Daily Media Links 10/13

October 13, 2020   •  By Tiffany Donnelly   •  
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In the News

Rappahannock News: Haystack brouhaha raises sign ordinance questions

By Rachel Needham

In an interview with this newspaper, First Amendment advocate David Keating…suggested that the provision in the temporary sign ordinance limiting the size of political signs is, in fact, altogether unconstitutional…

“[In the Rappahannock County code] you’ve got [a provision] that says you can have a seasonal display with no permit and there’s no limitation on that sign. You can’t make [a seasonal sign] a higher value sign than core political speech,” said Keating, who currently serves as the president of the Institute for Free Speech in Washington D.C. 

“That’s just not going to fly. There’s a fairly famous recent Supreme Court decision called Reed v. Town of Gilbert Arizona that brought up some sign ordinances and found that basically you can’t have different standards for different signs without applying strict scrutiny to the reason,” Keating said…

“Clearly you read this [Rappahannock County] ordinance and think no one has updated it since the [Gilbert] decision. … I think [County Attorney Goff’s] judgment was right that this wasn’t something [the county] could enforce.”

Furthermore, Keating argued, even the provision in Rappahannock County Code 170-102.D. which ordains that “temporary political signs shall not be erected more than 90 days prior to an election or referendum and shall be removed within 15 days after the election” may also be unconstitutional.

“Temporary construction signs can be posted for up to two years, but campaign signs are limited to 90 days before an election. I doubt any court would approve of that,” Keating said.

“If a time limit on other forms of political signs, such as Black Lives Matter, was applied, that would clearly be unconstitutional. That’s because political issues can remain relevant for much longer than 90 days.”

Philanthropy Roundtable: 2020 Annual Meeting

Breakout: Donor Privacy on the Move

Wednesday, Oct 14, 3:45 – 4:45 p.m. ET

Donor privacy is a fundamental of philanthropic freedom, protecting the right of those who choose to give anonymously to do so without fear of harassment. In 2020, 15 states considered legislation that would threaten such privacy. On the other side, seven states advanced donor privacy protections this year, with four of them enacting them into law. A broad coalition of groups spanning the ideological spectrum have been working to oppose bills that would undermine donor privacy and have contributed to significant legislative and judicial victories. In this session, you’ll hear from legislative experts about the latest updates in donor privacy protection. 

  • David Keating, President, Institute for Free Speech
  • Heather Lauer, Policy Director, People United for Privacy
  • Patrice Lee Onwuka, Senior Fellow, The Philanthropy Roundtable

Christie Herrera, Vice President of Policy and Government Affairs, The Philanthropy Roundtable (Moderator)

Reason (The Volokh Conspiracy): Legal Director Opening at Institute for Free Speech

By Josh Blackman

I am happy to pass along this job announcement.

The Institute for Free Speech anticipates the need for a highly experienced attorney to direct its litigation and legal advocacy…

The Legal Director will direct our litigation and legal advocacy, lead our in-house legal team, and manage and expand our network of volunteer attorneys.

Supreme Court

Wall Street Journal: Amy Coney Barrett Should Refuse to Recuse

By The Editorial Board

The Senate began confirmation hearings Monday for Judge Amy Coney Barrett, and Democrats know they’re unlikely to block her ascension to the Supreme Court. So they’re rolling out a supposed ethics test that if she joins the Court she must recuse herself on cases related to the presidential election.

The claim is that because President Trump nominated Judge Barrett, she has a conflict of interest in judging election cases. Senator Sheldon Whitehouse argues the standard is “whether a reasonable observer could reasonably question her participating in a dispute involving Trump’s reelection.” One thing for sure is that Mr. Whitehouse has no idea what “reasonable” means.

This new recusal theory fits the Democratic view of the Supreme Court as a results-driven superlegislature, but it’s wrong as a judicial principle. By Mr. Whitehouse’s yardstick, should Justices Neil Gorsuch and Brett Kavanaugh have sat out cases involving President Trump’s financial documents? They ruled against him, for the record. Should Ruth Bader Ginsburg and Stephen Breyer have refused to hear Clinton v. Paula Jones?

New York Times: Amy Coney Barrett Faces Questioning: Confirmation Hearing Live Updates

Facing a difficult re-election battle, Senator Lindsey Graham of South Carolina, the chairman of the Judiciary Committee, opened the second day of Supreme Court confirmation hearings with a prolonged political speech on health care, which he justified as a demonstration of “the difference between politics and judging.” …

But his remarks also functioned as a televised stump speech from the dais of the Judiciary Committee for South Carolina voters considering whether to support his Democratic challenger, Jaime Harrison…

Mr. Graham gave a sardonic nod to Mr. Harrison’s campaign coffers later in the hearing as he questioned Judge Barrett on the Citizens United decision that removed virtually any restrictions on corporate money in politics.

“You and I are going to come closer and closer about regulating money, because I do not know what is going on out there,” Mr. Graham said to a Democratic senator on the panel. “There is a lot of money being raised in this campaign. I would like to know where the hell some of it is coming from, but that is not your problem.”

Cato: You Shouldn’t Get Sued for Petitioning the Government

By Ilya Shapiro and Michael Collins

It is the right of all citizens to petition the government without fear of punishment or retaliation. This is not only an essential individual right, but often necessary for the government to remain informed and make better decisions. Yet, when Maggie Hurchalla reached out to her county commissioners about a development plan and expressed her environmental concerns about the project, she was hit with a lawsuit.

The Courts

Courthouse News: Ninth Circuit Rules Federal Agents Can’t Target Journalists at Portland Protests

By Karina Brown

Federal agents are once again restrained from targeting journalists and legal observers for assault and arrest during ongoing protests… – at least while the Ninth Circuit considers the government’s appeal…

In August, journalists and legal observers won an injunction barring federal agents from assaulting them and requiring them to wear unique identifying numbers.

The government appealed, and a motions panel for the Ninth Circuit Court of Appeals stayed the lower court’s injunction. In a split ruling, the majority wrote that the federal government faced “irreparable harm” from the ruling, and that it was likely correct when it argued that journalists can’t be exempt from orders to disperse that the general public must follow.

But on Friday, a three-judge panel for the Ninth Circuit, once again divided, lifted the stay and reinstated the lower court’s injunction…

The court ruled that the injunction was necessary because the threat of injury was not theoretical, and was part of a persistent and ongoing pattern…

[The government] claimed that the journalists hadn’t shown that federal agents were motivated by the desire to stop them from reporting – that they weren’t trying to chill journalists’ First Amendment rights.

Reason (Volokh Conspiracy): Federal Court Accepts Church’s Challenge to D.C.’s 100-Person Limit on Outdoor Religious Services

By Eugene Volokh

In yesterday’s Capitol Hill Baptist Church v. Bowser, Judge Trevor McFadden (D.D.C.) granted a preliminary injunction allowing the church to hold a large outdoor, masked, socially-distanced worship service in D.C. Judge McFadden applied the federal Religious Freedom Restoration Act, which generally requires the government to grant religious exemptions from generally applicable laws when (1) the law “substantially burdens” religious practice and (2) the government can’t show that denying the exemption is the least restrictive means to a compelling government interest…

Here is the core of the court’s analysis as to the strict scrutiny analysis (element 2 noted above): …

No matter how the protests were organized and planned, the District’s (and in particular, Mayor Bowser’s) support for at least some mass gatherings undermines its contention that it has a compelling interest in capping the number of attendees at the Church’s outdoor services. The Mayor’s apparent encouragement of these protests also implies that the District favors some gatherings (protests) over others (religious services)…

The Media

The Intercept: The New York Times Guild Once Again Demands Censorship of Colleagues

By Glenn Greenwald

The New York Times Guild, the union of employees of the paper of record, tweeted a condemnation on Sunday of one of their own colleagues, op-ed columnist Bret Stephens. Their denunciation was marred by humiliating typos and even more so by creepy and authoritarian censorship demands and petulant appeals to management for enforcement of company “rules” against other journalists. To say that this is bizarre behavior from a union of journalists, of all people, is to woefully understate the case…

To start with, this is a case of journalists using their union not to demand greater editorial freedom or journalistic independence – something one would reasonably expect from a journalists’ union – but demanding its opposite: that writers at the New York Times be prohibited by management from expressing their views and perspectives about the controversies surrounding the 1619 Project. In other words: They are demanding that their own journalistic colleagues be silenced and censored. What kind of journalists plead with management for greater restrictions on journalistic expression rather than fewer? 

Online Speech Platforms

Washington Post: With election day looming, Twitter imposes new limits on U.S. politicians — and ordinary users, too

By Elizabeth Dwoskin and Craig Timberg

Twitter will impose new warnings on politicians’ lies, restrict premature declarations of victory and block calls for polling violence or other disruptions, the company announced Friday as it rolled out wide-ranging changes designed to harden the platform against abuse related to the Nov. 3 U.S. election.

The moves also will temporarily alter the look and feel of Twitter, a service built on instantaneous conversation, quips, and breaking news. Retweeting others, for example, will require an extra step designed to encourage users to add their own thoughts before posting. Recommendations and trends will get new curbs intended to prevent abuse…

“Twitter has a critical role to play in protecting the integrity of the election conversation, and we encourage candidates, campaigns, news outlets and voters to use Twitter respectfully and to recognize our collective responsibility to the electorate to guarantee a safe, fair and legitimate democratic process this November,” company officials said in a blog post published at noon Friday…

Twitter’s Friday announcement means that U.S. political figures with more than 100,000 followers – a category that includes Trump with his 87 million – will be subject to “additional warnings and restrictions” if they spread falsehoods. 

The Hill: Twitter labels Trump tweet on coronavirus immunity as ‘misleading’

By John Bowden

A tweet from President Trump claiming that he was now “immune” to COVID-19 after his treatment for the virus last week was tagged by the platform as “misleading” on Sunday.

The tweet in question, posted late Sunday morning, stated that the president received a “total and complete sign off from White House Doctors yesterday.”

“That means I can’t get it (immune), and can’t give it. Very nice to know!!!” he continued.

The post was hidden several hours later by Twitter content administrators with a tag that reads, “[t]his Tweet violated the Twitter Rules about spreading misleading and potentially harmful information related to COVID-19. However, Twitter has determined that it may be in the public’s interest for the Tweet to remain accessible.” The tag also directed users to the platform’s blog explaining how content relating to the coronavirus is displayed on Twitter’s platform.

New York Times: Facebook Bans Content About Holocaust Denial From Its Site

By Sheera Frenkel

In 2018, Facebook’s chief executive, Mark Zuckerberg, famously cited Holocaust deniers in a fumbled attempt to make a point about free speech.

At the time, he said the deniers – those who reject or distort the Holocaust, a genocide in which millions of Jews and others were killed by Nazis and their collaborators during World War II – were a key example of people whom he personally disagreed with. But, he said, he did not think Facebook should censor or remove what they posted “because I think there are things that different people get wrong.”

On Monday, Mr. Zuckerberg announced he was reversing his decision. Facebook, he said, would now ban content that “denies or distorts the Holocaust.”

In announcing the change, Facebook cited a recent survey that found that nearly a quarter of American adults ages 18 to 39 said they believed the Holocaust either was a myth or was exaggerated, or they weren’t sure whether it happened.

“I’ve struggled with the tension between standing for free expression and the harm caused by minimizing or denying the horror of the Holocaust,” Mr. Zuckerberg wrote in his blog post. “Drawing the right lines between what is and isn’t acceptable speech isn’t straightforward, but with the current state of the world, I believe this is the right balance.”

CNN Business: YouTube CEO won’t say if company will ban QAnon

By Kaya Yurieff

In an interview with CNN’s Poppy Harlow for the Boss Files podcast, YouTube CEO Susan Wojcicki stopped short of pledging to ban QAnon followers on the platform.

“We’re looking very closely at QAnon,” Wojcicki said. “We already implemented a large number of different policies that have helped to maintain that in a responsible way.” …

Wojcicki pointed to changes made to YouTube’s recommendation system, which she said have reduced viewership of QAnon content by more than 80%. She said “a lot” of QAnon-related content would be classified in what YouTube calls “borderline content” — which doesn’t explicitly break its rules…

“I think with every policy, it has to be defined very clearly. Like what does that exactly mean, a QAnon group exactly?” Wojcicki said. “That’s a kind of thing that we would need to put in terms of the policies and make sure that we were super clear. So we are continuing to evolve our policies here. It’s not that we’re not looking at it or we don’t want to make changes.

“I think the way to approach it is by actually having the policies implemented in the right way. And our platform is very different from how Facebook works. And so I think each of us will take an approach that makes the most sense for our platforms,” she added.

Axios: Engagement with untrustworthy Facebook content doubles since 2016

By Ashley Gold

Facebook users engage with content from untrustworthy outlets twice as often today as they did at the time of the 2016 U.S. election, researchers at the German Marshall Fund found, despite the many measures the platform and its competitors have rolled out to combat the spread of misinformation.

Candidates and Campaigns

Vice: Biden’s Twitch Channel Banned the Word ‘Frack’ and Mentions of ‘War Crimes’

By Matthew Gault

On Wednesday, before the vice presidential debate, Joe Biden’s Twitch channel banned users from its chat for talking about “Obama era war crimes,” namely the administration’s role in the Saudi Arabian-led intervention in Yemen. For a time, Biden’s Twitch channel also banned users from typing the word “frack.” 

The States

The Hill: Democrats accuse tech companies of deceitful tactics in campaign against Calif. ballot measure

By Rebecca Klar

Democrats are accusing app-based gig companies including Uber and Lyft of playing dirty in their multimillion-dollar ad campaign supporting a California ballot measure that would allow their drivers to continue to be treated as independent contractors rather than employees. 

California state Assemblywoman Lorena Gonzalez (D) said Monday that the campaign backing Proposition 22 includes tactics that are “dirtier than I’ve ever seen before,” such as buying up “fake groups” that have no actual members and misleading names meant to tie them to progressives such as Sen. Bernie Sanders (I-Vt.). 

“This is historic spending by any side on an initiative, and not historic by California standards; it’s historic nationally,” Gonzalez said during a press conference. “When you think about how much these companies put into the initiative process to simply write their own rules, this is a new path that has been chosen by these Silicon Valley billionaire corporations, and it should alarm all of us.”

Sanders on Monday tweeted his personal opposition to Proposition 22, denouncing as dishonest a mailer that backed it under the title “Feel the Bern, Progressive Voter Guide.”

The mailers, which also back the Democratic presidential ticket, have been showing up in Southern California mailboxes. But the groups named in them, such as “Our Voice, Latino Voter Guide” and the “Council of Concerned Women Voters Guide,” do not exist, SFGate reported.

Columbus Dispatch: Public employees disciplined for speaking their minds

By Theodore Decker

In Pickerington, two school administrators faced different discipline for their social media postings on hot-button issues.

At Dublin Scioto High School, two administrators and a teacher avoided discipline but not scrutiny after wearing shirts carrying messages that some deemed politically controversial. 

Among them: “Black lives matter,” “Science is real,” “Love is love,” and the shockingly polarizing sentiment, “Kindness is everything.” …

Apparently eager to grind their feet into an employee’s free speech, Columbus leaders approved an up-to-$50,000 contract to review the tweets of an outspoken deputy chief in the Columbus Division of Police.

That such moves are blunders became even clearer after a federal appeals court panel overturned a lower court ruling in a lawsuit brought by an EMS captain who expressed some unquestionably vile thoughts online about the death of 12-year-old Tamir Rice at the hands of Cleveland police.


Tiffany Donnelly

Tiffany Donnelly


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