Daily Media Links 6/26

June 26, 2020   •  By Tiffany Donnelly   •  
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In the News

Commercial Speech and the First Amendment Conference (Video): Session Two: Regulating Political Advertising Online: Is disclosure still the key?

Hosted by Yale Law School’s Floyd Abrams Institute for Freedom of Expression

In the wake of the 2016 election, states are getting more aggressive in regulating online political advertising, including by trying to shift some of the disclosure and record-keeping burdens onto the media platforms that host political ads, as opposed to just the advertisers themselves.  The Fourth Circuit recently held that Maryland’s attempt to do so was unconstitutional.  What are the boundaries of the state’s power to require disclosures under the First Amendment? 

Panelists: Allen Dickerson – Legal Director, Institute For Free Speech, Washington, DC 

Richard H. Pildes – Sudler Family Professor of Constitutional Law, NYU Law School, New York, NY 

Daniel I. Weiner – Deputy Director, Election Reform Program, Brennan Center for Justice, Washington, DC

Moderator: Paul Safier – Of Counsel, Ballard Spahr LLP, Philadelphia, PA

The Courts

Courthouse News: Judge Rules Kentucky’s Mass-Gathering Ban Unconstitutional

By David Wells

Restrictions on mass gatherings put in place by Governor Andy Beshear in response to the Covid-19 pandemic are unconstitutional, a federal judge ruled on Wednesday.

U.S. District Judge Gregory Van Tatenhove ruled that the restrictions enacted in the wake of the Covid-19 pandemic that limit the number of people who can gather are too broad and wrote that “the Governor has gone too far here.”

“Plaintiffs do not dispute that the Governor has a significant interest in protecting Kentuckians from Covid-19. They simply argue the Governor has gone too far in his pursuit of that interest. Based upon the record before it, the Court agrees,” Van Tatenhove wrote in his 24-page ruling.

The original lawsuit was filed by four Kentucky residents, in advance of a planned May 23 protest, and sought to challenge the state’s restrictions on mass gatherings. In that ruling, Van Tatenhove rejected the plaintiffs’ motion for an injunction because Beshear said he would not enforce the order against the protesters.

The case then proceeded to the Sixth Circuit, which found that the protest could be held as a “drive-in” or “drive-through” affair, but the panel did not rule regarding the legality of in-person protesting and the state’s restrictions.

The Sixth Circuit’s ruling landed the case back in the lap of Van Tatenhove, who this time found the restrictions unconstitutional, a welcome ruling for the plaintiffs’ lawyer Christopher Wiest.

“Protesting is a fundamental right, and as recent events have shown, a right in a free society to express dissent and affect change, whether it is protests about lockdown orders, for racial justice in policing, or even protesting the failure to keep a promise on unemployment,” Wiest said in a statement to Courthouse News. “Free speech and protests, like freedom of religion in church services, cannot be relegated to third class status in public health orders, even in a pandemic.”

Southern Illinoisan: Illinois attorney general’s office says gathering restrictions regulate conduct, not speech

By Rebecca Anzel, Capitol News Illinois

State regulation of the number of people allowed at gatherings does not violate Illinoisans’ First Amendment rights, the attorney general’s office argued in a court document.

A lawsuit filed on June 15 by the state’s Republican Party alleged Gov. J.B. Pritzker’s executive order limiting gatherings to 10 residents or fewer was unconstitutional because it restricted the party’s freedom of speech. It also contended the order treated religious institutions and protests differently than other groups, which breaches the U.S. Constitution’s equal protections clause.

The governor’s May 29 executive order suggested houses of worship follow COVID-19 safety guidelines – limit indoor services to 10 people, for example – but did not require they do so. The GOP also pointed to Pritzker’s attendance at a Black Lives Matter demonstration as evidence he was not enforcing his order against groups he supports.

But neither allegation is accurate, the state wrote in a document filed Wednesday.

“The 10-person limitation on gatherings is no different for First Amendment purposes than a building occupancy limit imposed by a municipal fire code,” officials at the attorney general’s office wrote.

The Constitution protects speech and the right to assemble, but allows governmental bodies with a “compelling interest” to protect “the safety of the general public,” according to the argument.

“Political rallies and conventions have always had to abide by occupancy limits, even though overflow crowds (or lack thereof) may signal strong support (or the reverse) for a particular message or messenger,” the office continued. “The act of gathering in a confined space, which increases the risk of casualties in the event of a fire, is what is being regulated, not the message being delivered at the gathering.” 

New Jersey Law Journal: Third Circuit Finds Restrictions on Political Activity Violate Exacting Scrutiny Standard of Review

By William J. Palatucci and Steven H. Sholk

Although restrictions on political campaign contributions are not subject to the highly demanding strict scrutiny standard of review, but the more deferential exacting or intermediate scrutiny standard of review, recent judicial decisions have shown that exacting or intermediate scrutiny is indeed a rigorous standard. In enacting legislation that restricts political campaign contributions, legislatures must not only ensure that the restriction promotes a sufficiently important government interest, but employs means closely drawn to protect that interest and thereby avoid unnecessary abridgment of First Amendment rights.

In Deon v. Barasch, 2020 WL 2781295 (3d Cir. May 29, 2020), the Third Circuit struck down the restrictions on political campaign contributions under Section 1513 of the Pennsylvania Race Horse Development and Gaming Act. Section 1513 prohibited contributions to candidates for any public office in Pennsylvania, any political party or other political committee in Pennsylvania, or any group, committee, or association organized in support of a candidate, political party, or other political committee in Pennsylvania. The prohibition applied to applicants and holders of a broad array of gaming licenses, including slot machine licenses, manufacturer licenses, supplier licenses, and principal licenses. The prohibition also applied to affiliates, intermediaries, subsidiaries, and holding companies of these persons and entities, and their licensed principals and key employees. 


CNN: FBI director says bureau is looking into possible foreign influence in Floyd protests

By Devan Cole

FBI Director Christopher Wray said Wednesday that the bureau is looking into the “prospect of foreign influence or foreign interference” in the recent nationwide protests against police violence…

“We have certainly seen in the past a variety of foreign adversaries looking to amplify controversy in this country and they use state media, they use social media, some of that is through propaganda, some of that is through disinformation, some that is through just fake information,” Wray said in an interview with Fox News.

“And we are looking carefully at the prospect of foreign influence or foreign interference in all the protest activities (that’s) occurred over the last few weeks,” he said…

“The violence that occurred during the protest over the past few weeks is driven by a variety of different motivations and ideologies, it’s not all the work of any single ideology movement or group,” Wray said. “We certainly have a number of active ongoing investigations into violent anarchist extremists.”

The director added that some of the bureau’s probes involve people who self-identify with Antifa, a far-left political organization.


Federalist: Exclusive: New Bill Would Slash Protections For Tech Companies Censoring Free Speech

By Elle Reynolds

According to information obtained exclusively by The Federalist, Sen. Kelly Loeffler (R-Ga.) introduced a bill to amend the Communications Decency Act so tech companies that restrict constitutionally protected speech may not retain liability protections. Under Section 230 of the CDA, big tech companies are generally shielded from liability for unlawful content on their platforms (such as posts engaging in trafficking or terrorism).

But Loeffler’s Stopping Big Tech Censorship Act would allow internet users to challenge those protections if the platform censors users’ free speech. It would also require tech companies to “explain the practices and procedures” they use to censor content, and provide an explanation to users when their content is taken down.

“For too long, Big Tech has cloaked themselves in the protection of the First Amendment when convenient, while using their essentially monopolistic platforms to censor and suppress conservative speech,” Loeffler said…

Loeffler’s bill follows a similar bill proposed by Republican Sen. Josh Hawley of Missouri. Hawley’s Limiting Section 230 Immunity to Good Samaritans Act, of which Loeffler is a co-sponsor, would only grant Section 230 immunity to tech companies that operate in “good faith” toward speech on their platforms. Hawley’s bill would also allow internet users to sue platforms that violate the “good faith” standard.


Washington Post: New research explores how conservative media misinformation may have intensified the severity of the pandemic

By Christopher Ingraham

In recent weeks, three studies have focused on conservative media’s role in fostering confusion about the seriousness of the coronavirus. Taken together, they paint a picture of a media ecosystem that amplifies misinformation, entertains conspiracy theories and discourages audiences from taking concrete steps to protect themselves and others.

Independent Groups

MarketWatch: Watchdog says Washington’s growing swampier, even as coronavirus lockdowns let Congress climb off ‘hamster wheel of fundraising’

By Victor Reklaitis

Washington has in fact become swampier in the past three and half years, according to a “Spotlight on the Swamp” report out this month from Issue One, a nonpartisan watchdog that aims to reduce the influence of big money in politics.

The report points to a rise in lobbying spending, a high number of ex-lobbyists in cabinet-level positions, donors getting ambassadorships and other trends.

But the organization’s executive director, Meredith McGehee, also takes a long view and says the Obama administration didn’t do much in areas such as campaign finance reform.

As the coronavirus crisis and nationwide protests shake up Washington, McGehee spoke with MarketWatch this week about the new report, as well as the November elections, the federal government’s aid spending, racial inequalities and more.

Online Speech Platforms

National Review: YouTube’s Transgender Problem

By Kristen Waggoner

YouTube claims to provide a space where people can share their experiences and ideas, but by suppressing content from an important national debate, YouTube (which is run by Google) violates its own claim. Rather than being a platform for all ideas, these companies suppress free and open debate by censoring ideas with which they disagree.

This is wholly at odds with the cherished principles of free speech. Protecting dissent is a uniquely American tradition, and those “unpopular” views – such as the views of abolitionists prior to the Civil War – have often led our society to more just positions on crucial social and moral issues. When information giants like Google and YouTube suppress certain viewpoints – and silence personal stories – they crush the robust exchange of ideas that makes our society more just and that they claim to support…

How are people to make informed decisions when only “correct” personal life stories and experiences are shared? A culture that embraces free-speech principles affords us the opportunity to listen, to think critically, and then civilly debate our ideas with those with whom we disagree. And we are all better for it.

Viewpoint discrimination is a threat to a healthy, diverse, and prosperous society. YouTube should help society express a diversity of viewpoints and ideas instead of suppressing them.

TechCrunch: Facebook will show users a pop-up warning before they share an outdated story

By Taylor Hatmaker

Facebook announced Thursday that it would introduce a notification screen warning users if they try to share content that’s more than 90 days old. They’ll be given the choice to “go back” or to click through if they’d still like to share the story knowing that it isn’t fresh.

Facebook acknowledged that old stories shared out of their original context play a role in spreading misinformation. The social media company said “news publishers in particular” have expressed concern about old stories being recirculated as though they’re breaking news.

“Over the past several months, our internal research found that the timeliness of an article is an important piece of context that helps people decide what to read, trust and share,” Facebook Vice President of Feed and Stories John Hegeman wrote on the company’s blog.

Wall Street Journal: Facebook Looks to Contain Advertising Boycott Over Hate Speech

By Suzanne Vranica

Facebook executives in emails and calls with advertisers and ad agencies over the past week have conveyed that they are taking seriously the concerns of civil-rights groups about the proliferation of hate speech and misinformation on its platform. But they are also maintaining that business interests won’t dictate their policies, according to people familiar with the discussions.

“We do not make policy changes tied to revenue pressure,” Carolyn Everson, vice president of Global Business Group at Facebook, said in an email to advertisers last weekend that was reviewed by The Wall Street Journal. “We set our policies based on principles rather than business interests.”

Facebook executives are also vowing to invest more to tackle hate on the platform including continuing the development of artificial-intelligence technology that can detect hate speech, according to the email.

Several advertisers . . . have said they would halt advertising on the platform. Their decisions came after a call from civil-rights groups including the Anti-Defamation League and NAACP last week to pull ad spending from Facebook for the month of July…

In a letter to advertisers Thursday, the Anti-Defamation League said Facebook has repeatedly refused to remove political ads that contained “blatant lies,” and has been slow to respond to calls to take down conspiratorial content.

The Verge: Lots of Politicians Hate Section 230 – But They Can’t Agree on Why

By Adi Robertson

On its face, conservative Section 230 proposals like the Justice Department’s seem contradictory, demanding that web services aggressively remove content while also being afraid to crack down on users. By carving up Section 230 in general, they’re weakening its power as a bargaining chip that companies must keep with “unbiased” moderation.

But the point isn’t necessarily to construct solid internet law. This rhetoric is often a show of force aimed at threatening big companies like Facebook and Twitter, as well as a rallying point for politicians who want to score points against “Big Tech,” even when those points are confusing and probably unconstitutional. Last week’s proposals, for instance, both hinge on making companies follow their terms of service – documents that are written by the companies and can be changed at any time. The rules look toothless, but they amplify a popular narrative that social media sites are unfair, a perception these companies strive to avoid.

So far, many politicians haven’t bothered to distinguish this strategy from earnest (if not necessarily positive) attempts to narrow Section 230’s legal shield. And many plans have seemed too undercooked to take seriously – like Hawley’s idea for a government-issued “political neutrality” certification or Biden’s extremely vague “revoke 230” platform. 

Candidates and Campaigns

Wall Street Journal: ‘Culture Jamming’: A Decades-Old Spoof of Consumerism Makes Its Way to the 2020 Campaign

By Ben Zimmer

When President Trump took the stage last weekend at his rally in Tulsa, Okla., the crowd numbered only about 6,200 in the 19,000-seat BOK Center, according to local officials. The low turnout was declared a victory by thousands of teenagers who had spread the word via TikTok videos for people to register for tickets but not attend the rally.

Afterward, campaign officials dismissed the TikTok campaign and chalked up the depressed attendance to the presence of protesters outside the arena. But the small-scale demonstrations could hardly explain the disparity between the crowd size and advance ticket requests numbering more than a million as the Trump campaign had boasted.

Speaking to The Wall Street Journal, Jillian York of the free-speech advocacy group Electronic Frontier Foundation described the massive TikTok prank as “culture jamming,” using an expression that has come to label an array of subversive tactics seeking to disrupt commercial and political messaging by repurposing the media channels that spread the messaging.




Tiffany Donnelly

Tiffany Donnelly