In the News
By Richard Winger
…..Florida has an election law that says, “A political advertisement of a candidate running for nonpartisan office may not state the candidate’s political party affiliation…A candidate for nonpartisan office is prohibited from campaigning based on party affiliation.”
On April 15, a candidate for school board in Escambia County filed a federal lawsuit against that law. Hetherington v Lee, n.d., 3:21cv-671. Here is the Complaint.
New from the Institute for Free Speech
The Institute for Free Speech will have three new senior attorneys following the addition of two experienced litigators and the promotion of Owen Yeates. Don Daugherty and Del Kolde will help increase our litigation efforts to meet the rising challenges facing First Amendment rights. Owen Yeates will take on an expanded role as a Senior Attorney and Deputy Vice President for Litigation.
“We are thrilled to add two seasoned and highly skilled litigators to our team. Don and Del bring a combined 50 years of civil and criminal litigation experience with them to the Institute. They will be a great help as we expand our efforts to protect free speech,” said Institute for Free Speech President David Keating. “Owen Yeates has made invaluable contributions to the Institute’s legal work and stepped in superbly as Acting Legal Director following the departure of Allen Dickerson to the FEC. We are pleased to promote Owen to Senior Attorney and Deputy Vice President for Litigation.” …
The promotion of Yeates and additions of Daugherty and Kolde are the latest expansion of the Institute’s growing legal team. Earlier this year, the Institute announced the addition of Vice President for Litigation Alan Gura. The Institute plans to expand further as we continue to tackle today’s biggest threats to free political speech.
When citizens’ rights have been violated, they are entitled to their day in court. If you have a federal claim, you are likewise presumptively entitled to your day in federal court.
This basic tenet of the law is, shockingly, at issue in this case, Nicole K. v. Stigdon. While the facts of this case do not concern a First Amendment issue, continued expansion of “abstention” doctrines – the idea that federal courts should abstain from hearing a case if there is or could be a state proceeding – could severely limit federal court challenges to state actions that violate your First Amendment rights. The Supreme Court carefully limited what is known as Younger abstention, and the district court here erred in its application of the doctrine. But a panel of the Seventh Circuit went even further, ignoring all the restrictions on Younger abstention and allowing a court to abstain whenever it felt that respect for the state courts required it to do so.
The Institute for Free Speech joined the Institute for Justice, the ACLU of Illinois, and the Southern Poverty Law Center to call for the rehearing of this case en banc before the entire Seventh Circuit.
Correcting this error is crucial to allow future litigation to clearly and robustly protect citizens’ First Amendment rights in federal court, without being mired in decades of state court litigation.
Reason (Volokh Conspiracy): Court Order Protecting People Displaying Press Passes and Covering Protests in Minnesota
By Eugene Volokh
[Judge Wilhelmina M. Wright’s decision Friday in Goyette v. City of Minneapolis] raises interesting questions about who is “a member of the press”; for instance, would anyone who is gathering information to communicate the public qualify? (The First Amendment has generally been understood as protecting everyone who uses mass communications technology, rather than creating some specific rights for people who are employed by some media enterprise.) What happens if lots of people wear what appears to be a “professional … press pass” or “distinctive clothing,” precisely because that authorizes them not to disperse when ordered to do so?
I don’t know if much law has been developed recently that helps clarify such matters (which of course arise in other such protest coverage cases as well); but for now, I thought I’d flag the order, which seems interesting and important.
By Rebecca Heilweil
As the Covid-19 vaccine rollout continues across the US, some lawmakers are concerned that ongoing misinformation and disinformation campaigns are exacerbating vaccine hesitancy. Now, two senators are turning their attention to the vaccine misinformation superspreaders that push the bulk of conspiracy theories and lies on social media — and asking the social media giants to take more aggressive action.
“For too long, social media platforms have failed to adequately protect Americans by not taking sufficient action to prevent the spread of vaccine disinformation online,” wrote Sens. Amy Klobuchar (D-MN) and Ben Ray Luján (D-NM) in a Friday letter to Facebook CEO Mark Zuckerberg and Twitter CEO Jack Dorsey, which was viewed by Recode. “Despite your policies intended to prevent vaccine disinformation, many of these accounts continue to post content that reach millions of users, repeatedly violating your policies with impunity.”
In particular, the senators urged the companies to take action against 12 anti-vaccine influencers — 11 individuals and one couple — who spread anti-vaccine content on the internet. These accounts include Robert F. Kennedy Jr., who has pushed distrust in vaccines, and Joseph Mercola, an online alternative medicine proponent who was recently flagged by the Food and Drug Administration for promoting fake Covid-19 cures, including through his still-active Twitter account.
Free State Foundation: Thinking Clearly About Speaking Freely – Part 1
By Randolph J. May
The reality is that, today, the public space in which citizens may speak freely about matters of public policy, including matters of conscience, is shrinking, in large part due to actions subsumed under what we have come to call the Cancel Culture. And the further reality is that often the basis for actions that “cancel” speech is a claim that the verboten speech is “harmful” or “hurtful” in some way, or that it constitutes “misinformation” or “disinformation.” I don’t need to recite familiar examples here…
All this said, the space in which ideas that ought to be contestable and publicly debated – tested in the marketplace of ideas – is shrinking due to overly expansive, often politically-driven interpretations and applications of these terms. And this shrinking of the public space in which citizens may speak freely constitutes a threat to America’s ability to sustain a healthy democracy.
Now I also understand, of course, that the First Amendment protects against government censorship, not censorship by private entities…
But this does not mean that we shouldn’t have any concerns about private censorship, or its impact.
New York Times: A Different Way of Thinking About Cancel Culture
By Ezra Klein
Boundaries on acceptable speech aren’t new, and they’re not narrower today than in the past…What is new is the role social media (and, to a lesser extent, digital news) plays in both focusing outrage and scaring employers. And this, too, is a problem of economics, not culture. Social platforms and media publishers want to attract people to their websites or shows and make sure they come back. They do this, in part, by tuning the platforms and home pages and story choices to surface content that outrages the audience…
Cancellations are sometimes intended, and deserved. Some speech should have consequences. But many of the people who participate in the digital pile-ons that lead to cancellation don’t want to cancel anybody. They’re just joining in that day’s online conversation. They’re criticizing an offensive or even dangerous idea, mocking someone they think deserves it, hunting for retweets, demanding accountability, making a joke. They aren’t trying to get anyone fired. But collectively, they do get someone fired.
In all these cases, the economics of corporations that monetize attention are colliding with the incentives of employers to avoid bad publicity. One structural way social media has changed corporate management is that it has made P.R. problems harder to ignore. Outrage that used to play out relatively quietly, through letters and emails and phone calls, now plays out in public. Hasty meetings get called, senior executives get pulled in, and that’s when people get fired.
The American Conservative: Shareholder Activism: Woke Capitalism From The Inside
By Robert Stilson
…..Recent polling by Scott Rasmussen suggests a majority of Americans oppose companies taking positions on political issues. Frustrated that many are nevertheless doing so, however, some conservatives have called for boycotting the offending company’s products or services, or otherwise trying to punish them through disengagement. While the frustration is understandable—and vocally dissatisfied customers can certainly be effective—such actions in isolation may well be counterproductive over the long term.
Instead, as Danhof and others have prominently argued, conservatives should prioritize engaging directly with companies that have drifted inappropriately and unnecessarily into politics. Shareholder votes are one avenue through which this can be done. The lopsided ideological breakdown of the Proxy Preview’s catalog of proposals—where conservative ones amounted to all of 5 percent of the total—suggests that the progressive Left has certainly embraced this approach. If the recent and varied eruptions of woke capitalism are any indication, that strategy is paying off.
By Kate Ackley, Bridget Bowman, and Herb Jackson
…..It’s a sign that at least some of the corporate PACs that took a pause have begun to unfreeze their coffers. More are likely to come.
“As many organization PACs begin to move forward, these recent contributions show that employees continue to believe that their company and trade association PACs are an important way they can exercise their civic duty and support lawmakers who will advocate for their jobs and their communities,” said Micaela Isler, executive director of the National Association of Business Political Action Committees.
Isler’s group recently surveyed its members and found that 67 percent reported taking a pause on at least some of their contributions and that 47 percent said they would do so for the first quarter…
When paused PACs restart, it draws the attention of reporters as well as campaign finance overhaul advocates. Brackemyre said companies are well aware that their donations, especially to the GOP lawmakers who opposed certifying the election results, may attract scrutiny and headlines…
Isler and Brackemyre said they were concerned that the pressure on corporate PACs, which disclose their donations and are capped at $5,000 limits, may prompt more companies or executives to seek out murkier channels of political influence, such as through nonprofit organizations that don’t disclose their donors and may give and spend unlimited sums.
Online Speech Platforms
By Rebecca Klar
…..Facebook is putting additional content moderation protocols in place ahead of the impending verdict in the trial of former Minneapolis police officer Derek Chauvin, who is accused of murdering George Floyd.
Facebook said Monday, shortly before the start of closing arguments in the trial, that it will identify and remove calls to bring arms to areas in Minneapolis, which has temporarily been deemed a “high-risk location” by the social media platform…
The platform will also remove content that “praises, celebrates or mocks Floyd’s death.”
[Facebook’s vice president of content policy, Monika] Bickert said Floyd is considered an “involuntary public figure,” which is why the platform applies a higher level of protection to content about his death.
Chauvin, however, is considered a public figure for “voluntarily placing himself in the public eye.” …
Bickert said Facebook is also taking “extra steps to limit misinformation,” as it has with other high-profile events. The steps include using “several tools” to ensure potential misinformation is flagged to a network of third-party fact-checking partners.
By Greg Allen
Florida’s governor has signed a law that he called the “strongest anti-rioting, pro-law enforcement measure in the country.” … It provides new protections for police and increases the penalties for people who take part in property damage or violence during protests…
At the bill signing Monday, DeSantis said, “If you riot, if you loot, if you harm others, particularly if you harm a law enforcement officer during one of these violent assemblies, you’re going to jail.”
The law increases penalties for protesters who block roadways or deface public monuments. It creates a new crime, “mob intimidation.” And it requires that anyone arrested at a protest be denied bail until their first court appearance, likely making for overnight jail stays.
The law makes local officials in Florida liable for lawsuits from injured parties if they are found to have not done enough to respond to control violent protests…
Civil rights and social justice groups said it’s an unconstitutional attack on free speech. Micah Kubic, executive director of the American Civil Liberties Union of Florida, said, “To be clear, the goal of this law is to silence dissent and create fear among Floridians who want to take to the streets to march for justice.”
Nailah Summers of Dream Defenders, one of the groups that was active in organizing protests in Florida, said the law disproportionately affects minority communities. Of the governor and state lawmakers, she said, “They should be ashamed of themselves. Black lives matter and so do our constitutional rights. We’ll see you in court.”
By Editorial Board
During the at-times violent unrest in Minnesota following the death of Daunte Wright, the 20-year-old Black man killed by a police officer in a traffic stop, some of the lawbreakers have been protesters. Others have been the police themselves, who have subjected credentialed journalists to unwarranted beatings, chemical irritants, detention and intimidation — even after a federal judge issued a temporary restraining order last Friday explicitly forbidding law enforcement from using physical force and arresting journalists covering the protests.
Over the weekend, Gov. Tim Walz (D) acknowledged the police misconduct, committed by Minnesota State Patrol officers as well as local police, saying, “Apologies are not enough; it just cannot happen.”
But it did happen, repeatedly, and in some cases targeting Black journalists, specifically. Among those subjected to violence and harassment are journalists affiliated with the New York Times, CNN, the USA Today Network and Agence France-Presse.
Washington Examiner: Minnesota bill would make convicted protesters ineligible for government assistance
By Jake Dima
Minnesota bill SF 2381, which was introduced on April 7, states that “a person convicted of a criminal offense” in a “protest, demonstration, rally, civil unrest, or march” will be disqualified from “college student loans and grants, rent and mortgage assistance, supplemental nutrition assistance, unemployment benefits and other employment assistance, Minnesota supplemental aid programs, business grants, medical assistance, general assistance, and energy assistance,” among other benefits.