Daily Media Links 10/6

October 6, 2020   •  By Tiffany Donnelly   •  
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Supreme Court

SCOTUSblog: Argument analysis: Justices skeptical of challenge to Delaware rules on bipartisanship in judiciary

By Amy Howe

The Supreme Court heard the first oral argument of its new term on Monday morning… And with the death of Justice Ruth Bader Ginsburg on Sept. 18, there were only eight justices participating in the oral argument in Carney v. Adams. The case is a challenge to a provision in the Delaware constitution that seeks to ensure bipartisanship in the state’s courts by, among other things, dividing the five seats on the Delaware Supreme Court (as well as two other courts) between Democrats and Republicans, with three seats going to one party and two to the other. After over an hour of debate, it seemed possible that the justices would uphold the provision – assuming that they reach the merits of the case at all…

Before the justices can weigh in on the merits of [Delaware attorney John] Adams’ arguments, they must decide a threshold issue: whether he has a legal right to sue, known as “standing.” 

The Courts

Des Moines Register: ACLU of Iowa: Group of racial justice protesters banned from Capitol file lawsuit

By Andrea May Sahouri

A federal lawsuit has been filed on behalf of five racial justice protesters who were arrested and banned from the Iowa State Capitol following a July 1 altercation between Black Lives Matter supporters and law enforcement on Capitol grounds, the ACLU of Iowa announced Monday.

ACLU officials say the Capitol ban is unconstitutional, as it blocks individuals from their their rights to free speech, assembly, movement and to petition their government, the civil rights organization wrote in a news release…

ACLU of Iowa Legal Director Rita Bettis Austen says the Capitol ban is a “stunning misuse of power” and retaliation from the Iowa State Patrol and an attempt to silence free speech and protest that is critical of law enforcement and the government. 

“You can’t block people’s right to protest simply because you don’t like them or think they’ve behaved in a way you disagree with, or even if they’ve been arrested during a prior protest,” Bettis Austen said in Monday’s news release. “We are also challenging the bans as a violation of our clients’ fundamental freedom of movement, and due process.”

Additionally, the lawsuit maintains that under Iowa law, the Iowa Department of Public Safety does not have the authority to ban someone from the Capitol complex for six months to a year unless in extreme situations, such as imminent threats to national security. 

“There is absolutely no authority to ban future protests of citizens at their state Capitol based on alleged behavior at past protests,” Bettis Austen said. 

Pittsburgh Post-Gazette: A consistent standard

By The Editorial Board

Port Authority is facing a federal lawsuit from its union seeking to allow employees to wear face masks that support the Black Lives Matter movement or other social justice and political causes.

Predictably, the lawsuit attacks the authority’s uniform policy, which prohibits employees from wearing clothing of “a political or social protest nature,” for violating the First Amendment and for being “sweepingly over-broad.”

As an organization, Port Authority has expressed support for BLM and other causes, but the authority claims this is different from allowing individuals to do so. The policy regarding face masks took effect in July as an extension of a 1970s uniform policy that prohibits political messaging.

Overall, the policy is fair. It should stand.

It does not unduly target one political agenda and was intended to maintain a smooth customer experience…

That said, inconsistent application of the policy would be discriminatory, and there is anecdotal evidence to suggest that political messaging other than Black Lives Matter masks was “approved” by the authority’s director even after the new policy took effect. 


Associated Press: CEOs of 3 tech giants to testify at Oct. 28 Senate hearing

By Marcy Gordon

The CEOs of technology giants Facebook, Google and Twitter are expected to testify for an Oct. 28 Senate hearing on tech companies’ control over hate speech and misinformation on their platforms.

The Senate Commerce Committee voted last week to authorize subpoenas for Facebook CEO Mark Zuckerberg, Sundar Pichai of Google and Twitter’s Jack Dorsey to force them to testify if they didn’t agree to do so voluntarily. Spokespeople for the companies said Monday that the CEOs will cooperate.

The hearing “must be constructive and focused on what matters most to the American people: how we work together to protect elections,” Twitter said in a tweet in its policy channel.

The hearing will come less than a week before Election Day. It marks a new bipartisan initiative against Big Tech companies, which have been under increasing scrutiny in Washington and from state attorneys general over issues of competition, consumer privacy and hate speech.


Philanthropy Roundtable: The Philanthropy Roundtable Urges Congress NOT to Force More Giving from Donor-advised Funds and Foundations

By Debi Ghate

On October 1, the philanthropy world was treated to the following headline: “Philanthropist Urges Congress to Force More Giving From Donor-Advised-Funds and Foundations.” The article announced a major new push by billionaire activist John Arnold and law professor/policy advocate Ray Madoff to radically impact philanthropic freedom through mandates enforced via tax law. The bottom line: the proposal calls for private foundations and DAFs to spend their money faster or face punitive measures. It even weighs in on how all of that should be calculated…

Until now, Congress has largely ignored activists’ calls to dictate to all types of philanthropists the who, what, when, where, and how of their giving. I wish I could say they’ve been motivated by protecting the Constitutionally enshrined rights to property (which includes the right to acquire and dispose of wealth) and the right to free association (choosing who to partner with and the conditions of that partnership). The reality is the reward of weighing in legislatively hasn’t been worth the risk of alienating wealth creators.  

But now change is possibly afoot…

Here are some examples of what the pair would like Congress to do through legislative action:

Free Speech

The Intercept: The Real Cancel Culture: Pro-Israel Blacklists

By Murtaza Hussain

Amid the heated debate about free speech and censorship in the United States, the attacks against pro-Palestine activism stand as a less remarked upon yet much more ruthless type of silencing. Few of the high-profile public intellectuals who have staked claims on the militantly free speech side of the national debate have highlighted the incredible degree of suppression on speech supportive of Palestinian rights – particularly among ordinary people lacking access to elite platforms…

Instead of taking up a defense of pro-Palestine speech, the debate among journalists and intellectuals has mostly focused on their own discomfort as a class. Yet, when it comes to this blind spot, the suppression of free speech targeting ordinary people has been fierce: threats to immigration status, personal lives, careers, restrictions on foreign travel, and more. And, unlike high-profile public figures able to call on magazines and newspapers for support when they feel silenced,…ordinary people targeted for their speech generally lack the ability to get their stories told. Lacking powerful platforms, they generally suffer their “cancellations” in mute anonymity.

Law Times (Canada): Court hears constitutional challenge to election law prohibiting certain false statements

By Aidan Macnab

The Ontario Superior Court recently heard the constitutional challenge of s. 91(1) of the Canada Elections Act. The applicants argue the law – which prohibits publishing certain false statements about candidates during an election – is unconstitutional, overbroad and an ineffective weapon against fake news.

The Canadian Constitution Foundation brought the challenge, which was heard Sept. 15 and 16.

Under s. 91, it is prohibited to publish false accusations that a political candidate or public figure associated with a political party has broken the law, is charged with a crime or is under investigation by law enforcement. The section also disallows publishing a false statement about the citizenship, birthplace, education, professional qualifications and group or association membership of a political candidate or public figure associated with a political party. The rules apply for the duration of an election period and must be done with the intention of affecting the results of an election. Violators could be fined as much as $50,000 and jailed up to five years.

“We don’t think the government should play the role of editor-in-chief,” says Christine Van Geyn, litigation director at the Canadian Constitution Foundation.

“Freedom of expression is a pillar of a free and democratic society and political speech is entitled to protection, even false political speech. And while false political speech can do damage, it’s still subject to protection under the charter.”

Independent Groups

Center for Responsive Politics: While Biden’s campaign pulled negative ads, super PACs kept attacking Trump

By Karl Evers-Hillstrom and Eliana Miller

Democratic nominee Joe Biden pulled negative ads after President Donald Trump tested positive for COVID-19. But deep-pocketed super PACs supporting Biden’s campaign continue to hammer Trump on the airwaves, showing how outside groups often do the dirty work for candidates.

Online Speech Platforms

TechCrunch: Twitter is building ‘Birdwatch,’ a system to fight misinformation by adding more context to tweets

By Sarah Perez

Twitter is developing a new product called “Birdwatch,” which the company confirms is an attempt at addressing misinformation across its platform by providing more context for tweets, in the form of notes. Tweets can be added to “Birdwatch” – meaning flagged for moderation – from the tweet’s drop-down menu, where other blocking and reporting tools are found today. A small binoculars icon will also appear on tweets published to the Twitter Timeline. When the button is clicked, users are directed to a screen where they can view the tweet’s history of notes.

Based on screenshots of Birdwatch unearthed through reverse engineering techniques, a new tab called “Birdwatch Notes” will be added to Twitter’s sidebar navigation, alongside other existing features like Lists, Topics, Bookmarks and Moments.

This section will allow you to keep track of your own contributions, aka your “Birdwatch Notes.” …

What’s less clear is whether everyone on Twitter will be given access to annotate tweets with additional context, or whether this permission will require approval, or only be open to select users or fact checkers.

Candidates and Campaigns

CNN: A key fix for an unthinkable election disaster

By Richard L. Hasen

With coronavirus infections raging through the White House and the state of the President’s health unclear, it’s time to face up to an unsettling reality. We need to start thinking about what to do if the disease incapacitates or kills President Donald Trump or his opponent, Joe Biden — or even both of them — between now and January 6, 2021, when Congress meets to count Electoral College votes.

These scenarios may be unlikely, but they need to be considered because being unprepared for any of them would be a calamity for our democracy.

There is one thing each state can do now to minimize the risk: pass a law providing that voters’ votes for a deceased or incapacitated presidential candidate count toward a replacement chosen by that candidate’s party, and that state’s electoral college votes for the deceased or incapacitated candidate also go to the party replacement.

The States

Cleveland.com: First Amendment scholars weigh in on legality of Terminal Tower “Biden Harris” light display

By Courtney Astolfi

Two First Amendment scholars question whether the “Biden-Harris” light display projected onto Terminal Tower last Tuesday by the United Steelworkers violated city or state law as the the building’s owner contends.

And even if the display did violate local or state laws, the scholars said, the laws might be trumped by First Amendment protections of free speech given the unusual facts of the case – that the display amounted to projected light and was in support of political candidates.

Cleveland.com and The Plain Dealer reached out to Kevin O’Neill, associate professor at Cleveland State University’s Cleveland-Marshall College of Law, and Andy Geronimo, a lecturer at Case Western Reserve University School of Law, to examine the debate over the display’s legality…

Doug Price, CEO of the management group that owns Terminal Tower, told cleveland.com that the United Steelworkers projected the display without his company’s permission and that city prosecutors subsequently provided him with three laws that prohibit such displays.

Price’s company, K&D Management, cited those laws in a cease-and-desist letter sent to the union. They are:

Sentinel Colorado: Dueling plans for local campaign finance reform seek to limit rising costs of election

By Grant Stringer

With few limitations on campaign contributions, money has poured into high-profile elections for Aurora mayor and city council over that past few cycles. 

Now, lawmakers are entertaining two dueling proposals to reduce moneyed influence in municipal races. Mayor Mike Coffman said last week his own fundraising as a 2019 mayoral candidate – in what became a more than $1 million race –  would’ve been dampened by his own proposal. Councilmembers Nicole Johnston and Juan Marcano introduced a sprawling reform last month imposing sharper limits on contributions and a demanding finance disclosure schedule.

City lawmakers will ponder the plans, and the future of Aurora’s elections, in the coming weeks. Both proposals earned early OKs from a city council committee…

Currently, Aurora imposes no limits on donors’ checks to candidates. People running for office and political-minded committees involved in the election have to report their spending and contributions, including the name and address of a person who gives more than $20…

If city lawmakers approve [Coffman’s] plan, donors would be limited to giving a total of $1,000 to any candidate for mayor or an at-large seat on the city council and $500 to ward candidates. 

Coffman said last week the limits are low enough that donors wouldn’t set up shadowy organizations to funnel money into elections. 

Washington Free Beacon: Virginia School Board Weighs Speech Code that Would Prohibit Criticism of Equity Plan

By Chrissy Clark

Virginia’s Loudoun County Public Schools district board will vote on whether to adopt a speech code that would prohibit teachers from criticizing the school board’s racial-equity plan.

According to a draft of the proposed speech code obtained by the Washington Free Beacon, employees of the school district would not be allowed to criticize the school district’s “commitment to action-oriented equity practices” in all forms of public and personal communication…

“Employees are expected to support the school division’s commitment to action-oriented equity practices through the performance of their job duties, as the Division engages in the disruption and dismantling of white supremacy, systemic racism, and language and actions motivated by race, religion, country of origin, gender identity, sexual orientation, and/or ability,” the policy draft reads.

The code briefly acknowledges employees have a First Amendment right to engage in protected speech, but says that right “may be outweighed” by the school district’s interest in “promoting internal … and external community harmony and peace” as well as “class equity, racial equity, and the goal to root out systemic racism.” …

The new policy proposal also tells employees they have a “duty to report” their colleagues’ alleged speech code violations to the school district administration. 

Reason (Volokh Conspiracy): Minnesota Anti-Mask Law Doesn’t Ban the Wearing of Masks for Public Health Reasons

By Eugene Volokh

The Governor’s Executive Order 20-81 mandates wearing masks indoors, but Minnesota Statutes § 609.735 provides,

A person whose identity is concealed by the person in a public place by means of a robe, mask, or other disguise, unless based on religious beliefs, or incidental to amusement, entertainment, protection from weather, or medical treatment, is guilty of a misdemeanor.

In yesterday’s Minnesota Voters Alliance v. Walz, decided by Judge Patrick J. Schiltz (D. Minn.), “plaintiffs argue[d] that Executive Order 20-81 is invalid,” and indeed “that it is illegal for any person to choose to wear a face covering in a public place for the purpose of preventing the spread of COVID-19.” No, said Judge Schiltz:

[T]his Court believes that the Minnesota Supreme Court would hold that § 609.735 is violated only when someone wears a face covering for the purpose of concealing his or her identity.

The original version of the statute was enacted in 1923. Like similar laws enacted during the same era, the law grew out of concerns over the rise of the Ku Klux Klan…



Tiffany Donnelly

Tiffany Donnelly


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