Daily Media Links 11/18

November 18, 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 a confirmation hearing has been scheduled for mid-November. Now that a hearing has been 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.]

New from the Institute for Free Speech

California’s Personalized License Plate Dispute Has Big Implications for Free Speech

By Wen Fa, Pacific Legal Foundation

Personalized license plates are extremely popular with Californians. Each year, the Department of Motor Vehicles (DMV) receives roughly a quarter-million personalized license plate applications, which, in turn, generate more than $70 million in revenue for the state.

Yet roughly 30,000 Californians are denied the opportunity to express themselves through personalized license plate configurations. That’s because California regulation prohibits the DMV from approving personalized license plates that are “offensive to good taste and decency.”

The Department entrusts four low-level customer service representatives with the responsibility of applying the malleable “good taste and decency” standard. The beleaguered bureaucrats sift through hundreds of applications each week and consult sources like Google Translate, Reddit, and Urban Dictionary to figure out just what might be “offensive.” ….

As one might expect, initial reviewers cannot even agree on what is and what isn’t “offensive to good taste and decency.” 

Pacific Legal Foundation is representing five Californians to restore the First Amendment rights of all Americans. Our clients include Chris Ogilvie, a veteran who sought to get his nickname (“OG”) embedded in an “OGWOOLF” license plate, which the DMV denied because it thought OG represented “gang affiliation”; a gay musician who was stymied in his efforts to get a “QUEER” license plate in celebration of his identity; and a fan of the rock band Slayer who was denied the opportunity to get a plate celebrating the band’s final performance, because the Department thought the word “slayer” too threatening to other drivers.

The Courts

Courthouse News: Missouri Lawmaker Asks Panel to Let Her Block Online Critics

By Andy Monserud

An ongoing debate over the First Amendment responsibilities of elected officials on social media made it to the Eighth Circuit on Tuesday afternoon, where attorneys sparred over whether public officials’ social media accounts are public forums.

The case was brought by Missouri resident Mike Campbell against his state representative, Cheri Reisch.The Republican who represents a district some 50 miles north of the state capital of Jefferson City blocked Campbell on Twitter in 2018 after he retweeted a criticism of her.

Campbell sued, arguing that Reisch’s Twitter page is a public forum and blocking him from it for a difference in viewpoint violated the First Amendment. U.S. District Judge Brian Wimes, a Barack Obama appointee, agreed and  granted Campbell injunctive relief last year. Reisch quickly appealed to the St. Louis-based Eighth Circuit.  

Representing Reisch, attorney Michael Raupp told the three-judge panel Tuesday that his client’s activity was distinct from that of President Donald Trump – who has faced similar legal battles and lost

Campbell was backed by the Knight First Amendment Institute, a Columbia University-based group focused on free speech issues in the digital age. In an amicus brief and in arguments Tuesday, senior staff attorney Katie Fallow urged the court to adopt the position of other circuits and took issue with Raupp’s contention that Reisch had not created a public forum.

Slate: Clearview AI’s First Amendment Theory Threatens Privacy-and Free Speech, Too

By Jameel Jaffer and Ramya Krishnan

What could be one of the most consequential First Amendment cases of the digital age is pending before a court in Illinois and will likely be argued before the end of the year. The case concerns Clearview AI, the technology company that surreptitiously scraped 3 billion images from the internet to feed a facial recognition app it sold to law enforcement agencies. Now confronting multiple lawsuits based on an Illinois privacy law, the company has retained Floyd Abrams, the prominent First Amendment litigator, to argue that its business activities are constitutionally protected. Landing Abrams was a coup for Clearview, but whether anyone else should be celebrating is less clear. A First Amendment that shielded Clearview and other technology companies from reasonable privacy regulation would be bad for privacy, obviously, but it would be bad for free speech, too.


Senate Rules and Administration Committee: Nomination Hearing for Members of the Federal Election Commission

Wednesday, November 18, 2020 at 10:00 AM

-Shana M. Broussard, of Louisiana, to be a Member of the Federal Election Commission

-Sean J. Cooksey, of Missouri, to be a Member of the Federal Election Commission

-Allen Dickerson, of the District of Columbia, to be a Member of the Federal Election Commission

[Watch the hearing here.]

Free Speech

College Fix: Remember when the ACLU defended unpopular speech? What students can learn from “A Mighty Ira” documentary

By Greg Piper

Mighty Ira” is the story of how the ACLU became the leading organization fighting for civil liberties, regardless how unpopular the client, under [Ira] Glasser’s tenure.

Its central narrative is the ACLU’s fight for the American Nazi Party to march in Chicago and its heavily Jewish suburb Skokie, home to hundreds of Holocaust survivors. That decision nearly killed the civil liberties organization, but it became a financial juggernaut under the stewardship of Glasser. The film ends with this generation’s Skokie, the Unite the Right march and rally in Charlottesville in 2017.

Left unspoken in the documentary is how far the ACLU has fallen in recent years when it comes to viewpoint neutrality, best illustrated by its flip-flop on Charlottesville…

The Foundation for Individual Rights in Education produced the documentary, which is fitting because FIRE has arguably taken over the work that today’s ACLU scorns….

The real villains of “Mighty Ira” are… the elected leaders (today: college administrators) who set up unconstitutional barriers against speech unpopular in their community, whether Selma in the 1960s or Chicago in the 1970s, and then fail to keep apart opposing sides when they rally for their causes.

The Media

CJR: The Substackerati

By Clio Chang

In 2017, [Substack co-founder Chris] Best, a programmer from a Vancouver suburb…drafted a piece bemoaning how the journalism industry’s failing business models incentivized clicks, retweets, and likes over incisive prose. At the time, the media apocalypse was in full force-the limits of digital media were apparent and legacy media was bleeding. “Now we’re in this world where social media feeds optimize for engagement, because that’s how they make money, and just as kind of an unintentional collateral damage they end up amplifying all the things that drive us crazy,” Best argued. “It’s bad for us as readers and bad for society.” …

Through the spring of 2017, the [co-founder Hamish McKenzie and Best] sent emails back and forth, had video calls, and brainstormed in Google Docs about what models might better serve journalism. Subscriptions, they decided, seemed the most promising-but not in the form of journals or magazines. “Paid newsletters” felt more familiar, personal, trustworthy-and more monetizable…

The guys devised a system of taking a 10 percent cut from subscriptions (Stripe, the credit card service that processed the fees, would take 2.9 percent, plus thirty cents per transaction), which they felt tied them to the writers… 

Because newsletter creators retain control of their email list, archives, and intellectual property, Substack’s main selling point is independence-from bosses, from ad-dependent corporate media models, from the whims of tech monopolies like Google and Facebook. The founders don’t claim that Substack will “save” media-a promise that’s bound to disappoint-but they argue that their model is a core part of a better, more worker-centric and reader-friendly future for journalism.

Online Speech Platforms

Wall Street Journal: Zuckerberg, Dorsey Tout Progress in Combating Political Misinformation

By John D. McKinnon and Ryan Tracy

At the Senate Judiciary Committee hearing conducted over more than four hours by videostream, Facebook’s Mark Zuckerberg and Twitter’s Jack Dorsey touted improvements their companies made in blocking or reducing misleading information in the 2020 election. That led to less interference, the CEOs said…

The pitch didn’t appear to persuade lawmakers…

Judiciary Chairman Lindsey Graham (R., S.C.) said the companies should prepare for modifications to federal legal protections shielding them from liability for user-posted material. Those protections also give the platforms wide latitude in policing content.

“When you have companies that have the power of governments…something has to give” in the legal shield known as Section 230, Mr. Graham said. “[Section] 230 as it exists today has got to give.” …

Democrats raised their own concerns, including that some of the platforms’ current content restrictions could hinder them in a crucial Georgia runoff election in January that likely will decide control of the Senate.

“I’m concerned that both of your companies are in fact backsliding or retrenching” in efforts to combat misleading information in the Georgia race, said Sen. Richard Blumenthal (D., Conn.). He said the hearing points the way to action on tech issues in the next Congress, characterizing the companies’ efforts to combat false information “baby steps” and adding, “You must do much more…to meet this moment and put your power and money on the right side of history.”

Federalist: Jack Dorsey Claims Twitter’s Censorship Policies Encourage ‘More Speech’

By Jordan Davidson

Twitter CEO Jack Dorsey told lawmakers on Capitol Hill Tuesday that his company’s censorship policies actually encourage free speech.

‘”All of our policies are focused on encouraging more speech,” Dorsey said…

“What we saw and what the market told us was that people would not put up with abuse, harassment, and misleading information that would cause off-line harm and they would leave our service because of it,” Dorsey continued. “So, our intention is to create clear policy, clear enforcement that enables people to feel that they can express themselves on our service and ultimately trust it.”

While Dorsey claims that moderating content is merely “a business decision” based on what the people want, Twitter actively policies speech on its platform, and oftentimes only in one direction…

Sen. Mike Lee noted that Twitter and Facebook’s fact-checking tactics are also in direct contradiction with free speech.

“The tag to me sounds a whole lot more like state-run media announcing the party line rather than a neutral company as it purports to be, running an open, online forum,” Lee said.

Techdirt: UK Politician Demands The Impossible: Social Media Companies Must Not Take Down Political Speech, But Must Block Disinformation

By Mike Masnick

According to the Financial Times, [UK Parliament Member Damian] Collins is working with Boris Johnson on forcing a “duty of impartiality” on websites, saying that they cannot moderate political content:

Downing Street is pushing for big tech companies to be subject to a “duty of impartiality” to prevent political bias as part of legislation to regulate dangers on the internet.

How…would that work in practice? Not well, I imagine. And then Collins decided to make it worse. Responding to a question from Jeff Jarvis on Twitter about this “duty of impartiality,” Collins uttered…:

In my view social media companies must not censor political speech but they have a responsibility to act against known sources of harmful disinformation wherever it comes from, including when it’s from a President

Got that? The rule is that you can’t takedown any political speech, but you have a duty to remove disinformation, including when it’s from the President… It presumes that there’s a bright line between “political speech” and “harmful disinformation.” Anyone who knows anything knows that’s not true at all. A ton of “political speech” is actually “harmful disinformation.”

The States

Anchorage Daily News: Alaska becomes second state to approve ranked-choice voting as Ballot Measure 2 passes by 1%

By James Brooks

With an estimated 99.9% of votes counted statewide, Ballot Measure 2 has received the support of 50.55% of Alaska’s voters, according to results posted Tuesday night by the Alaska Division of Elections. Vote counting will finish Wednesday but is not expected to change the final result. Election officials will spend one week double-checking the result before certifying the election Nov. 25.

“This is a victory for all Alaskans regardless of their political leaning,” said Shea Siegert, campaign manager of the group that supported Ballot Measure 2…

A provision intended to fight “dark money” will require greater financial disclosure by groups giving money to candidates in state legislative races and in the governor’s race.

The measure would take effect before the 2022 election if Alaska needs a special election to fill a vacant office.

Brett Huber, campaign manager of the leading vote-no group, said his team “had a short amount of time and a lot less money, and we tried our best.”

Ballot Measure 2 supporters spent nearly $7 million and campaigned for a year and a half ahead of the election. Opponents raised less than 10% of that total and started formal opposition in fall 2020. (Separate groups, including the Alaska Policy Forum, conducted campaigns against ranked-choice voting before that.)

WINK News: Casey Askar sues Byron Donalds for defamation during Republican primary

By Morgan Rynor and Jack Lowenstein

controversial campaign text message is at the center of a lawsuit. The text claimed Republican Byron Donalds, who won the race for Florida House District 19, had dropped out of the race for U.S. Congress. The text went out two hours after the polls opened for the primaries this year.

At the time, Donalds publicly blamed his opponent, Republican Casey Askar. Now, Askar is suing the Donalds for defamation.

Askar told us he believes the text message and Donalds’ holding him responsible for it cost him the primary.

Donalds responded and said, if anyone has grounds for a lawsuit, it’s him due to all of the false advertisement directed at him.

The lawsuit claims either Byron Donalds came up with the plan to send out the fake text messages himself, or he knew about it and went along with it…

“[Voters] believed that false accusation, and that’s tampering with our democracy, with our electoral process, and that’s criminal,” Askar said…

Attorney Karen Kammer represents Wink News, and she’s an expert of the First Amendment of the U.S. Constitution. Her reaction to the lawsuit is blunt.

“It’s almost impossible because political speech in our system is given the highest protection,” Kammer said. “It’s very difficult to prove that not only the statements that are made about them false but also that they caused any damages because other things could have influenced the outcome of an election.”

Miami Herald: Mysterious candidate who likely swayed tight Florida Senate race under investigation

By Samantha J. Gross and Ana Ceballos

The razor-thin victory that delivered Latinas for Trump co-founder Ileana Garcia to the Florida Senate and ousted Democrat José Javier Rodríguez continues to raise eyebrows for one reason: a mysterious third candidate named Alex Rodriguez.

Alex Rodriguez, a one-time mechanic with no history in local politics, never started a campaign website, attended no candidate forums and received no donations, save for a $2,000 loan from himself. Mailers pitching his name sent to voters in the Coral Gables area were sent by a shadowy political group that, so far, has been untraceable.

When a television reporter recently tracked Alex Rodriguez down, he pretended to be someone else.

Alex Rodriguez’s candidacy appeared to exist for only one reason: to suckvotes away from incumbent José Javier Rodríguez, who shares the same surname. The incumbent lost by just 34 votes, and he is now calling for an investigation into Alex Rodriguez – and whoever may have put him up to run.

The shadow candidate has drawn the attention of law enforcement. Sources with knowledge of the investigation tell the Miami Herald that Miami-Dade state prosecutors are now probing the mysterious candidacy, which has also led to a series of investigative reports from the Herald and othernews outlets such as WPLG-10 and Univision, whose reporters found Rodriguez renting a home in Palm Beach County, not in Miami-Dade County where he filed to vote and run for state office.

Courthouse News: Billboards

An appeals court in Texas upheld a ruling against former mayoral candidate Anthony Buzbee in a case in which he claimed billboards featuring his incumbent opponent were campaign propaganda “under the guise of a public safety message.” 

Tiffany Donnelly


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