Daily Media Links 5/28

May 28, 2021   •  By Tiffany Donnelly   •  
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Ed. note: The Media Update will return Tuesday, June 1.

New from the Institute for Free Speech

Institute for Free Speech Welcomes Two New Attorneys

The Institute for Free Speech today announced the additions of Senior Attorney Julie Smith and Attorney Martha Astor. Smith and Astor will help the Institute take on additional cases and expand our legal work to defend and advance free political speech.

“We are pleased to welcome Julie Smith and Martha Astor to our team. Julie brings impeccable credentials and extensive experience as a litigator, both in the private sector and in government. Martha worked with us as a summer fellow during law school and we are happy to have her back,” said Institute for Free Speech President David Keating.

Julie Smith joins the Institute for Free Speech as Senior Attorney after serving as Vice President at Cause of Action Institute, where she litigated against federal government overreach and argued before U.S. Courts of Appeals. Previously, Smith was Of Counsel at the law firm Willkie Farr & Gallagher and was a Partner at Foley & Lardner. She also served as a Senior Counsel in the Securities and Exchange Commission’s Division of Enforcement and Office of General Counsel. Smith earned her J.D. from Harvard Law School and was an editor of the Harvard Law Review…

Martha Astor rejoins the Institute for Free Speech after serving as a staff attorney at the Goldwater Institute since 2019. Astor was previously a summer legal fellow at IFS in 2017, where she contributed to several amicus briefs, including the Institute’s brief to the Supreme Court in Carpenter v. United States. Astor earned her J.D. from Notre Dame Law School in 2019 and has been an Adjunct Professor and Clinical Instructor at Northern Arizona University.

Welcoming Bradley Summer Associate Fellow Ben Cross

The Institute for Free Speech is pleased to welcome Ben Cross as a Bradley Summer Associate Fellow for the summer of 2021. Ben will assist the Institute’s legal team and work towards completion of a legal research project.

Ben is currently pursuing a J.D. at the University of Michigan Law School. A rising 2L, he is the Speaker Chair of the University’s Federalist Society chapter and is the incoming President of Lex Vitae, a pro-life organization affiliated with the Law School. Ben is also a member of First Generation Law Students. Following graduation, he plans to pursue a federal clerkship and a career in private practice.

Commenting on his new role, Ben remarked, “The Institute for Free Speech does remarkable work in a field of crucial importance. The very foundations of American society are rooted in the right to free expression, and I am thrilled to assist in defending that right. I could not think of a better place to work and learn after my first year of law school.”

The Courts

Bloomberg Law: Tech Trade Groups Sue Over Florida’s New Social Media Law

By Jennifer Kay

A new Florida law penalizing social media companies that bar political candidates from their platforms is unconstitutional and conflicts with federal communications law, digital services trade groups said in a lawsuit Thursday.

The law is “a frontal assault on the First Amendment and an extraordinary intervention by the government in the free marketplace of ideas that would be unthinkable for traditional media, book sellers, lending libraries, or newsstands,” according to the lawsuit filed by attorneys for the Computer & Communications Industry Association and NetChoice, whose members include Twitter and Facebook.

Under the law (S.B. 7072), signed May 24 by Republican Gov. Ron DeSantis, a social media company could face $250,000 in daily fines for blocking a statewide candidate for more than 14 days. Suspension of social media privileges of candidates in local elections would carry up to a $25,000-per-day fine for the companies.

The law, which takes effect July 1, also would let an individual seek up to $100,000 in damages if he or she claims a platform’s content standards were inconsistently applied to the user’s posts.

Its restrictions on content moderation violate the social media companies’ free speech “by compelling them to host—and punishing them for taking virtually any action to remove or make less prominent—even highly objectionable or illegal content, no matter how much that content may conflict with their terms or policies,” the lawsuit, filed in the U.S. District Court for the Northern District of Florida, said.


Center for Responsive Politics: GOP bill would codify IRS rule hiding ‘dark money’ donors

By Alyce McFadden

The “Don’t Weaponize the IRS Act,” introduced last week by Sen. Mike Braun (R-Ind.), would prevent the IRS from mandating that 501(c)(4) nonprofits identify their top donors in filings to the agency, turning IRS guidance issued under former president Donald Trump into law. 

McConnell, Braun and the 43 other Republican senators who signed on as co-sponsors say the measure would protect outside groups from discrimination by the IRS. The agency previously apologized for slow-walking conservative groups’ applications for nonprofit status and leaking nonprofit donors…

In late April this year, 38 Democratic senators sent a letter to Treasury Secretary Janet Yellen and IRS Commissioner Charles Rettig calling on them to roll back the Trump anti-disclosure rule…

On May 26, more than 30 House Democrats sent another letter to Yellen and Retting reiterating that message…

The White House has not responded to the letters, though President Joe Biden has said that he supports donor disclosure requirements for groups that spend more than $10,000 on elections and Yellen has expressed openness to addressing nonprofit donor disclosure…

Democrats’ hallmark campaign finance legislation, the ‘For the People Act,’ would make sweeping changes to election law and require all nonprofits that spend more than $10,000 on elections to disclose the names and addresses of donors who give more than $10,000.

GOP lawmakers say the For the People Act would undermine privacy and free speech protections for donors to outside spending groups. They argue that disclosure requirements discourage potential donors from making contributions — which Republicans say are a form of constitutionally protected speech — out of fear of recrimination from their political opponents. 

Washington Post: Democrats are wasting time pursuing their dream elections reform bill. Here’s a better path.

By Edward B. Foley

It’s become increasingly clear that Democrats lack the votes in the Senate to pass their dream elections bill, the behemoth known as S. 1. Before time runs out, they would be wise to come up with a backup plan that would not do as much but could still achieve significant progress in protecting the right to vote.

Frankly, it’s less important what specific election reforms Democrats can negotiate than that the Democrats find some common ground with Republicans. What the country needs now is a genuinely bipartisan statement of shared commitments on how electoral competition is supposed to operate…

If Senate Democrats waste any more time over their futile effort to enact S. 1, however, it will be too late to enact legislation that guarantees a fair fight for the midterms…

Senate Democrats are at risk of blowing their chance at meaningful electoral reform. Rather than ending up with nothing, because they spent too long trying to shoot the moon with S. 1, they should compromise with 10 reasonable Republicans on a set of simple measures to ensure that congressional elections genuinely implement voter preferences.

The Atlantic: Democrats Are Running Out of Time

By Ronald Brownstein

[Activists] have become more and more uncertain that Democratic leaders have a strategy to overcome Manchin’s hesitance [to S.1], not to mention his (and other Democrats’) refusal to pare back the filibuster, which Republicans are certain to employ against any voting-rights legislation. What’s more, these activists fear that by focusing relatively little attention on red states’ actions, Democrats aren’t doing enough to create a climate of public opinion in which Manchin and others could feel pressure to act on the issue of voting rights if and when Senate Republicans filibuster against it…

[T]he White House already appears to be pessimistic that there is any path to persuading Manchin to support sweeping election legislation in the first place…

The White House does not appear to have any secret plan to win Manchin over. On this issue, as on so many others, White House officials and other Democratic senators seem to hope that once it becomes clear that Republicans will not cooperate with Democrats on the legislation, Manchin will eventually agree to pass it solely with Democratic votes. 

But no one knows if or when that point will come. Virtually all Democrats and activists I’ve spoken with agree that Manchin is unlikely to move forward on voting rights unless Biden personally persuades him to do so.

The Hill: For The People Act will empower small donors and increase representation in our democracy

By Rep. Lauren Underwood (D-Ill.)

Small donors have increased their giving in the most recent midterm and presidential elections, but large donors still drowned them out…

The voluntary small donor public financing program in the For the People Act is an effective tool for righting this undemocratic imbalance of influence. It would provide a match of $6 to $1 on contributions of $200 or less by supporters of candidates who opt in and are able to qualify by showing sufficient public support. A wave of states and cities have created similar alternatives in the wake of the Supreme Court’s Citizens United decision in 2010, which opened the floodgates to unlimited political spending…

First, it increases the numbers of people who participate in elections as donors…

Second, small donor public financing increases the diversity of people participating as donors…

And by boosting the financial importance of small donations, small donor public financing offers candidates like us a way to raise competitive sums by relying on a broad base of supporters.

Taxpayer-Financed Campaigns

Associated Press: Feds: Conn. lawmaker committed fraud to get campaign money

By Pat Eaton-Robb

A Connecticut state senator and his former campaign treasurer pleaded not guilty Tuesday to federal fraud charges alleging they lied to obtain public money to run a 2018 state legislative campaign.

Bridgeport Democratic Sen. Dennis Bradley and former school board Chairperson Jessica Martinez pleaded not guilty to wire fraud and conspiracy charges Tuesday afternoon. Bond was set at $300,000 for Bradley and $250,000 for Martinez.

Prosecutors allege that in order to qualify for the state’s public campaign financing system, the pair lied about a March 2018 campaign event and the amount of campaign contributions they had received, according to a federal indictment.

They improperly received $84,140 from the Connecticut Citizen’s Election Fund for the 2018 Democratic primary and improperly sought to obtain another $95,710 for the general election, prosecutors said…

Rocked by public corruption scandals, Connecticut passed a law in 2005 that created a voluntary system in which legislative and statewide candidates receive public funds to run their campaigns so long as they agree to strict rules about spending and fundraising.

They must collect a specific number of small contributions — $5 to $100 — from individuals, including many living in their districts, to qualify for the program and receive grants for their campaigns. Contributors cannot be lobbyists, or current or prospective state contractors, or their family members. The state sets a $2,000 limit the expenditure of personal funds.

The Media

Fox News: Nobody is checking the social media fact checkers. It’s time that changed

By David Marcus

The left-leaning American news media’s stunning reversal on whether the coronavirus could have been created in a Chinese laboratory is the latest example of the dangers of fact checking. 

For most of 2020 the supposed arbiters of truthiness insisted that lab leak stories should not be taken seriously and should be suppressed on social media. Just yesterday Facebook finally lifted is baseless ban of the lab leak theory. The real problem here is not that fact checkers got something wrong, it’s that they have the power to censor what journalism Americans see and consume unilaterally. 

Nobody is checking the fact checkers, and it is time that changed. It’s time for government to regulate the fact checking industry. 

This may seem antithetical to traditional conservative values of small government, but the ubiquitous and monopolistic nature of social media, the power it has to frame how we see the world, is an existential challenge. We cannot be slaves to orthodoxy if that means Americans are subject not only to lies, but also the censorship of the truth. 

The First Amendment rightly renders government powerless to regulate news outlets’ publishing content from their own in house fact checkers — they are protected by freedom of the press. But third party independent fact checkers are another story entirely.

Online Speech Platforms

Wall Street Journal: Facebook’s Lab-Leak About-Face

By The Editorial Board

Question: When does “misinformation” stop being misinformation on social media? Answer: When Democratic government authorities give permission.

Witness Facebook’s decision to stop censoring some claims about the origin of Covid-19 the same day President Biden said his Administration will investigate whether a Chinese lab may have been involved.

Politico: Facebook will give to candidates again — but not Republicans who voted against certifying Biden’s win

By Emily Birnbaum

Facebook on Thursday confirmed it will resume political donations, but it will no longer give money to lawmakers who voted against certifying the 2020 presidential election.

Facebook was one of the first corporations to pause all donations through its political action committee in the wake of the Jan. 6 assault on the Capitol. The pause came as major companies faced scrutiny over their donations to Republican lawmakers accused of fanning the flames of the deadly rampage.

Facebook at the time said it was pausing its PAC contributions for the first quarter of the year while reviewing its policies.

 “As a result of our review, the FBPAC Board has decided to resume contributions, but not to any members of Congress who voted against certifying the 2020 election following the events at the Capitol on January 6,” said Facebook Public Policy Director Brian Rice in an internal message to employees, first reported by BuzzFeed News. “While a contribution to a candidate for office does not mean that we agree with every policy or position that a candidate may espouse, we believe this decision is appropriate given the unprecedented events in January.”

Persuasion: Twitter’s Other Free Speech Problem

By Katharine Beals

It took a single tweet about autism for Twitter to suspend me for life. The tweet, part of my “life with #autism” series, quoted a clumsy joke from my autistic son. It contained the words “smash your head.”

The fate of those who accidentally post the wrong words on social media should set off alarm bells for anyone concerned about due process and free speech…

But this problem has flown under the radar. Most people writing about free speech and social media are focused on partisan politics, not on artificial intelligence. They appear to be unaware of, or unconcerned about, the thousands of ordinary folks who are suspended indefinitely because a clumsy and indifferent AI flagged a perfectly legitimate tweet…

Twitter may have begun as an egalitarian platform, but the growing elusiveness of its human review only widens the gap between establishment insiders and everyone else.

The underlying problem is that social media has been increasingly incentivized—by both governmental and market forces—to eliminate all posts that possibly contain hate speech or violent threats. Human moderation is costly; so is better AI—and AI is nowhere near being able to distinguish joke threats from actual ones. 

The States

Fox News: Texas lawmakers pass bill requiring national anthem to be played by pro sports teams

By Thomas Barrabi

Texas lawmakers passed a bill Tuesday that will penalize professional sports teams if they do not play the national anthem before games.

The Republican-backed bill would require government entities to enter a written agreement with professional sports teams affirming that they will play the national anthem. Teams that do not comply with the agreement could lose their state and local subsidies or be barred from entering into future contracts with the state.

Texas Lt. Gov. Dan Patrick was a staunch advocate for the bill, dubbed the “Star Spangled Banner Protection Act.” The measure was first introduced in February after the Dallas Mavericks briefly stopped playing the national anthem before their home games…

The bill drew criticism from some state Democrats who argued it constituted governmental overreach and violated First Amendment protections.

“Once again, we’re carrying legislation that is openly and aggressively unconstitutional,” Democratic State Rep. Gene Wu said, according to the Houston Chronicle.

Tiffany Donnelly

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