In the News
By GQ Pan
A federal judge has ordered a public school district in Pennsylvania to allow public commenters to criticize school policies and officials by name at school board meetings…
The ongoing case was brought in October against the Pennsbury School Board by a group of four parents and community members, who argued that the board has been engaging in viewpoint discrimination when board members, in multiple occasions, interrupted or censored their speech that they deemed “abusive” or “irrelevant.”
In one of the incidents cited in their complaint (pdf), a board member at a May 20 meeting repeatedly shouted at a commenter who referred to the district’s equity policy as critical race theory, yelling “You’re done!” until the commenter left the microphone. In another incident in March, the same commenter’s speech was temporarily edited out of a video on the district’s website, with the board’s president explaining in a statement that his remarks had to be censored for containing “beliefs and ideas that were abusive and coded in racist terms.” …
“Public speech at school board meetings is in fact protected by the First Amendment,” U.S. District Judge Gene E. K. Pratter, a George W. Bush appointee, wrote in her opinion…
The Institute for Free Speech, a non-profit legal group representing the suing community members in the case, applauded the court’s decision.
“Today’s ruling is a wake-up call for school boards across America. Parents and speakers have a First Amendment right to criticize school policies and officials at public meetings,” said Alan Gura, the Institute’s vice president for litigation. “We encourage Americans who have been silenced under policies like Pennsbury’s to contact us for help.”
By Thomas Berry and Nicole Saad Bembridge
Is a platform’s power to moderate user-created content protected by the First Amendment?
So far, courts have consistently held that platforms do have such protection. A critical case to be decided by the Eleventh Circuit in the new year will be the most important yet to address that question.
The law at issue is Florida’s SB 7072, a sweeping measure ostensibly enacted to stop censorship by big tech. SB 7072 forces platforms to host all content from registered political candidates and “journalistic enterprises,” even if that content would violate the platforms’ terms of service. The law also imposes a consistency provision, which forces a platform to take down (or leave up) content if a judge rules that the platform has previously taken down (or left up) similar content. The law imposes penalties of up to $250,000 for each instance of noncompliance.
Florida Republicans argue that their “freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley” and that SB 7072 “is about the 22 million Floridians and their First Amendment rights.” By calling the bill a defense of free speech and by calling the platforms’ content moderation “censorship,” these supporters obscure the critical fact that editorial choices by private actors are categorically different from the abridgement of free speech by the state.
Internet Speech Regulation
National Review: The ‘Digital Voter Suppression’ Double Standard
By Will Duffield
A recent Aspen Institute report on “information disorder” takes aim at political advertising on social media. The report claims that “political campaigns” use what are known as “promoted posts” to “smear opponents and drive voter suppression.” That description — and the broadening of “voter suppression” to include negative political campaigning — is part of a growing trend that threatens political speech online.
Voter suppression once meant poll taxes and purged voter rolls. The term referred to efforts to legally or physically interfere with voters’ attempts to cast their ballots. Attempts to beguile or confuse voters, on the other hand, have long been normal — if unsavory — aspects of political campaigning. Under this traditional standard, limiting voting times or closing polling places in an opponent’s strongholds amounts to voter suppression, but misleading voters about an opponent’s policy positions does not.
Over the past few years, however, a new broad definition of voter suppression has emerged. It deems online misinformation, dirty tricks, and negative campaigning as voter suppression, inviting greater control of political speech on social media. Because this new definition is reserved for misleading political speech on the Internet, its use creates differences between the norms of on- and off-line political discourse.
This disparate treatment contributes to partisan rancor when one party’s digital messaging is held to a different standard from the others’ analog speech. Radio and television providers rarely police political advertising. Expecting social-media platforms to quash lies and negative campaigning places them uniquely at the center of subjective partisan squabbles.
By Matthew Feeney
The Federalist Society’s recent National Lawyers Convention featured a panel titled, “Private Control Over Public Discussion.” The panel, which focused on proposals to regulate the content moderation decisions made by prominent social media firms, featured a presentation by Georgetown Law Professor and Cato Institute Senior Fellow Randy Barnett. Barnett presented an argument for social media regulation grounded in public accommodation law that I have not addressed yet. While among the most interesting arguments in favor of requiring social media firms to host more content, it fails thanks to a few conceptual flaws.
Albany Times Union: Exec with ties to NY lieutenant governor indicted for campaign fraud
By Joshua Solomon and Chris Bragg
A real estate mogul with close ties to Lt. Gov. Brian A. Benjamin has been arrested in connection with a campaign finance scheme that allegedly used fraud to secure millions of dollars in public matching funds, federal prosecutors in Manhattan announced Friday.
Gerald Migdol, 71, was charged with one count of conspiracy to commit wire fraud and one count of wire fraud, both of which carry a maximum of 20 years in prison. He was also charged with one count of aggravated identity theft, which carries a mandatory consecutive sentence of two years…
Benjamin’s campaign received $2 million in public matching funds from the city, which can provide up to $3.4 million to a candidate based on certain criteria. The amount of the public support is based on the number of small campaign contributions it receives.
The indictment alleges Migdol “conspired to obtain fraudulent contributions” for the candidate that would be “used, among other things, to seek public matching funds.”
At Migdol’s direction, the indictment alleges, a person submitted fraudulent contributions to the candidate’s campaign in the names of dozens of people who had not authorized the contributions.
Migdol is alleged to have taken out $1,000 from a bank and immediately purchased five money orders of $250 apiece.The money was then contributed in the names of those five people. Migdol, according to the indictment, told “co-conspirators” that money orders of $250 were worth $950 in matching funds…
Unlike the New York City comptroller race in which Benjamin ran, state-level campaigns do not currently have a public matching funds program, which creates far less incentive to bundle straw donations. There is no indication Migdol donations to [New York Attorney General Letitia] James or Senate Democrats were legally problematic.
St. Louis Post-Dispatch: Parson PAC hit with second fine from Missouri ethics regulators
By Kurt Erickson
The campaign fund that raises money to push Missouri Gov. Mike Parson’s agenda illegally accepted a significant contribution from an out-of-state group last year.
In an order issued by the Missouri Ethics Commission, regulators said the Uniting Missouri political action committee received a $150,000 contribution in October 2020 from a PAC associated with the Republican Attorney Generals Association.
The contribution was deemed illegal because the attorney general association’s PAC was not registered with the MEC.
Both Uniting Missouri and the RAGA Action Fund were fined $1,000 for the incident.
But, because the violation marked the second reporting lapse by Uniting Missouri, the PAC also has to pay an additional $1,800 connected to a 2020 consent order it signed with the MEC.
In the RAGA Action Fund case, regulators said the PAC was not in compliance with state ethics laws.
“RAGA Action Fund never filed a statement of organization as a Missouri-domiciled committee with the MEC, did not appoint a treasurer residing in this state, and did not open an account in a depository within this state,” the order notes.
Missouri Independent: ‘Exploiting a loophole’: PACs tied to Missouri lobbyist draw new criticism
By Jason Hancock
One day earlier this month, a company called Phoenix Home Care cut $120,000 worth of checks to six different Missouri political action committees.
A few months earlier, a pair of companies suing the state to block a crackdown on unregulated slot machines combined to drop $350,000 into the same six PACs.
The companies and all six PACs have a connection: veteran statehouse lobbyist Steve Tilley.
The pattern — Tilley’s lobbying clients spreading donations among the constellation of PACs he has long been connected to — has begun raising serious concerns among campaign finance watchdogs.
Corporations are banned from giving directly to candidates in Missouri. And contribution limits cap how much a candidate can take from an individual or PAC.
Setting up multiple PACs opens the opportunity to skirt those regulations.
“This appears to be a way of cleverly exploiting a loophole in campaign finance law,” said Benjamin Singer, CEO of Show Me Integrity, a nonpartisan coalition focused on ethics in state government.
By John Myers
A campaign finance investigation against a top official at California’s political watchdog agency sat in limbo and hidden from public view for months, raising questions about whether the government organization holds its own members to the same standard as candidates and campaigns across the state.
The complaint against Catharine Baker, a member of the California Fair Political Practices Commission and former Republican legislator, was filed in April with the agency’s enforcement division. On Nov. 12 — the same day The Times requested information regarding the case — the FPPC enforcement division recused itself from the investigation and asked Atty. Gen. Rob Bonta to assume control.
“I’m very surprised by this,” said Bob Stern, former FPPC general counsel. “The question then becomes, what other cases are they not disclosing? Is this one bad example or typical of how they are operating?”
By Alan Leveritt
At The Arkansas Times, a publication I founded 47 years ago, our pages focus on small-scale local issues, like protecting Medicaid expansion from the predations of our state legislature and other elements of Arkansas politics, history and culture. So I was surprised when in 2018 I received an ultimatum from the University of Arkansas’s Pulaski Technical College, a longtime advertiser: To continue receiving its ad dollars, we would have to certify in writing that our company was not engaged in a boycott of Israel. It was puzzling. Our paper focuses on the virtues of Sims Bar-B-Que down on Broadway — why would we be required to sign a pledge regarding a country in the Middle East? …
What the outcome of The Arkansas Times’s lawsuit will be is unclear. One thing, however, remains crystal clear: These anti-boycott laws, allowing government to use money to punish dissent, will encourage the creation of ever more repressive laws that risk strangling free speech for years to come.