In the News
Business Insider: Joe Biden could ‘pack’ the Federal Election Commission with liberals and obliterate tradition. But he’s resisting.
By Dave Levinthal
To tilt the six-commissioner [Federal Election Commission] leftward, [President Joe] Biden could nominate replacements for Sean Cooksey, a conservative Republican commissioner whose term expired April 30. Biden could likewise move to replace Steven Walther, a longtime independent FEC commissioner whose term expired more than a dozen years ago, with someone more overtly liberal…
“The administration has enough cool heads to recognize that this would be seen as a raw power grab, and not worth the candle either in public perception or the ability of Republicans to take all possible steps in retaliation,” said Bradley Smith, a former Republican FEC chairman who’s now chairman of the nonprofit Institute for Free Speech, which opposes most political-money regulations…
FEC commissioners “should be firmly committed to enforcing and interpreting the campaign finance laws as passed and intended by Congress,” said Fred Wertheimer, the president of Democracy 21, a nonpartisan organization that advocates stronger political-money rules.
But Wertheimer wouldn’t straight-up endorse “packing” the FEC with liberal commissioners.
Neither would Trevor Potter, himself a former Republican FEC chairman who now leads the nonpartisan Campaign Legal Center.
Reason: The Institute for Free Speech’s First Amendment Fellowship
By Josh Blackman
I am happy to pass along an announcement for the Institute for Free Speech’s First Amendment Fellowship program.
Events
Cato Institute: 20th Annual Constitution Day
The Supreme Court: Past and Prologue. A Look at the 2020 and 2021 Terms.
Cato Institute, 1000 Massachusetts Ave, NW, Washington, DC
September 17, 2021, at 10:30 AM – 7 PM EDT
First Amendment Panel, Featuring:
- Douglas Laycock, Robert E. Scott Distinguished Professor, University of Virginia School of Law
- Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Professor, Capital University Law School
- David L. Hudson, Jr., Assistant Professor, Belmont University College of Law
The Courts
Washington Post: Second U.S. judge questions constitutionality of lead felony charge against Oath Keepers in Capitol riot
By Spencer S. Hsu
A second federal judge in Washington questioned whether the lead felony charge leveled by the government against Capitol riot defendants is unconstitutionally vague, as 18 Oath Keepers accused in a conspiracy case urged the court on Wednesday to toss out a count carrying one of the heaviest penalties against them.
U.S. District Judge Amit P. Mehta asked how federal prosecutors distinguish felony conduct qualifying as “obstructing an official proceeding” of Congress — punishable by up to 20 years in prison — from misdemeanor offenses the government has charged others with, such as shouting to interrupt a congressional hearing…
Congress’s whole point in enacting such general clauses is to cover “matters not specifically contemplated,” because lawmakers do “not know what inventive criminal minds” might come up with in the future, Assistant U.S. Attorney Jeffrey S. Nestler said in the hearing Wednesday…
“The million-dollar question is: What’s the limiting principle?” Mehta said, suggesting the statute “clearly brings in innocent conduct,” encompassing anyone seeking to influence Congress.
Associated Press: Florida’s GOP-backed ‘anti-riot’ law blocked by judge
By Curt Anderson
Florida’s new “anti-riot” law championed by Republican Gov. Ron DeSantis as a way to quell violent protests is unconstitutional and cannot be enforced, a federal judge ruled Thursday.
The 90-page decision by U.S. District Judge Mark Walker in Tallahassee found the recently-enacted law “vague and overbroad” and amounted to an assault on First Amendment rights of free speech and assembly as well as the Constitution’s due process protections…
“If this court does not enjoin the statute’s enforcement, the lawless actions of a few rogue individuals could effectively criminalize the protected speech of hundreds, if not thousands, of law-abiding Floridians,” Walker wrote…
DeSantis said during an appearance in New Port Richey that the state will take its case to the Atlanta-based 11th U.S. Circuit Court of Appeals. The governor called the ruling by Walker a “foreordained conclusion” and has said he frequently prevails when appealing Tallahassee judges’ orders.
Congress
Washington Post: Revised Democratic voting bill drops controversial provisions, tweaks others as pressure for action mounts
By Mike DeBonis
A group of Democratic senators — including key centrist Joe Manchin III of West Virginia — is set to introduce a pared-down voting rights, campaign finance and government ethics bill Tuesday…
According to a summary obtained by The Washington Post, the new Freedom to Vote Act retains significant portions of the For the People Act… Those include mandating national minimum standards for early voting and vote-by-mail, establishing Election Day as a national holiday, and creating new disclosure requirements for so-called dark money groups that are not currently required to disclose their donors.
But it also discards significant pieces and tweaks others, largely in an effort to placate Manchin and indulge his hopes of building enough Republican support to pass the bill…
For instance, a public financing system for congressional campaigns that would match small donations with federal funds on a 6-to-1 basis has been scaled back to an optional program for House campaigns only, requiring states to choose whether to participate… [A] provision to change the makeup of the Federal Election Commission, moving from an even split between the parties to an odd number of members in a bid to break partisan gridlock, has been omitted from the revised bill…
Senate Majority Leader Charles E. Schumer (D-N.Y.)…said Monday that he expects a procedural vote on the bill “as early as next week.”
Huffington Post: Senate Democrats Close To Agreement On Voting Rights Compromise
By Paul Blumenthal
While the bill largely hews to [Sen. Joe] Manchin’s original outline, including a loose form of voter identification, it will maintain some other elements from the original bill that were not included in Manchin’s June compromise outline, according to sources with knowledge of the negotiations. Still, this new bill is now Manchin’s to sell and pass, as he has taken the lead on it…
Manchin is reportedly already shopping his compromise proposal to Republicans in an attempt to bring ten of them along to break a filibuster, according to Politico. He has consistently stated that he believes Republicans can support a voting rights bill that looks like the compromise draft he put forward in June, especially since it includes a national voter identification requirement, something Republicans have long sought. The likelihood of Manchin finding any Republican support is, to put it lightly, low…
Once his compromise bill is blocked, the debate over the filibuster that has been boiling all year long will really begin. That will mean confronting the opposition to changing the filibuster rules publicly expressed by both Manchin and Sen. Kyrsten Sinema (D-Ariz.).
Rolling Stone: Biden Tells Top Democrats He’s Preparing Lobbying Blitz on Filibuster Reform, Voting Rights
By Andy Kroll
According to three people briefed on the White House’s position and its recent communications with outside groups, [President Joe] Biden assured Senate Majority Leader Chuck Schumer and House Speaker Nancy Pelosi that he was ready to push for filibuster reform. Biden’s pressure would aim to help Schumer convince moderate Democrats to support a carveout to the filibuster, a must for the party if it’s going to pass new voting protections without Republican votes…
Since then, the tenor has shifted in the White House in the last month, multiple sources tell Rolling Stone. The White House has devoted more staff to the issue. More importantly, it has given assurances to outside supporters that Biden now plans to push for filibuster reform when necessary.
FEC
New York Times: Under G.O.P. Pressure, Tech Giants Are Empowered by Election Agency
By Shane Goldmacher and Kate Conger
When Twitter decided briefly last fall to block users from posting links to an article about Joseph R. Biden Jr.’s son Hunter, it prompted a conservative outcry that Big Tech was improperly aiding Mr. Biden’s presidential campaign…
Now the [Federal Election Commission], which oversees election laws, has dismissed those allegations…
The election commission determined that Twitter’s actions regarding the Hunter Biden article had been undertaken for a valid commercial reason, not a political purpose, and were thus allowable.
And in a second case involving a social media platform, the commission used the same reasoning to side with Snapchat and reject a complaint from the Trump campaign. The campaign had argued that the company provided an improper gift to Mr. Biden by rejecting Mr. Trump from its Discover platform in the summer of 2020, according to another commission document.
The election commission’s twin rulings, which were made last month behind closed [doors,] are set to become public soon…
The rulings appear to provide social media companies additional protections for making decisions on moderating content related to elections — as long as such choices are in service of a company’s commercial interests.
Online Speech Platforms
Wall Street Journal: Facebook Says Its Rules Apply to All. Company Documents Reveal a Secret Elite That’s Exempt.
By Jeff Horwitz
In private, [Facebook] has built a system that has exempted high-profile users from some or all of its rules, according to company documents reviewed by The Wall Street Journal.
The program, known as “cross check” or “XCheck,” was initially intended as a quality-control measure for actions taken against high-profile accounts, including celebrities, politicians and journalists. Today, it shields millions of VIP users from the company’s normal enforcement process, the documents show…
A 2019 internal review of Facebook’s whitelisting practices, marked attorney-client privileged, found favoritism to those users to be both widespread and “not publicly defensible.”
“We are not actually doing what we say we do publicly,” said the confidential review. It called the company’s actions “a breach of trust” and added: “Unlike the rest of our community, these people can violate our standards without any consequences.”
Despite attempts to rein it in, XCheck grew to include at least 5.8 million users in 2020, documents show.
New York Times: Facebook sent flawed data to misinformation researchers.
By Davey Alba
More than three years ago, Mark Zuckerberg of Facebook trumpeted a plan to share data with researchers about how people interacted with posts and links on the social network, so that the academics could study misinformation on the site. Researchers have used the data for the past two years for numerous studies examining the spread of false and misleading information.
But the information shared by Facebook had a major flaw, according to internal emails and interviews with the researchers. The data included the interactions of only about half of Facebook’s U.S. users — the ones who engaged with political pages enough to make their political leanings clear — not all of them as the company had said…
Representatives of the company, including two members of Facebook’s Open Research and Transparency Team, held a call with researchers on Friday, apologizing for the mistake, according to two people who attended the meeting…
“From a human point of view, there were 47 people on that call today and every single one of those projects is at risk, and some are completely destroyed,” Megan Squire, one of the researchers, said in an interview after the call.
The States
Washington Post: Texas governor signs bill prohibiting social media giants from blocking users based on viewpoint
By Cat Zakrzewski
Texas Gov. Greg Abbott (R) on Thursday signed a bill that would prohibit large tech companies from blocking or restricting people or their posts based on their viewpoint, setting the stage for a legal battle with the tech industry.
The law applies to social media companies with more than 50 million monthly active users in the United States, including Facebook, Twitter and Google’s YouTube, and requires them to create reports on any illegal or potentially policy-violating content, as well as build a complaint system, where people could challenge companies’ decisions to remove content or flag illegal activity. Individuals and the state attorney general could file lawsuits if they believe that the tech companies wrongfully banned them from their platforms…
Abbott’s signature follows a similar effort in Florida… A federal judge in June blocked that law from taking effect, suggesting it would be found unconstitutional after tech industry groups brought a challenge. [Gov. Ron] DeSantis’s administration appealed the judge’s ruling.
Tech industry groups have criticized the Texas law, and the industry is likely to bring a similar challenge in the Lone Star State to prevent it from taking effect.
Brennan Center: LAPD Documents Reveal Use of Social Media Monitoring Tools
By Mary Pat Dwyer
The Los Angeles Police Department authorizes its officers to engage in extensive surveillance of social media without internal monitoring of the nature or effectiveness of the searches, according to the results of a public records request filed by the Brennan Center.
And beginning this year, the department is adding a new social media surveillance tool: Media Sonar, which can build detailed profiles on individuals and identify links between them. This acquisition increases opportunities for abuse by expanding officers’ ability to conduct wide-ranging social media surveillance.
This has serious implications for people’s privacy and First Amendment rights, especially for communities of color and activists. Social media surveillance can facilitate surveillance of protest activity and police presence at protests, which can chill both online and offline speech. Further, the highly contextual nature of social media also makes it ripe for misinterpretation.
