Daily Media Links 8/10: As States Move to Regulate Digital Ads, Consultants Warn of Unintended Consequences, If We Silence Hate Speech, Will We Silence Resistance?, and more…

Free Speech

New York Times: If We Silence Hate Speech, Will We Silence Resistance?

By Erik Nielson

[M]ounting pressure from the political left to censor hateful speech may have unintended consequences, especially for people of color.

That’s because “hate” is a dangerously elastic label, one that has long been used in America to demonize unpopular expression. If we become overzealous in our efforts to limit so-called hate speech, we run the risk of setting a trap for the very people we’re trying to defend…

[H]ow would stronger limits on hate speech affect progressive protests against white supremacy? What would have been the fate, for example, of the historic Million Man March in 1995, an event organized by Nation of Islam leader Louis Farrakhan? The Nation of Islam is a Southern Poverty Law Center-designated hate group, and Mr. Farrakhan has openly made anti-Semitic comments for years. At the same time, the March was a landmark effort focused on uniting black men in the face of widespread inequality and racism.

What about the equally historic Women’s March in 2017, after it was revealed that some of the event’s most prominent organizers had ties to Mr. Farrakhan? Or that they openly revered Assata Shakur, a black revolutionary who was convicted (albeit questionably) of killing a police officer and is now on the F.B.I.’s list of most-wanted terrorists? Predictably, they have been accused by some of embracing hate, yet they organized one of the most significant protests in United States history.

If we allowed these voices to be silenced on grounds that they promote hate, we’d find ourselves scrambling to defend the radical poets, musicians, filmmakers and other artists who have pushed the boundaries of expression into what could arguably amount to hate speech, but who have done so from the vanguard of social and political protest.

FIRE: So to Speak podcast: ‘Robotica: Speech Rights & Artificial Intelligence’

By Nico Perrino

How should we think about speech rights in the age of artificial intelligence and advanced robotics?

On today’s episode of So to Speak: The Free Speech Podcast, we are joined by First Amendment scholars Ronald Collins and David Skover. They are the authors of the new book, Robotica: Speech Rights & Artificial Intelligence.

From the printing press to the internet, advances in communications technology often upset the established order and spawn demands for censorship. There is little reason to suspect advances in artificial intelligence will be treated differently. As free speech advocates, how should we respond to these demands?

To answer that question, Collins and Skover argue that we need to take a step back and ask some more fundamental questions about the values we seek to advance in protecting speech in the first place.

National Review: In Outrage Campaigns, It’s the Internal Mob That Matters

By David French

For a brief moment, Twitter – arguably the social-media platform conservatives distrust the most – seemed to display a renewed zeal for free speech, including even the speech of one of the Internet’s most irresponsible, dishonest, and loathsome voices…

But if you know anything about modern progressive corporations, you know what was coming next – the internal backlash, the soul-searching, and the climbdown.

Sure enough, as the Daily Caller’s Peter Hasson reported early this morning, employees protested, and Twitter responded. It’s message? Don’t worry, we’ll be better censors soon enough. Twitter’s vice president, Del Harvey, sent a company-wide email promising, among other things, to evaluate “how we can do more to help customers feel safe as it relates to hate speech.” Specifically, Harvey said that Twitter was developing proposals to deal with “dehumanizing speech” – a made-up speech category that’s a veritable carnival funhouse of subjectivity and ideological manipulation.

Twitter’s response should serve as an important reminder. As much as we focus on the online outrage mobs, unless those mobs have internal allies, their rage is often impotent. It’s the internal mob, the response of colleagues and peers, that truly drives much of the modern era of name-and-shame censorship.

Supreme Court

Washington Times: McConnell still sees speedy confirms for Kavanaugh

By Stephen Dinan

Senate Majority Leader Mitch McConnell said Friday he still wants to have Judge Brett Kavanaugh confirmed and sitting on the Supreme Court by the start of the new term in October.

That is an aggressive schedule that means senators would hold a final vote well before all of the documents they’ve requested about his background would be released to the public by the National Archives

“I think he’s going to be confirmed, hopefully before the first Monday in October,” Mr. McConnell told WKDZ radio.

Mr. McConnell said the process is “moving right along” despite near-universal opposition from Democrats.

“He’ll get confirmed. It won’t be a landslide, but he’ll get confirmed,” the senator said.

Democratic leaders have said they want to see perhaps 4 million pages of documents from Judge Kavanaugh’s time in the Bush White House from 2001 to 2006…

GOP senators say most Democrats have already said they will oppose Judge Kavanaugh without bothering to review his record, so Republicans don’t feel any pressure to wait for the document release before voting.

The Courts

Casper Star-Tribune: Federal judge rules Wyoming ban on robocalls unconstitutional

By Nick Reynolds

In a judgment handed down Monday in U.S. District Court in Cheyenne, Judge Alan Johnson ruled that Grand Rapids, Michigan-based polling firm Victory Processing LLC was justified by gathering information and polling by way of robocalling. Johnson concluded the state’s ban was “over inclusive” in that it “completely prohibits political speech through robocalls while allowing commercial speech under certain circumstances.”

The initial complaint, filed in June 2017, argued the ban violated the firm’s right under the First and Fourteenth amendments, arguing “‘the First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.'” …

“The Court recognizes that tranquility, well-being and peacefulness of the home is a substantial interest worth protecting,” Johnson wrote in his ruling. “There is simply no right to force speech into the home of an unwilling listener.”

However, he argued, the construction of Wyoming’s law made it so regulations on robocalls were overly restrictive, and as written placed robotic political speech at a disadvantage to commercial calls, like commercial sales calls.

Such commercial calls are permitted provided the recipient initiated the call, the number is not on the national do-not-call list or the caller has an established business relationship with the recipient.

However, political speech is not offered similar concessions…

Victory Processing LLC is now one for two in First Amendment challenges to robocall bans this year. In February, a federal district court judge in Montana ruled that the state’s more than two-decade ban on robocalls was constitutional…

“In contrast to the Montana statute, it is unclear if the Wyoming statutes allow for any type of politically related robocall,” Johnson’s ruling reads.

The Intercept: Even the FBI Agrees: When Undercover Agents Pose as Journalists, It Hurts Real Journalists’ Work

By Trevor Aaronson

[I]n a federal court case, Justice Department lawyers confirmed the most significant criticism of the controversial practice. The government acknowledged in a court filing that FBI agents who pretend to be journalists create a chilling effect, making it harder for real journalists to gain trust and cooperation from sources.

The astonishing admission came as the FBI attempted to fend off litigation from Reporters Committee for Freedom of the Press, which has filed requests for documents under the Freedom of Information Act.

The Reporters Committee’s litigation involves documents related to an FBI undercover operation in which agents posed as documentary filmmakers from a fake company called Longbow Productions to investigate Nevada rancher Cliven Bundy and his supporters. In response to the Reporters Committee’s records request, the FBI issued a Glomar response – in which the agency neither confirms nor denies that it possesses records relevant to the FOIA request.

In a motion filed July 23, Assistant U.S. Attorney Johnny H. Walker argued that providing FBI documents about the Bundy investigation and others in which a journalistic cover may have been used would not only disclose sensitive investigative techniques but also – in recognition of the chilling effect – “would allow criminals to judge whether they should completely avoid any contacts with documentary film crews, rendering the investigative technique ineffective.”

“By admitting that FBI impersonation of documentary filmmakers makes individuals less likely to speak to documentary filmmakers, the government is highlighting the very reason the Reporters Committee filed this FOIA case: the chilling effect this government practice has on journalism,” said Katie Townsend, the Reporters Committee’s legal director.

Toledo Blade: Appeals court upholds judicial fund-raising limits

By Blade Staff

A federal appeals court on Thursday upheld the constitutionality of a rule applied to Ohio judicial candidates that restricts when they may begin raising money.

The challenge was brought by 11th District Court of Appeals Judge Colleen Mary O’Toole, who unsuccessfully sought the Republican nomination for Ohio Supreme Court justice in 2016.

The judge argued the Ohio Code of Judicial Conduct unconstitutionally infringed on her political free speech by prohibiting the campaign from raising money until 120 days before the primary election. She also argued the rule gives an unfair advantage to incumbents who’ve banked large war chests from prior campaigns.

A three-judge panel of the Cincinnati-based U.S. 6th District Court of Appeals disagreed, upholding the rule.

It noted that Judge O’Toole was not a first-time candidate and also had a prior campaign balance, albeit below $100. By comparison, two other 2016 high court candidates had balances of $52,482 and $245,494.

“The rule did not prevent those candidates from amassing resources, and O’Toole has not suggested that the amount either committee retained was insufficient to effectively campaign,” Judge Joan Larsen wrote. “The substantial disparities in funds retained by those candidates’ committees, the first a justice of the Ohio Supreme Court and the second at the time a judge on the Ohio Court of Appeals, like O’Toole, demonstrates that the rule could not have caused the disparity, since all were subject to it.”


Roll Call: Amid Chris Collins Scandal, Pelosi Vows Ethics Overhaul Under Democratic Majority

By Lindsey McPherson

Pointing to New York Rep. Chris Collins’s indictment as an example of corruption in the Republican-controlled Congress, House Minority Nancy Pelosi vowed Thursday that if Democrats retake the House they will overhaul ethics and campaign finance laws.

Collins was indicated on charges of securities fraud, which Pelosi said “shows that Republicans have turned the already swampy GOP Congress into a cesspool of self-enrichment, secret money and special interests.”

The minority leader’s comments came in a Dear Colleague letter urging House Democrats to highlight the part of the caucus’s rebranded “For the People” agenda that calls for cleaning up corruption in Washington…

“A Democratic Majority will swiftly act to pass tougher ethics and campaign finance laws and crack down on the conduct that has poisoned the GOP Congress and the Trump Administration,” Pelosi said…

Democrats’ proposals include reining in the influence of lobbyists and high-dollar donors and ending the unlimited corporate money in political campaigns paved by the Supreme Court’s Citizens United decision.

Online Speech Platforms

National Review: A First Amendment Peace Plan for the Twitter Wars

By David French

Earlier this week I wrote a piece for the New York Times where I proposed a centuries-old framework for resolving our endless series of online free speech controversies. Social media companies – dedicated as they are to creating a marketplace of ideas – would do well to voluntarily adopt First Amendment speech doctrines to regulate their platforms. By that standard Alex Jones can be purged not because his speech is “hateful” or “dehumanizing” (terms that are almost infinitely malleable and subject to ideological manipulation) because it’s libelous. He maliciously makes false assertions of fact and injures innocent victims along the way. Just ask the Sandy Hook families how much damage Jones has done.

The great virtue of modern First Amendment jurisprudence is its near-absolute commitment to viewpoint neutrality. Courts don’t recognize exceptions for “hate speech” or “dehumanizing language” in part because they’re inherently vague and in part because – in practice – they’re always tied to disfavored viewpoints…

But to embrace the viewpoint neutrality of the First Amendment is not to declare that “anything goes.” Laden within First Amendment jurisprudence are exceptions for defamation, obscenity, pedophilia, threats, and harassment. Not every communication is protected expression, but limitations on expression cannot be based on the viewpoint of the speech…

To be clear, there is no way to painlessly and easily implement any form of regulatory regime – especially on platforms as large and complex as Twitter and Facebook. There will be stumbles. There will be failures. But I submit that it will be easier and cleaner to implement rules based primarily on objective standards that have been developed, refined, and honed in countless court cases than it is to implement rules that have no fixed definition, no history of coherent adjudication, and no meaningful standards to guide enforcement.

The Verge: Twitter is wrong: facts are not enough to combat Alex Jones

By Laura Hudson

Twitter, which once identified itself as “the free speech wing of the free speech party,” has long listed toward the sort of free speech absolutism that says absolutely anything goes, so long as it isn’t overtly criminal. It’s a popular idea among the Silicon Valley cyberlibertarians who hold some the most powerful positions at tech companies and, not coincidentally, a founding principle of the internet itself.

There lies, within this absolutism, an often very idealistic and sincere belief: if we simply allow all speech to compete in the free marketplace of ideas, then the best, most productive, and most truthful ideas will win out. Sunlight is the best disinfectant, and the best answer to bad, shitty, and sometimes even abusive speech is simply more speech.

Dorsey echoed this belief in his thread defending Jones as a legitimate and not-at-all-in-violation-of-Twitter-rules user…

Again, it’s a nice idea, even a beautiful one. For a long time, it was one that I, like a lot of journalists, wanted to believe in. Who doesn’t want to think that the truth will always win in the end, that information not only wants to be free, but that this freedom will lead us toward a more just world – especially when it is your job to share information?

But in our current moment, it is a dangerously naïve idea. While the internet has led to the promotion of important voices we might not have otherwise heard, the last decade has demonstrated with searing clarity that this idea has far more powerfully to the amplification of lies, manipulation, and an epistemological collapse that has deformed human discourse and undermined the very notion of truth.

National Review: Don’t Ban Alex Jones

By Rich Lowry

Of course, the social-media companies aren’t government entities. They can silence whomever they like without violating the First Amendment. But that doesn’t mean it’s a good idea.

The power of social-media platforms is enormous. They are, for all intents and purposes, the public square. Facebook affects the fate of publishers with every change to its algorithms and has repeatedly demonstrated the ability to make media entities march to its beat.

This suggests that these companies have a responsibility to give the widest possible latitude to free speech. They certainly shouldn’t make sweeping decisions, like the swift, collective action against Jones, in an arbitrary manner.

Everyone has known about Jones for years. It can’t be that suddenly, after propagating stupid lies for decades, he was discovered to be grossly violating the guidelines of almost every important social-media platform at the same moment…

The lonely social-media dissenter regarding Jones is Jack Dorsey of Twitter, who declined to ban him. He is getting excoriated for saying that it’s important to stand by straightforward, impartial principles, and that journalists should refute the likes of Jones “so people can form their own opinions.”

This is what used to be a liberal chestnut, that the best way to combat speech is with other speech. Now, it is considered a hateful, retrograde point of view. We won’t miss Alex Jones when he’s gone, but the banning almost certainly won’t end with him.


Center for Responsive Politics: Foreign interests have spent over $530 million influencing US policy, public opinion since 2017

By Anna Massoglia and Geoff West

Foreign lobbyists and agents acting on behalf of foreign interests have reported hundreds of millions of dollars in payments since January 2017, an analysis of OpenSecrets’ exclusive new Foreign Lobby Watch data reveals.

Today we’re making available, for the first time, a searchable database of foreign interests spending on lobbying and influence in the United States.

Foreign lobbyists and other operatives acting on behalf of foreign interests wield a significant amount of power, impacting economic and diplomatic policies as well as public opinion.

The law that governs most foreign influence disclosure requirements, the Foreign Agent Registration Act (FARA), requires any foreign agent or lobbyist representing a foreign principal to register with the U.S. Department of Justice and file detailed public disclosures.

These reports may include details that are not found in the more familiar lobbying reports submitted to Congress under the Lobbying Disclosure Act, including names of U.S. officials with whom the lobbyist had contact and copies of materials disseminated, such as ads, press releases, or flyers.

While FARA reports are publicly available through the Justice Department, following the money can be difficult, requiring laborious research and records sleuthing. With Foreign Lobby Watch, anyone can quickly learn what foreign interests are spending on lobbying or to influence policy in the United States and how much they are spending.

Candidates and Campaigns 

NBC News: Republicans outspent Democrats by 3 to 1 margin in contested special elections

By Carrie Dann

This week’s House special election in Ohio’s 12th Congressional District only added to the extreme spending gap between Republicans and Democrats in contested special elections.

The Republican Party and its major outside groups have now spent about $41.7 million during the key special elections this cycle, compared to $12.3 million in Democratic spending…

It’s worth noting that the tallies of these expenditures – which include funding for spending on television and radio ads, mail and phone banking – don’t capture the full amount of party investment in each race, since both parties also support candidates financially in other ways not captured by the FEC records, such as transfers to state parties, polling and field staff.

But the vast disparity shows just how much Republican outside groups were spending to help prop up their candidates in these specials, and how untenable that model will be for November.

That dynamic is why Corry Bliss, the head of the Congressional Leadership Fund, issued a warning after the tight Ohio race calling on GOP candidates to shape up their fundraising.

The States

Campaigns & Elections: As States Move to Regulate Digital Ads, Consultants Warn of Unintended Consequences

By Benjamin Barrett

Maryland and Washington state have newly-minted laws on the books while Connecticut, Hawaii, and California are among a number of other states where bills to further regulate digital advertising are under consideration.

For political consultants, there’s a general unease about the broadness of new state laws, particularly in Washington state and Maryland, several strategists told C&E. As a result, the approach at the moment is one of caution, which in the short-term means less digital advertising in those states. Among the biggest concerns: navigating new disclosure requirements at the state level, clunky verification processes, and ambiguous language in some state statutes…  

“The real losers are first time candidates and underdogs who need to do more communicating to get their message out, and the winners are the entrenched candidates and interests,” said Patrick McGill, a digital strategist at the Democratic firm Blueprint Interactive.

While it will take at least a cycle or two to assess the full impact of such state laws, McGill contends smaller campaigns that lack the time and resource to wade through a myriad of new, and sometimes unclear, ad requirements are at an immediate disadvantage.

“If you’re a first-time candidate in a local race, you don’t have the time to figure out how this all works, or what platform is going to let you advertise. You need easy access to these platforms, and they’re not making it easy for you right now,” he said.

Associated Press: Election officials vote to rein in independent watchdog

By David Klepper

New York state’s Board of Elections voted to weaken the powers of an independent elections law watchdog Wednesday in a move widely criticized by good-government groups, elected officials and candidates.

On a vote of 3-1, the board decided to require the state’s independent enforcement counsel to justify in writing each subpoena they want to issue when investigating alleged campaign finance and election law cases.

The board already had control over whether subpoenas could be issued in any particular case, but the new rule means the counsel must get approval on a subpoena-by-subpoena basis.

The Board of Elections is comprised of two Republicans and two Democrats picked by legislative and party leaders and appointed by the governor. Board members who supported the change on Wednesday said it was intended to give them more information and oversight over important investigations.

Critics including state Attorney General Barbara Underwood, a Democrat, blasted the new rule.

“Gutting the enforcement counsel’s authority and independence will only serve to encourage more corruption in New York,” Underwood said in a statement.

Democratic Gov. Andrew Cuomo’s office opposed the change, calling it unnecessary, according to spokesman Tyrone Stevens. Current counsel Risa Sugarman also had warned against the rule when it was proposed.

The Center for Competitive Politics is now the Institute for Free Speech.