Daily Media Links 5/12

May 12, 2020   •  By Tiffany Donnelly   •  
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New from the Institute for Free Speech

Institute for Free Speech Welcomes Summer Research Intern, Alec Greven

By Scott Blackburn

Alec Greven has joined the Institute for Free Speech as a Research Intern for the summer of 2020. He is based in the Research Department, where he will assist with a variety of work relating to political expression.

Alec is a rising senior at the University of Richmond and is double majoring in Leadership Studies and PPEL (Philosophy, Politics, Economics, and Law). He is a New York Times bestselling author published in over 20 languages. Additionally, he works as an External Reviewer for Stance, an international undergraduate philosophy journal, and as a Staff Writer for his campus newspaper, The Collegian.

Alec has worked closely with free expression issues for several years now. At the University of Richmond, Alec has been actively involved in reforming his campus’ free speech policies. Additionally, he recently received a grant to conduct a research project with Dr. Jessica Flanigan on the incompatibility of speech codes with the guiding principles of higher education institutions. As Alec explains, “I am extremely passionate about the First Amendment and ensuring that everyone has the right to speak. As I’ve learned from my experience on campus, a culture of open inquiry is vital to both the foundational purpose of democracy and the mission of higher education. I look forward to applying that passion and experience to protect Americans’ speech rights outside of campus too.”

Alec’s main responsibility in his time at IFS will involve conducting research on political expression, culminating in an independently authored research project. He will also contribute to the Institute’s blog with original commentary on newsworthy free speech issues and help the Institute’s Media Manager with the compilation of the organization’s signature Daily Media Update.

We look forward to benefiting from Alec’s contributions and insights this summer. Please join us in welcoming him to our team!

Supreme Court

Vox: Clarence Thomas wants to shrink your free speech rights – unless you are a rich donor

By Ian Millhiser

Last Thursday, Justice Clarence Thomas suggested that a major First Amendment doctrine should be abandoned, and that the right to free speech be significantly shrunk in the process. It’s the second time he’s done so in a little over a year, and at least the third time Thomas has called for a major slice of Americans’ free speech rights to be cut away.

His latest call…came in United States v. Sineneng-Smith…

Though Thomas joined Justice Ruth Bader Ginsburg’s unanimous opinion, he also wrote a separate opinion joined by no other justice. In it, he calls for the Court to reconsider its “overbreadth” doctrine, a First Amendment doctrine that allows courts to cast an especially skeptical eye on laws restricting free speech…

Read in isolation, the new viewpoint that Thomas announced in Sineneng-Smith could be seen as a call for judicial restraint – an assertion that courts should be more cautious before they toss out an act of a legislature altogether.

But in Citizens United, Thomas sang a very different tune.

The thrust of Thomas’s opinion in Citizens United, the landmark Supreme Court decision that gutted much of America’s campaign finance laws, is that as-applied challenges are insufficient to protect donors whose political spending is disclosed to the public, and that the Supreme Court should have declared a federal campaign finance disclosure law facially invalid.

The Courts

Reason (Volokh Conspiracy): Can Courts Distinguish Anti-BDS Laws from Public Accommodations Laws for First Amendment Purposes?

By David Bernstein

As regular VC readers are aware, there is ongoing litigation in the federal courts regarding whether laws requiring government contractors to sign a form stating that their business does not boycott Israel and people and businesses who do business with Israel violate the contractors’ right to freedom of speech. The basic position of those who think such laws pass constitutional muster is that boycotts are an economic act, and thus are not covered by the First Amendment to begin with. The other side claims that boycotting is a form of freedom of expression, and thus the laws infringe on First Amendment rights…

In the Fifth Circuit Amawi case, a group of law professors signed an amicus brief on behalf of the Knight Center, which I thought was the most persuasive brief on the plaintiff’s side. This brief took a slightly different tack than usual on the free speech issue. Like other opponents of anti-BDS laws, the authors contend that boycotts are inherently expressive and subject to First Amendment protections. The brief, however, added that Texas anti-BDS law was facially unconstitutional because, even though it applied to contractors who boycotted Israel for any reason, its motivation was to targets boycotters motivated by anti-Israel ideology. The law therefore constitutes illicit viewpoint-based discrimination.

Wall Street Journal: Chicago’s Union Pickpockets

By The Editorial Board

Do public unions feel obliged to follow the law? Apparently the Chicago Teachers Union (CTU) doesn’t, according to a new lawsuit filed by teachers who say they’ve been forced to make compulsory dues payments though they’ve left the union.

When the CTU went on strike last fall, Joanne Troesch and Ifeoma Nkemdi didn’t want to stop teaching…

Both teachers quit the union, and in late October asked Chicago Public Schools to stop deducting dues from their paychecks. But even after receiving notice, the union continued to pilfer $35.71 from Ms. Troesch and $59.51 from Ms. Nkemdi every two weeks. The CTU claims members may revoke permission for dues deductions only during the month of August, and anyone who leaves after that must pay until the next escape window.

That’s unconstitutional, Ms. Troesch and Ms. Nkemdi argue in a lawsuit filed last week in federal court. The teachers cite the Supreme Court’s 2018 Janus ruling that found that compulsory union fees violate free-speech rights by forcing workers to subsidize union speech they disagree with. Government employees must “clearly and affirmatively consent before any money is taken from them,” the majority opinion said…

Federal courts need to enforce Janus or it will have no meaning.


Times of San Diego: First Amendment Doesn’t Apply to Fox News, WASHLITE Tells Court

By Ken Stone

Cable networks aren’t afforded the same First Amendment protections as print media, so a judge shouldn’t dismiss a consumer-protection lawsuit against Fox News, said a new court filing Monday.

“Fox is not a newspaper and is not sued in this action for the programming on its broadcast television stations,” said a lawyer for the Washington League for Increased Transparency and Ethics.

WASHLITE aims to constrain Fox News coverage of the COVID-19 pandemic, which it calls deceptive and misleading. The nonprofit also demands retractions.

Its latest filing – a response to a motion to dismiss – hopes to persuade Judge Brian McDonald in King County Superior Court to allow the case to proceed. A hearing is set for May 21.

WASHLITE attorney Catherine “Cat” Clark of Seattle said in her 36-page filing that the U.S. Supreme Court “has long recognized that cable programmers do not have First Amendment rights on the cable medium. … Rather, the law is that only cable operators, such as AT&T, Comcast and Spectrum, enjoy First Amendment rights on their privately owned cable systems.”

In a statement, Fox News Media general counsel Lily Fu Claffee labeled as “absurd and unconstitutional” the group’s premise, which she said is that “courts and judges ought to take the place of managing editors of cable newsrooms across the country so that the state may approve or suppress what information our audiences hear.”

Independent Groups 

Washington Post: Facebook is quietly helping to set up a new pro-tech advocacy group to battle Washington

By Tony Romm

Facebook is working behind the scenes to help launch a new political advocacy group that would combat U.S. lawmakers and regulators trying to rein in the tech industry, escalating Silicon Valley’s war with Washington at a moment when government officials are threatening to break up large companies.

The organization is called American Edge, and it aims through a barrage of advertising and other political spending to convince policymakers that Silicon Valley is essential to the U.S. economy and the future of free speech, according to three people familiar with the matter as well as documents reviewed by The Washington Post. The people spoke on the condition of anonymity to describe the group because it hasn’t officially been announced…

The group’s board is set to include Susana Martinez, the former Republican governor of New Mexico; Bradley Smith, a former Republican commissioner on the Federal Election Commission; and Chris Carney, a former Democratic congressman from Pennsylvania who’s now at a consulting firm, two people said. Smith and Carney did not respond to requests for comment, and Martinez could not immediately be reached.

Online Speech Platforms

AP News: Twitter to label disputed COVID-19 tweets

By Amanda Seitz

Twitter announced Monday it will warn users when a tweet contains disputed or misleading information about the coronavirus…

Twitter will take a case-by-case approach to how it decides which tweets are labeled and will only remove posts that are harmful, company leaders said…

Some tweets will run with a label underneath that directs users to a link with additional information about COVID-19. Other tweets might be covered entirely by a warning label alerting users that “some or all of the content shared in this tweet conflict with guidance from public health experts regarding COVID-19.”

The new labels will be available in roughly 40 languages and should begin appearing on tweets as soon as today. The warning could apply retroactively…

Twitter won’t directly fact check or call tweets false on the site, said Nick Pickles, the company’s global senior strategist for public policy. The warning labels might direct users to curated tweets, public health websites or news articles.

Washington Times: Facebook’s oversight board may not be ready before 2020 election

By Ryan Lovelace

The new oversight board charged with policing Facebook’s content enforcement decisions may not start working before the November 2020 election…

The board’s website says it will begin reviewing cases about restricted content on Facebook and Instagram this year, but board co-chair Michael McConnell said he would not guarantee the board will be functional before the end of 2020…

President Trump’s reelection campaign sharply criticized Facebook after the company announced the board’s first 20 members earlier this month. Mr. Trump’s campaign took issue with the selection of board member Pamela Karlan, a Stanford University law professor, who testified to Congress in support of impeachment charges against Mr. Trump.

Mr. Trump’s campaign has also questioned whether a “majority foreign board” would make decisions regarding U.S. election content and accused the board of likely censoring content from Mr. Trump’s supporters in the months leading up to the November election. Trump campaign digital director Gary Coby labeled the board a “big scam” by Facebook.

Candidates and Campaigns

The Atlantic: Putin Is Well on His Way to Stealing the Next Election

By Franklin Foer

The Russians have learned much about American weaknesses, and how to exploit them. Having probed state voting systems far more extensively than is generally understood by the public, they are now surely more capable of mayhem on Election Day-and possibly without leaving a detectable trace of their handiwork. Having hacked into the inboxes of political operatives in the U.S. and abroad, they’ve pioneered new techniques for infiltrating campaigns and disseminating their stolen goods. Even as to disinformation, the best-known and perhaps most overrated of their tactics, they have innovated, finding new ways to manipulate Americans and to poison the nation’s politics. Russia’s interference in 2016 might be remembered as the experimental prelude that foreshadowed the attack of 2020.

The States

Ballotpedia News: Oklahoma House advances bill barring public agencies from requiring donor information from 501(c)s

By Jerrick Adams

On April 6, Oklahoma House Speaker Charles McCall (R) placed SB1491, which would bar public agencies from requiring 501(c) nonprofits to provide them with personal information about their donors, directly on the calendar for floor consideration. The legislation had previously been waiting for action in the House Judiciary Committee. The Oklahoma State Senate, which originated the legislation, approved it unanimously on March 3.

SB1491 would bar any public agency from requiring a nonprofit 501(c) group to provide the agency with personal affiliation information about its donors. The legislation would also prohibit a public agency from publicly disclosing any such information it might have and exempt personal affiliation information from disclosure under the state’s open records law…

Last month, the legislatures of Utah and West Virginia enacted similar bills. Similar legislation is up for consideration in Louisiana and Tennessee.

Michigan lawmakers approved a comparable bill, SB1176, in 2018. Governor Rick Snyder (R) vetoed it; the legislature did not override the veto.

Willamette Week: City Council Candidate Dan Ryan Returns $945 in Donations

By Rachel Monahan

The city’s new program to publicly finance election campaigns requires candidates to agree they won’t accept donations above $250.

But City Council candidate Dan Ryan accepted $945 in donations over the cap and failed to return them within the seven-day limit set by the city’s rules…

Ryan’s failure is notable in part because he has made following the finance rules an issue in the campaign after one of his competitors, Tera Hurst planned to donate improperly some of her campaign contributions to local nonprofits. (She did not do so in the end.)…

Open and Accountable Elections director Susan Mottet has the power to levy a fine equal to the amount a candidate received in excess of the $250 and did not return within seven days. Mottet said she would weigh whether to issue fines… 

As for Hurst, the target of Ryan’s jab: she declined to comment on Ryan’s mistakes, but said she’s been working to keep a careful eye on donations.

“Ultimately, we will need ActBlue (and other common online giving portals) programmed or customized for local limits matching programs; they will need to catch up as other public finance systems develop around the country,” says Hurst.

Tiffany Donnelly

Tiffany Donnelly