Daily Media Links 7/28

July 28, 2020   •  By Tiffany Donnelly   •  
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We’re Hiring!

Legal Director – Institute for Free Speech – Washington, DC or Virtual Office

The Institute for Free Speech anticipates the need for a highly experienced attorney to direct our litigation and legal advocacy. President Trump announced he plans to nominate our longtime Legal Director to the Federal Election Commission, and he may be confirmed in late summer or fall.

This is a rare opportunity to develop and implement a long-term legal strategy directed toward the protection of Constitutional rights. You would work to create legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, that threaten citizens’ privacy if they speak or join groups, and that impose heavy burdens on organized political activity. The Legal Director will direct our litigation and legal advocacy, lead our in-house legal team, and manage and expand our network of volunteer attorneys.

A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country.

[You can learn more about this role and apply for the position here.]

Supreme Court

Bloomberg Law: SCOTUS Curtails Government Power to Regulate Through Speech Restriction

By Bert W. Rein and Kevin G. Rupy

The U.S. Supreme Court’s decision in Barr v. American Association of Political Consultants Inc. could greatly limit the government’s ability to use speech regulation as a regulatory tool. While the immediate impact of the decision is only to eliminate the government debt exception to the Telephone Consumer Protection Act’s bar on using robocalls for debt collection purposes, its doctrinal underpinning may have far greater consequences.

The Courts

Casper Star-Tribune: Advocacy group sues state of Wyoming in effort to overturn political ‘buffer zones’ near polling places

By Nick Reynolds

Attorneys for the state’s leading libertarian think tank are suing Secretary of State Ed Buchanan and several top Laramie County officials for a conservative advocacy organization’s right to promote conservative candidates and causes inside of a “restricted speech zone” near polling places in Cheyenne.

The lawsuit – filed by the Wyoming Liberty Group against Buchanan, Laramie County District Attorney Leigh Ann Manlove and Laramie County Clerk Debra Lee in U.S. District Court on Friday – stems from a complaint by conservative activist John C. Frank, a former Colorado resident and a worker with the conservative organizing service Grassfire. Frank hopes to challenge the state over a provision in Wyoming law preventing people from contacting voters or exercising their political speech within 100 yards of a polling place…

While political buffer zones were initially intended to prevent electioneering or intimidation at polling places, attorneys for Frank argue that the size of Wyoming’s buffer zones – 100 yards for physical polling places, 100 feet for absentee polling places – provides a distinct disadvantage to political groups hoping to exercise their free speech and engage in the political process.


Washington Post: Barr plans to mount a defiant defense of Trump in showdown with House Democrats

By Matt Zapotosky and Karoun Demirjian

Attorney General William P. Barr will tell the House Judiciary Committee on Tuesday that President Trump has not inappropriately intervened in Justice Department business – even though Barr has more than once moved in criminal cases to help the president’s allies – and he will defend the administration’s response to civil unrest in the country, according to a copy of his opening statement.

Barr, according to the statement, will take a defiant posture as he testifies before the panel for the first time since Democrats took control of it, alleging that they have attempted to “discredit” him since he vowed to investigate the 2016 FBI probe of possible coordination between Russia and the Trump campaign, and the media has been unfair in covering unrest. He is expected to face critical questioning on his response to anti-police brutality protests across the nation, his controversial interventions in high-profile cases involving allies of Trump and many other matters.

Business Insider: Florida Rep. Matt Gaetz asks the DOJ to launch a criminal investigation into Mark Zuckerberg, accusing the Facebook CEO of lying to Congress

By Sonam Sheth

Florida Rep. Matt Gaetz on Monday accused Facebook CEO Mark Zuckerberg of lying to Congress in 2018 and asked the Justice Department to investigate the matter.

In a letter to Attorney General William Barr, Gaetz alleged that Zuckerberg made false statements to Congress about Facebook’s content moderation during two hearings two years ago.

“On both occasions, members of Congress asked Mr. Zuckerberg about allegations that Facebook censored and suppressed content supportive of President Donald Trump and other conservatives,” Gaetz wrote.

“In his responses, Mr. Zuckerberg repeatedly and categorically denied any bias against conservative speech, persons, policies, or politics,” he added. “Mr. Zuckerberg also dismissed the suggestion that Facebook exercises any form of editorial manipulation.” …

In his letter to Barr, Gaetz said that “recent reports from Project Veritas, featuring whistleblowers who worked as Facebook’s ‘content moderators,’ have shown ample evidence” of Facebook’s purported “bias and manipulation” against conservative speech…

The Florida congressman added that Project Veritas’ investigation also found that Facebook labeled “a great deal of ‘political speech’ supporting the President” as hate speech in violation of the company’s policies.

Washington Times: National Guard major says excessive force, tear gas used in June 1 protest near White House

By Lauren Meier

A U.S. National Guard major is expected to testify before a House panel Tuesday that excessive force was used on protesters during a clearing operation led by the Park Police outside of the White House on June 1…

In a written statement released ahead of the House Committee on Natural Resources hearing on “Unanswered Questions About the U.S. Park Police’s June 1 Attack on Peaceful Protestors at Lafayette Square,” Maj. Adam DeMarco says the use of force involving tear gas and rubber bullets was “an unprovoked escalation and excessive use of force.”

“From my observation, those demonstrators – our fellow American citizens – were engaged in the peaceful expression of their First Amendment rights,” Maj. DeMarco said in his written statement.


Wall Street Journal: Complaint Says Trump Campaign Payments Broke Rules

By Julie Bykowicz

President Trump’s re-election effort is alleged to have paid more than $170 million to companies affiliated with former campaign manager Brad Parscale without disclosing the ultimate recipients of the money, a campaign-finance oversight group says in a new complaint.

The Campaign Legal Center says in the complaint filed Tuesday with the Federal Election Commission that other records show the campaign has used an external firm to buy TV and radio advertising, but that company isn’t named in disclosure filings, nor were some other vendors that have been publicly connected to the campaign.

The Washington oversight group-which has sued Republicans and Democrats in the past over disclosure issues-said that violates the Federal Election Campaign Act requirement that campaigns clearly document their vendors…

The group also said campaign-relate salaries and expenses for Kimberly Guilfoyle, the girlfriend of Donald Trump Jr., and Lara Trump, Eric Trump’s wife, don’t appear in FEC documents. Both women are working alongside the president’s sons to help re-elect him.

“We can only speculate about what might be being hidden,” Brendan Fischer, Campaign Legal Center’s director of federal reform. He said it is important to have full disclosure to ensure the campaign isn’t violating rules about overpaying relatives and sharing vendors with super PACs, for example.

Heritage Foundation: The Latest, Fast-Moving Developments in the 2020 Election Season

By Hans A. von Spakovsky

A very interesting complaint has been filed with the Federal Election Commission, where I used to be a commissioner, as well as with the U.S. Department of Justice, which is responsible for prosecuting criminal violations of the law.

Laura Loomer is running for Congress in Florida against incumbent Rep. Lois Frankel, D-Fla. Loomer was banned from Twitter for supposedly violating Twitter’s “hateful conduct policy” for saying that Rep. Ilhan Omar, D-Minn., is “pro-Sharia” and “anti-Jewish.” Yet Frankel has not been banned from Twitter and thus is able to use it for campaigning.

Loomer claims that Twitter is making a prohibited corporate contribution to Frankel by allowing one candidate to use its site but not the other candidate in the same race. She says that “just as a radio or television station may not sell time only to a candidate’s opponent, Twitter may not do so either without providing equal access to all candidates running for the same office.”

Free Speech

Paul Graham: The Four Quadrants of Conformism

One of the most revealing ways to classify people is by the degree and aggressiveness of their conformism. Imagine a Cartesian coordinate system whose horizontal axis runs from conventional-minded on the left to independent-minded on the right, and whose vertical axis runs from passive at the bottom to aggressive at the top. The resulting four quadrants define four types of people. Starting in the upper left and going counter-clockwise: aggressively conventional-minded, passively conventional-minded, passively independent-minded, and aggressively independent-minded…

I’m biased, I admit, but it seems to me that aggressively conventional-minded people are responsible for a disproportionate amount of the trouble in the world, and that a lot of the customs we’ve evolved since the Enlightenment have been designed to protect the rest of us from them…

Why do the independent-minded need to be protected, though? Because they have all the new ideas. To be a successful scientist, for example, it’s not enough just to be right. You have to be right when everyone else is wrong. Conventional-minded people can’t do that…

In the last few years, many of us have noticed that the customs protecting free inquiry have been weakened…

The conventional-minded say, as they always do, that they don’t want to shut down the discussion of all ideas, just the bad ones.

You’d think it would be obvious just from that sentence what a dangerous game they’re playing. But I’ll spell it out. There are two reasons why we need to be able to discuss even “bad” ideas.

Right to Protest

The Atlantic: There Is Nothing Conservative About What Trump Is Doing in Portland

By Paul Rosenzweig and Arthur Rizer

How greatly have traditional conservative values of federalism and limited government been transformed. Today, a sitting Republican president invokes the power of the federal government to send militarized Department of Homeland Security agents (equipped with military-grade weapons, body armor, tear gas, and camouflage, like armed forces entering a war zone) to swarm American city streets under unwritten rules of engagement. If video evidence now circulating is to be credited, these agents are not merely protecting federal property; they have detained citizens who aren’t violating any law and used the power of their presence to chill civil protests and disobedience.

This is a complete corruption of conservative ideals. There is nothing conservative about unconstitutional police activity, and there is nothing conservative about unilateral federal intervention in state affairs. Those are the acts of an authoritarian.

Reason (Volokh Conspiracy): The View from Inside Portland’s Federal Courthouse

By Jonathan H. Adler

Most media coverage of the protests and riots in Portland (and other cities) is from the vantage point of those outside federal properties, in and among the protesters. Many of these reports characterize the protests as “peaceful” or “largely” so.

The AP’s Mike Balsamo has posted a valuable twitter thread on his experience inside the federal courthouse in Portland. From this vantage point, the protests are anything but peaceful. As Balsamo documents, the federal agents inside the courthouse have come under assault on a nightly basis. It is worth a read.

Online Speech Platforms

Newsweek: A Conservative Path Forward on Big Tech

By Brendan Carr

The Senate will hold a hearing this week on reforming Section 230-a law that confers special protections on social media companies. And today, the Trump administration, citing concerns that large online platforms like Twitter and YouTube are censoring speech in ways that do not align with their public representations, will file a petition with the Federal Communications Commission asking the agency to clarify the scope of Section 230’s protections…

For many Democrats, the path forward is clear. They want to break up Big Tech. They want a moratorium on mergers. And they want social media companies to censor even more online speech.

For many Republicans, this debate is about our path forward…

Start with transparency…

Or take accountability. When Big Tech represents that, for all of their content moderation practices, they do not engage in partisan, political takedowns, they should be held accountable for those representations…

The third guidepost for reform should be user empowerment…

One idea is to let consumers turn off the bias filters. Right now, Facebook and Twitter bring in outside “fact checkers” (read: political actors) to provide their takes on your posts. Why not let the consumer decide? If you want MSNBC, Fox News or any other entity to filter your feed, click that box. If you want an unfiltered, Wild West timeline, choose that option.

Techdirt: The First Amendment Bars Regulating Political Neutrality, Even Via Section 230

By Berin Szoka

At the end of May, President Trump issued an Executive Order demanding action against social media sites for “censoring” conservatives. His Department of Justice made a more specific proposal in mid-June. Clearly coordinating with the White House, Sen. Josh Hawley introduced a bill that same morning, making clear that his “Limiting Section 230 Immunity to Good Samaritans Act” is essentially the administration’s bill – as called for in the May Executive Order. The administration is expected to make its next move next week: having NTIA (an executive agency controlled by Trump loyalists and advised by a former law professor intent on cracking down on tech companies) ask the FCC to make rules reinterpreting Section 230 to do essentially the same thing as the Hawley bill. These two approaches, both stemming from the Executive Order, are unconstitutional for essentially the same reasons: they would put a gun to the head of the largest social media websites, forcing them to give up editorial control over their services if they want to stay in business.

The First Amendment would not allow Congress to directly require websites to be politically “neutral” or “fair”: the Supreme Court has recognized that the First Amendment protects the editorial discretion of websites no less than newspapers. 

New York Times: Fighting False News in Ukraine, Facebook Fact Checkers Tread a Blurry Line

By Anton Troianovski

To understand the complexity of policing online disinformation, consider the small Ukrainian fact-checking group StopFake.

Earlier this year, Facebook hired StopFake to help curb the flow of Russian propaganda and other false news across its platform in Ukraine.

StopFake, like all of Facebook’s outside fact checkers, signed a pledge to be nonpartisan and not to focus its checks “on any one side.” But in recent weeks, StopFake has been battling accusations of ties to the Ukrainian far right and of bias in its fact-checking. The episode has raised thorny questions for Facebook over whom it allows to separate truth from lies – and who is considered a neutral fact checker in a country at war.

Candidates and Campaigns

Salon: Exclusive: Trump campaign kept paying Kayleigh McEnany after White House hiring

By Roger Sollenberger

White House press secretary Kayleigh McEnany received $12,000 in payroll payments from the Trump campaign after her official appointment to a position in the Trump administration, as federal election filings examined by Salon show. That would be a clear ethical breach, and could indicate violations of the laws governing campaign finance and payments to political appointees…

“The campaign overpaid me, and I immediately paid them back,” McEnany said, claiming that “every penny has been paid back in the overlap.” …

“If she really gave the money back so quickly in May, before the FEC report was filed in June, the campaign probably never would have reported that payment in the first place,” said Kedric Payne, general counsel and senior director of ethics at the Campaign Legal Center, in a phone interview. 

“But if she did pay the campaign back, and they did report it like they’re required to do, then that reimbursement should be in the FEC filings,” Payne continued. “I’ll give them the benefit of the doubt to explain where it is, or show it later if there was some filing mistake, but it’s not clear from what I see in the campaign’s filings that there was any reimbursement received for these payments.” 

The States

WYSO: Lawmakers Set Sights On Dark Money Transparency

By Andy Chow

Lawmakers are introducing bills that require more transparency when it comes to dark money groups in political campaigns. The bills are in reaction to an alleged racketeering scheme involving a dark money organization and Speaker Larry Householder (R-Glenford).

One bipartisan bill, HB737, would create reporting requirements for entities that make political contributions. 

Rep. Allison Russo (D-Upper Arlington) is co-sponsoring a similar bill, which would among other things require 501(c)(4)s to disclose their funders…

Rep. Gayle Manning (R-North Ridgeville) is co-sponsoring HB737 with Rep. Jessica Miranda (D-Forest Park)…

Russo is co-sponsoring her transparency legislation with Rep. Bride Rose Sweeney (D-Cleveland). That measure has not yet been assigned a bill number.

Reason (Volokh Conspiracy): May Judges “Participate in Marches, Demonstrations, Vigils, [and] Protests”?

By Eugene Volokh

From the Indiana Commission on Judicial Qualifications, Indiana Judicial Ethics Advisory Opinion # 1-20, just posted on Westlaw; recall that Indiana judges, like the judges in most states, run in elections:

In light of recent events, a number of judicial officers have sought advice about whether, consistent with their ethical obligations under the Code of Judicial Conduct, they may attend and participate in marches, demonstrations, vigils, protests, and other public events aimed at addressing various social issues….

When judicial officers seek to speak out publicly by participating in demonstrations, vigils, protests, or marches, two countervailing interests are at play: the First Amendment rights of the judge versus the state’s interest in preserving the independence, integrity, and impartiality of the judiciary…


Tiffany Donnelly

Tiffany Donnelly


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