Daily Media Links 7/16

July 16, 2020   •  By Tiffany Donnelly   •  
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The Courts

Hollywood Reporter: MSNBC Host Joy Reid Faces Revived Libel Claim Upon Big Appellate Decision

By Eriq Gardner

MSNBC’s Joy Reid…is on the losing end of a big appellate decision that will shape the rules of many cases involving free speech.

On Wednesday, the Second Circuit Court of Appeals revived libel claims from a Trump supporter named Roslyn La Liberte.

In doing so, the federal appellate circuit decided that special laws enacted by states like California to protect First Amendment activity don’t apply in federal court.

La Liberte sued over statements about the following picture …

La Liberte is the one in the MAGA hat. The scene is a city council meeting in California during debate over SB 54, aimed at limiting local law enforcement cooperation with federal immigration authorities.

Reid was hauled into court after she retweeted an activist who had posted the above picture along with the caption, “You are going to be the first deported.” In a second post on Instagram, she wrote that the woman in the photo had screamed “You are going to be the first deported … dirty Mexican!” Subsequently, on Instagram and Facebook, Reid reached back to history and wrote, “Make the picture black and white and it could be the 1950s and the desegregation of a school. Hate is real, y’all. It hasn’t even really gone away.”

Last September, Reid prevailed at a district court

On appeal, La Liberte argued that the judge had wrongfully dismissed the suit and shifted attorney fees to the winner under California’s anti-SLAPP statute…

Today, the Second Circuit – which…is arguably the most important in media circles – decides that anti-SLAPP doesn’t apply in federal court.

The opinion is a huge setback to media organizations, which filed an amicus brief at the Second Circuit with fear that a conclusion like the one reached today would lead to frivolous libel suits.

Reason (Volokh Conspiracy): Libel Lawsuit by Trump Supporter (and Sanctuary-State Opponent) Roslyn La Liberte Against MSNBC’s Joy Reid Can Go Forward

By Eugene Volokh

From La Liberte v. Reid, decided today by the Second Circuit (in an opinion by Judge Dennis Jacobs, joined by Judges Amalya Kearse and Jose Cabranes)…

The Second Circuit held:

[1.] The California anti-SLAPP statute (which provides for early dismissal of various libel claims) doesn’t apply in federal court, because it conflicts with the Federal Rules of Civil Procedure. This deepens an existing circuit split on this important procedural question.

[2.] [MSNBC’s Joy] Reid is not immune under 47 U.S.C. § 230, because she is being sued for her own statements, not for the statements of third parties (such as of the social media activist).

[3.] La Liberte isn’t a “limited-purpose public figure,” and thus can recover compensatory damages based merely on a showing that Reid negligently erred, without having to show that Reid knew her statement was false or at least likely false (what libel law misleadingly calls “actual malice”)…

[4.] The court also concluded that the July 1 Post contained factual assertions that could form the basis for a libel lawsuit, and not just opinion…

Congress

Office of Sen. Josh Hawley: Hawley Sends Letter to Jack Dorsey on Massive Twitter Hack, Asks for Cooperation with Federal Law Enforcement Agencies

Following a massive Twitter cyberattack during which countless accounts were hacked, including those of former President Barack Obama and presidential nominee Joe Biden, Senator Josh Hawley (R-Mo.) sent a letter to Twitter CEO Jack Dorsey requesting he immediately reach out to the Department of Justice and Federal Bureau of Investigation to take any necessary measures to secure the site.

Senator Hawley writes, “I am concerned that this event may represent not merely a coordinated set of separate hacking incidents but rather a successful attack on the security of Twitter itself. As you know, millions of your users rely on your service not just to tweet publicly but also to communicate privately through your direct message service. A successful attack on your system’s servers represents a threat to all of your users’ privacy and data security.”

Read the full letter here or below.

Techdirt: House Government Appropriations Bill Would Bar FTC & FCC From Doing Anything Related To Trump’s Inane Anti-230 Executive Order

By Mike Masnick

It’s appropriations season (isn’t it always?), and as the House Appropriations Committee digs into the various ways in which it funds the government a friendly little birdie pointed me to a fun little tidbit buried in the House’s Financial Services and General Government Appropriations Bill for 2021:

The Committee includes a new provision prohibiting the Federal Trade Commission or Federal Communications Commission from taking certain actions related to Executive Order 13925 of May 28, 2020

And just what is Executive Order 13925? Why it’s Donald Trump’s inane anti-Section 230 Executive Order that, among other things, tries to order two independent agencies — the FTC and the FCC — to take certain actions regarding a made up, nonsensical interpretation of Section 230.

Of course, as we’ve pointed out, the President doesn’t get to change the law all by himself…Congress writes the laws. Congress gets to handle what the FCC and FTC have authority over. And, at least on the House side, they don’t think that either the FCC or the FTC should be doing anything at all regarding Section 230.

Now, it’s unlikely this little tidbit survives to the final appropriations bill, but it is a little bit of a slap pointed at the White House for its weird nonsensical (and totally misguided) obsession with reinterpreting Section 230.

Free Speech

Washington Post: McCarthyism is back. This time, it’s woke.

By Henry Olsen

Today’s “cancel culture” is nothing more than McCarthyism in a woke costume. It stems from a noble goal – ending racial discrimination. Like its discredited cousin, however, it has transmogrified into something sinister and inimical to freedom. Battling racism is good and necessary; trying to suppress voices that one disagrees with is not. Woke McCarthyism goes wrong when it seeks to do the one thing that America has always sworn not to do: enforce uniformity of thought. Indeed, this principle, enshrined in the First Amendment, is so central to American national identity that it is one of the five quotes inscribed in the Jefferson Memorial: “I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.”

Wall Street Journal: Some Students Want Me Fired for a Thought Experiment

By Walter E. Block

John Stuart Mill put it best in “On Liberty”: “He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion. . . . Nor is it enough that he should hear the arguments of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. . . . He must be able to hear them from persons who actually believe them; who defend them in earnest, and do their very utmost for them.”

Media

New York Times: Why Does the N.Y.P.D. Want to Punish Journalists?

By The Editorial Board

Increased public scrutiny of American policing – through cellphone videos, social media and mass protests – has revealed in recent weeks an urgent need for sustained and systemic reform. The New York Police Department has chosen to respond by pressing ahead with new rules to grant wider latitude to bar journalists from covering official police activity.

The department’s proposed regulations would add new reasons to revoke reporters’ credentials that allow them past police lines. In a news release Wednesday, the department outlined a litany of offenses that can cost reporters their credentials, including being arrested [and] being perceived not to be complying with police orders…

The rules govern, for instance, a reporter’s “misrepresenting the press credential” or a perceived “attempt to interfere” with police officers’ work. Such rules are written far too broadly and could easily be used to penalize journalists who are simply observing and documenting police actions.

It’s little surprise, then, that the rules quickly drew ire from other New York officials.

“Let’s revoke the NYPD’s ability to issue press credentials entirely. They’ve repeatedly proven that they are unwilling and unable to oversee a legitimate process,” Scott Stringer, the city’s comptroller, tweeted. Keith Powers, a City Council member, tweeted that he was considering legislation that would move credentialing to a new agency.

Independent Groups

Politico: Mystery, Democratic-linked super PAC meddles in Kansas GOP primary

By James Arkin

A mysterious new super PAC withlinksto Democrats released a TV ad onWednesday meddling in nextmonth’s Kansas Republican Senate primary.

The super PAC, Sunflower State, formedonMondayandtwodayslaterlaunched its first TV ad, focused on Kris Kobach and Rep. Roger Marshall, two of the Republicans running in the Aug. 4 primary…

The ad is engineered to drive conservative voters toward Kobach…

Sunflower State is spending $850,000 to air the ad in Kansas starting Wednesday, according to data from Advertising Analytics…

Sunflower State hasapparent ties to Democrats…

If national Democrats are involved, it would make Kansas the latest example of meddling by one party in the other’s primary this year.In North Carolina, a super PAC that was funded by national Republicans tried to boost a liberal challenger to Democrats’ preferred candidate, and Sen. John Cornyn’s campaign did the same in Texas ahead of this week’s Democratic primary runoff. In each state, the candidate endorsed by the Democratic Senatorial Campaign Committee prevailed.

Online Speech Platforms

Courthouse News: Major Twitter Accounts Hacked by Bitcoin Scammers

By Matthew Renda

Hackers gained access to major accounts on Twitter on Wednesday, causing the company’s stock to dive as calls increase for the site to shut down until the company can get a handle on the security situation. 

Accounts belonging to Joe Biden, Elon Musk, Jeff Bezos, Barack Obama and a slew of companies showed signs of being compromised on Wednesday afternoon.

The accounts directed people to donate to a bitcoin scheme, which has reaped more than $100,000 as part of the apparent scam…

The Joe Biden campaign confirmed the presidential candidate’s account was hacked. 

“Twitter locked down the account immediately following the breach and removed the related tweet,” the Biden campaign said. “We remain in touch with Twitter on the matter.”

The security breach raised major questions for the company as world leaders like Donald Trump often communicate official national policy via Twitter, meaning hackers could presumably start wars or destabilize geopolitical conditions if they are able to gain access to certain accounts.

“This mass twitter hack should worry everyone because there is one account on here (you know the one) that could end us all with the wrong tweet,” wrote Jon Stokes, founder of Ars Technica, on Wednesday. “That account should announce it’s backing off the platform entirely until this is sorted.”

The Sun: Donald Trump Jr claims Instagram is threatening to ‘delete accounts’ that criticize liberal bias

By Nicole Darrah

Donald Trump Jr. claimed on Wednesday that Instagram is threatening to “delete accounts” that criticize liberal bias.

The president’s son posted a screenshot of an apparent warning a user received from Instagram, which is owned by Facebook.

The message shared by Trump Jr indicates that four of the Instagram user in question’s posts have been deleted between June 1 and July 5 because it was believed to have “harmful false information.”

His post on the app also includes two screenshots of CNN article headlines: one from April 11 that says President Donald Trump is “wrong in so many ways about hydroxychloroquine studies,” and a second from July 2 that states “Study finds hydroxychloroquine helped coronavirus patients survive better.”

“The censorship is real and it continues,” Trump Jr wrote. “Instagram is taking down posts about people comparing the CNN headlines about Hydroxychloroquine.”

“These are actual headlines from CNN, but because it doesn’t fit the narrative the social media masters are going to make sure that no one actually hears the truth.”

Trump Jr. said he sees it in his “numbers especially on Twitter these days where my engagement magically went way down in the last few weeks.”

“There is nothing they won’t do to manipulate the truth and facts to suit their ends. This is how they’re going to try to sway the 2020 election. Don’t let then (sic) get away with it.”

New York Times: How Facebook Handles Climate Disinformation

By Veronica Penney

[U]nder [Facebook’s] guidelines, climate content can be classified as opinion and therefore exempted from fact-checking procedures.

The policy means that peer-reviewed science can be lumped into the same category as industry statements and even blatant disinformation…

All opinion content on the platform – including op-ed articles or posts that express the views or agendas of politicians, businesses, and nongovernmental organizations – is exempt from fact-checking. This policy has been in place since 2016, according to said Andy Stone, Facebook’s policy communications director.

Facebook itself does not check content. Instead, it contracts at least 50 independent organizations that have access to posts flagged as potential disinformation by Facebook or users.

One of the platform’s climate change fact checkers is Climate Feedback, an organization that recruits subject-matter experts to analyze posts. The process can take weeks for a single article…

Deciding what’s opinion is at the discretion of Facebook, not the fact checkers…

John Podesta, an adviser to President Barack Obama who coordinated the administration’s climate policy, called Facebook’s opinion policy “a loophole that you can drive a Mack truck through.”

Mr. Podesta asserted that the policy amounts to a loophole for disinformation…

“We’re not objecting to people having opinions,” he said. “We’re objecting to the spread of disinformation and lies under the cover of opinion.”

Washington Post: This is Facebook’s chance to hit the reset button

By Editorial Board

[T]he top-level takeaway from the detailed [civil rights audit that it commissioned] is that Facebook wrongly prioritizes free expression – yet that’s a too-simple reading of the complicated world of platform governance.

Facebook was created to give people a place to speak and be spoken to; free expression will always be a lodestar. The question is to what extent the company allows other values to guide it, too…

Facebook clearly recognizes that harms such as incitement of violence, voter suppression or mere intimidation into silence can outweigh the benefits of unfettered expression. But it’s a constant challenge to figure out when…

This is also in sync with the “heartbreaking” decisions auditors note on three posts by President Trump bearing on the cherished rights to assemble and to vote – one threatening violence against Black Lives Matter protesters and the others falsely alleging the illegality of mail-in ballots. The auditors viewed these as obvious violations of Facebook’s rules against incitement to violence, as well as the voter suppression policies. Yet when the matters were “escalated” to leadership, Facebook decided to do nothing…

Facebook simply isn’t wired top to bottom for nondiscrimination the way it is wired for free expression, in its staffing, its terms of service and its product. The task ahead, then, is a rewiring: not one that strips away the company’s commitment to free expression but one that integrates that commitment with one to nondiscrimination at every level.

The States

Northwest Herald: Appellate court upholds dismissal of Brettman, Schuster’s defamation lawsuit

By Katie Smith

An Illinois appeals court on Wednesday upheld the dismissal of a defamation lawsuit sparked by allegations that two former McHenry County Board candidates had histories of “criminality and hate.”

The Illinois Second District Appellate Court’s order upheld Kane County Judge Kevin Busch’s decision to dismiss the two-count lawsuit in August. In making his determination, Busch found that Orville Brettman and Ersel Schuster’s complaint against a dark money source that funded contentious 2018 campaign flyers was retaliatory and violated Illinois’ Anti-SLAPP laws. The…ruling further confirmed the lawsuit was an attempt to silence protected political speech…

The lawsuit centered on a series of campaign flyers that were funded by the anonymous “Illinois Integrity Fund” and made their way through the county before the March 2018 primary election. At the time, both Brettman and Schuster were running for positions on the McHenry County Board.

The flyers alleged that Brettman, a Grafton Township committeeman, was racist and associated with a “right-wing terrorist group” tied to the bombing of an Elgin church.

Mizzou News: Do campaign finance reforms truly help make elections more competitive?

By Eric Stann

Proponents of campaign finance reform claim that putting limits on how much money can be raised and spent to support a political candidate leads to more competitive elections by helping level the political playing field between incumbents…and challengers. However, a new study by two social scientists at the University of Missouri finds state campaign finance reforms actually have no beneficial effect on the competitiveness of state legislative elections. Instead, some reforms, such as limits on corporate political spending and public financing of elections, advantage incumbents.

Jeff Milyo, a professor and chair of the Department of Economics in the MU College of Arts and Science, said the study improves on previous studies conducted prior to the ruling in the U.S. Supreme Court case, “Citizens United v. Federal Election Commission.”…

“Our analysis of nearly 66,000 state contests over 30 years – from 1986 to 2018 – reveals that most campaign finance reforms have little impact on state legislative elections,” Milyo said.

“But if anything, the much-maligned Citizens United decision has led to an increase in electoral competitiveness,” [Milyo said.]

Portland Press Herald: Hard-fought campaign finance reform now law

By State Sen. Justin Chenette

This year, the governor signed into law two additional measures I introduced to tackle lobbyist influence and ethics enforcement.

The first being the most consequential reform since probably the creation of the Maine Clean Election system. My new law bans lobbyist contributions to sitting lawmakers and legislative candidates as well as bans out of state lobbyist contributions to the sitting governor and gubernatorial candidates. We have now joined five other states – Alaska, Kentucky, South Carolina, Tennessee and California – in preventing lobbyists from using money to influence lawmakers directly.

The other new law has to do with enabling the Maine Ethics Commission to fully enforce rules around caucus PACs by clearly defining them in statute and defining who runs them. Since caucus PACs are run by legislative leaders, it’s critical they are held to a high ethical standard. I worked closely with the staff at the Maine Ethics Commission to ensure they backed the proposal.

 

Tiffany Donnelly

Tiffany Donnelly

https://www.ifs.org/author/tdonnelly/

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