We’re Hiring!
Legal Director – Institute for Free Speech – Washington, DC or Virtual Office
The Institute for Free Speech anticipates the need for a highly experienced attorney to direct our litigation and legal advocacy. In September, President Trump nominated our longtime Legal Director to the Federal Election Commission, and it is likely he would be confirmed this fall.
This is a rare opportunity to develop and implement a long-term legal strategy directed toward the protection of Constitutional rights. You would work to create legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, that threaten citizens’ privacy if they speak or join groups, and that impose heavy burdens on organized political activity. The Legal Director will direct our litigation and legal advocacy, lead our in-house legal team, and manage and expand our network of volunteer attorneys.
A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country.
[You can learn more about this role and apply for the position here.]
In the News
Tennessee Star: Federal Judge Orders State to Pay $690K in Attorney’s Fees for Successful First Amendment Challenge of Tennessee’s Billboard Act
By Laura Baigert
The state has been ordered by a federal judge to pay $690,084 in attorneys’ fees and costs resulting from a successful First Amendment challenge to Tennessee’s unconstitutional Billboard Act.
Just over a year ago, the U. S. Court of Appeals for the Sixth Circuit issued an opinion in Thomas v. Bright (previously Thomas v. Schroer for the two most recent Tennessee Department of Transportation (TDOT commissioners) a case that goes back more than a dozen years. The Sixth Circuit court affirmed that Tennessee’s Billboard Regulation and Control Act of 1972 was unconstitutional based on its content-based regulation of free speech, The Tennessee Star reported…
In 2006, William Harold Thomas, Jr., an owner of more than 30 billboards in Tennessee, applied to TDOT for a permit to put up a billboard on a vacant lot for the purposes of commercial advertisement.
TDOT denied the permit application, but Thomas constructed the billboard and put up his sign anyway with non-commercial advertising.
TDOT removed the sign and went on to sue Thomas in state court, claiming he violated the state’s Billboard Act.
Thomas then “decided to fight the state’s unconstitutional laws governing what individuals can and cannot say on their own property,” according to Institute for Free Speech (IFS) who eventually represented Thomas…
IFS attorney, Owen Yeates, reacted to the federal judge’s order.
“These awards of attorney’s fees demonstrate the high cost of defending First Amendment freedoms and the importance of organizations that fight for them when individuals are unable to do so on their own. They also send a message to the states that they should not ignore their citizens’ rights.”
ICYMI
The Institute for Free Speech plans to publish a series of analyses on the records of those who appear most likely to become the nominee…
We will link to all our analyses on the First Amendment records of the potential nominees below. This page will be updated regularly.
According to news reports, Judge Barbara Lagoa, currently serving on the United States Court of Appeals for the Eleventh Circuit, is on the President’s short list of nominees to fill the seat vacated by the passing of Justice Ruth Bader Ginsburg…
In reviewing Judge Lagoa’s record on First Amendment speech rights, we found eight potential cases from her time as a federal judge and eight potential cases during her service on the Florida appeals court. Five of the federal cases were unpublished opinions, meaning there was nothing of precedential value, though we discuss one of them briefly below. Four of those cases involved pro se – that is, unrepresented – litigants. The three remaining cases had no relevance to core First Amendment political speech issues.
Of the eight Florida cases, four dealt in some manner with religious freedom, an issue outside the scope of the Institute’s mission. Of the remaining four, one case dealt with a request to unseal certain judicial records, including an audio recording made in violation of state law. The appeals court was clearly bound by Florida Supreme Court precedent, so this case does not provide any useful insight on her First Amendment jurisprudence. Another case dealt with a dispute over Coral Gables’ zoning law and wasn’t relevant to the speech, press, assembly, and petition rights protected by the First Amendment. We review the remaining two cases below.
Supreme Court
Reason (Volokh Conspiracy): How a Deal to Prevent Court-Packing Can Still Happen
By Ilya Somin
On Saturday, I proposed a potential deal that would prevent both a precipitious rush to confirm a nominee for the Supreme Court seat left vacant by the death of Justice Ruth Bader Ginsburg, and the danger of the Democrats packing the Court in retaliation, then next time they have the chance to do so (which could easily happen as soon as next year, if they take control of both the White House and the Senate). In essence, the deal is that key GOP senators (enough to block a vote on a nominee) agree not to vote on a nominee until after inauguration (thereby enabling the winner of the election to fill the seat), and key Democrats (enough to block any court-packing) commit to opposing court-packing for at least a long period of time (perhaps ten years). Since that time, a range of prominent academics and commentators from across the political spectrum have endorsed my idea, or put forward similar proposals of their own.
The Courts
Memphis Commercial Appeal: Judge rules in Memphis political surveillance fight, sides with ACLU on key issue
By Daniel Connolly
A federal judge has approved a new version of a [consent decree] that governs how and when the Memphis Police Department may collect information about demonstrators and other political actors…
It updates a consent decree that dates from 1978. U.S. District Judge Jon McCalla approved the revised consent decree Monday.
The revised agreement says MPD may use new technologies such as social media, body cameras and surveillance cameras to combat crime, as long as the department doesn’t trample on First Amendment rights in the process.
For instance, the revised document says MPD officers may go to a nonviolent political protest and turn on their body cameras – but they can’t save the video and keep files on protesters…
The judge also sided with the ACLU of Tennessee on the key question of how and when the MPD can share information with other agencies that don’t face the same surveillance limits that Memphis does.
The rewritten consent decree says MPD is free to cooperate with other law enforcement agencies on criminal investigations and information-sharing about threats, but cannot cooperate with another agency to avoid the restrictions of the consent decree…
The rewritten consent decree deletes the term political intelligence and substitutes the phrase “First Amendment-related intelligence.”
WWNY: Judge: toilet gardens protected by First Amendment
By Scott Atkinson
Hank Robar’s controversial toilet gardens are protected by the First Amendment of the U.S. Constitution, a federal judge ruled Monday…
In a 42 page decision Monday, U.S. District Court judge Lawrence Kahn concludes the toilets are both political speech and artistic expression, and ‘The porcelain gardens are, in short, protected speech, and the act of displaying them protected expression.”
The judge granted Robar an order stopping village officials from enforcing the junk law against his toilet gardens, while the case makes its way through Judge Kahn’s court…
[A property dispute with the village] prompted Robar to put up his first toilet gardens as a protest.
Congress
Politico: Graham’s new strike at Section 230
By Alexandra S. Levine
The Senate Judiciary Committee is slated to soon consider new legislation targeting the internet industry’s prized legal liability shield – yet another effort from top lawmakers to weaken the protections. The committee on Monday listed the Online Content Policy Modernization Act, S. 4632 (116) – a newly unveiled bill led by Chairman Graham (R-S.C.) that includes provisions on both copyright and Section 230 reform – for a meeting Thursday. (Judiciary traditionally holds over bills for at least one week before a markup, however.)
The legislation aims to both “establish an alternative dispute resolution program for copyright small claims” and to narrow digital companies’ legal protections when they remove user-posted material from their services, according to bill text shared with MT. The latter language mirrors a separate proposal Graham recently introduced with Senate Commerce Chairman Roger Wicker (R-Miss.) and Sen. Marsha Blackburn (R-Tenn.) to pare back Section 230…in an attempt to address allegations of political bias on social media…
Naval Academy law professor Jeff Kosseff, a leading voice on all things Section 230, said the new bill highlights how split the debate over content moderation is in Washington. “This bill addresses the allegations that platforms unfairly moderate certain types of user content, and it certainly would cause platforms to change their moderation practices,” he told MT. “Yet other critics allege that the platforms do not do enough to block harmful material.”
Online Speech Platforms
New York Times: Facebook Takes Down Fake Pages Created in China Aimed at Influencing U.S. Election
By Adam Goldman, Sheera Frenkel, and Julian E. Barnes
Facebook has detected limited Chinese operations intended to both help and hurt President Trump’s re-election chances, the company announced on Tuesday, the first public disclosure of Chinese efforts to influence the presidential election in November…
Facebook identified a range of fake accounts pushing information about American and Philippine politics and Chinese activity in the South China Sea. Though much of the activity outlined by China was centered on the Philippines, some was more directly relevant to American politics.
Facebook said it was removing the accounts for violating its policy against “inauthentic behavior.” The activity was coordinated and originated in China, though Chinese officials, including the ambassador to the United States, have denied allegations they are seeking to influence the vote in November.
Facebook security first detected the new activity and shared the information with U.S. government officials.
NBC News: Facebook says it could restrict some content if election leads to unrest
By David Ingram
Facebook has “some break-glass options available” including limiting the spread of certain content if the November election results in political instability, Nick Clegg, Facebook’s head of global affairs, told The Financial Times on Tuesday.
“There are some break-glass options available to us if there really is an extremely chaotic and, worse still, violent set of circumstances,” Clegg said.
Clegg noted that Facebook had acted aggressively in “other parts of the world” where there’s been instability, using what he called “pretty exceptional measures to significantly restrict the circulation of content on our platform.” He did not provide any examples.
His comments echo previous warnings from Facebook that it was preparing for scenarios where the winner of the presidential race isn’t initially known or is in dispute. Facebook CEO Mark Zuckerberg said in August that he believed there was “significant risk of civil unrest” leading up to the election.
Video Insider: Streaming Services Are A ‘Wild West’ For Political Ads, Mozilla Finds
By Karlene Lukovitz
Online political ads have enormous influence because of their abilities to “microtarget, manipulate and misinform voters at a level unmatched by any other form of political speech,” yet these ads “are subject to almost no regulation and oversight, especially in the domain of streaming platforms,” sums up Mozilla researcher Becca Ricks. “It’s a worrying combination.”
Mozilla, as part of the Mozilla Foundation’s efforts to ensure that the internet remains a public resource “open and accessible to all,” has just released a study on this state of affairs – and it’s not pretty.
The study researched six leading ad-supported streaming platforms – Hulu, Roku, Tubi, CBS All-Access, YouTube TV and Sling TV – based on their political ad policies, ad transparency tools, ad targeting capabilities, potential for abuse, and user control over ads…
In the process, Mozilla uncovered what it describes as “startling” political advertising trends in the streaming space “that all voters should be aware of as the election draws near.” …
“Most allow political advertisers to pull in third-party data, which means that viewers generally could be targeted with political ads based on household income, education level, marital status, causes they support, their political party affiliation, whether they are a registered voter, or whether they have cast their ballot already,” the study reports.
Candidates and Campaigns
The Hill: FBI, DHS warn that foreign hackers will likely spread disinformation around election results
By Maggie Miller
The FBI and the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) warned Tuesday that foreign malicious hackers will likely attempt to spread disinformation around election results…
The agencies put out a public service announcement warning that delays in final tallies caused by a larger number of mail-in ballots and other factors could fuel the disinformation efforts online…
The agencies warned that “foreign actors and cybercriminals could exploit the time required to certify and announce elections’ results by disseminating disinformation that includes reports of voter suppression, cyberattacks targeting election infrastructure, voter or ballot fraud, and other problems intended to convince the public of the elections’ illegitimacy.”
The FBI and CISA noted that the foreign malicious actors could carry out their interference through a variety of online tools.
“Foreign actors and cybercriminals could create new websites, change existing websites, and create or share corresponding social media content to spread false information in an attempt to discredit the electoral process and undermine confidence in U.S. democratic institutions,” the agencies wrote.
Washington Post: Secret CIA assessment: Putin ‘probably directing’ influence operation to denigrate Biden
By Josh Rogin
Russian President Vladimir Putin and his top aides are “probably directing” a Russian foreign influence operation to interfere in the 2020 presidential election against former vice president Joe Biden, which involves a prominent Ukrainian lawmaker connected to President Trump’s personal lawyer Rudolph W. Giuliani, a top-secret CIA assessment concluded, according to two sources who reviewed it.
Washington Post: Mike Bloomberg raises $16 million to allow former felons to vote in Florida
By Michael Scherer
Former New York mayor Mike Bloomberg and his team have raised more than $16 million to pay the court fines and fees of nearly 32,000 Black and Hispanic Florida voters with felony convictions, an effort aimed at boosting turnout for Democratic presidential candidate Joe Biden.
The money will fund a program organized by the Florida Rights Restoration Coalition to pay the fines, fees and restitution costs for former prisoners who are already registered to vote in Florida but barred by law from participating in the election because of those outstanding debts.
The States
Deseret News: Utah lawmakers consider tougher penalties for protesters who break laws
By Annie Knox
Some Utah sheriffs are urging state lawmakers to follow other states in moving to strengthen penalties for protesters who break laws…
No proposal has been drafted, but a state legislative panel signaled early support for tougher punishments, voting unanimously to open a bill file and study the issue ahead of the 2021 Legislature…
Brian Redd, chief at the Utah Department of Public Safety, told the state panel his agency has used facial recognition technology this year to track down those accused of offenses including rioting. Such programs have drawn criticism from some racial and ethnic minority groups.
Lex Scott, founder of the Utah chapter of Black Lives Matter, called the panel’s unanimous Tuesday vote “another step in the wrong direction.” …
The ACLU of Utah similarly opposes the idea.
“There is already a tendency to overcharge protesters in Utah, so increasing penalties and removing discretion from judges seems like a wrong approach when we could be investing in solving the underlying issues driving these protests,” said Marina Lowe, legislative and policy counsel with the ACLU.
She cautioned that lawmakers need to be extremely careful when expanding Utah’s criminal code in the realm of the First Amendment.
“History has shown that escalating criminal penalties in response to newspaper headlines rarely improves justice over time,” Lowe said.
Courthouse News: Complaint Flushed: No Charge in Toilet Election Display
By Associated Press
A prosecutor in Michigan has flushed a complaint about a toilet that was promoted as a place to drop absentee ballots.
The election clerk in Ingham County informed police about a toilet on the front lawn of a home in Mason, near Lansing. A sign said, “Place mail in ballots here.”
Barb Byrum, a Democrat, said it’s a felony to take illegal possession of absentee ballots.
But there was no evidence of an intent to violate Michigan law, said the office of county prosecutor Carol Siemon, a Democrat.
“Instead, this seemed to be an effort to make a humorous political statement,” the statement said.
Byrum, who drives by the home on her way to work, said she didn’t see the toilet Tuesday. She said she respects the decision by the prosecutor but added that “elections are never a laughing matter.”
