Daily Media Links 10/14

October 14, 2020   •  By Tiffany Donnelly   •  
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We’re Hiring!

Legal Director – Institute for Free Speech – Washington, DC or Virtual Office

The Institute for Free Speech anticipates the need for a highly experienced attorney to direct its litigation and legal advocacy. In September, President Trump announced the nomination of our longtime Legal Director to the Federal Election Commission, and it is likely he would be confirmed this fall. Once the hearing for that nomination is officially announced, the Institute for Free Speech will move forward with interviewing applicants.

This is a rare opportunity to develop and implement a long-term legal strategy directed toward the protection of Constitutional rights. You would work to create legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, that threaten citizens’ privacy if they speak or join groups, and that impose heavy burdens on organized political activity.

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.

A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country.

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

In the News

Lewis Thomason: George Scoville named Adjunct Fellow with the Institute for Free Speech

By Sandra Cannon

Congratulations to George Scoville who has been named Adjunct Fellow with the Institute for Free Speech.  The Institute for Free Speech promotes and defends First Amendment rights through litigation, communication, activism, training, research, and education.  They are the nation’s largest organization dedicated solely to protecting First Amendment political speech rights. 

Supreme Court

Washington Post: Barrett favors religious expression over other speech. The Constitution doesn’t.

By Nelson Tebbe and Micah Schwartzman

Rather than insisting that religious groups be treated equally, [Supreme Court nominee Amy Coney Barrett] seems to approve of those groups receiving special privileges, as compared with their secular counterparts.

Consider an important case she decided last month – her only really significant case on religion. In response to the coronavirus pandemic, Illinois Governor J.B. Pritzker (D) had limited most gatherings to 50 people. He also had exempted religious groups and houses of worship, allowing them to congregate in larger groups, though advising them to adhere to social distancing measures. The state Republican Party sued, claiming that the policy unconstitutionally favored religion by subjecting core political speech – citizens discussing the presidential election, say – to tighter restrictions than those placed on religious expression. The Illinois GOP asked the court to hold that religious and political speech had to be treated equally, so that Republicans (following appropriate safety precautions) could gather in larger groups, as well.

As part of a three-judge panel, Barrett joined a decision written by Judge Diane Wood that rejected the Republicans’ challenge. The panel held that “preferential treatment” for religion is a constitutional norm: “[S]peech that accompanies religious exercise has a privileged position under the First Amendment,” the judges reasoned.

That decision is troubling in several respects.

Techdirt: Clarence Thomas Doesn’t Like Section 230, Adding To His Anti-Free Speech Legacy

By Mike Masnick

Today, [Supreme Court Justice Clarence] Thomas decided to suggest he believes that Section 230’s 1st Amendment protecting elements have been interpreted too broadly, and suggests that he’d like to overturn nearly 25 years of “settled” law about how broadly 230 should be applied. He did this as part of the Court rejecting the petition in the Malwarebytes case. We’ll have more on this case later, but as we’ve written in the past, it involves a troubling interpretation that says if moderation is used in a way deemed anti-competitive, 230 does not protect that moderation.

Thomas agrees with the decision to reject hearing that case, but then decides to signal his desire to basically undermine the original Section 230 ruling in Zeran v. AOL that set the bar, by noting that Section 230 provided a very broad immunity. That ruling was in the 4th Circuit, but basically every other appeals court that has ruled on 230 has adopted the Zeran standard. There is no circuit split, and the the Supreme Court has never directly examined the issue. Thomas suggests they should.

To be clear, while there are dozens (or perhaps more than that) of kooky and crazy interpretations out there of Section 230, Thomas’s critique of the interpretation is much more measured. That doesn’t mean that it’s correct. Indeed, I think it’s wrong on multiple accounts. But it’s not wrong in the completely nonsense sort of ways that so much 230 analysis is these days. 

Reason (Volokh Conspiracy): Justice Thomas Writes in Favor of a Narrow Reading of 47 U.S.C. § 230

By Eugene Volokh

From his statement today respecting the denial of certiorari this morning in Malwarebytes, Inc. v. Enigma Software Group USA, LLC:

I write to explain why, in an appropriate case, we should consider whether the text of this increasingly important statute [47 U.S.C. §230] aligns with the current state of immunity enjoyed by Internet platforms….

The Hill: Supreme Court declines to hear Democrats’ emoluments case against Trump

By John Kruzel and Harper Neidig

The Supreme Court on Tuesday declined to take up a case by 29 Senate Democrats who alleged that President Trump violated the Constitution’s Emoluments Clause, which prohibits self-dealing by federal officeholders.

The lawmakers had asked the court to review a February ruling by a three-judge panel of the D.C. Circuit Court of Appeals that the senators lacked the legal right to sue the president.

In their brief, the lawmakers had argued that Trump’s continued ownership of companies engaged in business with foreign governments amounted to accepting “unauthorized financial benefits from foreign states” in violation of the constitutional restriction.

The court’s denial means that Democrats’ petition failed to garner support from at least four justices. It also leaves in place the lower court ruling.

In their February decision, the D.C. Circuit Court panel ruled that the courts were not the proper venue for the dispute…

The Trump administration is asking the Supreme Court to take up two other emoluments lawsuits against the president after a pair of lower courts ruled that suits brought by the liberal nonprofit Citizens for Responsibility and Ethics in Washington and the attorneys general for Washington, D.C., and Maryland could move forward.

Cato: John Roberts and Free Speech: A Report on the Roberts Court’s First Amendment Jurisprudence (Video)

Featuring Ronald Collins, David L. Hudson Jr., Robert Corn-Revere, Lyrissa Lidsky, and Ilya Shapiro

More than any other Supreme Court justice in recent history, John Roberts has played a defining role in shaping the contours of our free-speech law. He’s written more than twice as many majority opinions in this area than any of his colleagues, which gives his jurisprudence staying power. There’s a certain resolve, at once philosophical and tactical, at work here. In 95 percent of the free-expression cases decided during his 15-year tenure, Roberts has been in the majority. Equally revealing, Roberts has taken the lead opinion nearly 30 percent of the time. In other words, there’s something special about this genre of cases, something that speaks to who Roberts is and what he hopes the Court bearing his name might be remembered for. In the first comprehensive report on the Roberts Court’s free-speech jurisprudence, Ronald Collins and David Hudson-each of whom has published more than 10 books on free speech-examine the 56 such cases handed down by the Roberts Court from 2005 through 2020. Beyond its focus on Chief Justice Roberts, the authors’ eye-opening study provides a detailed look at the cases, the justices’ differing approaches, and lawyers who have played key roles in influencing the Court.

State Department

Politico: Trump administration demands think tanks disclose foreign funding

By Nahal Toosi

The Trump administration is demanding that U.S. think tanks and academic institutions publicly disclose what funding they receive from foreign governments or otherwise risk losing access to State Department officials.

The move, unveiled in a statement Tuesday by Secretary of State Mike Pompeo, comes amid growing bipartisan concern about the role outside governments, ranging from China to the United Arab Emirates, play in shaping academic and policy debates in the United States.

“To protect the integrity of civil society institutions, the [State] Department requests henceforth that think tanks and other foreign policy organizations that wish to engage with the department disclose prominently on their websites funding they receive from foreign governments, including state-owned or state-operated subsidiary entities,” Pompeo said in the statement.

“Disclosure is not a requirement for engaging with such entities,” he added. “Department staff will, however, be mindful of whether disclosure has been made and of specific funding sources that are disclosed when determining whether and how to engage.”

Congress

Wall Street Journal: Sheldon Whitehouse Does Glenn Beck

By The Editorial Board

Rhode Island Senator Sheldon Whitehouse had 30 minutes to question Supreme Court nominee Amy Coney Barrett on Tuesday, but he failed to ask anything. He devoted his time instead to a Glenn Beck-style tutorial on the vast right-wing conspiracy that is supposedly buying the federal courts…

Like all obsessives, Mr. Whitehouse has a single theory that explains everything: “dark money.” Thus the supposed connections between [Leonard Leo] and this group or that group, all flowing inevitably back somehow to, wait for it, the Koch brothers. “Something is not right around the Court, and dark money has a lot to do with it,” he said…

Mr. Whitehouse had the bad luck to be followed by Republican Sen. Ted Cruz, who related Mr. Whitehouse’s ties to such Democratic dark-money operations as Demand Justice and Arabella Advisors. Demand Justice is among the progressive outfits demanding that Democrats pack the Supreme Court with new Justices if they win the Senate. Arabella funds a variety of left-wing political groups that in turn fund Democrats. But Arabella doesn’t disclose its financial donors.

Reason: Defending Amy Coney Barrett, Ted Cruz Highlights the Threats That Democrats Pose to Civil Liberties

By Jacob Sullum

Senate Democrats are portraying Supreme Court nominee Amy Coney Barrett as a menace to health care, abortion access, and democracy. During Barrett’s confirmation hearing today, Sen. Ted Cruz (R-Texas) countered that argument by detailing some of the ways in which justices nominated by a Democratic president could be expected to endanger civil liberties-in particular, freedom of speech…

When Hillary Clinton ran for president in 2016, Cruz noted, she promised to nominate justices who would vote to overturn Citizens United v. Federal Election Commission, the 2010 decision in which the Supreme Court concluded that restrictions on political speech by labor unions and corporations, including an ideologically diverse array of nonprofit advocacy groups, were inconsistent with the First Amendment. The issue in that case, Cruz reminded us, was whether “a small nonprofit organization based in D.C.” could be fined for airing and promoting “a movie critical of a politician”-Clinton herself-close to an election, which qualified as a forbidden “electioneering communication.”

During the first round of oral argument in Citizens United, Cruz noted, Justice Samuel Alito asked Deputy Solicitor General Malcolm Stewart whether the Constitution would allow Congress to ban material like Hillary: The Movie not just on radio or TV but in other media as well, such as DVDs, the internet, and books. Stewart said yes, noting that the ban on “express advocacy” by corporations-speech that does not merely praise or pan a candidate but explicitly supports his election or defeat-was not limited to radio and TV…

That exchange was “truly chilling,” Cruz said, since it reflected “a terrifying view of the First Amendment.” …

The discussion of book bans was a turning point in the case. 

House Intelligence Committee: House Intelligence Committee to Hold Virtual Open Hearing on Misinformation and Conspiracy Theories Online

On Thursday, October 15, 2020 at 1:30 pm ET, the House Permanent Select Committee on Intelligence (HPSCI) will convene a virtual unclassified hearing entitled, “Misinformation, Conspiracy Theories, and ‘Infodemics’: Stopping the Spread Online.” …

In the hearing, the Committee will examine:

  • the intersection of and divergences between different online conspiracy and misinformation narratives;
  • the role of social media platforms in the proliferation and deceleration of such content;
  • how foreign actors are taking advantage of misinformation circulating U.S. online communities;
  • steps that the US government and private sector need to take in response; and
  • the implications for our social and political discourse beyond Election Day 2020.

Witnesses:

Dr. Joan Donovan, Research Director, Shorenstein Center on Media, Politics, and Public Policy, Harvard Kennedy School

Ms. Nina Jankowicz, Disinformation Fellow, the Wilson Center

Ms. Cindy Otis, Vice President, Alethea Group

Ms. Melanie Smith, Head of Analysis, Graphika Inc.

The Committee will livestream the hearing for the public and press here.

Free Speech

New York Times Magazine: The Problem of Free Speech in an Age of Disinformation

By Emily Bazelon

It’s an article of faith in the United States that more speech is better and that the government should regulate it as little as possible. But increasingly, scholars of constitutional law, as well as social scientists, are beginning to question the way we have come to think about the First Amendment’s guarantee of free speech. They think our formulations are simplistic – and especially inadequate for our era. Censorship of external critics by the government remains a serious threat under authoritarian regimes. But in the United States and other democracies, there is a different kind of threat, which may be doing more damage to the discourse about politics, news and science. It encompasses the mass distortion of truth and overwhelming waves of speech from extremists that smear and distract.

This concern spans the ideological spectrum. Along with disinformation campaigns, there is the separate problem of “troll armies” – a flood of commenters, often propelled by bots – that “aim to discredit or to destroy the reputation of disfavored speakers and to discourage them from speaking again,” Jack Goldsmith, a conservative law professor at Harvard, writes in an essay in “The Perilous Public Square,” a book edited by David E. Pozen that was published this year. This tactic, too, may be directed by those in power. Either way, it’s often grimly effective at muting critical voices. And yet as Tim Wu, a progressive law professor at Columbia, points out in the same book, the “use of speech as a tool to suppress speech is, by its nature, something very challenging for the First Amendment to deal with.”

These scholars argue something that may seem unsettling to Americans: that perhaps our way of thinking about free speech is not the best way. At the very least, we should understand that it isn’t the only way. Other democracies, in Europe and elsewhere, have taken a different approach. Despite more regulations on speech, these countries remain democratic; in fact, they have created better conditions for their citizenry to sort what’s true from what’s not and to make informed decisions about what they want their societies to be. Here in the United States, meanwhile, we’re drowning in lies.

Online Speech Platforms

Wall Street Journal: Facebook to Ban Ads Discouraging Vaccines

By Sarah E. Needleman

Facebook Inc. said it would ban ads that discourage immunization, part of a broader effort to combat misinformation about health vaccinations in the coronavirus pandemic…

Facebook’s new initiative includes cracking down on ads that explicitly discourage people from getting a vaccine, the company said in a blog post. It said it would begin preventing such ads from appearing on its flagship platform and Instagram over the next few days.

Ads that advocate for or against legislation or government policies around vaccines, including those developed for Covid-19, would still be allowed. 

Washington Post: Fake Twitter accounts posing as Black Trump supporters appear, reach thousands, then vanish

By Craig Timberg and Isaac Stanley-Becker

The remarkable reach of @CopJrCliff and other fake accounts from supposed Black Trump supporters highlights how an account can be effective at pushing misleading narratives in just a few days – faster than Twitter can take it down.

A network of more than two dozen similar accounts, many of them using identical language in their tweets, recently has generated more than 265,000 retweets or other amplifying “mentions” on Twitter, according to Clemson University social media researcher Darren Linvill, who has been tracking them since last weekend. Several had tens of thousands of followers, and all but one have now been suspended.

Researchers call fake accounts featuring supposed Black users “digital blackface,” a reference to the now-disgraced tactic of White people darkening their faces for film or musical performances intended to mimic African Americans…

“It’s asymmetrical warfare,” said Linvill, lead researcher for the Clemson University Media Forensics Hub. “They don’t have to last long. And they are so cheap to produce that you can get a lot of traction without a whole lot of work. Thank you, Twitter.”

Linvill said he found some evidence of foreign origins of the network, with a few traces of the Russian Cyrillic alphabet appearing in online records of the accounts. One account previously tweeted to promote an escort service in Turkey, Linvill found.

Candidates and Campaigns

New York Times: Trump Campaign Suggests Omarosa Manigault Newman Pay for $1 Million in Ad Spending

By Maggie Haberman

The Trump campaign has suggested that Omarosa Manigault Newman, a former White House aide, pay for an ad campaign costing nearly $1 million as a “corrective” remedy for her critical comments about President Trump in her 2018 book and in subsequent interviews.

The recommendation was made in a document filed by the Trump campaign from an expert witness last week as part of an ongoing arbitration case; The Times reviewed the document…

Yet campaign finance experts said that if Ms. Manigault Newman were to finance an advertising campaign, it would effectively represent a campaign contribution.

Having her pay for an ad campaign “in my opinion would be an illegally large in-kind contribution to the Trump campaign,” said Paul S. Ryan, the vice president for policy and litigation at the good-government group Common Cause.

Even if she were just to appear in an ad, without funding it, there would be a value to Ms. Manigault Newman’s time that would almost certainly exceed the $2,800 federal contribution limit, Mr. Ryan said.

Brendan Fischer, of the Campaign Legal Center, said, “I can’t believe that the Trump campaign’s attorneys would have allowed something like that to have been put in writing.”

He added, “If Omarosa were to go through with it, then both she and the Trump campaign would be violating campaign finance laws.”

The States

The Hill: Twitter to pay $100,000 to Washington for violating state’s campaign finance laws

By Rebecca Klar

Twitter will pay $100,000 to Washington after the social media platform failed to maintain public inspection records of nearly $200,000 paid to it for political ads in violation of state law, state Attorney General Bob Ferguson (D) says. 

The judgement filed Tuesday in King County Superior Court asserts that since 2012, Twitter has failed to maintain records from at least 38 Washington candidates and committees that bought ads. 

Washington’s campaign finance law requires political advertisers to retain records related to political ads. 

“Transparency in political advertising is critical to a free and informed electorate,” Ferguson said in a statement. “Whether you’re a local newspaper or a multinational social media platform, you must follow our campaign finance laws.” 

NBC News: This small town’s battle over gay Pride flags is helping fuel a national debate

By Julie Compton

The new [Heber City, Utah] ordinance, passed in August, requires banner applications be reviewed by the city manager, with appeals submitted to the city council for review. Any event or message promoted on the signage must be sponsored by Heber City, Wasatch County or the Heber Valley Chamber of Commerce, and events must be both nonpolitical and nonprofit. Due to an ongoing debate within the community over whether Pride banners are “political” speech, and since the new ordinance bans political banners, it’s unclear whether city officials will approve them next June…

Prior to the ordinance, residents could apply to display banners on city lampposts for a fee of a few hundred dollars, so long as banners were noncommercial…No one questioned the process until June 2019, when residents saw their downtown adorned in rainbow banners for the first time.

A day after they appeared along Main Street, residents filled a city council meeting to voice divided opinions over them. While many were thrilled, others saw the rainbow banners as government-sanctioned “political speech,” according to [Heber City Mayor Kelleen] Potter. She said city officials began receiving phone calls and emails from people who wanted to know if they could hypothetically apply to install flags with anti-abortion or anti-pornography messages, or with Ku Klux Klan or Nazi symbols, though no one actually applied to install such banners. Still, the inquiries sparked debate among city officials over whether an ordinance was needed to regulate them.

Tiffany Donnelly

Tiffany Donnelly

https://www.ifs.org/author/tdonnelly/

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