Daily Media Links 6/3

June 3, 2020   •  By Tiffany Donnelly   •  
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Trump Administration

CNN: Trump calls for Supreme Court to reconsider flag burning laws

By Chandelis Duster

President Donald Trump said Monday that he’d support laws criminalizing flag burning, saying in a call with governors that it’s time for the Supreme Court to take up the issue again as nationwide protests have intensified over the death of George Floyd…

In Atlanta, protesters burned an American flag in front of CNN headquarters and photographers have captured images of flag burnings in Los Angeles and Washington state in recent days.

Trump, who as a candidate in 2016 proposed jail time or loss of citizenship for burning the American flag, called the act a “disgrace” on Monday and pledged support for an “anti-flag burning” statute.

“We have a different court and I think that it’s time that we review that again. Because when I see flags being burned — they wanted to crawl up flag poles in Washington and try and burn flags but we stopped them,” the President told governors, according to audio of the call obtained by CNN. “They’re weren’t able to do it. They would’ve done it if we didn’t stop them. I think it’s time to relook at that issue, hopefully the Supreme Court will accept that.”

He continued: “If you wanted to try to pass a very powerful flag burning statute again — anti-flag burning, I hope you’ll do it because we’ll back you 100% all the way. Okay? I hope some of you do it.” …

The late Supreme Court Justice Antonin Scalia, whom Trump has repeatedly praised, sided with the majority that ruled, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Politico: Trump’s Twitter war aims to unite divided conservatives

By Tina Nguyen

For years, conservatives have debated how best to rein in the power and perceived liberal bias of Twitter, Facebook, Google and other tech companies that have become central to American discourse. Some pushed for regulations they argued would police the heavyweights and better protect free speech, privacy and civil liberties. Others advocated for negotiations with corporate leaders. Another cadre debated what political tactics might help accomplish their goals.

Then last week, Trump injected himself into the debate with an executive order threatening to crack down on social media companies. While the move had policy elements, it was largely a political play…

Both Republicans and Democrats concur that Section 230 should be reviewed, albeit for different reasons: Broadly speaking, conservatives are focused on issues of free speech, while liberals seek to hold platforms accountable for spreading misinformation, particularly after the 2016 election…

Legal experts are in agreement that, technically, there isn’t much Trump’s executive order can immediately do regarding social media policy: Changing Section 230 would require Congress to pass a law amending the language, a prospect that is highly unlikely at the moment.

But outside the realm of lawmaking, Twitter’s new rules – and Trump’s ongoing Twitter habits – have set up a massive game of political chicken between the president and the social media giant. It’s a game that conservatives say is more politically favorable to them than trying to advance major policy changes.

Right to Protest

Reason: Clearing Out Lafayette Park for Trump’s Church Photo Op Was Wrong, Even If Cops Didn’t Use Tear Gas

By Robby Soave

On Monday, President Trump left the White House, walked across Lafayette Park-where rioters burned a public restroom the night before-and posed in front of St. John’s Episcopal Church while holding a Bible. This photo op was made possible by U.S. Park Police, who cleared overwhelmingly peaceful protesters from the area using aggressive crowd control tactics.

People are now debating whether those tactics included the use of tear gas, which swiftly became central to the mainstream media coverage of the incident, and a focal point of criticism from former Vice President Joe Biden. Multiple on-the-ground reporters said they suffered the effects of tear-gassing-burning in the throat and eyes-but Park Police have emphatically denied this, claiming that officers fired canisters of smoke rather than tear gas. It’s hard to know for sure what happened, but it seems plausible that the protesters directly in front of Lafayette Park were, in fact, hit with smoke.

Whether the Park Police used tear gas or smoke matters because the truth always matters. If media reporting on that detail was wrong, they should correct their reporting. But whatever kind of canister was fired into the peaceful crowd, the most important point is that the entire episode was completely unacceptable. Law enforcement officers who harass peaceably assembled citizens are violating the First Amendment, whether or not they use tear gas…

That the scene on ground was more complicated than it may have appeared is not an excuse for voiding the right to protest…

The government’s rough handling of protesters-not rioters and looters, but citizens engaged in constitutionally protected demonstrations against police violence-is unlawful. It’s immoral. And it’s making things worse.

The Atlantic: First Amendment Rights-If You Agree With the President

By Nora Benavidez

The First Amendment is no good if it is used to protect one side of the political spectrum but disregarded for the other. Protests in response to the killing of George Floyd have been met with aggressive police tactics, including spraying tear gas and rubber bullets, and sweeping up journalists, elected officials, and hundreds of protesters in major cities such as Houston, New York, and Chicago in mass arrests. The totality of the law-enforcement response to these protests stands in stark contrast to what officers did during anti-lockdown demonstrations in which conservative protesters armed with guns stormed state capitols and walked on public roadways: nothing…

In a new report from PEN America, the organization where I’m the director of U.S. free expression programs, my colleagues and I find that in 2015 and 2016, prior to Trump’s presidency, bills that would restrict or otherwise criminalize demonstrations were introduced just six times and none became law. But after the 2016 election, the number of anti-protest proposals ballooned to 56 in 2017, 17 in 2018, and 37 in 2019-23 eventually became law over the course of those three years. Most of these bills heighten penalties for protesters who demonstrate near critical-infrastructure sites, march on public roadways, or otherwise engage in conduct that law-enforcement officials deem “unlawful.” Some require protesters to pay for law-enforcement time, others shield officers from liability if they harm protesters, and still others criminalize mask wearing. Taken together, these bills are slowly trying to rewrite the definition of protest, to redraw the boundaries around lawful conduct and narrow people’s First Amendment rights depending on who’s speaking.

The Courts

New York Times: Lawsuit Says Trump’s Social Media Crackdown Violates Free Speech

By Kate Conger

President Trump’s crackdown on social media companies faced a new legal challenge on Tuesday, as a technology policy organization claimed in a lawsuit that he violated the companies’ right to free speech with his executive order aimed at curtailing their legal protections.

The nonprofit Center for Democracy and Technology says in the suit that Mr. Trump’s attempt to unwind a federal law that grants social media companies discretion over the content they allow on their platforms was retaliatory and would have a chilling effect on the companies.

The lawsuit – filed in U.S. District Court for the District of Columbia – is indicative of the pushback that the president is likely to face as he escalates his fight with social media companies, which he has accused of bias against conservative voices. It asks the court to invalidate the executive order…

Mr. Trump’s order is “plainly retaliatory,” the Center for Democracy and Technology said in a legal filing. “It attacks a private company, Twitter, for exercising its First Amendment right to comment on the president’s statements.”

The order could also prevent other companies from speaking freely, the organization argued. “President Trump – by publicly attacking Twitter and issuing the order – sought to chill future online speech by other speakers,” its filing said.


National Review: Senate Democrats’ Mindless ‘Report’ on the Judiciary

By John Hirschauer

Last week,…Chuck Schumer and two other Democratic senators released a 54-page broadside against their Republican colleagues titled “Captured Courts: The GOP’s Big Money Assault on the Constitution, Our Independent Judiciary, and the Rule of Law.” …

[The report states that in] furtherance of its corporate agenda, the Court’s Republican majority finds “rights” in the Constitution that make it difficult for Congress to pass laws that real people want; the majority casts aside the bipartisan work of Congress where it gets in its way. For example, in Citizens United, the Supreme Court invalidated a bipartisan campaign finance law based on a constitutional “right” to corporate political speech…

Simultaneously, the report accuses Republican appointees of undermining the democratic process by inventing “a constitutional ‘right’ to corporate political speech” supposedly “found nowhere in the Constitution’s text”; undermining the right to an abortion, which is not found in the Constitution’s text, but is still worthy of protection; and undermining the authority of unelected “scientists, economists, and other experts” by handing lawmaking power back to a democratically accountable legislature.

These complaints, of course, are irreconcilable.

Courthouse News: McConnell Scuttles Rebuke of Trump for Breaking Up Protest

By Brandi Buchman

Senate Majority Leader Mitch McConnell blocked a resolution Tuesday that sought to formally condemn President Donald Trump for having disbanded a peaceful protest so he could pose for photos…

Introduced on the Senate floor Tuesday afternoon, the resolution from Democrats condemned both the president and the violence and looting that continues to rock the U.S. one week after George Floyd, an unarmed black man, was killed in Minneapolis police custody…

New Jersey Senator Cory Booker called the treatment of protesters abhorrent.

“Donald Trump, every member of this coequal body should condemn what this president did: Trampling upon the most sacred right of this nation to assemble, to petition, to protest,” Booker said. “What this president did was to make a mockery of our civil rights, I say ours, I was not there in that park, but every one of us should wish we were there.” …

Senator Tammy Duckworth, a veteran of the Iraq War [said]…

“I was appalled that this commander in chief was flying Blackhawks above citizens exercising their rights. How dare you insult our military? How dare you pervert the honor of our military by threatening to use them against their fellow Americans? I am sickened to the core by this man.”

Politico: Morning Tech

By Alexandra S. Levine

Silicon Valley congressman weighs in on Silicon Valley CEO: “The decisions of speech on the internet should not be left to billionaire tech leaders, no matter what their intentions,” Silicon Valley Rep. Ro Khanna said Monday, referring to Zuckerberg’s decision to leave Trump’s inflammatory social media posts alone. “We need a fairness doctrine for the internet in the 21st century. The FCC should make sure that aggrieved parties have the right to reply and that blatant falsity is not protected.”

Online Speech Platforms

Slate: We Should Be Very Wary of Politicians Lobbying Facebook, Twitter, and Google

By Jesse Blumenthal

Trump is hardly alone in trying to jawbone tech companies to change their policies to suit his political interests. Take Democratic Federal Elections Commission Commissioner Ellen Weintraub, for example. Weintraub has long sought stricter limits on political speech. She has repeatedly called for bans on “microtargeted” political ads. Her agency administers and enforces federal elections law. But Weintraub is not using her powers as a regulator. In January, after Facebook announced that it would not put limits on political advertising, she tweeted, “I am surprised that Facebook would put out such a weak proposal that it virtually invites Congress to re-examine Facebook’s Section 230 exemptions. I strongly urge Facebook to go back to the drawing boards and come back with something much more robust.” That statement is a political threat.

Targeted ads are not her only concern. Like many Americans, Weintraub is concerned about misinformation, but as she told Politico’s Nancy Scola in March, “I doubt if it would withstand First Amendment scrutiny if we were to say to the platforms or to broadcasters or anyone else, ‘You have to take that ad down because it contains inaccurate information.’ ” Instead, she is pursuing a strategy that Scola describes as “gently or not-so-gently encourage the big platforms, like Facebook and Twitter, to figure out their own ways of what addressing the issue.”

These are not isolated incidents. Politicians lobbying technology companies has become one of the few bipartisan sports in Washington.

The Verge: What Facebook doesn’t understand about the Facebook walkout

By Casey Newton

After President Trump posted to Facebook some tweets that Twitter had placed behind a warning for “glorifying violence,” [Facebook CEO] Mark Zuckerberg said that the company would allow them to stand…

“When the looting starts, the shooting starts,” Trump had tweeted…

Zuckerberg said that Facebook left the post up for two reasons: one, that “people need to know if the government is planning to deploy force.” And two, that Trump had sort of (maybe?) walked back his original post in a later one, “saying that the original post was warning about the possibility that looting could lead to violence.” …

Shortly after sharing the post with the world, Zuckerberg held a meeting with employees to elaborate on his point of view. In audio of the meeting that I obtained, Zuckerberg said that he had agonized over the decision…Zuckerberg and [head of policy management, Monika] Bickert said executives concluded that Trump’s remarks didn’t violate their existing policies… But he said they would re-examine their policies around politicians discussing the use of state force on Facebook, a process he said would likely take several weeks.

“There is a real question coming out of this, which is whether we want to evolve our policy around the discussion of state use of force,” he told employees Friday. “Over the coming days, as the National Guard is now deployed, probably the largest one that I would worry about would be excessive use of police or military force. I think there’s a good argument that there should be more bounds around the discussion around that.” 

CNBC: Ex-Facebook security chief says it’s ‘impossible to deplatform the President’

By Jesse Pound

Former Facebook security chief Alex Stamos said Tuesday that Twitter’s policy to flag some of President Donald Trump’s posts was a smart decision but that it’s impossible to keep his posts off of any social media site.

“There’s actually a bigger problem here, which is you can’t deplatform the President of the United States,” Stamos said on CNBC’s “The Exchange.” “Everything he says is newsworthy, and so this is a struggle that the social media companies are dealing with, but also the traditional media.” …

Stamos, who is now the director of the Stanford Internet Observatory, said Facebook flags some content but that Twitter’s approach is better.

“You see Trump being criticized for clearing people out from Lafayette Park, which I think is a totally appropriate criticism, but then the TV channels play that clip over and over again of the photo-op that he wanted to get,” Stamos said. “I think a lot of people are struggling with how do you allow speech and how do you report on things that are newsworthy without amplifying it. I think Twitter’s approach here is actually pretty appropriate.”

Washington Post: The Technology 202: Mark Zuckerberg spoke with civil rights leaders about Trump’s posts. It didn’t go well.

By Cat Zakrzewski

Top Facebook executives, including Mark Zuckerberg, spoke with civil rights leaders last night as the company confronts a wave of backlash over its decision not to moderate President Trump’s controversial posts. 

But the roughly hour-long call, intended to show the company takes concerns from the black community seriously, only further inflamed tensions. 

Color of Change President Rashad Robinson, NAACP Legal Defense Fund president Sherrilyn Ifil and The Leadership Conference on Civil and Human Rights chief executive Vanita Gupta immediately blasted Zuckerberg in a statement following the call. 

Robinson told me the meeting was “disappointing.”

“What was clear coming out of that meeting is Mark has no real understanding of the history or current impact of voter suppression, racism or discrimination. He lives in a bubble, and he defended every decision that he’s made,” Robinson said in a phone interview. 

The attendees discussed Facebook’s decision not to label or remove several of Trump’s posts last week, including one that appeared to incite violence against demonstrators that said “when the looting starts the shooting starts.” … 

“Mark is setting a very dangerous precedent for other voices who would say similar harmful things on Facebook,” the civil rights leaders said in the joint statement.

The States

San Diego Union-Tribune: City elections in San Diego would be publicly financed under proposed ballot measure

By David Garrick

City elections in San Diego would become publicly financed under a November ballot measure proposed by reformers who say they want to diminish the impact of special interests and help ordinary citizens run for office.

The proposed measure, which was narrowly endorsed last month by the City Council’s Rule Committee, is scheduled to get a necessary second approval from that committee June 10. It would then go to the full council in August.

Modeled on similar statewide measures in Arizona and Maine, the San Diego proposal would provide candidates many thousands in taxpayer dollars so they could fund their campaigns without collecting large donations…

Even if candidates have enough integrity to not be influenced by donations, supporters of the proposed ballot measure say it would still boost public confidence by diminishing the perception of corruption.

The only way for candidates to receive public financing would be to agree to not collect other large donations…

The group proposing the measure, Neighborhoods for Clean Elections, said polling conducted several years ago showed strong support in San Diego for such a reform. It would need only a simple majority in November to be approved.

The proposal would set aside between $5.6 million and $20 million in taxpayer money for publicly financed elections – a minimum of $4 and maximum of $16 for each of the city’s roughly 1.4 million residents. The actual amount would be based on the number of candidates running each year.

Wall Street Journal: The Protest That Ended Social Distancing

By Michael Tracey

“This is a violation, but we’re doing it anyway,” [Newark Mayor Ras] Baraka told me Saturday when I asked if Newark’s emergency order was still legally binding. Is a huge, unwieldy assembly in the streets of a city with 585 reported Covid-19 deaths a good way to promote social distancing? “It’s not,” he conceded.

Mr. Baraka wasn’t merely a concerned observer. He marched prominently through the streets in the protest procession, and addressed the subsequent rally…

The carefree encouragement of this state-sanctioned “mass gathering”-which plainly violated all of the pandemic mitigation measures that had been vigorously enforced for the previous 10 weeks-proved that concern for such measures could be summarily discarded the instant a political cause arises that elected officials favor.

Americans have a constitutional right to peaceable assembly, and the grievances expressed at the protest may well be legitimate. But since Mr. Murphy first imposed his emergency order in March, New Jersey law enforcement has aggressively moved to disband “mass gatherings” deemed in violation. Hosts of weddings and concerts of far smaller size were arrested and charged with crimes. And the same weekend the protests took place, religious services of more than 10 people were still prohibited.


Tiffany Donnelly

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