Daily Media Links 2/13

February 13, 2020   •  By Tiffany Donnelly   •  
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In the News

Texas Scorecard Radio: David Keating from the Institute for Free Speech discusses the 10th anniversary of Citizens United.

By 1836 Studios

David Keating from the Institute for Free Speech stops by to discuss the 10 year anniversary of the Citizens United decision. 


Foresight is 20/20: Free Speech Developments to Follow This Year

By Alex Baiocco

A number of trends that will continue to unfold in 2020 have the potential to significantly impact Americans’ political speech rights. As policymakers, pundits, and the public continue to debate the contours of free speech amid technological change and the emergence of new tools for speaking, Institute for Free Speech staff will be following each of these trends closely with an eye toward protecting Americans’ speech, press, assembly, and petition rights.

In 2020, state legislators will undoubtedly continue to pursue laws that trample on the right to associate privately. But a significant question for the new year is whether the Supreme Court will hear a case asking it to reaffirm this right.

Several current cases ask the Supreme Court to uphold free speech precedents set during the civil rights era that prevent states from compelling nonprofits to hand over lists of their donors to the government. One of these cases, IFS v. Becerra, was filed by the Institute for Free Speech.

The Courts

Washington Times: Judge dismisses Justin Fairfax’s libel suit against CBS

By Matthew Barakat

A judge on Tuesday tossed out a libel lawsuit filed by Virginia Lt. Gov. Justin Fairfax against a television network he accused of slanted reporting on sexual assault allegations levied against him.

U.S. District Judge Anthony Trenga in Alexandria dismissed the lawsuit. But he declined to grant CBS’ request that the network be awarded attorney’s fees, disagreeing with the network’s contention that Fairfax’s lawsuit amounted to an abuse of the legal process.

Fairfax sued CBS for $400 million in September…

[He] alleged the network reported the allegations in a way that insinuated his guilt…

In a statement Tuesday, Fairfax said he will appeal the dismissal to the 4th U.S. Circuit Court of Appeals in Richmond.

Techdirt: Techdirt Podcast Episode 238: Larry Lessig Defends His ‘Clickbait Defamation’ Lawsuit

By Mike Masnick

Last month I wrote a long post explaining why I could not support Larry Lessig’s new lawsuit against journalists and the New York Times for what he referred to as “Clickbait Defamation.” Lessig argued that a NY Times headline and lede was false, while I argued that it was a different interpretation, but not “false,” and thus not defamatory. I also argued that his lawsuit was a SLAPP suit, potentially harming the individuals named. Larry wished to respond to my post and I invited him on the podcast to discuss. Larry is a Harvard Law professor. I am not. This immediately puts me at a disadvantage in arguing things in a live debate, and while I don’t think either of us convinced each other of anything, l definitely understand his argument more clearly, though I still disagree with it.

The full discussion is now available as the latest episode of the Techdirt Podcast.

New York Times: Judge Throws Out Lawsuit Over Arrest at Kansas City Library

By Associated Press

A federal judge has thrown out a free-speech lawsuit against a former police detective filed by a man who was arrested while questioning a speaker at the Kansas City Public Library in 2016…

Rothe-Kushel, of Lawrence, Kansas, was arrested on May 9, 2016, as he questioned Middle East expert and diplomat Dennis Ross…

A video of the incident shows Ross answering one of Rothe-Kushel’s questions. When Rothe-Kushel tries to ask another question, a private security guard grabs his arm, followed by Parsons, who was off duty and working for a private firm…

In her order issued in January, Phillips said Rothe-Kushel argued with Ross after his question was answered and continued speaking after a guard told him he was “done” and another person approached the microphone to ask a question.

When Parsons determined Rothe-Kushel should be arrested, Rothe-Kushel pushed back and refused to “give up his hands,” according to police…

“I believe that this has to do with the rights of all Americans protected under virtually all of the First Amendment,” [Rothe-Kushel] said. “This had to do with speech rights, press rights, assembly rights, even religious conscience rights.”

In her order, the judge said Rothe-Kushel said Ross’ right to ask questions was “not limitless.” [The judge also wrote:]

“He could not ask so many questions that other audience members were deprived of the opportunity,” and, “he had no right to argue with Ambassador Ross.”

Steve Woolfolk, director of public programming for the library, was also arrested when he tried to intervene.

Chicago Tribune: In new lawsuit, Hinsdale School District 86 residents claim school board violated their rights to freedom of speech

By Kimberly Fornek

Three residents of Hinsdale High School District 86 are suing the district’s school board, claiming the board violated their First Amendment rights to freedom of speech by not allowing them to speak about an administrator during a public meeting in December.

Meeta Jain Patel, Kim Notaro and Kara Kuo recently filed a complaint in federal court against the District 86 board and its president, Nancy Pollak, related to an incident Dec. 12, when the three residents were prohibited from speaking during the public comment portion of a school board meeting…

In their complaint, Patel, Notaro and Kuo allege Pollak’s actions forbidding them from reading a letter were “in clear violation of the U.S. Constitution and … an affront to the long and proper tradition of robust public discussion and criticism of public officials that is vital to a well-functioning democracy.” 

First Amendment

Brooklyn Law Review: Current Issue: Volume 85, Issue 1 (2019) Symposium: Incitement at 100-and 50-and Today


Symposium Introduction                                                                      Willliam D. Araiza and Joel M. Gora (PDF)

The First Amendment and the Imminence of Harm                        Floyd Abrams (PDF)

In Defense of Brandenburg: The ACLU and Incitement Doctrine in 1919, 1969, and 2019                                                                Emerson Sykes (PDF)

Words We Fear: Burning Tweets & the Politics of Incitement   Rachel E. VanLandingham (PDF)

Brandenburg and Terrorism in the Digital Age                              David S. Han (PDF)

Assumptions About “Terrorism” and the Brandenburg Incitement Test                                                                                                  Christina E. Wells (PDF)

“Incitement Lite” for the Nonpublic Forum                                        Leslie Gielow Jacobs (PDF)


Chair Caroline C. Hunter’s Response to Prof. Ciara Torres-Spelliscy’s Testimony Before the U.S. House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties

In support of your claim that the Federal Election Commission does not enforce the law against foreign spending in U.S. elections, the only example you gave was, as you put it, “a particularly colorful episode” in which “a foreign pornographer spent [money] in a Los Angeles election in 2012.” You stated that this “spending violated longstanding bans on foreign money in American elections … but the FEC would not enforce the law against the foreign pornographer.” And you posed the rhetorical question, “If the FEC is not going to stand up against a foreign pornographer, … who would they stand up against?” It appears you were attempting to refer to the Commission’s Matter Under Review 6678, in which a foreign national spent money in connection with a local ballot measure – not an election. As a law professor, I am sure you recognize the distinction under campaign finance law between an election, which involves the nomination or election of candidates to office, and a ballot measure, which does not… 52 U.S.C. § 30121 addresses elections, not ballot measures.

Because MUR 6678 pertained to a ballot measure, and the Commission’s Office of General Counsel found “no information to suggest that any of those candidates [who appeared on the same ballot as the ballot measure] were involved in any way whatsoever with the Ballot Measure Committee or [the ballot measure],” the Commission’s dismissal of MUR 6678 was legally correct. Your description of the “episode” in your testimony, however “colorful” it may have been, was legally and factually incorrect… Your September 2019 testimony before the Committee on House Administration contained the same misrepresentation.

Online Speech Platforms

The Verge: Why platforms aren’t taking down deceptive political videos

By Casey Newton

President Trump shared on his Twitter account a video that purported to show House Speaker Nancy Pelosi tearing up his speech…

[I]n this case, I’m with Facebook and Twitter – this video should not be removed from the internet. As [Facebook spokesman Andy] Stone notes, Pelosi did rip up Trump’s speech on camera – and she did not appear to avoid tearing up the nice bits where Trump praised a soldier or handed out a scholarship. In fact, the whole point of tearing up the speech on camera was for the act to be widely viewed and discussed. It’s odd to engineer a moment like this one, purpose built for social media, and then try to get a meme of it taken down.

Pelosi’s people argue that showing the clips out of order represents an unacceptable distortion. But the video clearly re-uses the clip of Pelosi tearing the speech multiple times, making the fact that it’s a chop job self-evident. Viewed in that light, Hammill’s complaint reads more like film criticism than a call for platform policy reform.

The truth is that there’s likely no way to draw a line requiring the Pelosi video to be taken down that would also permit the kind of political speech we see every day on television. Any criticism that doesn’t reckon with that fact strikes me as fundamentally glib.

Washington Post: The Cybersecurity 202: The 2020 Census could be the next big hacking and disinformation target

By Joseph Marks

Lawmakers are growing increasingly alarmed about hacking dangers targeting the 2020 Census after [the Government Accountability Office] detailed dozens of high-risk cybersecurity problems that should have been fixed a long time ago.

The hacking danger could be compounded by social media misinformation spread by U.S. adversaries or pranksters falsely claiming that census data is corrupted or the count is rigged, according to the GAO report…

Concerns are extra high because the decennial count, which kicks off in earnest next month, will be the first one conducted primarily online with respondents encouraged to submit forms over the Internet…

“If ever there was a juicy target for those who want to hack in and cause mischief and sow discord and all the rest of it, it would be our 10-year census,” Rep. John Sarbanes (D-Md.) said.

The Hill: Facebook suspends networks targeting US, Ukraine and Myanmar

By Chris Mills Rodrigo

Facebook on Wednesday announced that it had removed three unconnected networks of accounts and pages targeting the United States, Ukraine and Myanmar with misinformation.

The small number of accounts – six on Facebook and five on Instagram – targeting the U.S. were based in Iran. The individuals behind the misinformation, which focused on religious and international policy issues, used fake accounts to post in groups and spread content in comment sections.

Facebook also removed a network linked to Russian military intelligence services focused on influencing public perception of news events in Ukraine and neighboring countries. [The platform] noted that some of the 78 Facebook accounts posed as citizen journalists and tried to contact public figures…

Facebook removed all the highlighted accounts, pages and groups for violating its policies prohibiting government interference and coordinated, inauthentic behavior.

Candidates and Campaigns

New York Times: Tom Steyer and Bernie Sanders Got Endorsements From Lawmakers on Their Campaigns’ Payrolls

By Stephanie Saul and Jonathan Martin

Campaigns regularly enter into financial dealings with companies and business owners as they build out operations in primary states; they also seek the endorsements of popular lawmakers of all races, some of whom also work in public relations, consulting or similar fields where payments can be routed.

This practice takes place in both political parties and, while many leaders find it unseemly, it continues unabated.

Even legal and fully disclosed payments, however, can raise questions about whether endorsements are heartfelt or driven by financial considerations.

That dynamic is evident in South Carolina, where presidential candidates will compete in the primary Feb. 29, the first test in a Southern state. Black voters may make up more than 60 percent of the Democratic electorate there.

Payments to endorsers in the state became an issue last week when a supporter of former Vice President Joseph R. Biden Jr. made thinly veiled suggestions that a rival candidate, Tom Steyer, had traded cash for endorsements by making payments to State Representative Jerry Govan, the head of the South Carolina Legislative Black Caucus…

A longtime ethics advocate in South Carolina, John Crangle, questioned whether such arrangements posed a real problem, noting that such work does not influence bills pending before the legislature and is not prohibited by state law…

“If legislators were banned from taking consulting fees or legal retainers, I would guess that 75 percent would resign,” Mr. Crangle said.

NBC News: Bloomberg spends big to challenge Trump on his home court: Facebook

By David Ingram

The scale of what the Bloomberg campaign is doing on Facebook already bests that of some Fortune 100 companies, said Nick Venezia, managing director of Social Outlier, a marketing agency in Los Angeles…

Venezia said that the amount of money Bloomberg is spending can have an impact on the Trump campaign.

“He’s going to be taking eyeballs away from Trump. He’s making it so that he’s pushing him out of the auction,” he said. Ads on Facebook are sold in real-time auctions, with the winner chosen based on several factors including bid and what a Facebook user wants to see…

“Most campaigns are a series of difficult decisions on resource allocation and making very strategic decisions about what you’re going to strengthen and what your weaknesses are going to be,” Cameron said. “Bloomberg doesn’t have to make those decisions.”

Daily Caller (Video): What Does Nancy Pelosi Think About Mike Bloomberg And His Campaign Finances?

By Daily Caller Video Team

House Speaker Nancy Pelosi talked about “lowering the influence of dark special interest money in elections,” but check out what she thinks about Democratic presidential candidate Mike Bloomberg’s campaign finances.

The States

Politico: New Jersey Playbook

By Matt Friedman

DARK MONEY – Sweeney, Coughlin withdraw from defense of ‘dark money’ law, by POLITICO’s Matt Friedman: New Jersey’s legislative leaders have abandoned their court defense of the state’s imperiled “dark money” disclosure law. Senate President Steve Sweeney and Assembly Speaker Craig Coughlin last week asked to be removed from the state’s defense of the law, which they had signed onto in October as interveners. “The Speaker believes this is an issue that can best be solved legislatively and therefore made the decision to withdraw from the suit,” said Kevin McArdle, a spokesperson for Coughlin, in a statement. Sweeney has publicly expressed doubts about the Murphy administration’s commitment to defending the law. But Sweeney had also refused to consider passing a “cleanup” bill to fix the law. His office did not immediately provide comment on his withdrawal from the suit.

Washington Post: Va. legislature passes bills aimed at lawsuits by Devin Nunes, Johnny Depp

By Justin Jouvenal

The Virginia legislature passed bills Tuesday that would make it harder to pursue frivolous lawsuits designed to chill free speech, a response to a string of splashy defamation cases filed in state courts by Rep. Devin Nunes (R-Calif.), actor Johnny Depp and others.

Free speech advocates cheered the legislation in the House and Senate, saying the state’s weak anti-defamation law has made Virginia a magnet for dubious litigation aimed at punishing critics and blunting aggressive media coverage on topics of public concern…

Provisions in the House and Senate bills would allow defendants to file a special motion to dismiss a lawsuit after it has been served, if the defendant believes the goal of the lawsuit is to stifle free speech on a topic of civic interest…

Del. Schuyler T. VanValkenburg (D-Henrico) said he sponsored the House bill because as a civics teacher, he was concerned about First Amendment rights being thwarted through litigation.
“Shutting down speech, I found that offensive,” VanValkenburg said…

While the bills are broadly similar, they differ on key details. The House and Senate measures will move to the opposite chamber for consideration and the hammering out of any differences before possibly heading to the governor…

Alison Friedman, of the Protect the Protest task force that is backing the bills, said she is guardedly optimistic about passage.

The Appeal: A North Carolina Professor Gave Up His Free Speech Rights To Resolve a Case Involving a Controversial Sheriff

By Aaron Morrison

Rann Bar-On pleaded guilty to misdemeanor assault of Alamance County Sheriff Terry Johnson to remain a legal U.S. resident. For the next two years, he isn’t allowed to protest in the county…

The Alamance County district attorney’s office charged Bar-On with misdemeanor injury to personal property and felony assault on a law enforcement officer. He was released on bail on the day of the incident and pleaded not guilty in court two days later.

Last fall, just before the case was set to go to trial, the DA’s office approached Bar-On’s attorney with an offer: If he pleaded guilty to misdemeanor assault on a law enforcement officer-a downgraded offense-he would receive 15 days in jail, pay a fine, and serve two years on supervised probation. But during the probation, Bar-On would also be prohibited from attending or participating in protests or rallies in Alamance County…

In an email to The Appeal, Johnson wrote that Bar-On “did not have to enter a plea to this deal and, believe me, it was a deal.” …

Imposing such a condition is rare but not illegal under a plea bargain, said Charlotte-based criminal defense attorney Mark Simmons.

“I understand that this case had some unique facts but, if the state were to regularly make plea offers prohibiting the right to protest, we’d be entering a scary time,” he said.


Tiffany Donnelly

Tiffany Donnelly