Supreme Court

Reason (Volokh Conspiracy): Part II: Barr v. AAPC and Content-Based Discrimination

By Josh Blackman

Earlier today, I published Part I in four-part series on Barr v. American Association of Political Consultants. The first installment considered the concept of judicial departmentalism in Justice Kavanaugh’s plurality opinion. This second installment will consider the sharp divide in the Court’s First Amendment jurisprudence.

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Justice Kavanaugh’s plurality opinion was joined by Chief Justice Roberts, Justice Alito, and Justice Thomas. However, Justice Gorsuch did not join the plurality’s First Amendment analysis. As a result, there is no controlling opinion. At first, I couldn’t quite make sense of where the two Trump appointees differed. But on further reflection, I think that Justice Gorsuch does not agree with Reed v. Town of Gilbert (2015). Indeed, Justice Gorsuch does not even cite Justice Thomas’s majority opinion in Reed…

Justice Gorsuch follows a different analysis. Indeed he seems to favor an even stricter form of strict scrutiny than the plurality adopts.

The Courts

Bridge: Federal judge dismisses GOP case against Michigan redistricting commission

By Riley Beggin

A federal judge Monday dismissed a lawsuit by Michigan Republican groups seeking to block a new state redistricting commission. The ruling is the latest legal setback for Republicans, who earlier this year failed to win an injunction that would prevent the formation of the commission, which they contend is unconstitutional. 

The decision Monday – by U.S. District Court Judge Janet Neff, appointed by GOP President George W. Bush – is a blow to state Republicans who fought against the implementation of the redistricting commission, which was created in 2018.

The litigation involved two cases first filed against Secretary of State Jocelyn Benson by the Michigan Republican Party and a number of individual plaintiffs, including Michigan Freedom Fund Director Tony Daunt, in July and August last year. The suits were later consolidated.

Republicans argued that the commission is unconstitutional primarily because it disqualifies several types of people from applying to become a member, including partisan elected officials, lobbyists, political candidates and political consultants. This violates their First Amendment rights to participate, the plaintiffs argued.

The state Republican Party separately argued, among other claims, that the commission’s rules violate their freedom of association because applicants are required to state which party they’re affiliated with without the consent of the party.  

These arguments don’t hold water, Neff wrote Monday, siding with Benson and Voters Not Politicians, the group that campaigned for the creation of the redistricting commission. 

AL.com: Federal judge allows Roy Moore suit against ‘Borat’ actor Sacha Baron Cohen to go forward

By Greg Garrison

A New York federal judge has denied a motion by “Borat” actor Sacha Baron Cohen to dismiss a lawsuit against him filed by former Alabama Chief Justice Roy Moore.

U.S. District Judge Andrew Carter denied the motion to dismiss by Baron Cohen, Showtime and CBS in a $95 million defamation lawsuit filed by Moore and his wife, Kayla, in 2018.

Baron Cohen posed as an Israeli Mossad agent for a meeting with Moore, and Moore alleges that he was slandered as a pedophile when the filmed segment aired on the TV show, “Who is America?” …

Cohen in the episode posed as Israeli anti-terrorism expert Col. Erran Morad, who was interviewing Moore when he mentioned a new piece of technology– a device that detects a hormone from a pedophile’s sweat.

When he waved the wand-like device in Moore’s direction, it sounded an alarm.
The joke was playing off allegations made against Moore during the 2017 Senate campaign in which a woman said she was sexually molested by Moore when she was 14 years old. Moore has repeatedly denied the allegations.

Free Speech

Harper’s: A Letter on Justice and Open Debate

The free exchange of information and ideas, the lifeblood of a liberal society, is daily becoming more constricted. While we have come to expect this on the radical right, censoriousness is also spreading more widely in our culture: an intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty. We uphold the value of robust and even caustic counter-speech from all quarters. But it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought . . . We are already paying the price in greater risk aversion among writers, artists, and journalists who fear for their livelihoods if they depart from the consensus, or even lack sufficient zeal in agreement.

This stifling atmosphere will ultimately harm the most vital causes of our time. The restriction of debate, whether by a repressive government or an intolerant society, invariably hurts those who lack power and makes everyone less capable of democratic participation. The way to defeat bad ideas is by exposure, argument, and persuasion, not by trying to silence or wish them away. We refuse any false choice between justice and freedom, which cannot exist without each other. As writers we need a culture that leaves us room for experimentation, risk taking, and even mistakes. We need to preserve the possibility of good-faith disagreement without dire professional consequences. If we won’t defend the very thing on which our work depends, we shouldn’t expect the public or the state to defend it for us.

Independent Groups

Kansas City Star: Candidate’s father steers six figures into PAC attacking rival in Kansas GOP primary

By Bryan Lowry

Amanda Adkins’ father has steered more than $100,000 into a super PAC airing ads attacking Sara Hart Weir, one of Adkins’ top rivals in the GOP primary race for Kansas’ 3rd congressional district.

Alan Landes, Adkins’ father, was the sole donor to the Heartland USA PAC as of March 31 after making two donations totaling $113,146, according to Federal Election Commission records…

“The phenomenon of family-funded super PACs are a symptom of a broken campaign finance system,” said Brendan Fischer, director of federal reform at the Washington-based Campaign Legal Center.

Fischer said that PACs funded by family members undermine the requirement that super PACs be independent from a campaign. Thefederal law’s current wording allows them to exist as easy avenue for wealthy parents to put more money toward their children’s election than would be allowable by giving directly to the campaign…

“It gives a candidate who comes from a wealthy family an advantage,” Fischer said. “Unless the campaign finance system is reformed we are likely to see this phenomenon of family-funded super PACs continue to arise in Kansas and across the country.”

Online Speech Platforms

New York Times: Facebook Decisions Were ‘Setbacks for Civil Rights,’ Audit Finds

By Mike Isaac

Facebook has not done enough to fight discrimination on its platform and has made some decisions that were “significant setbacks for civil rights,” according to a new independent audit of the company’s policies and practices.

In a 100-page prepublication report, which was obtained by The New York Times, the social network was repeatedly faulted for not having the infrastructure for handling civil rights and for prioritizing free expression on its platform over nondiscrimination. In some decisions, Facebook did not seek civil rights expertise, the auditors said, potentially setting a “terrible” precedent that could affect the November general election and other speech issues…

[T]he report was critical of Facebook’s handling of speech – particularly speech from politicians – and the effects on users. The auditors said Facebook had been too willing to exempt politicians from abiding by its rules, allowing them to spread misinformation, harmful and divisive rhetoric, and even calls to violence.

The auditors said their concerns had increased over the past nine months because of decisions made by [Facebook CEO Mark] Zuckerberg and Nick Clegg, Facebook’s global head of policy and communications…

“Elevating free expression is a good thing, but it should apply to everyone,” the auditors wrote. “When it means that powerful politicians do not have to abide by the same rules that everyone else does, a hierarchy of speech is created that privileges certain voices over less powerful voices.”

They added, “The prioritization of free expression over all other values, such as equality and nondiscrimination, is deeply troubling.”

Washington Post: DNC blasts Facebook for ‘unkept promises’ ahead of ad boycott meetings

By Isaac Stanley-Becker

The Democratic National Committee on Tuesday assailed Facebook for “unkept promises” in a wide-ranging memo drawn up ahead of meetings between the company’s top executives and leaders of an intensifying ad boycott over hate speech and misinformation.

The memo, obtained by The Washington Post, accuses Facebook of failing to fulfill a series of promises it made following the 2016 election, including limiting sensational and hyperpartisan content, standing up a rigorous fact-checking program and curtailing disinformation. It also faults the company for “underdeveloped and unevenly applied policies,” including about incitement on its platform as well as voter suppression and other election-related content.

“Following the 2016 election, Facebook made a number of public promises of change,” the memo reads. “As the company makes new commitments in response to renewed public criticism, it is worth reviewing carefully how the company’s actions measure up to its words. In many cases, as documented below, Facebook failed to keep its promises.”

New York Times: Facebook Fails to Appease Organizers of Ad Boycott

By Mike Isaac and Tiffany Hsu

Mark Zuckerberg and Sheryl Sandberg, Facebook’s two top executives, met with civil rights groups on Tuesday in an attempt to mollify them over how the social network treats hate speech on its site.

But Mr. Zuckerberg, Facebook’s chief executive, and Ms. Sandberg, the chief operating officer, failed to win its critics over.

For more than an hour, Mr. Zuckerberg, Ms. Sandberg and other Facebook executives discussed the company’s handling of hate speech over Zoom with representatives from the Anti-Defamation League, the National Association for the Advancement of Colored People and Color of Change. Those groups have helped push hundreds of companies, such as Unilever and Best Buy, to pause their advertising on Facebook in recent weeks to protest its handling of toxic speech and misinformation.

The groups said they discussed their demands with Facebook’s leaders, including the hiring a top executive with a civil rights background, submitting to regular independent audits and updating its community standards, according to a statement from the Free Press advocacy group, whose co-chief executive, Jessica J. González, was on the call.

But Mr. Zuckerberg and Ms. Sandberg did not agree to all of those requests, representatives of the groups said. Instead, they said, the Facebook executives reverted to “spin” and firing up its “powerful P.R. machine.”

“Instead of committing to a timeline to root out hate and disinformation on Facebook, the company’s leaders delivered the same old talking points to try to placate us without meeting our demands,” Ms. González said.

USA Today: Will the Facebook advertising boycott force the social media giant to change? Not likely

By Jessica Guynn and Nathan Bomey

Brands that are boycotting Facebook make up a small percentage of the company’s revenue and they are pulling ad dollars at a time when many had already dialed back spending. And these advertisers are discovering that they can get better exposure right now from not advertising on Facebook than advertising on it…

“Do I think that the current crisis is one that potentially dooms Facebook? The answer is no,” says Harvard Business School professor David Yoffie.

But, says Yoffie, “the longer-term danger to Facebook is that Mark’s position on content curation is ultimately going to seriously impact the brand.” 

The quandary for Facebook: Its platform reflects the political demographics and conflicts of the American electorate – with one important difference: the outsize influence of conservatives there. 

“While the nation skews liberal in population size, conservative and liberal are even on Facebook,” says Dennis Yu, CEO of social analytics company BlitzMetrics. “When you look at relative engagement, conservatives are significantly larger.”

Alaska Public Media: Anti-mask mandate campaign gets taken down by GoFundMe

By Lex Treinen

An information campaign to challenge Anchorage’s mask mandate has run afoul of the online crowdfunding platform GoFundMe’s terms of service.

The campaign, called “Truth Unmasked” run by Alaska businesswoman and conservative activist Bernadette Wilson, was removed from the site last week. The story was shared by Wilson on her Facebook page.

Wilson posted the GoFundMe campaign seeking donations to produce videos featuring local doctors questioning the science used to justify Anchorage’s mask mandate. It produced one video featuring Dr. David Paulson, a neurosurgeon in Anchorage. In the video, Paulson pulls off a mask he’s wearing within a few seconds.

“Like this mask, it has holes in it that are 100 microns, the bacteria we have in our normal flora is one to ten microns. They easily pass through, and coronavirus is .1 to .2 microns,” he says in the video…
Wilson quickly raised $5,000 to create more messages featuring local doctors, as well as radio advertisements. But on the morning of June 30, the video was gone and donors’ money had been returned to them.

She said she had no advanced warning of the removal…

Until a few years ago, companies like Google, Facebook and Twitter largely refrained from blocking content, allowing people or businesses to post whatever they wanted, regardless of its veracity…

But with the pandemic, tech platforms became even more active in regulating what is posted.

The States

Nossaman eAlert: Individuals Behind LLC Political Contributions to be Disclosed in California Elections

By Tracey L. Frazier, Amber R. Maltbie, and Frederick T. Dombo III

Limited Liability Companies (“LLCs”) that make political contributions or expenditures in California’s November, 2020 general election are now subject to heightened disclosure. 

On Thursday, June 18, 2020, California’s Fair Political Practices Commission (“FPPC” or the “Commission”) voted 4-1 to adopt new regulations aimed at increasing the information available about LLCs active in California politics. Under the new regulations, LLCs will be required to identify the individual responsible for making political contribution decisions on behalf of the LLC (i.e., the “responsible officer”). California committees that receive contributions from LLCs must include the name of the responsible officer on publicly disclosed campaign finance reports.