New from the Institute for Free Speech
This Constitution Day, Thank the Supreme Court for Protecting Americans Who Give
By Luke Wachob
On Constitution Day this Friday, Americans should take time to celebrate the fantastic victory for First Amendment rights that took place at the Supreme Court this July in Americans for Prosperity Foundation v. Bonta (AFPF). In striking down California’s demand to know the names and addresses of all major donors to all registered charitable and nonprofit organizations in the state, the Court gave charities the freedom they need to function and Americans the security they need to give. Thanks to the Court’s strong ruling, charities can now ask Californians for support without turning over their members’ private information to state bureaucrats. The same is true in Hawaii, New Jersey, and New York, states which maintained similar policies prior to the Court’s ruling.
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
Des Moines Register: Appeals court rules article about Devin Nunes’ family farm wasn’t defamatory, but tweeting about it might have been
By William Morris
[Devin] Nunes, a California Republican, sued Hearst Media and reporter Ryan Lizza for defamation over the 2018 article… Lizza suggested [his family farm] employed undocumented workers, contradicting his political stances on immigration…
[The] U.S. Court of Appeals for the Eighth Circuit mostly agreed with the district court, finding Wednesday that the original article was not defamatory. However, the appellate court remanded the case over additional claims that Lizza committed defamation again when he tweeted out a link to the article in November 2019…
The Congressman argued in court that his defamation lawsuit, which was filed before the 2019 tweet, should have put Lizza on notice that he denied any knowledge of alleged immigration violations on his family’s farm. The circuit court said that’s enough to survive a motion to dismiss, with Judge Steven Colloton writing, “the pleaded facts are suggestive enough to render it plausible that Lizza, at that point, engaged in ‘the purposeful avoidance of the truth.'”…
[University of Iowa law professor Christina] Tilley said in an email that Wednesday’s decision represents “a fairly new and unusual position that tweeting out an article that has already been published can make a speaker vulnerable to libel liability if the subject of the article has denied the original allegations in court.”
Slate: Why the GOP War Against Protesters Won’t Succeed
By Tyler Valeska
At a ceremonial press conference and bill signing, [Florida Gov. Ron] DeSantis boasted that “if you look at the breadth of this particular piece of legislation, it is the strongest anti-rioting, pro-law enforcement piece of legislation in the country. There’s just nothing even close.”
That breadth likely renders HB 1 partially unconstitutional. The law’s challengers, a group of Black-led advocacy organizations, sought temporary relief enjoining enforcement of the law while the case proceeds. [U.S. District Judge Mark] Walker obliged, finding that the groups were likely to succeed on the merits of their constitutional claims. Specifically, he ruled that HB 1’s broad, vague language probably violates the First Amendment—by criminalizing too much protected protest activity—and the 14th Amendment—by failing to give protesters fair notice of what exactly it criminalizes…
Walker’s decision is not binding on other courts considering other states’ laws. But his reasoning might be persuasive to courts facing vagueness and overbreadth challenges to analogous definitions of “riot” and “unlawful assembly.” If so, proposals like Wisconsin’s, Georgia’s, and Alabama’s could be dead on arrival should they ever become law.
Congress
CNN: Democrats cut deal with Manchin to get party behind long-shot voting overhaul bill
By Manu Raju
Senate Democrats are proposing new legislation to overhaul voting laws after months of discussions to get all 50 of their members behind a single bill, allowing their caucus to speak with one voice on the issue even though it stands virtually no chance of becoming law.
The proposal — announced in a statement by a group of Senate Democrats on Tuesday — comes in the aftermath of their party’s failed effort to open debate on the issue in June. Even though they unified behind the procedural vote at the time, Senate Democrats were not on the same page over the policy, kicking off months of talks to get the party’s factions behind the bill that they will propose on Tuesday…
The new bill would make it easier to register to vote, make Election Day a public holiday, ensure states have early voting for federal elections and allow all voters to request mail-in ballots. In addition, the measure would bolster security on voting systems, overhaul how House districts are redrawn and impose new disclosures on donations to outside groups active in political campaigns…
In the face of the GOP opposition, liberals have pushed Manchin to agree to a “carveout” — and allow for a change to Senate rules so such voting legislation can advance with a simple majority of 51 votes. But Manchin, along with a handful of other Democrats, has long opposed such a carveout, worrying it would lead to a slippery slope and ultimately kill a tool meant to protect the minority party’s rights.
“The filibuster is permanent,” Manchin said Monday.
Asked how he plans to get the bill passed given that he won’t change Senate filibuster rules, Manchin told CNN on Tuesday that his plan is this: “It’s to get 10 Republicans” in the 50-50 Senate.
“I’m talking to reasonable Republicans and friends of mine who understand we need guardrails,” Manchin said.
FEC
New York Post: Twitter Biden-bias in block of Hunter articles was not illegal: FEC commish
By Steven Nelson
Republican commissioner Sean Cooksey issued a three-page justification of his vote to reject the complaint by the Republican National Committee…
“In my view, the record doesn’t establish whether Twitter was consistently enforcing a politically neutral business policy or using its platform to support one candidate over another. But I also think the answer to that question is ultimately irrelevant,” [Cooksey wrote.]
“I conclude Twitter is a publisher with a First Amendment right to control the content on its platform and to favor or disfavor certain speech and speakers.”…
The three Republican commissioners sided with the panel’s two Democrats and one independent to reject the RNC complaint, documents released Wednesday show…
FEC Vice Chairman Allen Dickerson and Commissioner James Trainor III wrote in a nine-page justification that the commission “has long recognized that ‘business activity [that] ‘reflects commercial considerations’’ cannot be considered a contribution or an expenditure.”…
Dickerson, a former legal director at the Institute for Free Speech, and Trainor, a former assistant to Defense Secretary James Mattis, with whom Trump had a bitter falling-out, said that they also felt that “Twitter’s actions are protected by our media exemption and by the First Amendment itself.”
Tax-Financed Campaigns
Bloomberg: Public Campaign Funding Gains Steam to Counter Big Donors’ Sway
By Rachel M. Cohen
Public financing of elections has been around for decades in the U.S. Today there are at least 27 programs in states, cities, and counties (most but not all of them Democratic), with models ranging from direct candidate grants to small-dollar matching…
While key Senate swing voter Joe Manchin of West Virginia has expressed reservations about the size of HR 1, he co-sponsored a compromise bill that Senate Democrats introduced on Sept. 14 that included 6-to-1 small-donation matching. Even a trimmed-down package may not garner the 10 Republican votes it would need in the Senate. Minority Leader Mitch McConnell has attacked the public-financing proposal specifically as “piles of federal dollars going to yard signs, balloons, and TV ads for candidates at least half of Americans disagree with.”
Federal public financing may hinge on the fate of the filibuster. “I think whatever represents real reform, sadly, by definition, will be something that the current Republican leadership in the Senate will stand against,” [Democratic Rep. John] Sarbanes says. “If that’s the reality we face,” he says, “then you have to look at resetting the rules. And I think that conversation is ongoing among Senate Dems.”
Internet Speech Regulation
National Review: On Regulating Social-Media Platforms, Follow Texas, Not Florida
By Clare Morell
While the Sunshine State’s efforts to take action against Big Tech are admirable, its approach should not be replicated. States should instead look to Texas…
First and foremost, the statute avoids conflicting with Section 230 of the 1996 Communications Decency Act — the federal statute that many opponents will argue preempts Texas’s law. Section 230 protects the tech companies from liability for restrictions on enumerated types of content. Yet the Texas statute bars only viewpoint discrimination — not content discrimination — and so completely avoids any conflict with the federal statute…
The second critical strength of the Texas law is that it doesn’t authorize damages; it merely enables censored users to seek declaratory and injunctive relief backed up with contempt proceedings. In not offering a provision for damages, the statute avoids running into the liability-protection language of Section 230…
For all its strengths — especially its legal defensibility in court — Texas’s social-media law should be applauded and replicated.
TechCrunch: The FDA should regulate Instagram’s algorithm as a drug
By Daniel Liss
The Wall Street Journal on Tuesday reported Silicon Valley’s worst-kept secret: Instagram harms teens’ mental health; in fact, its impact is so negative that it introduces suicidal thoughts…
President Theodore Roosevelt and Congress formed the Food and Drug Administration in 1906 precisely because Big Food and Big Pharma failed to protect the general welfare… The FDA must assert its codified right to regulate the algorithm powering the drug of Instagram…
If this effort fails, Congress and President Joe Biden should create a mental health FDA…
Our government is equipped to study clinical trials of products that can physically harm the public. Researchers can study what Facebook privileges and the impact those decisions have on our minds. How do we know this? Because Facebook is already doing it — they’re just burying the results.
Online Speech Platforms
Wall Street Journal: Facebook Tried to Make Its Platform a Healthier Place. It Got Angrier Instead.
By Keach Hagey and Jeff Horwitz
In the fall of 2018, Jonah Peretti, chief executive of online publisher BuzzFeed, emailed a top official at Facebook Inc. The most divisive content that publishers produced was going viral on the platform, he said, creating an incentive to produce more of it…
Mr. Peretti blamed a major overhaul Facebook had given to its News Feed algorithm earlier that year to boost “meaningful social interactions,” or MSI, between friends and family, according to internal Facebook documents reviewed by The Wall Street Journal that quote the email…
Facebook’s chief executive, Mark Zuckerberg, said the aim of the algorithm change was to strengthen bonds between users and to improve their well-being. Facebook would encourage people to interact more with friends and family and spend less time passively consuming professionally produced content, which research suggested was harmful to their mental health.
Within the company, though, staffers warned the change was having the opposite effect, the documents show. It was making Facebook’s platform an angrier place…
They concluded that the new algorithm’s heavy weighting of reshared material in its News Feed made the angry voices louder. “Misinformation, toxicity, and violent content are inordinately prevalent among reshares,” researchers noted in internal memos…
Data scientists on that integrity team—whose job is to improve the quality and trustworthiness of content on the platform—worked on a number of potential changes to curb the tendency of the overhauled algorithm to reward outrage and lies. Mr. Zuckerberg resisted some of the proposed fixes, the documents show, because he was worried they might hurt the company’s other objective—making users engage more with Facebook.
The States
Lens: New SCOTUS ruling has implications for Washington free speech lawsuit
By TJ Martinell
A July ruling by the U.S. Supreme Court (SCOTUS) regarding a California state donor disclosure law could have significant implications for an ongoing lawsuit against Washington state concerning the largest campaign fine in history.
The SCOTUS 6-3 decision in Americans for Prosperity Foundation v. Bonta overturned a California law requiring charities to disclose their top donors. The ruling states that while “we do not doubt that California has an important interest in preventing wrongdoing by charitable organizations…our cases have said that disclosure requirements can chill association.”
The Washington case that may be affected by the SCOTUS ruling, Washington State v. Grocery Manufacturers Association, originates from the 2013 campaign regarding Initiative I-522 mandating the labeling of genetically modified organisms (GMOs). The Grocery Manufacturers Association (GMA) was fined for failing to disclose fund sources and failing to register as a political committee. The group was initially fined $6 million, which later tripled to $18 million while the case was in superior court. The Washington State Supreme Court upheld the fines in an April 2020 decision…
[An] amicus brief filed in August by a group of industry members states that there “are differences between Bonta and this case, of course, but they are similar in this respect: regulations that threaten First Amendment rights deserve exacting scrutiny, even if their purpose is not to threaten those rights.”
