Daily Media Links 1/4

January 4, 2021   •  By Tiffany Donnelly   •  
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We’re Hiring!

Summer Associate Legal Fellowship

The Institute for Free Speech Summer Associate Legal Fellowship is a unique opportunity for law students to explore a career in public interest and First Amendment law. The program is open to students who will finish their first or second year of law school by the summer of 2021.

Fellows are expected to work full time for 10 weeks in our Washington, D.C. area headquarters, but other arrangements may be available to especially outstanding candidates. In light of the ongoing pandemic, the possibility remains that fellows will work remotely for some or all of the summer fellowship.

Fellows are eligible to earn $10,000 in salary for their 10 weeks of employment.

During the fellowship, students will work with Institute for Free Speech attorneys for a portion of their time. Each fellow will also be expected to complete a project. Applicants are encouraged to be creative in suggesting a project as part of their application. While many projects may produce papers suitable for publication, we will consider any project related to protecting or advancing First Amendment rights.

In the News

NPR: The Federal Election Commission Can Finally Meet Again. And It Has A Big Backlog

By Brian Naylor

Following Senate action earlier in December, [the FEC] now has a full compliment of six commissioners: three Democrats, two Republicans and one independent.

Still, former FEC associate counsel Adav Noti is not optimistic that even now the FEC will be able to accomplish much.

“No, I would not say I’m hopeful about the [FEC] performing any of its functions,” Noti tells NPR. “I think the restoration of the quorum means that the agency will resolve matters. But those resolutions are likely to be partisan deadlocks in all but the most trivial of cases.”…

Former FEC chairman Bradley Smith, a Republican, says the differences on the commission are usually over how campaign law should be interpreted.

“I think this idea that the commission frequently deadlocks is probably vastly overstated,” he says. “Most of the cases are pretty routine. It does come up on questions of how aggressively I think at times to interpret the law and whether one views it as something that should be interpreted narrowly or broadly in scope.”…

Smith says one issue he’d like the commission to address is political contributions by nonprofits, like the Sierra Club or National Right to Life. He says it’s unclear whether the names of donors to those groups – who may not have given for political reasons, but to support the cause – should be disclosed.

“It’s not quite clear how much [the groups] need to disclose in terms of donors who may have given for totally different reasons. And it’s not like a donor who gives to a campaign or donor gives to a political party or a PAC and expects it to be used on politics. So this is a tough issue out there,” he says.

Federal Election Commission: Shana M. Broussard elected Chair, Allen Dickerson elected Vice Chair for 2021

The Federal Election Commission has elected Shana M. Broussard to serve as Chair and Allen Dickerson as Vice Chair for 2021…

Commissioner Dickerson served as Legal Director of the Institute for Free Speech, where he led a nationwide First Amendment litigation practice, from 2011 to 2020. Previously, he was an Associate with Kirkland & Ellis LLP and advised the Republican Governors Association. Commissioner Dickerson, who also serves as a Judge Advocate in the United States Army Reserve, is a graduate of Yale College and New York University School of Law.  

Supreme Court

Wiley: Political Privacy Update: Solicitor General Supports Certiorari in California Donor Privacy Cases

By Lee E. Goodman

Privacy in Focus has been tracking (see here and here) three petitions for certiorari pending in the U.S. Supreme Court in cases challenging California’s mandate for nonprofit organizations to disclose their donors to the state Attorney General as a condition of soliciting contributions in the state. Earlier this year the Court requested the view of the United States Solicitor General. The Solicitor General filed a Brief Amicus Curiae in the case in late November, which can be read here.

Notably, the United States supports the grant of certiorari, arguing that the decision of the Ninth Circuit is fundamentally incorrect and doctrinally inconsistent with decades of jurisprudence protecting associational privacy. The United States also argues that the issue of donor disclosure in the states and nationally is “of substantial national importance.” Like the petitioners, the United States agrees that compulsory donor disclosure implicates First Amendment protection. This is so, the United States argues, whether the mandated disclosure is to the public or to a government office. Although California has argued disclosure solely to the state Attorney General does not amount to a First Amendment harm, the United States cites NAACP v. Alabama. The United States goes on to argue for a high-bar “exacting scrutiny” standard for judicial review of laws invading associational privacy.

From there, however, the United States diverges in significant, if subtle, respects from the position of the petitioners Institute for Free Speech, Thomas More Society, and Americans for Prosperity Foundation.

New York Times: A Cheerleader’s Vulgar Message Prompts a First Amendment Showdown

By Adam Liptak

It was a Saturday in the spring of 2017, and a ninth-grade student in Pennsylvania…had just learned that she had failed to make the varsity cheerleading squad and would remain on junior varsity.

The student expressed her frustration on social media, sending a message on Snapchat to about 250 friends. The message included an image of the student and a friend with their middle fingers raised, along with text expressing a similar sentiment. Using a curse word four times, the student expressed her dissatisfaction with “school,” “softball,” “cheer” and “everything.” …

[A]nother student took a screenshot of this…and showed it to her mother, a coach. The school suspended the student from cheerleading for a year, saying the punishment was needed to “avoid chaos” and maintain a “teamlike environment.”

The student sued the school district, winning a sweeping victory in the United States Court of Appeals for the Third Circuit, in Philadelphia. The court said the First Amendment did not allow public schools to punish students for speech outside school grounds.

Next month…the Supreme Court will consider whether to hear the case, Mahanoy Area School District v. B.L., No. 20-255. The Third Circuit’s ruling is in tension with decisions from several other courts, and such splits often invite Supreme Court review.

The Courts

Reason (Volokh Conspiracy): Latest Decision in Sarah Palin v. N.Y. Times: N.Y.’s New Anti-SLAPP Law Is Retroactive

By Eugene Volokh

[1.] Sarah Palin’s libel lawsuit against the New York Times is proceeding, on the theory that a jury could potentially find that the Times people knew their allegations about Palin were false (or at least were likely false). This is the so-called “actual malice” test, which is applied to libel claims brought by public figures such as Palin on matters of public concern (though it doesn’t actually require malice at all). It’s also called the New York Times v. Sullivan test, after the 1964 case that announced the test as to public officials; later cases extended it to other public figures.

[2.] Palin’s lawyers have argued that the “actual malice” test should be overruled or at least sharply limited, and in principle the Supreme Court could agree with them, after the decision at trial and then an appeal to the Second Circuit. In practice, it’s very unlikely that the Court would grant review in this case, and I don’t see much appetite on the Court for overruling New York Times v. Sullivan. (Justice Thomas seems interested in that, but I don’t think four other Justices will join him.) But there certainly has been talk about trying to tee up a case for the Court to consider whether to revisit the matter.

[3.] Today’s decision by Judge Jed Rakoff (S.D.N.Y.) makes it even less likely that Palin v. New York Times would be a vehicle for the Court to overrule its libel precedents…

[4.] Judge Rakoff’s decision may end up being very important for many pending New York libel cases (including ones dealing with a different part of the anti-SLAPP statute, which changes various rules as to public figure cases as well)…

New York Times: U.K. Judge Blocks Assange’s Extradition to U.S., Citing Mental Health Concerns

By Elian Peltier and Megan Specia

A British judge ruled on Monday that the WikiLeaks founder Julian Assange cannot be extradited to the United States to face trial on charges of violating the Espionage Act, saying he would be at extreme risk of suicide.

The decision in the high-profile case grants Mr. Assange a major victory against the U.S. authorities who charged him over his role in obtaining and publishing secret military and diplomatic documents related to the wars in Iraq and Afghanistan.

Rights groups and advocates applauded the ruling, but many expressed concern about the rationale for the decision. The judge focused on Mr. Assange’s mental health, but rejected the defense argument that the charges were an attack on press freedom and were politically motivated.


Business Insider: Meet Shana Broussard, the first Black member of the Federal Election Commission in its 45-year history

By Dave Levinthal

[T]his month, in the most notable step of her public legal service career, [Shana] Broussard, a Democrat, became the first Black commissioner in the Federal Election Commission’s 45-year history. 

Among her new commission colleagues’ first acts: voting Broussard commission chair for 2021.

Symbolically, Broussard told Insider that her appointment provides “encouragement that this is not an exclusive process for only some, but that the electoral process is open for all.” …

“Professional, genuine, and substantive,” is how Republican Lee Goodman, who served on the FEC commission from 2013 to 2018, described Broussard.

“She was not given to personality clashes, reflective in part of her own friendly demeanor,” Goodman said. “That will be important to the functionality of the commission because sharp divergences in philosophical approaches have been known to break down into personal animosities, hampering the ability of commissioners to reach substantive compromises.”

Ellen Weintraub, a Democrat who’s served on the commission since 2002, offered Broussard a string of superlatives: “even-keeled,” “open-minded,” “no-nonsense,” “kind.”

“And she already knows every case on the docket. Plus she knows the law inside out,” Weintraub said. “Her presence will be incredibly helpful.”

Said Ann Ravel, a Democratic FEC commissioner from 2013 to 2017: “She’s not going to be seen in any way as an ideological extremist or just taking partisan positions. She’s as straightforward and thoughtful as you’ll find.”

Free Speech

Glenn Greenwald: The Kafkaesque Imprisonment of Julian Assange Exposes U.S. Myths About Freedom and Tyranny

Censorship, like most repression, is reserved for those who dissent from majoritarian orthodoxies, not for those who express views comfortably within the mainstream. Establishment Democrats and Republicans – adherents to the prevailing neoliberal order – have no need for free speech protections since nobody with power would care enough to silence them. It is only the disaffected, those who reside on the fringes and the margins, who need those rights. And those are precisely the people who, by definition, are most often denied them…

Whether a society is truly free is determined by how it treats its dissidents, those who live and speak and think outside of permissible lines, those who effectively subvert ruling class aims. If you want to know whether free speech is genuine or illusory, look not to the treatment of those who loyally serve establishment factions and vocally affirm their most sacred pieties, but to the fate of those who reside outside of those factions and work in opposition to them. If you want to know whether a free press is authentically guaranteed, look at the plight of those who publish secrets designed not to propagandize the population to venerate elites but, instead, those whose publications result in generating mass discontent against them.

Online Speech Platforms

The Washington Post: More cybersecurity won’t secure our elections, but privacy protections might

By Christine Bannan and Spandana Singh

Building on concerns that mounted after the 2016 election about foreign adversaries using political advertising to covertly sow discord, some platforms also took voluntary steps to provide transparency around their algorithmic advertising operations. For example, companies such as Facebook, Google and Reddit have introduced ad transparency libraries, which provide insights into the kinds of political ads that have run on their services, including which advertiser ran a campaign, what the content of their advertisements were, where an advertiser’s page is managed from, and whether a page changed its name and merged with others. The idea was that such information would make it clear who was putting out deceptive information – and easier to track its spread.

These libraries are, however, limited in many ways, which suggests that federally mandated transparency requirements could vastly improve public accountability for political advertising. For example, Facebook’s ad transparency library does not offer granular engagement and delivery data, such as how often an ad was shared or liked by users, or to what categories of users an ad was targeted vs. to whom it was delivered. Without this information, it is difficult to understand how many users engaged with an ad and what role algorithms played in determining who was exposed to misinformation. The database has also been marred with glitches that have resulted in the deletion of thousands of ads and limited its usefulness for researchers and journalists.

Politico: America has a hate problem. Facebook and Google are part of it, D.C.’s top attorney says.

By Leah Nylen

Facebook and Google both say they devote significant resources to ridding their platforms of hate and extremist content. But Washington, D.C., Attorney General Karl Racine says it’s not nearly enough.

Facebook, Instagram, Google and YouTube “host, facilitate and accept money from hate organizations and individuals who literally are spewing their toxic hate throughout the internet and without question are inspiring violence,” Racine said in an interview, calling the companies’ responses so far “pathetic.”

Racine has taken up countering hate and extremism as his flagship cause as the new president of the National Association of Attorneys General, a nonpartisan organization that brings together the top law enforcement officials of the 50 states, D.C. and five U.S. territories…

Much of the initiative is still in the works, but Racine said a portion will be focused on online platforms, and he called out Facebook and its photo-sharing app Instagram, as well as Google and its video service YouTube, as “the means by which [hate] is mostly fueled.”

Among the changes he’d like to see are quarterly reports from tech platforms that detail how much money they make from hate speech and more information on what is taken down and when. Facebook and Google also need to do a better job of helping individuals who are victims of online hate, he said.

Biden Transition

The Hill: Left ramps up pressure on Biden for lobbying ethics pledge

By Alex Gangitano

To the frustration of many on the left, Biden has already tapped lobbyists like Steve Ricchetti and Tom Vilsack for top posts in his administration.

Now, progressive lawmakers and groups are pushing for an ethics pledge similar to the executive order from former President Obama that put restrictions on former lobbyists working in the White House.

Sens. Elizabeth Warren (D-Mass.), Ed Markey (D-Mass.) and Jeff Merkley (D-Ore.) wrote to Biden this week seeking an ethics pledge that includes a total ban on lobbyists employed by corporations from serving in the administration and requiring more extensive public reporting of all lobbying activity directed toward the White House.

Candidates and Campaigns

New York Times: Democrats in Georgia Runoffs Bring in Record Haul

By Rick Rojas

The Rev. Raphael G. Warnock and Jon Ossoff, the Democratic challengers in the Senate runoffs in Georgia, have each raised more than $100 million since October – enormous sums that surpassed their Republican opponents by a significant margin and underscored Democrats’ confidence after recent gains the party has made in the state and their hopes that they might capture the Senate…

Mr. Ossoff, who is running against [Sen. David] Perdue, became the best-funded Senate candidate in history after pulling in $106.7 million, according to the [recent FEC] filings, and Mr. Warnock, who is challenging [Sen. Kelly] Loeffler, has raised $103.3 million…

The amounts brought in by both Democrats exceeded the $57 million raised by Jaime Harrison in his campaign in South Carolina against the Republican senator Lindsey Graham, which had been the highest quarterly fund-raising total for any Senate candidate in U.S. history. Yet the race ended up as a disappointment for Democrats, demonstrating that record-breaking hauls do not necessarily translate to electoral success.

The States

Denver Post: Aurora’s adoption of strict limits on campaign contributions means most of Colorado’s largest cities have controls in place

By John Aguilar

With Aurora joining Denver, Fort Collins and Lakewood in revamping its rules on the role of money in local races, four of the state’s five most populous cities…will have campaign finance controls on the books…

“(Aurora’s) ordinance comes from the kind of accountability voters are clamoring for,” said Amanda Gonzales, executive director of Colorado Common Cause. “We all fundamentally want a democracy where we all have a voice. We want our elected officials not to be beholden to any particular special interest.” …

Common Cause helped Aurora craft its new campaign finance ordinance, which the City Council passed 7-3 last month. It came a year after the city experienced its most costly municipal election, which was flooded with more than $1 million in campaign contributions.

Mike Coffman, a former U.S. congressman who won the mayor’s race by just over 200 votes out of nearly 75,000 cast, raised the lion’s share of the cash during the 2019 campaign – more than $700,000, including thousands from energy and developer interests…

By barring office holders from organizing, maintaining or controlling a political or issue committee, the mayor said the new regulations were “specifically designed to stifle my ability to be active in Aurora politically.”

Coffman said he’s not against curtailing campaign contributions. In fact, he offered up his own reform plan earlier this year with similar caps to what passed last month that he said “eliminated all sources of contributions except from individuals.”

Tiffany Donnelly

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