Supreme Court
FIRE: First Amendment News 268: The Clement cure for the cure
By Ronald K.L. Collins
There has been much talk in recent years about textualism. A lot has been said about the need to hold true to the text of the law… But then came Barr v. American Association of Political Consultants Inc. (2020), and with it textualism was drawn down into the quicksand of legal doctrine.
It all started with robocalls, which no one can abide. That may explain the tortuous paths taken by the Justices in Barr. After all, sometimes the law of the land must bow to the wishes of those who live in that land. And so it was when the Court had to decide what to do with a 2015 government debt collection exception to the Telephone Consumer Protection Act of 1991 (TCPA). Fixated on this special exception for the government, the focus first turned to content discrimination arguments and thereafter whether the 2015 provision could be severed from the Act, should the exemption be deemed violative of the First Amendment. The judicial result: The Court, in a complex plurality opinion surrounded by a swirl of three separate opinions, ruled that the 2015 amendment impermissibly favored debt collection speech over other forms of protected speech. The operative result: Congress (as in “Congress shall make no law”) was actually permitted more leeway to abridge speech (as in “abridging the freedom of speech, or of the press”) when it came to censoring all robocalls. The problem: From a textualist reading of the Madisonian maxim, the Barr Court turned the First Amendment on its head and then left it there.
The Courts
Courthouse News: Feds in Portland Now Unrestrained in Removing Journalists at Protests
By Karina Brown
Federal agents will no longer be restrained from assaulting and arresting journalists when dispersing protesters in Portland, Oregon after the Ninth Circuit temporarily stayed a lower court order that the judges said lacked clarity in the visible identification it required journalists to wear.
In a split ruling, two judges on a three-judge panel issued a temporary stay on Thursday, finding that U.S. District Judge Michael Simon’s 61-page injunction was overly broad and lacked clarity.
Protocol: A new lawsuit against Trump’s Section 230 executive order argues it chills speech about voting
By Issie Lapowsky
A coalition of voting rights and watchdog groups is suing the Trump administration over its recent executive order, which aims to curb liability protections for tech platforms under Section 230 of the Communications Decency Act. They argue that the order was retaliatory, seeking to limit voters’ right to receive information about the election…
The plaintiffs in the suit, which was filed Thursday in the Northern District of California, include voting advocacy groups Rock the Vote, Voto Latino and Common Cause, as well as the watchdog organizations MapLight and Free Press.
“The executive order is fundamentally incompatible with the First Amendment. It deprives users of their right to receive information curated by online platforms, including information critical of President Trump or corrective of his falsehoods,” the suit reads. “It is unlawfully retaliatory and coercive, sending a clear and chilling message: question President Trump and face retribution from the entire Executive Branch.”
The Hill: Sen. Rand Paul says he and his wife were ‘attacked by an angry mob’ after Trump speech
By Morgan Gstalter
Sen. Rand Paul (R-Ky.) early on Friday claimed that he was “attacked by an angry mob” while walking with his wife from the White House following President Trump’s closing speech at the Republican National Convention.
“Just got attacked by an angry mob of over 100, one block away from the White House,” Paul tweeted, while thanking the D.C. Metropolitan Police Department for “literally saving our lives.”
Video uploaded to Twitter by a bystander showed Paul and his wife, Kelley Paul, being escorted by police through a crowd of protesters following the events at the White House…
One clip, which has garnered more than 1.6 million views, showed an officer using a bicycle to push back protesters and Paul grabs his arm to keep the man from falling.
The video does not appear to show Paul or his wife being touched by any protesters. The couple did not appear to be injured…
Sen. Ted Cruz (R-Texas) called the incident “horrific” and called for the “madness to stop.”
Right to Protest
By Brian Welk
In 1978, ACLU executive director Ira Glasser had to explain to the press and to the public the ACLU’s choice to defend the free speech rights of neo-Nazi protestors marching in Skokie, Illinois. Over 40 years later, the new documentary “Mighty Ira” shows Glasser looking back on that choice in the light of similar protests and riots that rocked Charlottesville, Virginia.
“Mighty Ira,” for which TheWrap has the exclusive first look trailer, profiles Glasser and explains how he is one of the unsung champions of civil rights and liberties. As the executive director of the ACLU between 1978-2001, becoming the director in the immediate fallout of the Skokie case, Glasser helped expand the organization from being on the verge of bankruptcy into the civil liberties juggernaut it is today.
But the Skokie case would define his career and proved to be hugely controversial as he came face to face with Holocaust survivors who were appalled that a civil rights organization would back neo-Nazis of all people…
Check out the exclusive first trailer above.
Washington Post: U.S. political divide becomes increasingly violent, rattling activists and police
By Tim Craig
In a spate of exchanges that have spanned from Kalamazoo, Mich., and Bloomington, Ind., to Chicago and Portland, Ore., people on both sides of the United States’ political and cultural divide have been filmed exchanging punches, beating one another with sticks and flagpoles, or standing face-to-face with weapons, often with police appearing to be little more than observers…
“We are sort of at the stage of polarization where there are more and more people who are seeking confrontation, where they are not simply satisfied with disagreeing with the other side or yelling at the other side, but they want to confront,” said Mark Pitcavage, a historian and senior research fellow at the Anti-Defamation League’s Center on Extremism. “We are not just a polarized society – we are increasingly a confrontational society now.”
Fundraising
New York Times: Party Disavows Kansas Candidate Who Admitted to Revenge Porn
By John Hanna, Associated Press
The Kansas Democratic Party on Wednesday declared that the 19-year-old nominee for a state House seat is “unfit” for office because of “alarming behavior” that includes admitting to circulating revenge porn, and he said his online fundraising account has been disabled…
Aaron Coleman defeated seven-term state Rep. Stan Frownfelter in the Aug. 4 primary by 14 votes out of about 1,600 cast…
Many Democrats have disavowed Coleman, a dishwasher and community college student, over incendiary social media posts and his past behavior towards girls and women, which included his admission to allegations of revenge porn and online harassment of girls as a 14-year-old…
Coleman tweeted Tuesday that his fundraising account with ActBlue, used by Democrats and left-leaning groups to raise money online, had been disabled…
ActBlue did not immediately respond to an email Wednesday about Coleman’s account, but he tweeted a statement from it saying, “We are unable to work with your campaign moving forward as you are out of alignment with ActBlue’s mission.”
Online Speech Platforms
Digital Trends: Twitter cracks down on spammy ‘copypasta’ tweets
By Shubham Agarwal
Twitter will now hide tweets that feature text that’s been copy and pasted without any modifications from the source. The social network has updated its censorship policy to include “copypasta,” which is internet slang used for a piece of text that’s been duplicated from the original post and shared widely across forums and websites.
In a tweet, Twitter’s communications handle said the company “may limit the visibility” of tweets that it believes fall under this category. “We’ve seen an increase in ‘copypasta,’ an attempt by many accounts to copy, paste, and Tweet the same phrase. When we see this behavior, we may limit the visibility of the tweets,” it added…
While “copypasta” began as a term for viral online messages, the technique has lately been abused for wide-scale spam attempts. Malicious campaigns on the internet tend to recruit hundreds of thousands of accounts (or automated bots) to push, for instance, political propaganda in great numbers.
Columbia Law Review, Vol. 121, No. 1: Governing Online Speech: From “Posts-As-Trumps” to Proportionality and Probability
By Evelyn Douek
Online speech governance stands at an inflexion point. Platforms are emerging from the state of emergency invoked during the pandemic and lawmakers are poised to transform the regulatory landscape. The importance of what emerges from this moment can hardly be overstated: how platforms write and enforce the rules for what speech they allow on their services shapes the most important channels for communication in the modern era, and has profound consequences for individuals, societies, and democratic governance. Understanding how online speech governance arrived at this moment illuminates the tasks that the institutions created during this transformation must be designed to do. This history shows that where online speech governance was once dominated by the First Amendment tradition’s categorical and individualistic approach to adjudicating speech issues, that approach became strained and online speech governance now revolves around the principles of proportionality and probability…This article reviews the nature and causes of this shift of online speech governance from a “posts-as-trumps” approach to one of systemic balancing, and what this new era of content moderation requires of platforms and their regulators.
Candidates and Campaigns
Vice News: Kanye West Is Breaking Campaign Finance Law and Keeping His GOP Backers a Secret
By Cameron Joseph
[Kanye West’s presidential campaign] is now a full week late with its campaign finance filings, a move that’s allowing the shadowy organization to hide how deep the GOP efforts to back his spoiler campaign go…
“He’s either violating the reporting requirements or doesn’t anticipate to spend $100,000 or more on his presidential campaign, and the latter part seems unlikely,” said Paul S. Ryan, the head of litigation at the good government group Common Cause. “He’s missed an FEC reporting deadline on August 20 and is in [likely] violation of the law.” …
An FEC calculator showed that a candidate who raised and spent $100,000 would owe more than $11,000 in fees for failing to file its forms.
Normally, that fee structure is enough to keep candidates in line – or press coverage from missed deadlines is enough to embarrass them into complying with the law.
But if West simply refused to comply, the FEC would have to step in and actually vote to bring him to court. Since Trump has failed to nominate enough people for a quorum on the FEC’s commission, that means the organization is totally toothless. And if his campaign continues to refuse to follow the law, it might be impossible to know exactly how deep the GOP’s involvement in West’s campaign is until well after the November election.
“The law wasn’t designed to deal with the wealthy spoiler candidate who’s trying to avoid disclosure to help another candidate,” said Ryan. “Kanye West isn’t the typical candidate so this enforcement mechanism isn’t going to work for his campaign.”
The States
Connecticut Post: Connecticut judge: Public campaign grants can pay for child care
By Emilie Munson
A Connecticut judge ruled Thursday that candidates for elected office can use public campaign funding to pay for child care while they’re campaigning, clearing the way for more parents to run for office in the state…
Judge John L. Cordani decided “campaign funds may generally be spent to pay for child care costs incurred by a candidate as a result of campaigning as long as such payments are a direct result of campaign activity, reasonable and customary for the services rendered and properly documented by the campaign.” …
The Federal Election Commission allows Congressional candidates to use campaign funds to pay for child care. States including Wisconsin, Minnesota, Texas, Alabama, and Arkansas also permit campaign funds to be spent on child care.
Insider NJ: Ruiz, Scutari, Cunningham Bill to Permit Use of Campaign Funds to Pay for Child Care to Governor
Legislation sponsored by Senate President Pro Tempore M. Teresa Ruiz, Senator Nicholas Scutari and Senator Sandra B. Cunningham which would permit using campaign funds to pay for childcare in certain instances, passed the Assembly, 66-5-4, today and heads to the Governor’s desk.
Reason (Volokh Conspiracy): Fighting Words in the Connecticut Supreme Court
By Eugene Volokh
The Connecticut Supreme Court has had some interesting debates in past years about the First Amendment “fighting words” exception (e.g., State v. Baccala (Conn. 2017)and State v. Parnoff (Conn. 2018)). Today’s State v. Liebenguth unsurprisingly holds that saying “fucking niggers” to a black person-apparently referring to that person-is punishable fighting words, even when the words don’t lead to a fight, and when they are said to a government enforcement official (but perhaps not when they are said to a police officer).
Cincinnati Enquirer: Ex-Ohio House Speaker Larry Householder and allies face 162 campaign finance violations in connection with bribery scandal
By Jessie Balmert
Former Ohio House Speaker Larry Householder and his allies face 162 violations of state campaign finance laws in connection with allegations of a nearly $61 million bribery scheme.
Householder and his associates are accused of influencing elections without disclosing donors and spending as required under state election law. On Thursday, Ohio Secretary of State Frank LaRose referred the alleged violations to the Ohio Elections Commission in a 118-page complaint.
The complaint alleges they illegally used corporate money or property to support and oppose candidates…
Other groups named in the complaint include:
- Householder-aligned Growth and Opportunity PAC, which spent money on behalf of Householder-aligned candidates over several years.
- Hardworking Americans Committee and Hardworking Ohioans Inc., a for-profit corporation run by The Batchelder Company that supported Householder candidates in November 2018.
- Generation Now, a 501(c)(4) nonprofit that allegedly funneled money from corporate donors to Householder’s efforts…
Kodiak Daily Mirror: How Ballot Measure 2 would change the state’s elections
By Andrew Kenneson
In November, Alaskans will have the chance to vote on Ballot Measure 2, also known as Alaska’s Better Elections Initiative…
The measure would require donors who give to what are called “independent expenditure groups” to disclose who they are. Right now…the groups are intermediaries between candidates and donors that shield the donors from view…
The ballot measure would change that, requiring anyone who donates more than $2,000 to an independent expenditure group to disclose themselves…
Alaska’s Better Elections Initiative is primarily funded by two groups: Unite America and Action Now Initiative. The funding from Unite America comes from Kathryn Murdoch, the entrepreneur and daughter-in-law of Fox News owner Rupert Murdoch. Action Now Initiative is funded by John Arnold, a former investor. Both groups are pushing election reform initiatives around the country.
The Alaska Republican Party has come out against the measure.
“The initiative is an attempt by elitists to control and dictate to Alaskans how our state should conduct our election process,” Alaska Republican Party chairman Glenn Clary told Alaska Public Media last month.
