Daily Media Links 1/7

January 7, 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. 

Supreme Court

CNS News: How the Outcome of Chike’s Supreme Court Case Could Impact You

By Sarah Kramer

Next week, on Jan. 12, the U.S. Supreme Court will hear the case of Chike Uzuegbunam.

And we should all be paying attention.

As a Georgia Gwinnett College student, Chike was twice stopped by college officials from publicly sharing his faith with his fellow students on campus.

That’s why Chike, with the help of Alliance Defending Freedom, filed a lawsuit. But by the time the court ruled, the college had changed its unconstitutional policies and Chike had graduated. Because of this, two courts dismissed the case.

There’s just one big problem: Georgia Gwinnett College was never held accountable for the fact that it violated Chike’s constitutional rights-not just once, but twice. So, to get Chike the justice he deserves and to ensure that government officials do not get a free pass when they violate our priceless freedoms, ADF asked the Supreme Court to hear his case…

When courts don’t step in and hold government officials responsible for trampling someone’s constitutional rights, it enables the government to violate someone else’s rights in the future. That which gets rewarded gets repeated…

That’s why groups across the ideological spectrum agree that the government should be held accountable-and should not get a free pass-for violating constitutional rights.

[Ed. note: The Institute for Free Speech filed an amicus brief in support of the petitioners in Uzuegbunam v. Preczewski.]

Law & Crime: Right-Wing Activists Ask SCOTUS to Take Up ‘Shadow Banning’ Case Alleging Conspiracy to ‘Take Down’ Trump and ‘Install Leftist Governments’

By Jerry Lambe

Conservative attorney Larry Klayman asked the U.S. Supreme Court on Tuesday to take up a far-right activist Laura Loomer’s “shadow banning” lawsuit against a slew of social media companies. The case was previously dismissed at both the district and circuit court levels, chiefly because social media platforms cannot violate the First Amendment because they are not governmental actors…

The lawsuits alleged that those platforms worked together to suppress conservative points of view-a position petitioners have doubled-down on once again, almost verbatim…

Despite the previous courts’ decisions, the petition again cited a Supreme Court case from 2017 to argue that the “denial to access to social media platforms can for the basis for constitutional violations.” In Packingham v. North Carolina, the high court ruled that a North Carolina law banning registered sex offenders from accessing social networking sites was unconstitutional. 


The Hill: An ethics resolution for the new Congress

By Kenneth E. Kellner

A donation to a political campaign is not supposed to be a monetary gift to the candidate. But that is exactly what a donation becomes under a loophole that permits the campaign committee of a member of Congress to be used as a personal money-making operation. This loophole can be closed easily through a change in the House Code of Official Conduct to prohibit members of Congress and their families from leasing property and selling goods or services to any campaign organizations to which they are affiliated. Agonizing debates over campaign finance reform are not required, and the beginning of the new 117th Congress is the perfect opportunity for this ethics rule upgrade.

Free Speech

New York Times: Have Trump’s Lies Wrecked Free Speech?

By Thomas B. Edsall

In making, embracing and disseminating innumerable false statements, Trump has provoked a debate among legal scholars over whether the once-sacrosanct constitutional protection of free speech has itself become a threat to democracy by enabling the widespread and instantaneous transmission of lies in the service of political gain.
In the academic legal community, there are two competing schools of thought concerning how to go about restraining the proliferation of flagrant misstatements of fact in political speech.

Richard Hasen, at the University of California-Irvine Law School, described some of the more radical reform thinking in an email:

There is a cadre of scholars, especially younger ones, who believe that the First Amendment balance needs to be struck differently in the digital age. The greatest threat is no longer censorship, but deliberate disinformation aimed at destabilizing democratic institutions and civic competence.

Hasen argues:

Change is urgent to deal with election pathologies caused by the cheap speech era, but even legal changes as tame as updating disclosure laws to apply to online political ads could face new hostility from a Supreme Court taking a libertarian marketplace-of-ideas approach to the First Amendment. As I explain, we are experiencing a market failure when it comes to reliable information voters need to make informed choices and to have confidence in the integrity of our electoral system. But the Court may stand in the way of necessary reform.

Online Speech Platforms

Politico: Twitter, Facebook lock Trump’s accounts in confrontation over Capitol breach posts

By Cristiano Lima

Twitter and Facebook locked President Donald Trump’s accounts and YouTube removed one of his videos after throngs of his supporters rioted inside the U.S. Capitol on Wednesday, marking the harshest confrontation to date between the president and the social media companies.

Twitter also threatened to permanently suspend Trump from the platform if he violated its rules again – even as a chorus of Democrats, civil rights activists and others urged the company to kick him off now for stoking attacks on the legitimacy of his election loss.

Protocol: Social networks didn’t create a coup. But they helped.

By David Pierce

As the riots started, President Trump tweeted that “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.” Eventually, Twitter applied a label: “This claim of election fraud is disputed, and this Tweet can’t be replied to, Retweeted, or liked due to a risk of violence.” Facebook did even less: “The US has laws, procedures, and established institutions to ensure the integrity of our elections,” its label said.

Immediately, the calls came for Twitter to take stronger action. Chris Sacca tweeted: “You’ve got blood on your hands, @jack and Zuck. For four years you’ve rationalized this terror. Inciting violent treason is not a free speech exercise. If you work at those companies, it’s on you too. Shut it down.” …

Beyond that, social platforms played a role in at least incentivizing people to take more action. Livestreaming rioters on YouTube were collecting donations throughout the afternoon; some of Twitch’s most popular videos were commentators watching those same livestreams. As the afternoon went on, the platforms cracked down on some of that content, but in almost every case, only after it had gone viral.

Reason (Volokh Conspiracy): Former Time Warner CEO Calls for “Private Accountability for Hate Speech”

By Eugene Volokh

From Jeff Bewkes, “former chairman and CEO of Time Warner,” and Jeffrey Sonnenfeld, “senior associate dean and professor of management practice at the Yale School of Management, where he is president of the Chief Executive Leadership Institute,” writing in Fortune:

[M]ore closely regulating social media companies is a good idea…. The regulation of technology is considered by many on the left and on the right to be a taboo, a bureaucratic assault on entrepreneurship, and a neo-Luddite undermining of U.S. competitiveness. However, screening of Internet communications is common around the world. It is completely possible to require private accountability for hate speech and inciting violence without curtailing the First Amendment. No constitutional rights are limitless-and the repeal of Section 230 has nothing to do with freedom of speech….

Repealing Section 230 is not a threat to the First Amendment. As long as anyone is free to launch their own platform, they must also shoulder the obligation to keep it safe and respectful.

The bulk of the article is indeed about repealing or modifying § 230, and there are perfectly plausible arguments to be had around that…

But that debate is about platform liability for speech that fits within a First Amendment exception, such as libel, or one of a few other categories (such as solicitation of crime, true threats of crime, and the like). There is no First Amendment exception for hate speech. The government can’t make people legally “accountab[le] for hate speech”-whether by imposing liability on them for their own speech, or for third parties’ speech-any more than it can make people legally accountable for “[dis]respectful” speech or unpatriotic speech or rude speech or blasphemous speech or the like.

And this is so, of course, regardless of § 230.

Biden Transition

New York Times: Biden Is Said to Pick Merrick Garland as Attorney General

By Michael S. Schmidt, Adam Liptak, and Katie Benner

President-elect Joseph R. Biden Jr. plans to nominate Judge Merrick B. Garland, whose Supreme Court nomination Republicans blocked in 2016, to be attorney general, placing the task of repairing a beleaguered Justice Department in the hands of a centrist judge, according to a person familiar with the matter.

Some of Judge Garland’s most prominent decisions disappointed liberals. He joined in a decision that gave rise to super PACs in the aftermath of Citizens United, the 2010 Supreme Court decision that amplified the role of money in politics…

Candidates and Campaigns

Protocol: Before the Georgia election, Democrats spent four times as much as Republicans on Facebook

By Issie Lapowsky

Seven of the the top 10 spenders on political Facebook ads in the week leading up to Georgia’s election supported Democratic candidates Jon Ossoff and Senator-elect Reverend Raphael Warnock. Just three supported their Republican opponents, Sens. David Perdue and Kelly Loeffler…

The dramatic spending gap is notable, particularly given Democratic concerns early on that Facebook’s ban on political ads after Election Day in November was giving Republican incumbents an advantage in Georgia. In December, largely due to that feedback, Facebook began allowing political ads to be targeted to Georgia, and the money quickly flooded in, particularly from the left.

The States

Bismarck Tribune: Attorney general: North Dakota Ethics Commission can write lobbying definitions

By Jack Dura

North Dakota’s Ethics Commission can write rules defining “lobby” and “lobbyist” pertaining to gift restrictions, according to Attorney General Wayne Stenehjem.

He issued an opinion on the matter Wednesday in response to the board’s request for clarification on its authority to expand on the definitions relating to gifts. Commissioners have encountered conflicting language in state law and the constitution as they have established the board and its rules.

North Dakota voters in 2018 approved the five-member Ethics Commission in a constitutional initiative that also includes a lobbyist gift ban that takes effect Jan. 5. The 2019 Legislature passed Republican majority leaders’ framework for implementing the measure.

Stenehjem wrote that the definitions of “lobby” and “lobbyist” in state government ethics law “limit the reach” of the board’s gift rules and are “inconsistent” with the board’s constitutional directive and authority. The Ethics Commission “has attempted to harmonize” the conflicting statute with the constitution by expanding the lobbyist definition, he wrote.

Daily Herald: Naperville’s new campaign disclosure rule a positive step

By Editorial Board

The Naperville City Council took a significant step to increase transparency last month when it approved an ethics rule requiring the mayor and council members to publicly disclose campaign contributions from big donors.

The new rule, proposed by Councilwoman Theresa Sullivan, will apply if someone who donated more than $750 to an elected city official becomes an interested party in a matter before the council.

Sullivan said the rule will ensure the public is aware of any prior financial support by a petitioner, a petitioner’s agents or public participants in a council agenda item — including speakers for or against an issue…

Still, Naperville’s mayor and three council members voted against the new rule, saying it addresses a problem that doesn’t exist. They warned the policy change would, among other things, discourage participation in the election process.

In addition, they said Illinois law already requires political candidates to report their campaign donations. Those campaign finance filings can be viewed online at the State Board of Elections website. That’s a fair point. But should residents be required to do their own research on the donations received by elected city officials?

Tiffany Donnelly

Tiffany Donnelly


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