Daily Media Links 11/11

November 11, 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.]

Right to Protest

MarketWatch: ‘Peaceful protesting is something we value as Americans’: Republican governors want to crack down on protests

By Leslie Albrecht

Republicans maintained majorities in both [Florida and Texas] state legislatures, suggesting that the states’ Republican governors will be able to move forward with proposals they made in September to crack down on violent protests by creating new criminal penalties related to the funding of demonstrations.

In Florida, Gov. Ron DeSantis wants to create several new criminal offenses, including prosecuting “anyone who organizes or funds a violent or disorderly assembly” under the state’s anti-racketeering laws.

In Texas, Gov. Greg Abbott proposed six new criminal offenses aimed at people who “hijack peaceful protests,” including one that outlaws “aiding and abetting riots with funds or organizational assistance.” …

Neither governor’s press office responded to requests for more detail on the proposed penalties, including questions on whether they could mean jail time for people who either work for or donate money to a nonprofit group that’s involved in a protest where violence breaks out…

In Florida, ACLU of Florida staff attorney Jackie Azis said DeSantis’s proposal could potentially affect organizations like a local foundation in St. Petersburg that has supported racial-justice protests this year by providing signs…

“This isn’t a left or right issue at all,” Nick [Robinson, a legal advisor at the International Center for Nonprofit Law] said. “Protest is central to our political tradition. These proposed laws that could be used to go after funders of protests create a slippery slope that can then undermine all of our First Amendment freedoms.” 


Politico: Trump’s out, but his FCC nominee is up for consideration

By Alexandra S. Levine

Although President Trump has lost his re-election campaign, the Senate Commerce Committee will still consider during a 2:30 p.m. nominations hearing his FCC nominee Nathan Simington, a Commerce Department official who helped draft the administration’s petition asking the commission to crack down on tech industry liability protections.

One problem limiting Simington’s prospects: Not all Republicans are sold on his merits, which means the Senate GOP may not have the political will to jam through his nomination in this brief, chaotic lame duck period. 

TechCrunch: House Reps ask FCC to ‘stop work on all partisan, controversial items’ during transition

By Devin Coldewey

Two U.S. representatives who oversee the FCC  have asked the agency to respect the results of the election by abandoning any “partisan, controversial items under consideration.” This likely includes the FCC’s effort to reinterpret Section 230, an important protection for internet platforms, at the Trump administration’s request.


New York Times: Trump starts raising money for a new ‘Save America’ PAC to fund his future activities.

By Shane Goldmacher, Maggie Haberman and Rachel Shorey

President Trump is directing money raised through his campaign’s breathless requests to “defend the election” into a new political action committee before his recount fund, a move that allows him greater flexibility to bankroll his future political endeavors.

The new group, called Save America, is a federal fund-raising vehicle known as a leadership PAC that has donation limits of $5,000 per donor per year.

It will be used to underwrite Mr. Trump’s post-presidential activities, tapping into the vast reservoir of small donors that made him a dominant fund-raiser, for a time, in 2020…

“Small donors who give thinking they’re helping to defend the integrity of our election are in fact largely helping to finance Trump’s post-presidential political ventures,” said Brendan M. Fischer, an attorney at the Campaign Legal Center, a watchdog group.

The Media

Reason (Volokh Conspiracy): Michigan AG’s #DetroitLeaks Takedown Demand, and Seditious Libel

By Eugene Volokh

The Michigan Attorney General’s office sent this letter, apparently to the Big League Politics site: …

(Jim Hoft (Gateway Pundit) posted about this yesterday, and I’ve just confirmed the letter’s authenticity with the AG’s Office of Public Information.)

I can’t speak about the factual accuracy of the allegations in the #DetroitLeaks video, or in the AG’s response. But assume for the purposes of our discussion that the #DetroitLeaks allegations are false. Can those who post the video indeed be criminally prosecuted for the falsehoods (even if the government could prove knowing or reckless falsehood on the posters’ part)?

I don’t think so. I think there is some room under the First Amendment, and under the leading precedent (U.S. v. Alvarez (2012)), for laws that ban knowing falsehoods about how, where, and when to vote. There the government’s concern would be that people will be duped out of voting because they’ll show up at the wrong time or in the wrong place. Such restrictions would be narrow and closely focused at protecting the mechanics of the voting process.

But I take it that this isn’t the Michigan AG’s concern here…

The Hill: To ‘see each other,’ we must look past those who profit from our divisions

By John Farmer Jr.

The result of these converging developments – cable news, social media, the decision that spending is speech – is that political speech has been transformed. It is all commercial speech now, subject to all the chicanery, exaggeration, and misinformation and disinformation that attends the latest workout craze or diet supplement. Our “era of demonization,” in other words, is the direct result of the application of niche marketing principles to the exigencies of political funding. Tell your supporters that your opponent is an honorable person whose opinions differ from yours, and you gain tepid support; tell them repeatedly over Twitter, Facebook, Instagram, on cable TV ads and free media interviews that he is a raging socialist pedophile whose very existence threatens civilization, or that he is a vile racist who believes that cavemen rode dinosaurs to work, and the money will flow…

[T]he Federal Communications Act should be revisited in light of the experience of cable news and the emergence of social media. First, analogues of the “fairness doctrine” should be developed and reapplied to cable news. Second, the development of a “fair and free” platform of, as Jim Dwyer described it, “decentralized, private communications centered on protecting the integrity of human connections” – free, in other words, of commercial surveillance algorithms – should be required to be offered as an option for consumers of all social media companies.

Online Speech Platforms

Wall Street Journal: Facebook, Google to Continue Political Ad Ban for Several Weeks

By Emily Glazer

Facebook Inc. and Alphabet Inc.’s Google plan to continue banning political ads on their platforms for the next several weeks to prevent confusion about election results, according to people familiar with the matter and an email reviewed by The Wall Street Journal.

Facebook told advertisers in an email Wednesday it plans to continue its post-election ban on political ads for “another month.” Google representatives have told some advertisers it is unlikely to lift its ban in November or December, the people said.

The platforms initially indicated the bans would last a week after Election Day but could be extended.

Jonathan Turley: “Shredding The Fabric Of Our Democracy”: Biden Aide Signals Push For Greater Censorship On The Internet

We have been discussing the calls for top Democrats for increased private censorship on social media and the Internet.  President-elect Joe Biden has himself called for such censorship, including blocking President Donald Trump’s criticism of mail-in voting. Now, shortly after the election, one of Biden’s top aides is ramping up calls for a crackdown on Facebook for allowing Facebook users to read views that he considers misleading – users who signed up to hear from these individuals…

For those of us in the free speech community, these threats are chilling…

I have previously objected to such regulation of speech. What is most disturbing is how liberals have embraced censorship and even declared that “China was right” on Internet controls. Many Democrats have fallen back on the false narrative that the First Amendment does not regulate private companies so this is not an attack on free speech. Free speech is a human right that is not solely based or exclusively defined by the First Amendment.  Censorship by Internet companies is a “Little Brother” threat long discussed by free speech advocates.  Some may willingly embrace corporate speech controls but it is still a denial of free speech.

The States

New York Daily News: Cuomo signs anti-SLAPP law, protecting free speech against frivolous lawsuits

By Denis Slattery

Gov. Cuomo signed legislation Tuesday intended to stymie deep-pocketed litigants from filing lawsuits meant to intimidate or suppress free speech.

The new law is meant to deter abusive “strategic lawsuits against public participation,” known as SLAPPs.

Such frivolous suits are often brought by affluent plaintiffs who have the means to fund time-consuming litigation that can devastate defendants.

“I am proud to sign this legislation, which protects New Yorkers’ fundamental right to free speech without fear of harassment or bullying by those who happen to have more money than they do,” the governor said.

The legislation, penned by Assemblywoman Helene Weinstein (D-Queens) and Sen. Brad Hoylman (D-Manhattan), expands on the state’s current statute, considered exceedingly narrow, by covering speech, or other lawful First Amendment conduct, related to an issue of public interest.

If a defendant’s speech or activity falls under the protection of the newly-broadened law, a judge will have the ability to dismiss such a case and require the litigant who brought the meritless lawsuit to cover the defendant’s legal fees.

Courthouse News: Campaign Finance

An appeals court in Washington affirmed an $18 million penalty imposed against the Grocery Manufacturers Association for violating state campaign-finance laws during a 2013 battle over a ballot initiative that would have required labeling ingredients with genetically modified organisms on all packaged food products. 

Philadelphia Inquirer: Pa. Treasurer Joe Torsella has lost his reelection bid, in a big upset by Republican Stacy Garrity

By Andrew Seidman and Chris Brennan

Pennsylvania Treasurer Joe Torsella, a Montgomery County Democrat who had aspirations for higher office, has conceded in his reelection bid against Republican Stacy Garrity…

Torsella’s campaign spent $1.8 million on the race, compared with just $217,000 by Garrity’s campaign, according to campaign finance records.


Tiffany Donnelly

Tiffany Donnelly


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