Daily Media Links 5/14

May 14, 2020   •  By Tiffany Donnelly   •  
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In the News

SCOTUSblog: Petitions of the week

By Andrew Hamm

This week we highlight petitions pending before the Supreme Court that involve, among other things, whether a sign regulation containing an exception for on-premises signs violates the First Amendment under the Supreme Court’s 2015 decision in Reed v. Town of Gilbert…

Bright v. Thomas

Issue: Whether a sign regulation containing an exception for on-premises signs, for which both commercial and noncommercial speech may qualify, violates the First Amendment under the Supreme Court’s 2015 decision in Reed v. Town of Gilbert.

[Ed. Note: The Institute for Free Speech represents Mr. Thomas in this case.]  

Supreme Court

Wall Street Journal: The Supreme Court and the Lawyers’ Guilds

By The Editorial Board

One reason for the dominance of the progressive legal establishment is that hundreds of thousands of lawyers across the country are forced to join state bar associations that spend their money on political causes against their will. At Friday’s private conference, the Supreme Court is expected to consider whether to take a challenge to this practice on First Amendment grounds.

Jarchow v. State Bar of Wisconsin builds on the Court’s landmark free-speech ruling in Janus v. Afscme (2018). In Janus the Justices held that government employees who aren’t members of government-worker unions can’t be forced to pay union dues, which go toward political advocacy. Government-compelled speech is an affront to the First Amendment, the Court said, and must be subject to heightened legal scrutiny.

The plaintiffs in Jarchow say mandatory bar association fees can no longer be justified in light of Janus. They document how the Wisconsin State Bar takes positions or advocates on issues like sentencing, state budgets, abortion coverage, diversity, immigration and more.

Wisconsin lawyers are compelled to support these causes financially, even if they disagree with them, on penalty of losing their licenses…

One significant achievement of the Supreme Court under Chief Justice John Roberts has been its vigorous protection of First Amendment rights. In Jarchow it has an opportunity to extend that legacy, and we hope the Justices take the case.

The Courts

Courthouse News: Abortion Foe Files Malicious Prosecution Suit Against California

By Maria Dinzeo

Anti-abortion activist David Daleiden, who disguised himself as a purveyor of human tissue for medical research in order to secretly tape abortion providers, claims in a federal lawsuit filed Wednesday that his undercover journalism, along with his anti-abortion views, made him an undeserving target of the California Department of Justice.

“This complaint seeks justice for a brazen, unprecedented, and ongoing conspiracy to selectively use California’s video recording laws as a political weapon to silence disfavored speech,” Daleiden says in his complaint.


Center for Responsive Politics: House Democrats’ relief package would give Washington lobbying giants access to small business aid

By Karl Evers-Hillstrom

House Democrats’ newest coronavirus relief proposal would allow influential Washington lobbying groups – funded by deep-pocketed corporations – to access forgivable small business loans…

Buried in the 1,815-page bill is a provision that allows trade associations, unions and 501(c)(4)s, not just charities, to access coveted small business loans…

Trade associations are primarily tasked with lobbying Congress and the federal government on behalf of their members. Their influence operations include dispatching revolving door lobbyists with close ties to key officials, launching expensive public relations campaigns, flying their members to the Capitol and making PAC contributions to lawmakers’ reelection campaigns…

Corporations and trade associations cannot donate directly to candidates. But they can spend unlimited corporate funds on lavish fundraisers or create incentives for their employees to contribute to the PAC. About three-fourths of PAC giving comes from business interests, giving private industry an advantage over unions and issue organizations.

First Amendment

Detroit News: Five steps to protect public health, regain trust and ensure liberty

By Casey Mattox

American wits from Harriet Tubman to H.L. Mencken have opined on the exercise of balancing liberty and safety. In the midst of the COVID-19 pandemic, finding that balance has high-stakes implications. And Americans’ ability to trust the political process – already foundational to a healthy democracy – becomes even more critical when public leaders are asking people to make personal sacrifices for the greater good of public health…

Here’s a framework of five factors for policymakers to consider: …

Keep it focused. Limits on civil liberties should be as narrow as possible. If drive-in church services or protests that respect social distancing guidelines and use masks are possible without jeopardizing public health, they should not be prohibited…

Allow for modifications. Government should be seeking ways to facilitate modified versions of religious services, public protests, and other constitutionally protected activities by making safer spaces and equipment available where possible…

Ensure equal application. When touching on free expression and religious freedom, it’s imperative that those imposing the restrictions be consistent. Constitutionally protected activities should not be more restricted than other activities – protesters deserve the same consideration as joggers, for example – and any restrictions on assembly or speech must be content-neutral, applying to all in the same way.

Online Speech Platforms

The Verge: The Internet Archive is warning users about debunked ‘zombie’ coronavirus misinformation

By Adi Robertson

The Internet Archive is alerting users when they’ve clicked on some stories that were debunked or taken down on the live web, following reports that people were spreading false coronavirus information through its Wayback Machine.

As NBC reporter Brandy Zadrozny noted on Twitter, the site includes a bright banner on one popular Medium post that was removed as misinformation. Its video archive also creates friction by making users log in to see some videos containing false information, like a reposted version of the conspiracy documentary Plandemic. These videos also include critical comments from Wayback Machine director Mark Graham who described the warnings to Zadrozny as an example of the “importance and value of context in archiving.”

The Internet Archive provides an invaluable resource for understanding the internet. In 2017, it partnered with fact-checking organization First Draft News, which used the Wayback Machine to verify information online. And it’s experimented with annotating misinformation on its TV archive. In April, however, researcher Joan Donovan argued in the MIT Technology Review that the Archive was inadvertently helping spread fake stories about the novel coronavirus because users could find and share archived copies of pages (dubbed “zombie content”) that had been banned or removed by social media platforms.

EFF: Understandable But Nonetheless Troubling: Facebook’s Ban On In-Person Events

By David Greene

We’re closely watching how Facebook enforces its newly-announced policy that limits speech by users who are organizing public protests. This policy is deserving of special attention since it effects free expression on two levels: the organization of the protest itself, and the speech about it. This new policy adds to Facebook’s overall content moderation burden at a time when the company is already unable to keep up with user reports and appeals. One of the great benefits of Facebook is that it is a powerful and affordable organizing tool-therefore, the potential consequences of this policy are serious.

Candidates and Campaigns

New York Times: How to Outflank Trump Online

By Patricia Nelson, Stefan Smith and Erick Sanchez

President Trump’s campaign has used its vast data-mining operation to build pockets of influence throughout the internet – connected through hypertargeted landing pages and subdomains – ensuring that important constituencies, such as women and veterans, are funneled to groups where they are encouraged to organize. Not only does this keep supporters engaged, but it also can create viral loops that trap a loyal online base within an echo chamber of right-wing talking points and pro-Trump propaganda. Just jump into any one of the 90-plus Facebook groups in the Trump ecosystem and you can see this dynamic at work.

Mr. Trump’s operation is formidable, but that does not mean that it’s invincible.

While the Trump campaign’s tactics will make it easier to engage individuals it has spent years cultivating online, the top-down approach is inefficient for reaching new audiences. This may be the Biden campaign’s biggest opportunity. Covid-19 and the resulting societal disruption has primed millions of Americans not only to receive political information, but also to participate in the political process themselves. All Democrats have to do is meet supporters (and potential supporters) where they are online and make it easy for them to get involved.

AdExchanger: The Coronavirus Handicaps Challenger Campaigns

By James Hercher

While everyone in politics is figuring out on the fly how COVID-19 will affect US elections this year, it seems already clear that the virus will majorly disadvantage challenger campaigns, especially in state-level and other down-ballot races.

Since it’s still early in the election season and many primaries are delayed, there hasn’t been a wave of visible dropouts. It would also be hard to measure the net impact on political fundraising and ad spend, because in many cases candidates who quietly planned to run will never actually enter the race.

Media consultants have already notified the political data seller L2 Political that some prospective candidates who planned to self-fund campaigns have delayed or called off their runs, said L2 SVP Paul Westcott. Candidates can’t make up for low name recognition with door-to-door campaigning and event appearances during the pandemic, and they won’t commit potentially hundreds of thousands of dollars to self-fund a race during the ensuing recession, he said.

Field organizing put the Queens Democratic Socialists of America (DSA) on the map, said Matt Thomas, the group’s former spokesperson…

“The unpaid labor we get from volunteers means we can run robust, professional-caliber campaigns,” he said.

But that’s the kind of retail campaigning taken off the table by COVID-19.

The States

Baltimore Sun: Relationship between Sinclair-owned WBFF and mayoral candidate Vignarajah raises questions

By David Zurawik

Is the relationship between Sinclair-owned WBFF and former Maryland Deputy Attorney General Thiru Vignarajah appropriate for a TV station and a political candidate? …

Mary Miller’s campaign manager, Ann Beegle, raised the issue of WBFF’s coverage of the election being biased in favor of Mr. Vignarajah.
“We are concerned about bias in Fox 45’s coverage of the mayoral election,” the letter said, also noting the issue of persons connected to the station making large financial contributions to Mr. Vignarajah’s campaign…

As reported by Sun reporters Talia Richman and Emily Opilo, Sinclair Chairman David D. Smith’s children and their spouses donated a combined $30,000 to Mr. Vignarajah, according to campaign finance reports. Smith family members also made contributions to other candidates. Frederick Smith, a Sinclair vice president and board member, gave Mayor Bernard C. “Jack” Young a $4,000 contribution, while his sons, Eric Smith and Alexander Smith gave Mr. Young $6,000 after a fundraiser at one of their restaurants…

TV stations should be scrupulous in avoiding even the appearance of favoritism in an election, and WBFF has not done that. 

Downey Patriot: City Council declines to take action against home protests

By Alex Dominguez

Discussions to create an ad hoc committee on targeted residential picketing failed to gain traction on Tuesday, instead unveiling a divide between councilmembers on how to address aggressive protesting tactics.

This was just the newest chapter in a continuous saga between the council and a group of vocal opposition…

[T]he situation has escalated further in recent weeks, with picketers taking to council member’s own private homes, as recently as Tuesday night…

Councilman Alex Saab – a lawyer by profession – drew a line in the sand…

“This is absolutely against the fundamental basic tenet of what we learned the first day in law school, the basic constitutional rights,” said Saab. “This issue has been litigated for decades in our country, we’re not about to create this issue that in an instant will face a lawsuit and cost the city probably hundreds of thousands of dollars.”

“…I agree with my council colleagues, sure there’s a time and place, but I certainly – or anybody else who is elected – should not have the authority to regulate speech that is not violent.”

Tiffany Donnelly

Tiffany Donnelly