Daily Media Links 1/5

January 5, 2022   •  By Tiffany Donnelly   •  
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We’re Hiring!

Senior Attorney – Institute for Free Speech – Washington, DC or Virtual Office

The Institute for Free Speech is hiring a Senior Attorney with a minimum of seven years of experience.

This is a rare opportunity to work with a growing team to litigate a long-term legal strategy directed toward the protection of Constitutional rights. We challenge laws, practices, and policies that infringe upon First Amendment freedoms, such as speech codes that censor parents at school board meetings, laws restricting people’s ability to give and receive campaign contributions, and any intrusion into people’s private political associations. You would work to hold censors accountable; and to secure legal precedents clearing away a thicket of laws, regulations, and practices that suppress speech about government and candidates for political office, threaten citizens’ privacy if they speak or join groups, and impose heavy burdens on political activity.

A preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider strong candidates living and working virtually from anywhere in the country. In addition to litigation or advocacy-related travel, a virtual candidate would be required to travel for quarterly week-long visits to IFS’s headquarters after the pandemic’s impact has receded.

[You can learn more about this role and apply for the position here.]

2022 Summer Associate Legal Fellowship

The 2022 Institute for Free Speech Summer Associate Legal Fellowship is a unique opportunity for current law school 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 2022.

Fellows are expected to work full time for 10 weeks in our Washington, D.C. headquarters, but other arrangements may be available to especially outstanding candidates.

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.

[You can learn more about this role and apply for the position here.]

New from the Institute for Free Speech

Political “Deepfake” Laws Threaten Freedom of Expression

By Alex Baiocco

One common justification governments give for limiting freedom of speech is the need to prevent false information, often about the government itself. Thankfully, in the United States, the First Amendment prevents government from acting as the arbiter of truth, particularly in the context of political speech.

Recently, politicians have become concerned about potential widespread distribution of “deepfakes” of candidates and public officials. In the political context, the term “deepfakes” most commonly refers to seemingly realistic, but altered, visual or audio media appearing to show candidates doing or saying something that they did not in fact say or do. The impulse to address potential nefarious electoral use of such technology is understandable. But, as history has shown, punishing false or misleading political speech will inevitably suppress political speech generally and do more harm than good.

Despite widespread opposition from civil liberties advocates across the ideological spectrum, a few states have already enacted laws banning the distribution of “manipulated” media featuring candidates close to an election, and several proposals have been introduced at the federal level.[1] Before rushing to protect themselves from digitally altered media, lawmakers should consider the speech-chilling effects of overbroad regulation of edited content. Proposals aimed at regulating speech about government officials or candidates are likely to suppress political speech well beyond the intended target of intentionally deceptive content. Furthermore, such proposals are unlikely to pass constitutional muster.


Supreme Court

FEC v. Cruz: Brief of Senator Mitch McConnell as Amicus Curiae in Support of Appellees

This case presents the latest First Amendment challenge to yet another of BCRA’s unconstitutional features: the prohibition on a campaign using post-election contributions to repay a candidate’s personal loans over $250,000. As the court below concluded, that limit “runs afoul of the First Amendment.” J.S.App.6a.

The burden imposed by BCRA’s loan-repayment limit “is evident and inherent in the choice that confronts” candidates who wish to use personal loans for campaign financing. Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 745 (2011). The limit means a candidate might not recoup amounts in excess of $250,000; thus the limit chills core political speech, especially speech by unknown challengers who need to spend more to be heard. And the loan-repayment limit does not serve any legitimate government interest. As this Court has held, the only interest that can justify a burden on core political speech is “preventing corruption or the appearance of corruption.” McCutcheon, 572 U.S. at 206. The government cannot even pretend that the limit serves that interest. After all, the limit also applies to candidates who lose the election. J.S.App.32a.

The unconstitutionality of BCRA’s loan repayment limit is obvious. But “[e]nough is enough.” WRTL, 551 U.S. at 478. This Court’s decisions over the past decade have rendered BCRA the Humpty Dumpty of campaign-finance law, a patchwork of provisions that Congress never would have approved standing alone and that can never be put back 4 together again. There is no reason to let BCRA limp along, no need for further piecemeal surgery by this Court: the Court should strike the entire statute.

This case presents the ideal opportunity to do so.


Wall Street Journal: Manchin Deflates Democrats’ Hopes of Changing Filibuster, Passing Election Bills

By Siobhan Hughes

Sen. Joe Manchin (D., W.Va.) cast doubt on a Democratic push to change Senate procedures to weaken the minority party’s power, dealing a blow to party leaders’ effort to change the filibuster and advance their elections bills.

In comments to reporters Tuesday, Mr. Manchin said he was engaged in talks about possible changes to the filibuster rule, which currently requires the votes of 60 senators to advance most bills. But, he said, any changes should have the buy-in of Republicans as well, and he was leery of Democrats going it alone.

“Any way you can do a rules change to where everyone’s involved and basically that’s a rule that usually will stay—that’s what you should be pursuing,” Mr. Manchin told reporters on Tuesday. “Being open to a rules change that would create a nuclear option; it’s very, very difficult,” he said about lowering the filibuster threshold. “So it’s a heavy lift.”

His comments came as many Senate Democrats have stepped up their calls for altering the filibuster to make it easier to pass legislation. On Monday, Senate Majority Leader Chuck Schumer (D., N.Y.) said that Democrats would put elections legislation on the floor and then would attempt to enact rules changes if Republicans again filibustered the legislation…

Mr. Manchin also rejected the idea of making an exception to the filibuster for voting legislation.

Free Speech

The Atlantic: America’s Favorite Flimsy Pretext for Limiting Free Speech

By Jeff Kosseff

Shouting “Fire” in a crowded theater, a metaphor that dates to a 1919 Supreme Court ruling by Justice Oliver Wendell Holmes Jr., is widely—and wrongly—held to be a far-reaching exception to the First Amendment, which offers broad protection to free expression in the United States.

Courts have rigorously scrutinized government acts that might plausibly conflict with the amendment. But in common usage, shouting “Fire” in a crowded theater has become an all-purpose justification for regulating speech while evading judicial scrutiny. To my eyes, more commentators than ever are turning to this misplaced metaphor, perhaps because the proliferation of news outlets and the growth of social media expose audiences to more speech than ever before, and at least some of that speech is bound to be objectionable…

I am under no illusion that the most authoritative science or the sleekest public-relations efforts would fully counteract the torrent of misinformation on the internet. But stringent speech regulations are unlikely to banish—and would likely worsen—the suspicion of authority, the rejection of science-based conclusions, and other underlying dynamics that make some people willing to accept sketchy claims in the first place. Americans need to confront these problems, while also accepting that we will be unable to solve all of them. Accusing others of shouting “Fire” in a crowded theater is easy, but protecting a healthy marketplace of ideas will leave Americans far better off.

Tiffany Donnelly

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