Daily Media Links 6/9

June 9, 2020   •  By Tiffany Donnelly   •  
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In the News 

Center for Individual Freedom (Podcast): The FEC, Our First Amendment Right to Protest and Donor Privacy

Hosted by Renee Giachino

Bradley Smith, Founder and Chairman of the Institute for Free Speech and a former FEC Chairman, discusses the confirmation of a new FEC Commissioner and what it means for the Commission, why supporting the right to peaceful protest is important even during a pandemic, and the final donor privacy regulation recently released by the Treasury Department and Internal Revenue Service.

New from the Institute for Free Speech

Introducing Summer Communications Intern Nathan Maxwell

By Luke Wachob

Nathan Maxwell has joined the Institute for Free Speech as a Communications Intern for the summer of 2020. As a member of our Communications Department, Nathan will spend his internship completing a variety of communications projects aimed at increasing the effectiveness of our media outreach, authoring original content on current free speech issues for our blog, and assisting with the compilation of the Institute’s Daily Media Update. In conjunction with his internship at IFS this summer, Nathan is participating in The Fund for American Studies’ Public Policy and Economics Program.

Nathan is a rising senior at Ball State University in Muncie, Indiana, where he studies Philosophy and Political Science. He is a Content Editor for Ball State’s international undergraduate philosophy journal, Stance, which has been awarded the American Philosophical Association/Philosophy Documentation Center Prize for Excellence and Innovation in Philosophy Programs, the American Scholastic Press Association Award for Best University Journal, and the Ball State University Immersive Learning Award.

“…[Freedom of speech] is a liberty that we enjoy purely by virtue of our humanity. I am grateful and extremely excited for the opportunity to work with an organization dedicated to safeguarding our ability to freely criticize and discuss our nation’s most powerful leaders and most sensitive issues,” Nathan said…

Please join us in welcoming Nathan to our growing team!

Trump Administration

Washington Post: Take down the fence outside the White House

By Editorial Board

“Iconic place for civil discourse.” That is the National Park Service description of the grounds around the White House, and until recently it was apt. Generations of Americans have gone there to speak out on issues of their day. Sadly, though, it is no longer a description that comes to mind…

The expanded perimeter sealing off the White House and pushing the public farther away is unprecedented in a city that has seen more than its share of protests. It is in fact a dangerous overreaction that undermines First Amendment rights…

House Speaker Nancy Pelosi (D-Calif.) and Senate Minority Leader Charles E. Schumer (D-N.Y.) on Monday sent a letter to Mr. Trump demanding that he immediately reopen Lafayette Square…

[N]ow the administration should cease its attempts to silence and minimize dissent.

Take down the fence. 

Supreme Court

Reason (Volokh Conspiracy): May the Law Ban Calls to Government Offices “Using Indecent Language” “With Intent to Harass or Embarrass”?

By Eugene Volokh

Neal Katyal, one of the leading appellate lawyers in the country, has filed a superb petition in Waggy v. U.S., urging the court to consider this question, cowritten by his Hogan Lovells US LLP colleagues Mitchell P. Reich and Benjamin A. Field, and federal public defender Matthew Campbell. (The Pennsylvania Center for the First Amendment and I filed an amicus brief supporting the petition- thanks to my student Nicole Patolai for her work on it.) Here are the facts and procedural history, from the petition (which is of course an advocacy document, but in my view quite reliable):

Robert Waggy is a disabled Marine Corps veteran who receives private medical care paid for by the Department of Veterans Affairs (VA). One day, Waggy called his local VA medical center to complain about its failure to reimburse him for $30,000 in medical bills. During the calls, Waggy became irate and used profanity. Waggy did not level true threats or incite violence; he merely petitioned-intemperately-for a redress of his grievances. Nonetheless, the Government made a federal case out of it, successfully charging Waggy with “mak[ing] a telephone call,” “with intent to harass … or embarrass any other person,” “using … lewd, lascivious, [or] indecent language.” A divided panel of the Ninth Circuit affirmed Waggy’s conviction, reasoning that it comported with the First Amendment because the statute punished Waggy solely for his “nonexpressive conduct” rather than for his speech.

The Courts

WKRC: Protesters sue Cincinnati over curfews citing free speech violations

Two women have sued the city of Cincinnati over the curfews imposed during the protests against police violence.

Alexandra Graff and Cassandra Sallee claim Mayor John Cranley overstepped his bounds when he imposed the curfews beginning on May 31. Through the lawsuit, they claimed their right to free speech was violated due to the curfews.

Graff and Sallee both attended protests but wanted to “engage in additional protesting and non-violent expressive activities” but didn’t because they were afraid of being arrested for violating the curfew.

The lawsuit also takes issue with the exemptions to the curfew, which included government officials, the media, and people who are homeless. “All of these individuals are permitted to engage in constitutionally-protected expression during the curfew hours while protesting the murder of George Floyd are not.”


Axios: House Democrats call for investigation into DEA protester surveillance

By Orion Rummler

House Democrats on the Oversight Committee called Saturday for the Department of Homeland Security to explain how it has surveilled people protesting the killing of George Floyd.

The committee’s probe follows a Drug Enforcement Administration memo, first obtained by BuzzFeed News, that granted the agency temporary heightened powers to “enforce federal criminal laws in the wake of protests arising from the death of George Floyd.”

The committee’s investigation is also in response to Customs and Border Protection sending a Predator drone into Minneapolis last week to take live footage of protestors…

“This Administration has undermined the First Amendment freedoms of Americans of all races who are rightfully protesting George Floyd’s killing. The deployment of drones and officers to surveil protests is a gross abuse of authority and is particularly chilling when used against Americans who are protesting law enforcement brutality,” the lawmakers said in their letter to acting DHS Secretary Chad Wolf.

Department of the Treasury

Bloomberg Tax: Rule-Writing Scrutiny Pushes Tax Officials to Explain Themselves

By Aysha Bagchi and Allyson Versprille

Growing scrutiny has put the Treasury Department on the defensive when issuing new tax regulations that can impact major areas of American life-from taxes on asset-shifting multinationals to donor-disclosure rules for nonprofits.

Key court decisions and greater White House oversight have spurred the change, driving Treasury to explain its decisions more fully and prove it has complied with rulemaking requirements, tax professionals and academics said…

In final rules (T.D. 9898) last month, for example, the IRS exempted certain nonprofits from having to report the names and addresses of substantial donors on tax forms. The rules’ 10-page preamble highlighted the agency commissioner’s broad authority to decide what information must be reported and when to offer relief, and the rules later said comments opposing the change were “misplaced.”

The preamble is just the latest example of a growing trend, academics said.

“It’s a real recognition that litigants are going to attack regulations on procedural grounds and that courts are going to look carefully at whether the IRS is engaging with significant comments,” said Leslie Book, a law professor at the University of Villanova and author of a treatise on tax procedure and administration.

Right to Protest

Techdirt: Sheriff Goes All In On Violating The First Amendment After Assaulting A Protester For Carrying A ‘F*CK TRUMP’ Sign

By Tim Cushing

Actual video exists of this confrontation…

Having stolen a sign from a demonstrator — one that said “F*CK TRUMP” — Sheriff Ashley Paulk then decided to grab the woman with the nearly-foulmouthed sign by the neck and shove her around for a bit.

He then doubled-down on his initial error by keeping the sign and declaring he needed it for an “investigation.”

No one but Sheriff Paulk seems to know what he’ll be investigating, especially since there’s nearly 50-year-old Supreme Court precedent on the books saying profanity is protected by the First Amendment, especially in “political” contexts, which these demonstrations clearly are.

Here’s the sheriff tripling-down one day later:

Lowndes County Sheriff Ashley Paulk says his office will arrest protesters holding signs with profanity, after getting in a brief scuffle Wednesday…

There are even more dubious assertions further down in the article:

The sheriff says he supports the group’s right to protest peacefully, but he does not want them showing signs with profanity.


Wall Street Journal: Cancel Culture Journalism

By The Editorial Board

At the New York Times, editorial page editor James Bennet resigned Sunday after a staff uproar over an op-ed by a U.S. Senator. Arkansas Republican Tom Cotton wrote that military troops should be sent to restore public order in American cities when the police are overwhelmed. A staff revolt deemed the piece fascist, unconstitutional, and too offensive for adults to read and decide for themselves…

James Dao, the opinion editor who had signed off on the op-ed…was reassigned.

An ostensibly independent opinion section was ransacked because the social-justice warriors in the newsroom opposed a single article espousing a view that polls show tens of millions of Americans support if the police can’t handle rioting and violence…

All of this shows the extent to which American journalism is now dominated by the same moral denunciation, “safe space” demands, and identity-politics dogmas that began in the universities. The agents of this politics now dominate nearly all of America’s leading cultural institutions-museums, philanthropy, Hollywood, book publishers, even late-night talk shows…

[T]his takeover of the Times and other liberal bastions means that there are ever fewer institutions that will defend free inquiry and the contest of ideas that once defined American liberalism.

Reason (Volokh Conspiracy): Is the Future of Freedom of Speech in Jeopardy?

By David Bernstein

[O]ver at the New York Times, a pretty good bellwether of mainstream elite progressive opinion, James Bennett was forced to resign for publishing an op-ed by a sitting Senator, taking the position supported by 58% of the American public that the president should consider using the military restore order to cities plagued by riots to “disperse, detain and ultimately deter lawbreakers,” because it offended members of the Times’ staff.

Katie Kingsbury, the new acting op-ed editors, has told staff, “Anyone who sees any piece of Opinion journalism, headlines,social posts, photos-you name it-that gives you the slightest pause, please call or text me immediately.”

Of course the Times is a private entity and can have whatever op-ed policies it chooses. But the notion that the Times has to be ever on the alert about publishing anything in its *Opinion* pages that may offend even the most sensitive member of its staff, something that Times editors would have laughed at a decade ago, suggests a very troubling decline in the *attitudes* needed to support freedom of speech in the constitutional context.

If these trends continue on left and right, in the long-run the freedom of speech under the First Amendment is in big trouble.

New York Times: Axios Allows Its Reporters to Join Protests

By Edmund Lee and Ben Smith

In an unusual move at a news media organization, the head of Axios, a site popular with Beltway insiders, said in a memo that the company would support staff members who take part in public protests, a shift from the stance journalists normally adopt to avoid the appearance of partisanship.

In a companywide email on Monday that was reviewed by The New York Times, Jim VandeHei, the co-founder and chief executive of Axios, said, “First, let me say we proudly support and encourage you to exercise your rights to free speech, press, and protest. If you’re arrested or meet harm while exercising these rights, Axios will stand behind you and use the Family Fund to cover your bail or assist with medical bills.”

Independent Groups

National Review: The Hill’s Profile of Sheldon Whitehouse Gets Money and Influence Backwards

By Carrie Campbell Severino

The Hill just profiled Senator Sheldon Whitehouse as the “Democratic Party’s leading voice on the courts” in an article that comes out of the gate with a glaringly false assertion: “Democrats have historically struggled to match the GOP’s intense focus on the courts. They also lack the network of well-funded legal advocacy groups that conservatives use to mobilize supporters.”

This gets it completely backwards. The funding and influence of groups on the Left has long outsized that of conservative organizations. In the history of this nation, the ACLU has been second to none in taking significant constitutional cases to the Supreme Court. A host of other prominent organizations, like the AFL-CIO, NAACP, Planned Parenthood, and the American Federation of Teachers, have been virtual auxiliaries to the Democratic Party for decades. In fact, they were among more than 1,000 groups that joined a $60 million campaign, Health Care for America Now to secure the passage of Obamacare.

This legal dominance also extends to the regulatory front. Environmental and other “dark money” groups funded opposition to the construction of the Keystone XL pipeline in Canada…

And that’s just the tip of the iceberg. The Arabella Advisors’ network raised $1.6 billion between 2013 and 2017. It has supported a network of affiliates too numerous to list here, but which include the Sixteen Thirty Fund. That well-endowed group spent $141 million in 2018 alone. Their recipients include Demand Justice and the League of Conservation Voters (LCV). The LCV is Whitehouse’s top donor.

Online Speech Platforms

CNBC: How to regulate social media when there is no good answer

By Tom Rogers

Now that the internet has come of age, and with it the now-giant social media platforms, the issue today is…how to deal with irresponsible and objectionable speech.

This issue came into the spotlight more than ever last week, when President Trump lashed out with an executive order intended to punish Twitter for tagging two of his tweets with a “possibly false” content warning…

With all this in mind, here is a modest proposal to provide a mechanism to redress false, wrongful or defamatory speech, without centering any censorship power within social media company management, and without repealing Section 230 and ushering in the much more restrictive speech crackdowns that would inevitably ensue.

The premise is all views can be “aired” but all views are subject to AIRing – that is, “Arbitration Independent Review.”

Creating a special fast-track arbitration system for social media speech could provide recourse without Mark Zuckerberg becoming the arbiter he does not want to be, and without letting Jack Dorsey become the arbiter he seems to be comfortable being. Moreover, it avoids the Trumpian constitutional pitfalls of the government becoming the arbiter appropriate speech.

Here’s how the Arbitration Independent Review (AIR) process would work.

Candidates and Campaigns

Politico: Trump to restart MAGA rallies this month despite coronavirus

By Alex Isenstadt

Donald Trump is planning to restart rallies in the next two weeks in a major turning point for the president since the coronavirus shut down traditional campaigning.

Trump’s advisers are still determining where the rallies will take place and what safety measures will be implemented, depending on the type of venue chosen. Campaign manager Brad Parscale is expected to present Trump with possibilities within the next few days.

Reason (Volokh Conspiracy): Newark Proposed Ordinance Would Ban “All Actions by Hate Groups”

By Eugene Volokh

Here’s the proposal, in relevant part (filed Thursday):

“Hate Group” means a social group that advocates and practices hatred, hostility, or violence towards members of a race, ethnicity, nation, religion, gender, gender identity or sexual orientation.

All actions by hate groups including groups characterized as White Supremacists, Nazi Groups, Aryan Nations the KKK and other such groups are unlawful in the City of Newark and are hereby banned because they have a history of violence targeting individuals’ race, religion and national origin. Their history of said violence, tied to their message, will incite panic and fear within the City of Newark.

Well, except that:

[1.] The government can’t ban even actions by people connected to groups that have present violent aims. Group membership can be forbidden only if the government shows “a knowing affiliation with an organization possessing unlawful aims and goals, and a specific intent to further those illegal aims” (Healy v. James (1972)). Especially when a national group “is loosely organized, having various factions and promoting a number of diverse social and political views, only some of which call for unlawful action,” a local group connected to it (e.g., through sharing the national group’s name and general ideology) can’t be banned simply because of that connection.

[2.] Nor can such groups’ activities (which of course include demonstrations and other constitutionally protected speech) be banned because they “will incite panic and fear.”  There is no First Amendment exception for speech that…



Tiffany Donnelly

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