Daily Media Links 10/25

October 25, 2019   •  By Alex Baiocco   •  
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The Courts

Reason (Volokh Conspiracy): Vagueness Challenge to N.H.’s Criminal Libel Statute Can Go Forward

By Eugene Volokh

In Frese v. MacDonald, the ACLU of New Hampshire is challenging New Hampshire’s criminal libel statute…

The ACLU is arguing that the statute is unconstitutionally vague, and today, U.S. District Judge Joseph N. Laplante held that the challenge could go forward (though he did not definitively rule on whether the statute was indeed unconstitutional):

The court’s vagueness concerns are two-fold. First, the criminal defamation statute arguably fails to provide “people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits” and what speech is acceptable…. [A] statute cannot criminalize conduct “in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application'” ….

Second, Frese has sufficiently pleaded that the criminal defamation statute may be prone to arbitrary enforcement. Frese alleges that, “[o]n information and belief, individuals throughout New Hampshire routinely violate the criminal defamation statute, but [he] was arrested and prosecuted because he criticized law enforcement officials.” As clarified by his objection, Frese urges this court infer that because the statute “gives law enforcement far too much discretion in deciding whom to prosecute,” the motivation to prosecute criminal defamation is often political…

I appreciate the judge’s argument on this, but I’m inclined to think that criminal libel laws that punish knowing lies that damage reputation are constitutional; here’s the analysis from my forthcoming Anti-Libel Injunctions article: …


Washington Post: The Technology 202: Democrat drafting bill to stop Facebook from profiting off politicians’ ads containing falsehoods

By Cat Zakrzewski

Rep. David Cicilline is working on legislation targeting Facebook’s policy of allowing politicians to lie in ads, insisting that Congress has a “responsibility to prohibit” the social media giant from making money off information it knows to be false.

The Rhode Island Democrat at the helm of the House antitrust investigation into Big Tech says it’s “not acceptable” for Facebook to insist it won’t fact-check or remove politicians’ ads even when they contain false information.

It is “shocking,” Cicilline said in an interview, that the company sees “no responsibility in ensuring that that platform is not being used to completely mislead or lie to the American people on the most critical issues of the day.”…

“From a business perspective, the very small percent of our business that is made up of political ads does not come anywhere close to justifying the controversy that this incurs for our company,” Zuckerberg said. “So this really is not about money. This is on principle, I believe in giving people a voice.”…

[Cicilline] tells me the First Amendment is “not a basis” to allow Facebook to profit off lies. “Rather than being a First Amendment issue, it’s really a kind of revenue generation issue for a business,” he said.

Rep. Garland “Andy” Barr (R-Ky.) commended Zuckerberg’s position on ads in this week’s hearing. “I do find it highly troubling that politicians are trying to bully you to be a fact checker and to be the speech police especially in politics at the core of the First Amendment,” Barr said during the hearing…

Cicilline tells me his plans for a bill are in the early stages, and that his staff is researching how the law approaches false information in ads.

“There are a number of places in our economy and in our communications system where this kind of advertisement is prohibited,” Cicilline said. “Sometimes it’s by consumer protections, sometimes it’s by [Federal Communications Commission] regulations.”

NTV: Senator Ben Sasse condemns SHIELD Act


“Today Speaker Pelosi and House Democrats are voting to gut the First Amendment and silence free speech. This bill is a pile of hot garbage that would give federal bureaucrats the power to decide what is and isn’t political speech and then demand that records are kept on who says what.

“This bill is so blatantly un-American that it has managed to unite constitutional conservatives and ACLU liberals against it. Speaker Pelosi says that this is about stopping foreign interference in our elections, but here’s the deal: the whole reason America’s adversaries try to interfere in our elections is because they hate that we’re free and, by stripping us of our freedoms, Speaker Pelosi’s bill would give them exactly what they want.”

The SHIELD Act passed in the U.S. House of Representatives on Wednesday…

Critics said it’s too broad and brings up First Amendment concerns.

The White House has threatened to veto the bill if it makes it to the president’s desk.

First Amendment 

Reason (Volokh Conspiracy): Free speech and LGBT rights

By Dale Carpenter

In commemoration of the 100th anniversary of Schenck v. United States and Abrams v. United States, the SMU Law Review has published an important symposium issue with a range of outstanding contributors…

My own essay, “Born in Dissent: Free Speech and Gay Rights,” can be viewed and downloaded on SSRN here. My focus in this particular essay is on a little-known gay political organization that formed almost fifty years before the Stonewall Inn riots in 1969. From the abstract:

It is no stretch to say that Justice Oliver Wendell Holmes created the modern First Amendment a hundred years ago in his opinions in Schenck and Abrams. It is equally true that the First Amendment created gay America. For advocates of gay legal and social equality, there has been no more reliable and important constitutional text. The freedoms it guarantees protected gay cultural and political institutions from state regulation designed to impose a contrary vision of the good life. Gay organizations, clubs, bars, politicians, journals, newspapers, radio programs, television shows, web sites-all of these-would have been swept away in the absence of a strong and particularly libertarian First Amendment. It shielded gay political efforts when most of the country thought homosexuals were not just immoral, but also sick, dangerous, and criminal…

This history of protected dissent, I assert in the conclusion, should inform how we think about symmetrical protection for those who dissent from various LGBT-rights projects today:

The norms the state enforces are as changeable as culture itself. When LGBT advocates defend the role of the state as enforcer of social norms at the expense of speech and expressive association, I think about the painful gay ordeal with the caretaker state. In Gerber’s Germany, there were nightclubs for gays in the 1920s and concentration camps for them in the 1940s. The relative tolerance of Gerber’s pre-Depression New York gave way to the repression of the 1930s.

There is a cautionary lesson in this. Somewhere, someday we may again hear the state’s call to heel. Comes that day we will look for sanctuary. We will be relieved to find the constitutional experiment known as the First Amendment still going strong, large enough to accommodate dissent about ultimate good and sturdy enough to fend off the state’s long and ready list of worthy causes.

Online Speech Platforms 

ABC News: Facebook clarifies Zuckerberg remarks on false political ads

By David Klepper, Associated Press

[D]uring an exchange with Democratic U.S. Rep. Alexandria Ocasio-Cortez, Zuckerberg explained that his company will not remove political ads from candidates – even if false – because he believes voters deserve unfiltered access to the words of politicians. He said exceptions would be made for political ads that encouraged violence or seek to suppress voting.

Facebook on Thursday sought to set the record straight, noting that while it will not fact check political ads from candidates, it does evaluate the accuracy of political ads from political advocacy groups or political action committees.

“In a democracy, people should decide what is credible, not tech companies,” the company wrote in a statement emailed to The Associated Press on Thursday. “That’s why – like other internet platforms and broadcasters – we don’t fact check ads from politicians.”…

“Given the sensitivity around political ads, we have considered whether we should ban them altogether,” Facebook said in its statement to the AP on Thursday. “But political ads are important for local candidates, up-and-coming challengers, and advocacy groups that use our platform to reach voters and their communities.”…

Zuckerberg’s comments on Facebook’s hands-off policy also failed to satisfy Waters, who said Wednesday it would give “anyone Facebook labels a politician a platform to lie, mislead and misinform the American people, which will also allow Facebook to sell more ads. The impact of this will be a massive voter suppression effort.”

Washington Post: Civil rights leaders thought they’d figured out how to deal with Facebook. But now they are ‘livid.’

By Craig Timberg

“The only principle is business as usual and trying to line their pockets,” said Arisha Hatch, vice president for Color of Change, one of several civil rights groups that had been in regular contact with Sandberg and others at the company. “There is no principled stand that people can take that would allow them to behave on the platform as voter suppressionists have behaved in our country for decades.”

Hatch and others view the company’s tolerance of deception against the backdrop of the nation’s ugly history of voter suppression, much of it conducted by politicians and government officials…

Facebook’s policies still prohibit voter suppression – even when practiced by politicians – but civil rights leaders express little confidence that the platform will enforce this with sufficient speed and breadth. Addressing obvious falsehoods, such as lies about the dates or locations of polling, would not be enough to defeat politicians’ efforts to hold down minority voting participation on the platform, say civil rights leaders.

They express particular worry that American political figures could engage in tactics similar to those used in Russia’s disinformation campaigns. The Internet Research Agency, in St. Petersburg, used fake social media accounts in 2016 to target African Americans concerned about police violence and other issues. The Russian-based Facebook group “Woke Blacks,” for example, wrote, “We cannot resort to the lesser of two devils. Then we’d surely be better off without voting AT ALL.”…

Facebook has made strides in detecting and shutting down such foreign operations, but civil rights groups and disinformation researchers express little faith in the company’s ability to find and act against domestic political figures who may attempt similar tactics. The exemption allowing politicians to lie makes that problem worse, they say, even if Facebook does not officially tolerate voter suppression.

Independent Groups 

Washington Post: A super PAC won’t save Joe Biden

By Paul Waldman

More money is always better than less money, of course, but in the primaries it’s hard to imagine that whatever problems Biden has can be solved with a bunch of ads being dropped on TV in Des Moines or on Facebook (since super PACs can’t coordinate directly with candidates, they usually dump most of their money on ineffectual advertising).

If instead he’s looking forward to the general election, that could be a different story, provided that the pro-Biden super PAC spent its money wisely, which is never a guarantee. But there, too, the same question comes up: Is money going to be a problem for the Democratic nominee?

Given the enormous sums Democrats are already contributing to primary candidates, it’s likely that the party’s nominee will have all the money they need, as Democrats desperate to be rid of Trump contribute whatever they can. And after a certain point, a few extra million – or even a few extra hundred million – may not make much difference. Don’t forget that Clinton outspent Trump in 2016 by more than $300 million, but he still won.

And consider this: Trump and the super PACs supporting him have already spent an incredible $171 million on the 2020 campaign. He has spent more than $25 million on Facebook and Google ads alone. And for what? He trails all the leading Democrats in many polls, his approval rating is stuck around 40 percent, and he’s about to be impeached.

As far as campaign sins go, accepting the help of a super PAC is pretty minor, and I don’t doubt that Biden would sincerely prefer a system in which they didn’t exist. But if he’s going to become the Democratic nominee and then the president, it’ll be because he was the best candidate. Not because he was saved by a super PAC.

The Media 

Wall Street Journal: Trump to Tell Federal Agencies to Cut New York Times, Washington Post Subscriptions

By Andrew Restuccia

The White House is planning to instruct federal agencies to not renew their subscriptions to the New York Times and the Washington Post…

“Not renewing subscriptions across all federal agencies will be a significant cost saving-hundreds of thousands of taxpayer dollars will be saved,” White House press secretary Stephanie Grisham said in an email Thursday…

The decision comes days after Mr. Trump told his staff to cancel the White House’s print subscriptions to the Post and the Times after expressing frustration with their coverage.

“We don’t even want it in the White House anymore,” Mr. Trump said of the Times during an interview with Fox News host Sean Hannity that aired Monday night. “We’re going to probably terminate that and the Washington Post. They’re fake.”…

The president has repeatedly railed against and sought to discredit the newspapers’ coverage of his administration, including its dealings with Ukraine and the resulting impeachment inquiry in the House. On Twitter and during campaign rallies, Mr. Trump has attacked the news media, calling it the “enemy of the people” and dismissing some of the country’s most venerable journalism outlets as “fake news.”

In June, Mr. Trump wrote on Twitter that a Times story represented a “virtual act of Treason.” The publisher of the New York Times, A.G. Sulzberger, responded with an opinion article in The Wall Street Journal, saying the “new attack crosses a dangerous line in the president’s campaign against a free and independent press.”

Washington Post: Facebook will begin paying some outlets for their content as it introduces its News tab

By Rachel Siegel

After years of complaints from American news outfits that Facebook has used their work to boost its products without paying for it, the social media giant has agreed to compensate at least some news organizations as part of a specialized “News” tab meant to steer users toward curated national and local news stories…

But the analysts also expressed skepticism that Facebook’s new arrangement will help the small and medium-sized local outlets that have been most seriously undercut by the rise of online news distribution.

“The vast majority of local news outlets are not included, and that is part of the news ecosystem that’s most at risk,” said David Chavern, president and chief executive of the News Media Alliance, a trade association of news publishers…

Meanwhile, the news industry has taken massive hits from declines in print advertising and competition from digital platforms for online ad revenue. Many established media companies have laid off staff or consolidated, while a slew of digital start-ups have failed. A July study from the Pew Research Center found that U.S. newsroom employment had dropped by a quarter since 2008, with the greatest decline at newspapers – from 114,000 in 2008 to about 86,000 last year.

On Friday, Facebook launched its News tab to more than 200,000 Facebook users in the United States, with a broader rollout planned for early next year…

At the launch event in New York on Friday, Facebook founder and chief executive Mark Zuckerberg said that every Internet platform has a responsibility to fund and support partnerships with news organizations and that Facebook News is a step toward “a long-term, sustainable business model.”

The initiative could reach 20 million to 30 million people over a few years, Zuckerberg said, and will eventually include a wider set of local and international publishers.


New York Times: Justice Dept. Is Said to Open Criminal Inquiry Into Its Own Russia Investigation

By Katie Benner and Adam Goldman

Justice Department officials have shifted an administrative review of the Russia investigation closely overseen by Attorney General William P. Barr to a criminal inquiry, according to two people familiar with the matter. The move gives the prosecutor running it, John H. Durham, the power to subpoena for witness testimony and documents, to convene a grand jury and to file criminal charges.

The opening of a criminal investigation is likely to raise alarms that Mr. Trump is using the Justice Department to go after his perceived enemies. Mr. Trump fired James B. Comey, the F.B.I. director under whose watch agents opened the Russia inquiry, and has long assailed other top former law enforcement and intelligence officials as partisans who sought to block his election.

Mr. Trump has made clear that he sees the typically independent Justice Department as a tool to be wielded against his political enemies…

The move also creates an unusual situation in which the Justice Department is conducting a criminal investigation into itself.

Mr. Barr’s reliance on Mr. Durham, a widely respected and veteran prosecutor who has investigated C.I.A. torture and broken up Mafia rings, could help insulate the attorney general from accusations that he is doing the president’s bidding and putting politics above justice.

It was not clear what potential crime Mr. Durham is investigating, nor when the criminal investigation was prompted.

Alex Baiocco

Alex Baiocco


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