Daily Media Links 2/19

February 19, 2021   •  By Tiffany Donnelly   •  
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In the News

FIRE: Eighth Circuit: Arkansas anti-BDS law violates First Amendment

By Aaron Terr

Last week, the U.S. Court of Appeals for the Eighth Circuit sustained a First Amendment challenge to an Arkansas law requiring government contractors to pledge not to boycott Israel. FIRE joined with the Institute for Free Speech to file an amici curiae brief urging this result. 

The decision in Arkansas Times LP v. Waldrip is the latest in a series of federal court rulings striking down statutes that target the Boycott, Divestment, and Sanctions (BDS) movement against Israel – statutes that have implications for free speech and protest movements at public colleges and universities.

Daily Signal: Bill Overhauling Elections Would ‘Eviscerate’ FEC Bipartisanship, 9 Former Members Warn

By Steven Hall and Peter Parisi

In a letter to congressional leaders, nine former members of the Federal Election Commission warn that a Democrat-backed bill to overhaul elections, now before Congress, is a “threat to bipartisanship” at the agency. 

The former FEC members’ four-page letter cautions the Democratic and Republican leaders about provisions of HR 1, dubbed the For the People Act, and its companion bill in the Senate, S 1…

The letter argues that the Federal Election Commission’s current makeup-with an equal number of members of each major party and a voting structure requiring some “bipartisan agreement before an enforcement action went forward or a rule was adopted”-is “indispensable” for bipartisan support and to ensure the commission isn’t perceived as a partisan tool of the majority party…

An analysis by the nonpartisan, nonprofit Institute for Free Speech found that in 2014, the FEC achieved bipartisan agreement-6-0, 5-1, or 4-2 decisions-on 93% of all votes. 

“On substantive matters, bipartisan agreement was reached on 86% of votes,” said the institute, which was founded by Bradley Smith, one of the letter writers, after he left the FEC in 2005. “[O]nly 14% of substantive votes resulted in 3-3 splits.”

Congress

The Hill: How Congress can prevent Big Tech from becoming the speech police

By Prasad Krishnamurthy and Erwin Chemerinsky

Congress…can regulate social media platforms by federal law and has the power to pass legislation that forbids designated social media platforms from discriminating against users and content on the basis of their political views. Platforms would still be free to remove unprotected speech such as libel, slander, threats and the intentional dissemination of untruth. They would also be permitted to remove posts that do not conform to their community standards of decency and mutual respect. But platforms would not be permitted to censor speech based on its political content…

A federal law preventing social media companies from discriminating on the basis of political views would enhance free speech by preventing monopoly suppression of particular views, thereby ensuring that competing voices are heard over social media. Such a provision would be narrowly tailored because it requires only that platforms refrain from censoring speech on the basis of its political content. 

Wiley’s Political Law Podcast: H.R. 1 – What Corporations, Non-Profits, and Trade Associations Need to Know

By Mark Renaud and Eric Wang

This episode is the first in a series of podcasts on H.R. 1, a bill that has been introduced in Congress that will affect campaign finance, lobbying, ethics, and voting laws. In this episode, Partner Mark Renaud and Special Counsel Eric Wang break down how the law will affect corporate and trade association political activity through increased disclosure, CEO certifications, disclaimers, and other regulatory approaches.

Daily Caller: As Bipartisan Calls To Amend Section 230 Mount, Experts Emphasize Unintended Consequences

By Michael Ginsberg

Experts are skeptical of calls from both Republicans and Democrats to modify Section 230…

The SAFE TECH Act would make content hosts legally liable for advertisements they run and any harassment that occurs on their platforms. [Sen. Ron] Wyden… believes that the proposal “would devastate every part of the open internet, and cause massive collateral damage to online speech.”…

Even “in a world without Section 230,” [Jeff Kosseff] told the Daily Caller, “it is difficult to conceive of a successful lawsuit against a platform arising from that platform’s decision to block third-party content or ban a user.” That is because “platforms have the First Amendment right to decide whether to distribute or moderate third-party content.”

In addition, repealing or revising Section 230 would make social media sites and other content hosts more likely to censor conservative posts. “It is very likely that a Section 230 repeal would cause even more aggressive moderation. Without Section 230, platforms would be far more likely to remove controversial content, particularly if that content might be defamatory or if the platform receives a complaint about the content” since they would then be liable for the content, Kosseff explained.

Politico: Facebook, Google and Twitter CEOs testifying again before Congress next month

By John Hendel

Facebook CEO Mark Zuckerberg, Google CEO Sundar Pichai and Twitter CEO Jack Dorsey have agreed to testify remotely next month at a House hearing on misinformation and disinformation – the latest in what has become a series of Capitol Hill grillings for major Silicon Valley executives.

The House Energy and Commerce Committee announced Thursday that the virtual hearing will occur March 25…

The House committee’s Democratic leaders singled out bogus claims of election fraud in their statement announcing next month’s hearing, but also pointed to broader concerns about misinformation.

“Whether it be falsehoods about the COVID-19 vaccine or debunked claims of election fraud, these online platforms have allowed misinformation to spread, intensifying national crises with real-life, grim consequences for public health and safety,” Energy and Commerce Chair Frank Pallone (D-N.J.) said in a joint statement with Reps. Mike Doyle (D-Pa.) and Jan Schakowsky (D-Ill.), who lead the tech and consumer protection subcommittees jointly holding the hearing.
“For far too long, big tech has failed to acknowledge the role they’ve played in fomenting and elevating blatantly false information to its online audiences,” they added. “Industry self-regulation has failed. We must begin the work of changing incentives driving social media companies to allow and even promote misinformation and disinformation.”

The States

Los Angeles Times: Decrying ‘cancel culture,’ state senator seeks to make political affiliation a protected class

By Matthew Ormseth

A California state senator has proposed legislation intended to curb so-called cancel culture by adding political affiliation to a list of classes – such as race, gender and religious creed – that are protected under California’s anti-discrimination laws.

State Sen. Melissa Melendez (R-Lake Elsinore) has introduced two bills: the first, which she has dubbed the Diversity of Thought Act, would make political affiliation a protected class under the California Fair Employment and Housing Act; the second would amend the state’s education code and require schools to counter bullying on the basis of a student’s political beliefs, much as schools are compelled to root out bullying on the basis of race, gender and sexual orientation.

If the first bill becomes law, it would be illegal to deny someone a job or withhold housing on the basis of that person’s political affiliation. Landlords could not evict someone solely because of his or her political beliefs; banks and other lenders would be barred from denying someone financing on the basis of his or her politics…

“Cancel culture and the efforts to silence differing opinions and voices should be a growing concern for all of us,” Melendez said in a statement.

Law & Crime: North Dakota’s Attempt to Legislate Around Section 230 Allows ‘Nazis to Sue You if You Report Their Content to Twitter’

By Jerry Lambe

Republicans in North Dakota’s state legislature are targeting the civil liability protections afforded to social media companies like Twitter and Facebook with a new bill that would make it illegal to “censor” users. Unfortunately for those hoping the measure would be a crippling legal salvo in the war on “cancel culture,” attorneys who have reviewed the measure say it’s an unconstitutional and self-contradictory mess that’s impossible to enforce…

The North Dakota bill states that “interactive computer services” and “social media websites” would be “liable in a civil action for damages to the person whose speech is restricted, censored, or suppressed, and to any person who reasonably otherwise would have received the writing, speech, or publication.”

As First Amendment attorney Ari Cohn pointed out, laws that attempt to curate the content carried by a social media company violate that company’s constitutional right to free speech…

In an addendum added to the bill this week, the legislators also included an “aiding and abetting” cause of action, meaning that any person who reports content that is later taken down would be liable for damages.

“Now they are authorizing Nazis to sue you if you report their content to Twitter,” commercial litigator and legal commentator Akiva Cohen said of the latest addition to the law.

Oil City News: With Record $14.4B Spent In 2020 Elections, Wyoming Legislators Call For U.S. Constitutional Amendment

By Brendan LaChance

A number of Wyoming legislators are calling for an amendment to the United States Constitution to better regulate political spending…

Six Wyoming legislators are sponsoring House Joint Resolution 5 for consideration during the 2021 General Session. The proposed resolution, which is catch-titled “Protecting Wyoming citizen’s voices,” would urge the U.S. Congress “to propose a constitutional amendment allowing Congress and states to regulate political spending to ensure free and fair elections and to empower the voices of Wyoming human citizens.”

The proposed resolution says that the U.S. Supreme Court has ruled that both Congress and states “lack authority to ban independent corporate expenditures to political campaigns for public office, relying on the concept that the spending of money to elect a candidate is protected speech.”

“This United States Supreme Court precedent has allowed for the creation of super political action committees in campaigns for public office, which have made possible unregulated campaign expenditures in unprecedented amounts,” the resolution states. “Much of this flood of unregulated campaign spending is contributed and controlled by individuals not residing in Wyoming and whose political goals may partly or wholly differ from those of Wyoming residents.”

Orlando Sentinel: Legislature’s anti-protest bill is anti-American 

By Patricia Brigham and Peggy A. Quince

Floridians, your First Amendment right to peacefully protest is under attack. Not by extremist groups, but by our very own Florida Legislature. The vehicle is a bill known as HB 1 and its Senate companion, SB 484…

HB 1 at its core would dilute the rights that this country and this state were founded upon. This legislation includes enhanced criminal penalties for offenses already codified by law. Innocent bystanders caught in a protest gone unruly could find themselves arrested and thrown in jail for the night, their bail eliminated before a first court appearance after their arrest…

This proposed legislation is completely unnecessary. There are already criminal laws – both state and federal – that address rioting, insurrection, treason, assault, and battery. In fact, if this legislation passes, it would have a chilling effect on exercising one’s right to to peaceably assemble…

HB 1, or as its sponsors have named it, “Combatting Public Disorder,” is not just anti-protest and anti-First Amendment, it is outright anti-American.

Alaska Public Media: Alaskans were left in the dark as money poured into elections last year. Now, that’s changing.

By Nathaniel Herz

Groups on both sides of last year’s battle for control of the state Legislature spent substantial amounts of money from entities that don’t disclose their donors before the election – or at all.

But starting this year, that practice will be banned: A citizens initiative approved in November requires groups trying to influence the election of candidates to disclose the “true source” of all their donations greater than $2,000.

“Getting this information from IRS tax documents in February, for money that was spent to influence Alaska voters in a November-of-last-year election, does nothing for voters,” said Shea Siegert, who managed the successful initiative campaign. “That is the problem that Ballot Measure 2 aimed to fix.”

Tiffany Donnelly

Tiffany Donnelly

https://www.ifs.org/author/tdonnelly/

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