people might still be free to post whatever they want online, but fewer people would see it. Yes, that would go for political figures like Mr. Trump…
A more radical idea is that once people reach the top tier of follower counts or subscribers on Facebook, Twitter and YouTube, any material they try to post would be quarantined and screened before it hits the internet.
Candidates and Campaigns
Washington Examiner: Amy McGrath’s pathetic finish shows again that money can’t buy elections
By Editorial Board
Democrats’ $41 million woman [Amy McGrath] squeaked out a win with 45%, by less than 3 percentage points against her underfunded opponent. She outraised [Charles Booker] by more than 40 to 1 and outspent him by a similar ratio…
[I]t is just an additional reminder of the old adage we have repeated endlessly on this page: Money does not buy elections.
The myth that money buys elections, widely shared by liberals who are obsessed with campaign finance reform, has been repeatedly debunked by the failure of all sorts of candidates from all parties. For example, have you ever heard of Republican Bob Hugin? Most people haven’t. At $39 million, he ran the third-most-expensive U.S. Senate campaign of 2018. He outspent his opponent 3 to 1. He lost by more than 11 points.
But it’s most fun to watch the Left’s own overfunded candidates fall flat and prove the point.
For example, the money propelling Hillary Clinton to the presidency, both through her campaign and through outside groups, exceeded Donald Trump’s by an estimated $300 million. She still lost.
Part of the reason O’Rourke came close to defeating Sen. Ted Cruz in 2018 was that he spent twice as much money as Cruz did – a shocking $79 million. He still lost…
Oh, money in politics, where is thy sting?
Money is often a requirement in politics, but it cannot make up for a lack of substance, popularity, or political suitability to voters.
Breitbart: Loomer Campaign Calls on DOJ to Investigate Twitter for Illegal In-Kind Contributions
By Allum Bokhari
The Laura Loomer congressional campaign has written a letter to Attorney General Bill Barr calling for a DOJ investigation into Twitter for discrimination against conservative political candidates, which it alleges is an illegal in-kind contribution to Democrats.
Washington Free Beacon: Bullock Joined Private PAC Fundraiser During Coronavirus Shutdown
By Collin Anderson
According to an invitation obtained by the Washington Free Beacon, [Montana governor Steve] Bullock attended a Moderate Democrats PAC fundraiser on April 17 from 8:30 to 9:30 a.m. MST. The event-which was open to the PAC’s “Trustees and Executive Members” only-occurred while Montana was in statewide lockdown due to the virus…
In addition to calling into question his priorities as governor, Bullock’s presence at the private fundraiser diminishes his positioning as a campaign finance purist. While Bullock has pledged to “take no corporate PAC money,” 64 percent of Moderate Democrats PAC’s funds in the 2020 cycle-more than $522,000-came from corporate sources. Major donors include Citigroup, Boeing, Lockheed Martin, and ExxonMobil.
“This is yet another example of how Governor Bullock says one thing but does the other. He promised not to take corporate PAC money yet backdoors these corporate dollars into his campaign,” a Montana GOP spokesperson told the Free Beacon. “As long as Bullock gets to have it both ways, he will continue to mislead and misrepresent himself to Montanans.”
Bullock has also benefited from $700,000 in ads targeting Daines from Schumer’s Senate Majority PAC, which accepts millions from corporate PACs and big-money liberal donors.
The States
VTDigger: Is Scott Milne violating campaign finance laws by appearing in ads for his company?
By Xander Landen
The Vermont Democratic Party has called on state media organizations to stop running advertisements for Milne Travel, a business owned by Scott Milne, a Republican candidate for lieutenant governor.
Milne has recently appeared in television ads for his travel agency. The Democrats allege Milne is spending corporate funds “in service of boosting his name recognition for political gains.”
“Advertisements for Mr. Milne’s travel company allow Milne to illegally use corporate funds and skirt around campaign finance laws to boost his name recognition for political gain,” party officials said in a statement.
The television ad featuring Milne does not make a reference to his political candidacy. In the advertisement, Milne says he hopes the Covid-19 pandemic will soon subside, and that a “brighter day is on the horizon.” …
But the Democratic Party charges that Milne’s ad doesn’t focus on his business, but his personal story.
“It’s in fact kind of a bio narrative that you would put in a campaign ad, so that’s where the concern lies,” said R. Christopher Di Mezzo, a party spokesperson…
Brendan Fischer of the Campaign Legal Center, a campaign finance watchdog group, said questions about whether candidates seeking office can appear in ads for their businesses frequently come up at the federal level.
Fischer said these cases rarely present a “super clear line” between an advertisement “that does not constitute a federal electioneering in communication and an ad that could be construed as promoting the person’s candidacy.” He said Milne’s ad occupied this “gray area.”
Reason (Volokh Conspiracy): N.Y. State Bill to Ban “Hate Speech” from Social Media
By Eugene Volokh
The bill (S. 7275) was proposed in January by state senator David Carlucci, but I just came across it:
1. As used in this section, the following terms shall have the following meanings:
(a) “hate speech” means a public expression, either verbally, in writing or through images, which intentionally makes an insulting statement about a group of persons because of race, ethnicity, nationality, religion or beliefs, sexual orientation, gender identity or physical, mental or intellectual disability….
3. (a) The provider of a social media network shall maintain an effective and transparent procedure for handling complaints about hate speech content in accordance with this subdivision….
(b) Such procedure shall ensure that the provider of the social media network:
(i) takes immediate note of the complaint and checks whether the content reported in the complaint is hate speech and subject to removal or whether access to the content must be blocked;
(ii) removes or blocks access to content that is hate speech within twenty-four hours of receiving the complaint; this shall not apply if the social media network has reached agreement with the competent law enforcement ….
