Daily Media Links 6/21

June 21, 2022   •  By Tiffany Donnelly   •  
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We’re Hiring!

Senior Attorney – Institute for Free Speech – Washington, DC or Virtual Office

The Institute for Free Speech is hiring a Senior Attorney with a minimum of seven years of experience. The location for this position is either at our Washington, D.C. office or remotely anywhere in the United States.

This is a rare opportunity to work with a growing team to litigate a long-term legal strategy directed toward the protection of Constitutional rights. We challenge laws, practices, and policies that infringe upon First Amendment freedoms, such as speech codes that censor parents at school board meetings, laws restricting people’s ability to give and receive campaign contributions, and any intrusion into people’s private political associations. You would work to hold censors accountable; and to secure legal precedents clearing away a thicket of laws, regulations, and practices that suppress speech about government and candidates for political office, threaten citizens’ privacy if they speak or join groups, and impose heavy burdens on political activity.

In the News

St. Louis Record: Federal judge rules against censoring conservative talk at Missouri school board meetings

By Juliette Fairley

A federal judge has ruled that a St. Charles County school district was engaging in viewpoint discrimination when it selectively enforced a no-advertising policy during a school board meeting’s public commentary.

Plaintiffs sued the Francis Howell School District on Feb. 11 seeking an injunction, declaratory relief, and nominal damages after they were banned from speaking about their political action committee (PAC) at a school board meeting…

The plaintiffs settled after the school district agreed to pay $70,000 to the Institute for Free Speech in Washington, D.C., which brought the suit on behalf of the plaintiffs.

“We believe we would have won had we gone to trial,” said Del Kolde, senior attorney at the Institute for Free Speech in Washington. “It would have been very time-consuming and expensive also for the school district. I don’t feel sorry for them, it was a reasonable result and one that our clients supported.”

Newsday: Brian Benjamin case shows that small-donor matching systems incentivize fraud

By Tiffany Donnelly

The bad news: Alleged schemers tried to swindle New York City taxpayers.

The really bad news: The state’s second-highest-ranking official was indicted for his alleged role in a related bribery scandal while he was a state senator.

The U.S. Department of Justice claims ex-Lt. Gov. Brian Benjamin went to criminal lengths to get his hands on a big pot of “matching” campaign funds in his failed bid for New York City comptroller.

Benjamin’s trial hasn’t begun, but one verdict is already in: The “small donor” matching system incentivizes fraud.

Yet in November, statewide and legislative candidates throughout New York can begin collecting public funds for the first time in a system largely patterned after the city’s. Suffolk County officials are embroiled in a fight over a similar matching funds program.

Proponents claim matching funds build confidence in government and reduce the reality and appearance of corruption. But the recent indictments of Benjamin and his alleged co-conspirator, Gerald Migdol, show why they may have the opposite effect.

The Courts

Reason (Volokh Conspiracy): Profs. Adam Candeub & Philip Hamburger on “The Common Carrier Cure for First Amendment Uncertainty”

By Eugene Volokh

An interesting new twist on the argument, which particularly focuses on how social media quasi-common-carrier regulations can fight governmental pressure on platforms to censor certain material; it reminded me of Ian Samuel’s The New Writs of Assistance, which similarly argued that some Big Tech companies should be legally required to limit the data they maintain about users, in order to fight governmental pressure on them to disclose it.

I’m not sure whether on balance such social media quasi-common-carrier rules are a good idea, but I thought the essay was worth passing along. (I have argued that some kinds of such rules are constitutional, and laid out some other arguments in their favor, but I can certainly see lots of arguments against them as well, some of which have been well laid out in this symposium.) I’d of course be glad to post or link to responses to this as well.


Committee on House Administration (Subcommittee on Elections): Hearing: A Growing Threat: How Disinformation Damages American Democracy

On Wednesday, June 22, 2022, the Subcommittee on Elections of the Committee on House Administration will hold a hearing titled “A Growing Threat: How Disinformation Damages American Democracy.” The Subcommittee hearing will take place at 2:30PM EDT in 1310 Longworth House Office Building and also remotely via Zoom video conferencing. This proceeding will be streamed live on https://cha.house.gov/.

Witness list.

Ed. note: Institute for Free Speech Senior Fellow Gary Lawkowski will testify.

Reason: Senators Want To Control Google Search Results About Abortion

By Elizabeth Nolan Brown

21 senators have sent a letter to Google CEO Sundar Pichai complaining that people who search for information about abortions may be led to websites for crisis pregnancy centers…

[I]n a free society they must be able to advertise anywhere pro-choice advertising is permitted…

If senators pressure private companies into excluding speech that Democratic politicians don’t like while Democrats are in power, what do they think will happen when Republicans are in charge again?

The best way to counter bad information is to get people good information, not to strong-arm private actors into spreading only your preferred messages. A government powerful enough to bully tech companies into obscuring information about anti-abortion centers is also one powerful enough to bully tech companies into hiding info about how to obtain an abortion—and about a whole lot else.


Washington Post:  Why Watergate-era campaign finance laws have failed

By Ellen L. Weintraub

Contributions to super PACs are required to be disclosed, but sophisticated and secretive donors know they can give to ideologically aligned nonprofit corporations that will pass along their money to the super PACs without revealing the donors to the public. (Politicians presumably know who their benefactors are.) This has contributed to more than $1 billion in dark money flooding America’s politics in 2020 alone.

The FEC has had some success in going after foreign donors, but I remain concerned that foreign money can seep into the system through entities that are domestically incorporated but owned and influenced by foreign nationals…

Congress should revive languishing bills intended to strengthen disclosure, which would help ensure the transparency that the Supreme Court has (so far) robustly endorsed, and enhance barriers against foreign spending in our elections. And the FEC must update its regulations (unchanged since before Citizens United) to meaningfully address the porous relationships between candidates and big-money super PACs. Stricter enforcement — by the FEC in civil matters and the Justice Department in criminal ones — is essential.

Washington Examiner: Flustered FEC Democrats link Trump campaign to Watergate

By Paul Bedard

Bitter Federal Election Commission Democrats this week expressed outrage that Republican commissioners didn’t agree to investigate former President Donald Trump’s 2020 campaign spending, calling it the “unmistakable stench of partisanship.”

In a five-page memo, Commissioners Ellen Weintraub and Shana Broussard accused the three GOP commissioners of running block for Trump and said their actions are undermining the reason the agency exists.

Among other attacks, the duo ripped the Republicans for refusing to believe anonymous news sources in major newspaper stories cited in a complaint that the campaign allegedly trafficked millions of dollars through shell companies to the former president’s family and friends.

The Hill: If the FEC won’t protect voters, the courts should — but it might be up to Congress

By Trevor Potter

The FEC’s structure requires four of the six commissioners to agree before an investigation of an alleged campaign finance violation can be opened. This means that three commissioners can paralyze the agency if they so choose. Unfortunately, that has happened consistently in recent years.

Congress foresaw the risk of gridlock — though probably not at this scale — when it created the FEC, addressing it by including a provision in the Federal Election Campaign Act (FECA) that allows private parties to challenge in court FEC dismissals of alleged campaign finance violations. As the agency’s deadlock has become endemic, several private parties have sued under this provision to force the FEC to do its job as Congress intended. But a series of recent judicial decisions has threatened to nullify this core statutory protection.

Candidates and Campaigns

New York Times: Deceptive Mailings, False Billboards: Voting Disinformation Is Not Just Online

By Steven Lee Myers

When it comes to elections, disinformation is not just a problem online.

Researchers at the University of Texas at Austin argue in a new report that disinformation targeting communities of color in three battleground states circulated as often through traditional sources of information, complicating efforts to fight it.

The misleading information was included in mailings and campaign advertisements in newspapers, radio, television and even billboards. Those efforts are more likely to reach voters in those communities than targeted disinformation campaigns on the internet.

Online Speech Platforms

Reason: YouTube Deleted a January 6th Committee Video for Spreading Election Misinformation

By Robby Soave

YouTube removed a video uploaded by the January 6th Committee that showed footage of former President Donald Trump contesting the results of the 2020 election…

In essence, YouTube does not distinguish between Trump saying the election was stolen and a third party saying that Trump says the election was stolen. Suffice it to say this is not a very intelligent policy.

The States

Axios: Lawsuit claims Fox News aided Georgia congressional candidate’s campaign

By Julia Shapero and Emma Hurt

A former congressional candidate in Georgia filed suit on Thursday against Fox News and host Brian Kilmeade, claiming they conspired to help one of his political opponents win the Republican primary for Georgia’s 2nd congressional district.

In the lawsuit first reported by WRBL, Wayne Johnson accused Fox News of violating election and campaign finance laws by allowing fellow Republican Jeremy Hunt to appear numerous times on its programs without offering the same benefit to other candidates.

The lawsuit claims Fox News gave Hunt more than $2.8 million worth of airtime on its programs and violated the Equal Time Act, which requires stations to provide equal time to political opponents who request it.

Tiffany Donnelly

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