Daily Media Links 6/23

June 23, 2020   •  By Tiffany Donnelly   •  
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Supreme Court

Bloomberg Law: Justices Won’t Clarify Line Between Speech and`True Threats’

By Kimberly Strawbridge Robinson

The U.S. Supreme Court won’t address when states can criminalize threatening speech.

The justices on Monday refused to review a pair of convictions thrown out by the Kansas Supreme Court, which said last year that the state law classifying a threat a felony was unconstitutional because it could penalize speech that-while undesirable-is protected by the First Amendment.

The speaker need not act on the threat for it to be criminal, but at the very least, the speaker must intend for the threat to cause fear, the state’s high court said. Threats made “recklessly,” without regard to whether or not the target will be scared, aren’t enough…

At least 14 other States have enacted statutes that criminalize reckless threats, Kansas told the justices. “The law in each of these jurisdictions is now subject to attack based on the Kansas Supreme Court’s interpretation of the First Amendment.”

A number of states, led by Virginia, filed an amicus brief urging the justices to take up the case…

Justice Clarence Thomas, who dissented from the court’s decision not to hear the latest case, noted that courts are split on whether such laws are permissible and said the court should have taken this opportunity to clarify the law.

His dissent Monday echoed his 2015 dissent that the court’s decision to not the decide the question “throws everyone from appellate judges to everyday Facebook users into a state of uncertainty.” …

The case is Kansas v. Boettger, U.S., No. 19-1051.

The Courts

Alamogordo Daily News: Cowboys for Trump sue Secretary of State in federal court

By Nicole Maxwell

Cowboys For Trump claimed New Mexico Secretary of State Maggie Toulouse Oliver “unfairly weaponized complaints” in order to force the organization to name its financial donors.

The for-profit organization founded by Couy Griffin, filed a federal lawsuit June 18, which alleged Toulouse Oliver in her capacity as secretary of state had violated its right to free speech and privacy.

Griffin, who is a sitting Otero County Commissioner for District 2, was ordered earlier this year to register the organization as a political action committee, file financial reports and pay fines associated with the issue.

But Cowboys for Trump maintained that it was engaged only in “educational advocacy” in support of President Donald Trump and was not acting as a political action committee.

“Plaintiffs have not and will not make independent expenditures in support of candidates or ballot questions and they also have not and will not make financial contributions to candidates,” the lawsuit states.

“None of these complaints raised any credible violation of New Mexico law, but the government’s harassment campaign continued,” a letter by Colin Hunter of the Barrett Law firm states.

Hunter alleged that the investigation into Cowboys for Trump was politically motivated as Toulouse Oliver’s Office implemented campaign finance measures that intended to change the Campaign Finance Rule…

The rule change, which went into effect July 2019, “has the practical effect of automatically categorizing all issue advocacy referring to candidates, including incumbents seeking reelection, or ballot measures as an electioneering activity as long as it is done proximate in time to an election,” the complaint states.

WMC Action News 5: Federal judge considering proposed changes to consent decree for Memphis police

By Brandon Richard

U.S. District Court Judge Jon P. McCalla heard closing arguments on Monday on proposed changes to the 1978 Kendrick Consent Decree.

City of Memphis attorneys say the consent decree is so outdated that Memphis police officers can’t do their jobs effectively, and they say without changes, public safety will be harmed.

In 2018, McCalla ruled the Memphis Police Department violated the decree by using a fake Facebook account to spy on activists and put together a list of activists that would require police escorts to enter city hall…

The American Civil Liberties Union of Tennessee, which filed the lawsuit that led to the 2018 ruling, and the City of Memphis have agreed to change several parts of the consent decree.

For instance, they have agreed to change the phrase “political intelligence” to “First Amendment-related intelligence” to make the document less confusing…

The two sides also agreed to add language about social media and how MPD may still be able to use it, if they are not spying…

“What the City of Memphis struggled with were the gray-area threats, threats that do not rise to the level of being a crime,” said [Bruce McMullen, the city’s former chief legal officer.]

He also said the decree made it more difficult to deal with other threats that surfaced online, like those surrounding protests.

“We struggled with monitoring the internet in order to be prepared and ready when there are protests groups and counter-protest groups,” McMullen said.


Federalist: Marsha Blackburn Pushes DOJ To Examine Google’s Power Over Free Speech

By Tristan Justice

Republican Tennessee Sen. Marsha Blackburn penned a letter to Attorney General William Barr Monday urging the Department of Justice to conduct a thorough antitrust investigation into Google’s monopolistic power over the internet after the tech giant’s recent attack on The Federalist.

“As your antitrust investigation of Google intensified, I urge you to thoroughly scrutinize how the company’s anticompetitive practices could lead to the crippling of journalistic freedom,” Blackburn wrote. “I also ask that your probe examine abuses in both the online advertising and online search markets, and to take enforcement action swiftly before further economic harm results.” …

Blackburn, who chairs the Senate Judiciary Committee’s Tech Task Force praised Barr’s move to ramp up DOJ efforts to curb liability protections to the Silicon Valley tech giants provided in Section 230 of the 1996 Communications Decency Act in light of Google’s most recent episode of selective censorship but pushed the Justice Department to do more. A Daily Caller analysis of the Justice Department’s current probe into Google published Sunday shows that federal investigators appear to be ignoring bias claims in Google’s search algorithms even as its search engine dominates roughly 90 percent of the entire internet.

“They are not an infant business,” Blackburn said, arguing they no longer need broad government protections. “They are some of the biggest corporations in this country, and they should not be given protections that other businesses or private citizens are not given.”

Free Speech

Wall Street Journal: America’s Jacobin Moment

By The Editorial Board

Anger at the killing of George Floyd has spurred useful reflection about race and perhaps some important police reform. But the political and cultural forces have transformed in recent weeks into something far less healthy-a ferocious campaign of political conformity sweeping across American artistic, educational, business and entertainment institutions.

This coercive cultural turn threatens to devour what remains of America’s civic comity and push durable social progress on race and politics out of reach…

We describe this as a Jacobin moment because it has the fervor and indiscriminate judgment of the revolutionary mind. The guillotine isn’t in use, but the impulse is the same to destroy careers, livelihoods and reputations. The wave of resignations, firings, disavowals and forced apologies at institutions large and small is moving so fast it is difficult to keep track…

The purges also reach into local schools and governments. A Vermont principal was removed after posting on Facebook “I firmly believe that Black Lives Matter,” but “Just because I don’t walk around with a BLM sign should not mean I am a racist.” The mayor of the northern California town of Healdsburg resigned after doubting police reform was necessary in that community. She was excoriated and told local press that “my intention was to follow through with my term, but basically at what personal price?” 

Jonathan Turley: Vermont Principal Put On Leave For Not Agreeing With Black Lives Matters

We have yet another teacher suspended or put on leave for merely expressing her opinion of Black Lives Matter on her personal Facebook page.  After Tiffany Riley wrote that she does not agree with the BLM, the Mount Ascutney School Board held an emergency meeting to declare that it is “uniformly appalled” by the exercise of free speech and Superintendent David Baker assured the public that they would be working on “mutually agreed upon severance package.”  The case magnifies concerns over the free speech rights of teachers on social media or in their private lives. As a public employee, Riley could seek judicial relief rather than a severance package under the First Amendment…

As always, I come to these issues from a free speech perspective. I am less concerned with the merits of the position than I am in the refusal to allow one side to be stated without punitive measures. I would take (and have taken) the same position if the view on BLM were reversed.  I fail to see what educators cannot express their views in favor of or against BLM in participating in one of the most important periods of debate in our history. The message to educators is that you must not criticize BLM in your private life if you want to keep your job.  


Politico: Trump administration designates 4 more Chinese media outlets as ‘foreign missions’

By Sabrina Rodriguez

The Trump administration on Monday announced that it is designating four major Chinese state-run media outlets as “foreign missions” – the equivalent of an embassy, a move that is likely to worsen already-strained diplomatic relations and trigger retaliation from China.

The U.S. operations of China Central Television, China News Service, the People’s Daily and the Global Times will be considered “foreign missions” as they are “substantially owned or effectively controlled” by the Chinese government, the State Department said.

The designation will require the outlets to send the State Department a full list of employees in the U.S. and their real estate holdings, similar to the rules for embassies and consulates. It could force some of the groups’ journalists to leave the United States.

“The decision to designate these entities is not based on any content produced by these entities, nor does it place any restrictions on what the designated entities may publish in the United States. It simply recognizes them for what they are,” State spokesperson Morgan Ortagus said in a statement.

Online Speech Platforms

NPR (All Things Considered): ‘Facebook Groups Are Destroying America’: Researcher On Misinformation Spread Online

SARAH MCCAMMON, HOST: Facebook groups are ripe targets for bad actors, for people who want to spread misleading, wrong or dangerous information. So warns Nina Jankowicz. She’s the disinformation fellow at the Wilson Center. And in a recent opinion column in WIRED magazine, she and a co-author write that the company’s so-called pivot to privacy, Facebook’s promise to protect sensitive user information, did little to combat the spread of misinformation. Instead, Facebook encouraged users to join its groups, which are private pages for users with similar interests. We want to note here that Facebook is among NPR’s recent financial supporters. Nina Jankowicz is here with us now…

MCCAMMON: So what changes does Facebook need to make?

JANKOWICZ: We think it’s really important that Facebook show how groups are connected because often, one group moderator will control several groups that are sharing similar divisive or straight-up disinformation content. And users deserve to know that. And after a certain point, groups aren’t really private spaces anymore if they have tens or hundreds of thousands of members. So we’re suggesting that Facebook not allow groups to be private or secret over a certain threshold, say 5,000 members. So I think the bottom line is more transparency. I think the most important thing is to arm users with information so that they can navigate this information flow during these very confusing times.

RealClearPolitics: Big Tech Monopolies Are a Threat to First Amendment

By K.S. Bruce

The current rules regulating free speech and the “monopoly social media” (Facebook/Instagram, Twitter, Google/YouTube — together, the MOSM) are a mess, but the basic principles should be obvious. They should be treated as the new public square, and subject to First Amendment requirements…

The MOSM have become such a dominant location for political speech that they deserve to fall under the First Amendment, even though they are private companies. The Supreme Court has itself pointed the way under two key precedents: Packingham and Marsh.

In [Marsh v. Alabama], a “company town” was not allowed to preclude free speech on its sidewalks. Justice Hugo Black wrote, “When we balance the constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position.”…

In a 2017 case, Packingham v. North Carolina, the justices unanimously found that the MOSM have become the “company town”…of our own day, as the court ruled that the State of North Carolina could not block registered sex offenders from the use of social media such as Facebook…

As the MOSM act under these First Amendment standards, they should not create their own rules and rulings, but should follow the set of rules and rulings that already exist from over 200 years of law, jurisprudence and precedent.

TechCrunch: Google adds contextual fact-checking for some image search results

By Taylor Hatmaker

Acknowledging the role that misleadingly edited or out-of-context images play in seeding the internet with misinformation, Google is introducing fact-checking labels for some Google image searches. The feature, available starting today, provides a few lines of context with select searches, drawing on services provided by third-party fact-checkers. The tool is powered by publishers themselves, who can now opt to tag images that have been fact-checked using ClaimReview, a method for publishers to communicate to search engines that an image has been verified…

According to Google’s announcement, the labels will pop up on “results that come from independent, authoritative sources” that meet its standards. The company notes that the inclusion of fact-checking tags won’t elevate those search results. While more fact-checking and additional context is always a good thing, the new image fact-checking tool only reinforces context from third-party sources already doing this fact-checking work rather than surfacing fact-checking on low-quality websites spreading misinformation.

R Street: Promoting Free Expression Online: What are the options?

Virtual Event: June 23 at 2:00pm ET (RSVP here)

A new Gallup/Knight poll finds that Americans want the internet to be an open forum for free expression-even as they grow increasingly concerned about the effects of some harmful content. As a public health crisis and civil unrest reshape the public conversation, what approaches are available to policymakers and industry stakeholders to both protect free expression online and protect the public from disinformation, hate speech and political manipulation? Do attitudes point the way to legislative action or to forbearance toward regulation?

The R Street Institute will be joined by the Center for Democracy and Technology, Gallup, the German Marshall Fund and Knight Foundation for a briefing on this new study and to discuss the implications of the sometimes contradictory attitudes toward both Big Tech and the prospect that free speech might be further restricted by government.


Mike Godwin, The R Street Institute

John Sands, John S. and James L. Knight Foundation.

Emma Llansó, Center for Democracy and Technology

Karen Kornbluh, The German Marshall Fund

Priscilla Standridge, Gallup

Candidates and Campaigns

Washington Post: Biden campaign confirms he will attend three debates with Trump, criticizes the president for flipping on his debate stance

By Matt Viser

Joe Biden’s campaign on Monday committed to three scheduled debates with President Trump in September and October and criticized the president for taking varied positions on whether and how many debates he would participate in.

The campaign’s letter to the Commission on Presidential Debates, obtained by The Washington Post and written by Biden campaign manager Jen O’Malley Dillon, stated that Biden will participate in the debates already planned by the commission, which would be on Sept. 29, Oct. 15, and Oct. 22…

“We want fair debates. We want them sooner, and we want a bigger schedule,” Trump campaign manager Brad Parscale said last week. “We also don’t want them up against football games competing for viewers. As many Americans as possible need to see the stark differences between the accomplishments and leadership of President Trump and the failed record and sleepiness of Joe Biden.”…

Biden’s campaign firmly stated in the new letter that it wants the debates to be conducted as they have been traditionally.

“No one should be fooled: the Trump campaign’s new position is a debate distraction,” O’Malley Dillon wrote. “The Trump position seems to be saying that he will debate if he can pick the moderators: clearly the President, who largely conducts interviews only with favorable news outlets, is afraid of facing questions from a neutral moderator. The Trump campaign proposal for elaborate negotiations is merely an effort to dodge fair, even-handed debates.” 

The States

Arizona Republic: Scottsdale rejects ban on anonymous donations, including GoFundMe campaigns, to council members

By Lorraine Longhi

What began as a fairly simple effort to tweak Scottsdale’s gift policy grew complicated as some residents and council members saw an opportunity to push for campaign finance reform…

In the end, the council opted to do nothing at all. 

The proposal, which sought to specifically ban anonymous gifts to elected officials, was prompted by a controversy earlier this year. Councilman Guy Phillips had broken his leg, and a city resident launched an online GoFundMe campaign to help cover his lost wages and pay medical bills… 

[Some] saw it as a potential way to filter anonymous online giving to elected officials, thus prompting the proposed ban.

Phillips accepted approximately $2,400 in donations from GoFundMe….

The city attorney, to eliminate [any] ambiguity, then proposed an update to Scottsdale’s ethics code to insert a prohibition on anonymous gifts to council members…

[Some,] such as Phillips and Councilwoman Kathy Littlefield, said that the gift policy should be expanded to include campaign donations.


Tiffany Donnelly

Tiffany Donnelly