Daily Media Links 5/18

May 18, 2020   •  By Tiffany Donnelly   •  
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In the News

Billboard Insider: Michael Wright on L.D. Management v. Kentucky

By Michael Wright

In L.D. Management, Judge Walker ruled that the Kentucky Billboard Act was content based under Reed v. Town of Gilbert (2015) because it exempts onsite signs and held the act unconstitutional in its entirety. After the Sixth Circuit held the Tennessee Billboard Act content-based for the same reason in Thomas v. Bright (2019), that may not seem surprising. But unlike Thomas, L.D. Management involved a commercial sign.

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

Billboard Insider: Rothfelder on L.D. Management v. Kentucky Transportation Cabinet

By Richard Rothfelder

Billboard Insider and I have written often on the legacy after the U.S. Supreme Court’s seminal decision in 2015 in Reed vs Town of Gilbert (see Rothfelder on Reed Auspro and Thomas). As widely reported, Reed has been applied in the State and Federal Courts, such as in Auspro Enterprises vs Texas Department of Transportation and Thomas vs Bright, as finding the distinction between exempt on-premise and regulated off-premise signs in State Highway Beautification Acts to be content-based regulations in violation of the First Amendment Free Speech Clause…

The Court in L.D. Management vs. Kentucky relied heavily on the Sixth Circuit Court of Appeals decision in Thomas vs Bright. Indeed, the Court noted “at issue in Thomas was a Tennessee Billboard Act ‘identical’ to Kentucky’s Billboard Act…The Court also quoted Thomas in calling the dispute “neither a close call nor a difficult decision,” which becomes even more apparent by a couple differences in this case compared to Thomas, Auspro, and Reed.

Supreme Court

Brennan Center: A Win for Public Financing at the Supreme Court

By Ciara Torres-Spelliscy

In some good news for reformers working to combat political corruption and empower small donors, the Supreme Court has rejected a challenge to Seattle’s “democracy voucher” program providing public financing for local elections…

Public financing programs like Seattle’s can democratize political campaign contributions. In Seattle, for example, 84 percent of election donors in 2017 were new donors, according to a study by the organization Every Voice…

[R]eformers should take comfort in the fact the Supreme Court still allows for public financing systems like Seattle’s innovative democracy voucher program. Other cities and states should follow Seattle’s lead. And once a new Congress is seated, the public financing provisions in the democracy reform bill H.R.1 should be enacted into law as well.

The Courts

Capital Times: Lawsuits test limits of political speech

By Natalie A. Harris (Baron Harris Healey)

The president, through his campaign, is suing television station WJFW-TV in Rhinelander for airing a political ad that allegedly defamed him…

Trump is not the only public official testing the language of politics in the courtroom. Wisconsin Supreme Court candidate Jill Karofsky also recently sued to block ads she claimed were defamatory…

Political ad defamation suits are difficult to win. But even the filing of a lawsuit, successful or not, can chill political speech. Filing suits based on negative ads and flooding battleground markets with takedown demands quiets the voice of opposition.

The Trump campaign’s lawsuit against WJFW is also a reminder of the risk broadcasters face by accepting campaign ads.

Broadcasters cannot be sued for claims made in ads placed by candidates, but suits based on ads from third parties like PACs are fair game.

First Amendment

Washington Post: A disturbing draft opinion is an attempt to exclude conservatives from the legal debate

By George F. Will

The 15-judge Committee on Codes of Conduct of the Judicial Conference of the United States has circulated to all federal judges “for review and comment” a draft opinion that, although seemingly evenhanded, is disturbing and perhaps cynical. To reasonable readers, the draft seems tailored to injure the Federalist Society. Without necessarily imputing to the committee this purpose, the proposed code of behavior for federal judges, if adopted, would have the predictable effect of discouraging membership in the organization that has challenged the American Bar Association’s preeminence in the nation’s legal culture…

The authors of the draft opinion are probably concerned about the perception of the judiciary as drenched in politics…

The draft opinion’s real purpose, however, is revealed by its conclusion that judges’ involvement with the American Bar Association (ABA) is not problematic. 

Free Speech

BBC: Burning EU and other flags can now bring German jail term

Germany has made public burning of the EU flag or that of another country punishable by up to three years in jail, classing it as a hate crime.

The vote in the Bundestag (parliament) on Thursday makes defiling foreign flags equal to the crime of defiling the German flag.
The same applies for the EU anthem, Beethoven’s Ode to Joy theme.

The move followed Social Democrat (SPD) complaints about protesters’ burning of the Israeli flag in Berlin in 2017.

Justice Minister Christine Lambrecht, a member of the centre-left SPD, said “burning flags publicly has nothing to do with peaceful protests”.

She said it stoked up “hatred, anger and aggression”, and hurt many people’s feelings…

France has made desecration of the tricolour punishable by a fine of up to €7,500 (£6,600; $8,000) or six months in jail.

Spain, Italy and Greece also have laws banning desecration of the national flag.

Bloomberg: Orban Uses Crisis Powers for Detentions Under ‘Fake News’ Law

By Andras Gergely and Veronika Gulyas

Hungarian authorities have started criminal probes against dozens of people for allegedly spreading fake news related to the pandemic, in a move that Prime Minister Viktor Orban’s opponents say is meant to silence them.

The government changed the criminal code to allow authorities to jail people for up to five years for “distorting” facts in a way that’s deemed to hamper the virus fight. The amendment accompanied legislation that gave Orban the right to rule by decree for an indefinite period, which has raised alarm about the future of Hungarian democracy.

Since the law’s approval in late March, authorities have started 86 criminal probes for alleged scaremongering, according to official data. The opposition Momentum party said that one of its supporters had been briefly detained Wednesday after a Facebook post sharing details about an anti-government protest.


National Review: Our Nevermind Media

By Kyle Smith

The Russia-Trump collusion yarn is perhaps the most-promoted false conspiracy theory in American history: Major figures who advanced the theory have now conceded that they had no evidence for it, and yet leading media personalities who hyped it are expressing no shame or remorse whatsoever. CNN’s Brian Stelter is telling his audience, not, “My God, I have failed you, and I hereby announce my retirement in disgrace from public life” but, “Why are those jerks so obsessed with this Russia story we talked up incessantly for three years?” Working in the major media is a (self) love story: It means never having to say you’re sorry.

Independent Groups

The Hill: Liberals embrace super PACs they once shunned

By Max Greenwood

Progressives are embracing super PACs with newfound vigor…

A handful of new liberal outside groups have cropped up in recent weeks, many of them founded by former aides and allies of Sen. Sanders and other progressives…

But the proliferation of super PACs has come at a cost for some in the progressive movement, which has long denounced the existence of such groups and the influence of money in politics…

Chuck Rocha, a former senior adviser to Sanders who is involved in America’s Promise PAC and is spearheading the creation of another group, Nuestro PAC, said that super PACs are simply a means to an end: helping Democrats and progressives win up and down the ballot.

Unlike traditional political action committees and political nonprofits, super PACs can act as a “partisan hammer,” Rocha said, a role that traditional campaigns and PACs can’t necessarily fill.

“I am anti all this money in politics and if we can operate without super PACs, I would vote for that everyday,” Rocha told The Hill. “But I’ve got to do something right now. I don’t have the privilege to be able to wait around until there aren’t super PACs on either side.” …

“Super PACs aren’t the problem. The problem is corporate money in super PACs,” Rocha said. 

Online Speech Platforms

Washington Post: Will Facebook’s oversight board actually hold the company accountable?

By Editorial Board

Facebook’s high court was constructed by Facebook, for Facebook, which has left many wondering: Will the Silicon Valley leviathan’s oversight board keep chief executive Mark Zuckerberg’s company accountable, or will it shield it from accountability instead? …

Some observers have pointed out all the problems with Facebook that the oversight board doesn’t solve: the privacy harms of a business model that critics have come to call surveillance capitalism, for example, or insufficient disclosure obligations in elections messaging and advertising. These are real problems, but the responsibility for addressing them shouldn’t lie with the board, and it shouldn’t even lie with Facebook: Governments ought to set rules of their own, and this country’s legislature has fallen short.

Wall Street Journal: Google Hides News, Tricked by Fake Claims

By Andrea Fuller, Kirsten Grind and Joe Palazzolo

The Journal identified hundreds of instances in which individuals or companies, often using apparently fake identities, caused Google to remove links to unfavorable articles and blog posts that alleged wrongdoing by convicted criminals, foreign officials and businesspeople in the U.S. and abroad.

Google took them down in response to copyright complaints, many of which appear to be bogus, the Journal found in an analysis of information from the more than four billion links sent to Google for removal since 2011…

When Google erases links to an article in its search engine, it is often the equivalent of wiping the piece from the internet, even though the item may still exist on a little-trafficked website. Searchers won’t see a trace.

“If people can manipulate the gatekeepers to make important and lawful information disappear,” said Daphne Keller, a former Google lawyer and now a program director at Stanford University’s Cyber Policy Center, “that’s a big deal.” 

Spectator: How can Twitter decide whether COVID news is ‘untrue’?

By Karol Markowicz

The Centers for Disease Control and Prevention are sure masks help. Now.

But in January, Dr Nancy Messonnier, director of the National Center for Immunization and Respiratory Diseases at the CDC, said during a briefing, ‘the virus is not spreading in the general community. We don’t routinely recommend the use of face masks by the public to prevent respiratory illness. And we certainly are not recommending that at this time for this new virus.’ …

By mid-April, the CDC adopted its new policy that masks should be worn in situations where social distancing is not possible…

That’s why when Twitter announced this week it would start ‘alerting users when a tweet makes disputed or misleading claims about the coronavirus’, it was immediately clear it would become problematic…

The problem with the site policing truth is that truth isn’t particularly evident right now and it shifts with time…

[F]or many users, particularly conservatives, it’s clear that ‘true’ will be what is currently acceptable among liberal elites while ‘untrue’ will be anything that challenges that…

Twitter should focus on doing what it does best: open discourse between many people of differing opinions… Disagreement is good, even in a time of pandemic. Twitter should foster it not clamp down on it for its own version of the truth.

New York Post: YouTube censors epidemiologist Knut Wittkowski for opposing lockdown

By Jon Levine

Big Tech companies are aggressively tamping down on COVID-19 “misinformation” – opinions and ideas contrary to official pronouncements.

Dr. Knut M. Wittkowski, former head of biostatistics, epidemiology and research design at Rockefeller University, says YouTube removed a video of him talking about the virus which had racked up more than 1.3 million views.

Wittkowski, 65, is a ferocious critic of the nation’s current steps to fight the coronavirus. He has derided social distancing, saying it only prolongs the virus’ existence and has attacked the current lockdown as mostly unnecessary…

Witkowski said,”They don’t tell you [why they removed the video.] They just say it violates our community standards. There’s no explanation for what those standards are or what standards it violated.” …

Across social media, censors have been racing to limit the flow of verboten information…

“It’s the kind of totalitarian thinking and conduct that has cost millions of lives in recent world history. The fact that it’s being done by private companies and not government doesn’t change that,” Ron Coleman, a prominent First Amendment lawyer, told The Post.

Candidates and Campaigns

Washington Post: Donors can now give $620,600 to Biden and DNC, expanding Democratic big-money fundraising

By Michelle Ye Hee Lee

Presumptive Democratic presidential nominee Joe Biden will ask donors to give as much as $620,600 to support his White House bid and down-ballot candidates, dramatically expanding his fundraising capability to compete with President Trump’s big-money machine.

The Biden Victory Fund, a committee that raises money with the Democratic National Committee, on Saturday filed an agreement that allows wealthy donors to give large checks that will be shared by the campaign, the party and 26 state parties – the latest move by Democrats to ramp up the former vice president’s fundraising for the general election.

The decision allows Biden to raise money at the levels of the campaign for Trump, who has enjoyed a fundraising advantage as the incumbent president who can coordinate directly with the party and state parties.

The Biden Victory Fund agreement is the latest example of the dramatically expanding fundraising power of national party committees, made possible through pivotal legal changes in 2014 that loosened restrictions on individual contributions.

The States

OCPA: Privacy-protection measure heads to governor

By Ray Carter

A strong bipartisan coalition of lawmakers voted Tuesday to protect Oklahomans’ privacy when they support nonprofit charities and similar organizations.

House Bill 3613 creates the “Personal Privacy Protection Act.” The law would ban state government entities from forcing nonprofits to publicly disclose the identities, home addresses, and other personal information of supporters.

“It’s a First Amendment speech-and-association issue,” said Sen. Julie Daniels, a Bartlesville Republican who carried the bill on the Senate floor.

Under the legislation, no state agency could compel a nonprofit entity to publicly report data that “directly or indirectly identifies a person as a member, supporter, or volunteer of, or donor of financial or nonfinancial support to” any nonprofit entity.

Under the bill, state agencies would also be barred from requiring contractors to provide information on “where they put their charitable dollars,” Daniels said.

In recent years, some special-interest groups have attacked businesses for supporting groups like the Salvation Army and the Fellowship of Christian Athletes, among others.

The bill does not alter existing requirements for public reporting of donors to political candidates and various political campaigns…
HB 3613 passed on a bipartisan 43-2 vote. The bill now goes to Gov. Kevin Stitt.

St. Louis Jewish Light: Missouri governor expected to sign anti-BDS bill into law

By Eric Berger

The Missouri legislature approved a bill Thursday that would require certain companies entering into a contract with the state to certify that they are not, and will not, engage in a boycott of Israel.

Some pro-Israel lawmakers and advocates have tried repeatedly in recent years to pass anti-boycott, divestment and sanctions (BDS) movement legislation in the state, but previous attempts have failed in part because of opposition from lawmakers concerned that it violates people’s rights to free speech.

This is the first time that the legislature has approved such a bill, and Gov. Mike Parson is expected to sign it…

The House approved the bill on a 95 to 40 vote, and the Senate did so on a 28 to 1 vote.

Other states that have passed similar legislation have faced legal challenges in recent years from the American Civil Liberties Union on the grounds that the laws violate individuals’ free speech rights. In Missouri, supporters have countered such opposition by saying that the legislation does not target individuals but rather companies worth over $100,000 with 10 or more employees.

Tiffany Donnelly

Tiffany Donnelly