Daily Media Links 5/10

May 10, 2022   •  By Tiffany Donnelly   •  
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Supreme Court

Washington Post: Leave the justices alone at home

By the Editorial Board

The right to assemble and speak freely is essential to democracy. Erasing any distinction between the public square and private life is essential to totalitarianism. It is crucial, therefore, to protect robust demonstrations of political dissent while preventing them from turning into harassment or intimidation. An issue that illuminates this imperative in sharp relief is residential picketing — protests against the actions or decisions of public officials at their homes, such as the recent noisy abortion rights demonstrations at the Montgomery County dwellings of Supreme Court Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh…

A Montgomery County ordinance permits protest marches in residential areas but bars stationary gatherings, arguably such as those in front of the Roberts and Kavanaugh residences. A federal law — 18 U.S.C. Section 1507 — prohibits “pickets or parades” at any judge’s residence, “with the intent of influencing” a jurist “in the discharge of his duty.” These are limited and justifiable restraints on where and how people exercise the right to assembly. Citizens should voluntarily abide by them, in letter and spirit. If not, the relevant governments should take appropriate action.

The Courts

Courthouse News: Texas asks Fifth Circuit to reinstate social media law

By Sabrina Canfield

An attorney for two internet trade groups that represent the largest tech companies in the U.S., including Meta, YouTube and Twitter, argued before the Fifth Circuit on Monday that a Texas law aimed at stopping online censorship of political speech is an “assault on constitutional rights.” …

Texas Assistant Solicitor General Ryan Baasch argued on behalf of the state and agreed that regulation of telephones is different than websites or newspapers, which must stand behind the content they put out.

“With newspapers, television, editorial,” Baasch said, “it makes sense, and you would say of course you need an editor. But between two people who are just having a conversation, an editor is not required.”

But he said that newspaper and TV editorials must be submitted for approval, whereas content on the internet is not marked with a stamp of approval.

“I think that is a very critical distinction,” Baasch said.


Wall Street Journal: Senate Passes Bill to Protect Supreme Court Justices’ Families

By Siobhan Hughes

The Senate swiftly passed a bill to expand police protections for Supreme Court justices to include their immediate family members, in the wake of protests following a leaked draft ruling that indicated the court could overturn Roe v. Wade.

The measure passed late Monday by unanimous consent. The broad support in the Senate suggests a clear pathway to passage in the House, but no immediate plan was set…

Senate Minority Leader Mitch McConnell (R., Ky.) accused progressives of trying to harass justices at their homes in order to achieve a desired judicial outcome, saying they were trying to “replace the rule of law with the rule of mobs.” He also said the White House had been slow to condemn such protests.

At the daily White House briefing Monday, press secretary Jen Psaki said protesters “should never resort to violence, to threats, to intimidation in any way, shape, or form.”


Early Returns – Law and Politics with Jan Baran: Kentucky Secretary of State Michael Adams and Voting Reforms: How To Get Along and Accomplish Reform

In this episode of Early Returns, [Kentucky Secretary of State Michael] Adams discusses voting rules and procedures through the lens of Kentucky’s history and culture. The conversation begins with Mike’s own campaign in 2019 for Secretary of State, a race which focused heavily on election integrity reforms including implementation of a voter ID requirement and bringing the state’s voter rolls into compliance with federal law…As the 2022 midterms heat up, Mike shares his thoughts on issues like the H.R. 1 legislation introduced in Congress, continued court battles over redistricting, and campaign finance enforcement.

Free Expression

First Amendment News hosted by FIRE: Ira Glasser returns once more: Unexpected good news from two ‘liberal law professors’? — FAN 338.3

By Ira Glasser

Would liberals who had vigorously criticized the Citizens United decision supporting the First Amendment right of incorporated organizations to express political opinions, and conservatives who had vigorously applauded that decision, amend their position now that the state of Florida had moved to punish the Disney corporation for expressing its opposition to a Florida law limiting discussion of gay issues in public schools? …

I am unaware of any conservatives who applauded the Citizens United decision responding to my question. So far, they seem to be hiding.

But two liberal law professors who had spent 12 years vigorously opposing the Citizens United decision — my longtime colleagues Burt Neuborne and Erwin Chemerinsky — leaped into the fray supporting the First Amendment right of the Disney corporation to express its views on that legislation and opposed the state’s attempt to retaliate. When I chided them for it in light of their long opposition to Citizens United, they responded with a blizzard of legal distinctions that, however interesting and important, were disconnected from the political realities that resulted in the broad law that Citizens United struck down, and unresponsive to my question.

Buried in that blizzard, however, was the answer to my question, almost as an aside: “Citizens United,” they now declare, “was rightly decided on its facts.”

Online Speech Platforms

Chicago Tribune: Michael Meyers: The ACLU and NAACP are wrong to blast Elon Musk for making Twitter a place of free speech

By Michael Meyers

Who would have thought the NAACP and the ACLU would team up to tell a web host it should restrict free speech on Twitter?

Opening Twitter up to strident conservative voices and others who differ from liberal and progressive bellyaching is what is feared by the nation’s two largest “rights” organizations, the NAACP, which professes to speak mostly for half a million African Americans, and the even better-endowed American Civil Liberties Union, which used to oppose censorship of dissenting ideas…

I know the NAACP and ACLU intimately; I served for a quarter of a century on the ACLU National Board, and for 10 years, I was assistant executive director of the NAACP. Indeed, during the first month of my tenure as a staffer at the NAACP, I shocked my colleagues by going on a TV talk program with Ira Glasser, then the staff director of the New York state affiliate of the ACLU, on whose board of directors I sat. Glasser and I argued on the “Like It Is” talk show that the government could not and should not fire prison guards solely because they were card-carrying members of the Ku Klux Klan or Nazi Party. We argued that no American is safe from government spying or harassment of their views if the government can punish anyone — including Klansmen — for their mere association with or membership in ostensibly offensive groups like the KKK or Nazi Party.

Washington Post: Twitter’s top lawyer long weighed safety and free speech. Then Elon Musk called her out.

By Elizabeth Dwoskin, Cat Zakrzewski, Will Oremus and Joseph Menn

Vijaya Gadde came reluctantly to the decision that cemented her reputation on the right as Twitter’s “chief censor.” For years, the company’s top lawyer had resisted calls to boot then-President Donald Trump from his favorite social media platform…

The ban on Trump, which continues to this day, is the most prominent example of the deeply polarizing decisions that have led conservatives to accuse Twitter of political censorship…

Twitter colleagues describe Gadde’s work as difficult but necessary and unmotivated by political ideology…

Gadde is a previous donor to Kamala Harris and other Democrats, and in 2017 she helped lead Twitter’s $1.59 million donation to the ACLU to fight Trump’s executive order banning immigration from majority Muslim countries…

Gadde also was key to a 2019 decision to ban political advertising on the platform, according to four people familiar with the decision, arguing that politicians should reach broad audiences on the merits of their statements rather than by paying for them. Other companies copied the move, enacting temporary pauses during the 2020 election.

The States

Ohio Capital Journal: Committee passes bill to block social media from ‘censoring’ users

By Jake Zuckerman

An Ohio House committee passed legislation Tuesday prohibiting social media companies like Facebook, Twitter, and YouTube from “censoring” their users.

The legislation would block the companies from removing posts or expelling people from their platforms based on the “viewpoint” of users or ideas expressed in their posts…

The Ohio legislation, House Bill 441, would allow private citizens to sue social media companies and win judgements if their views are “censored.” This includes blocking, banning, demonetizing, deplatforming, removing, denying “equal access or visibility to,” or otherwise “discriminating” against the user based on what they post. The bill prohibits the companies from creating any kind of waiver for users to sign to circumvent the censorship law. It only applies to companies with at least 50 million users.

Social media companies, the Chamber of Commerce, the ACLU, and the libertarian Americans for Prosperity opposed the proposal. Conservative think-tanks like the Heartland Institute and the Heritage Foundation testified in support…

Adam Candeub, a law professor from Michigan State University, testified in support of the bill in committee. He argued social media today forms the modern public square. However, the companies who control that square are nothing but “political actors” who “censor and silence those with whom they disagree.”

FIRE: Georgia improves upon free speech law by enacting FORUM Act

By Michael Hurley

Today, Georgia Gov. Brian Kemp signed House Bill 1, also known as the FORUM Act, into law after it passed the Senate with bipartisan support and cleared the House. FIRE provided written support for the bill, which makes significant improvements upon a campus speech bill passed in 2018 previously known as Senate Bill 339.

Among other provisions, the 2018 bill required that institutions of higher education “maintain and publish policies addressing content-neutral time, place, and manner restrictions on expressive activities with the least restrictive means, in accordance with relevant First Amendment jurisprudence, necessary for providing use of facilities and resources under the control of the institution to all student groups and invited speakers.” 

This provision was intended to prevent institutions from quarantining expressive activities to tiny, remote, and misleadingly titled “free speech zones.” 

The FORUM Act improves upon that provision in two ways.

Tiffany Donnelly

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