Ed. note: The Media Update will be on vacation Thursday, July 30 and Friday, July 31
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.]
In the News
Ballotpedia: The Disclosure Digest
On July 9, Rep. Jared Golden (D), of Maine’s second congressional district, introduced HR7525 in the U.S. House of Representatives. The legislation proposes new donor disclosure requirements for 501(c)(4) nonprofits that make political expenditures in any amount. The bill also proposes capping a 501(c)(4)’s political spending at 10 percent of its total annual expenditures…
The Institute for Free Speech makes the following argument against expanded donor disclosure requirements: “[Disclosure] laws … present significant First Amendment harms. If an individual’s personal information is reported to the government and then published on the internet for all to see, they are less likely to contribute, particularly if the speech they are supporting is unpopular or controversial. …Unfortunately, privacy from government disclosure laws for those engaged in issue speech is under attack. Politicians unhappy with that speech seek more and more disclosure rules that have little to do with fighting corruption.”
New from the Institute for Free Speech
The Institute for Free Speech today published an analysis of the Judicial Ads Act (S.4183), a bill that would impose campaign finance regulations on speech about federal judicial nominations. The Institute’s analysis finds that this is “unprecedented and extraordinary” and, if adopted, likely unconstitutional.
“The Judicial Ads Act brings campaign finance regulation to the judicial nomination process. Courts have never sanctioned such regulation of speech outside of elections,” said Institute for Free Speech Senior Fellow Eric Wang, author of the analysis.
Under the Judicial Ads Act, any organization that spends over $50,000 in a calendar year on most forms of speech about judicial nominations will be forced to report to the Federal Election Commission. The group would be required to publicly identify any donor who gave $5,000 or more, even if the donations were made for other activities.
“[T]he sole goal of the Judicial Ads Act appears to be exposing the donors of groups supporting federal judicial nominees that the bill’s sponsors oppose for the purpose of ginning up public disfavor. This is decidedly not a legitimate justification for campaign finance reporting requirements. Indeed, it is precisely why the Supreme Court and lower courts… have recognized that such laws infringe on core First Amendment rights,” Wang’s analysis explains…
The Judicial Ads Act was referred to the Senate Judiciary Committee, where it has yet to receive a hearing. To read the analysis, click here.
Right to Protest
By Dara Lind
Federal authorities are using a new tactic in their battle against protesters in Portland, Oregon: arrest them on offenses as minor as “failing to obey” an order to get off a sidewalk on federal property – and then tell them they can’t protest anymore as a condition for release from jail.
Legal experts describe the move as a blatant violation of the constitutional right to free assembly, but at least 12 protesters arrested in recent weeks have been specifically barred from attending protests or demonstrations as they await trials on federal misdemeanor charges…
Protesters who have agreed to stay away from further demonstrations say they felt forced to accept those terms to get out of jail…
Constitutional lawyers said conditioning release from jail on a promise to stop joining protests were overly broad and almost certainly a violation of the First Amendment right to free assembly.
“The government has a very heavy burden when it comes to restrictions on protest rights and on assembly,” noted Jameel Jaffer of Columbia University’s Knight First Amendment Institute. “It’s much easier for the government to meet that burden where it has individualized information about a threat. So for example, they know that a particular person is planning to carry out some unlawful activity at a particular protest.”
By Betsy Woodruff Swan
Facebook CEO Mark Zuckerberg will concede to lawmakers that his company has more work to do in combating disinformation and voter suppression, according to his prepared opening statement for a blockbuster House hearing on the tech industry Wednesday…
POLITICO reviewed the statement ahead of Wednesday’s hearing in the House Judiciary Committee’s antitrust subcommittee, which will also feature testimony from Amazon CEO Jeff Bezos, Apple CEO Tim Cook and Google CEO Sundar Pichai.
“We recognize that we have a responsibility to stop bad actors from interfering with or undermining these conversations through misinformation, attempted voter suppression, or speech that is hateful or incites violence,” Zuckerberg’s statement says. “I understand the concerns people have in these areas, and we are working to address them. While we are making progress – for example, we have dramatically improved our ability to proactively find and remove harmful content and prevent election interference – I recognize that we have more to do.”
By Betsy Woodruff Swan, Cristiano Lima, and Leah Nylen
Republican staffers on the House Judiciary Committee are blasting the panel’s management of Wednesday’s high-stakes hearing into the tech industry, according to a GOP memo obtained by POLITICO…
The GOP staffers also call for making conservative allegations of ideological bias a major focus of the hearing, whose stated purpose is to examine complaints of antitrust abuses in the biggest U.S. tech companies…
And [the memo] lists GOP allegations of bias in Silicon Valley – charges the tech giants deny – as a top theme for the hearing, which Democrats had scheduled to home in on chargesof anticompetitive conduct by Amazon, Google, Facebook and Apple. Democrats, including Judiciary Chair Jerry Nadler of New York, have dismissed the bias allegations as baseless and politically driven.
“Political bias in big tech should be decried, but antitrust won’t solve it,” reads the heading of one section of the memo…
[Judiciary’s top Republican, Rep. Jim Jordan of Ohio] made a last-minute plea for the committee to add Twitter CEO Jack Dorsey to the hearing line-up. Republican lawmakers are eager to question Dorsey about the social media company’s handling of Trump’s tweets. The company offered the committee a briefing instead of his testimony, according to a source familiar with the plans, who spoke anonymously to discuss private deliberations.
By Chris Mills Rodrigo
Sen. Josh Hawley (R-Mo.) introduced legislation Tuesday that would condition legal protections for online platforms that utilize behavioral advertising, the use of browsing habits to serve tailored ads to users.
The Behavioral Advertising Decisions Are Downgrading Services (BAD ADS) Act would take Section 230 protections away from the biggest tech companies that use the advertising method…
The legislation defines behavioral advertising as targeting based on the personal traits of the user, past location info on the user, personal information from a profile about a user made to sell ads or the previous online or offline behavior of the user.
The bill differentiates behavioral from contextual advertising, which it defines as being based on the the content of the website, the current location of the user or the search terms applied to arrive at the website.
“Big Tech’s manipulative advertising regime comes with a massive hidden price tag for consumers while providing almost no return to anyone but themselves,” Hawley said in a statement.
“From privacy violations to harming children to suppression of speech, the ramifications are very real. These kinds of manipulative ads are not what Congress had in mind when passing Section 230, and now is the time to put a stop to this abuse.”
By Will Duffield
The bipartisan, process oriented “Platform Accountability and Consumer Transparency Act” joins a recent parade of Section 230 reform proposals. Sponsored by Sens. Brian Schatz (D-HI) and John Thune (R-SD), the PACT Act proposes a collection of new requirements intended to optimize social media platforms’ governance of user speech. These government mandated practices for handling both illegal speech and that which merely violates platform community standards would upset delicate, platform specific balances between free expression and safety. While more carefully constructed than competing proposals, with provisions actually tailored to the ends of accountability and transparency, the bill threatens to encumber platforms’ moderation efforts while encouraging them to remove more lawful speech…
There is a real danger that the bill may be treated as a solution to perceived problems with Section 230 simply because it is less radical or more thoughtfully drafted than competing proposals for reform. The PACT Act may be better than other proposed modifications, but that doesn’t make it, on net, an improvement on the status quo.
By Marissa J. Lang
Protesters who say they were tear-gassed, shot at, pepper-sprayed and assaulted outside a federal courthouse while peacefully demonstrating and rendering aid to others sued the Trump administration Monday over its use of force during nightly demonstrations in downtown Portland.
A group of five women and two organizations, including longtime Black Lives Matter protesters and the yellow-clad Wall of Moms group that assembles nightly to stand between protesters and federal law enforcement officers, filed a lawsuit alleging that several agencies – the Department of Homeland Security, Customs and Border Protection, Immigration and Customs Enforcement and the Federal Protective Service – have violated their constitutional rights of free speech, assembly and due process and against unreasonable seizures.
Reason (Volokh Conspiracy): Harassing E-Mail to Sen. McConnell Can’t Be Punished as “Speech Integral to Criminal Conduct”
By Eugene Volokh
In today’s decision in United States v. Weiss, Judge Charles Breyer (N.D. Cal.) dismissed a prosecution for sending harassing e-mails (in violation of 47 U.S.C. § 223(a)(1)(C)) to Senator Mitch McConnell’s office. The judge concluded that the e-mails weren’t punishable threats of violence (more on that in a later post); but the government’s chief argument was that they were constitutionally unprotected because they were “speech integral to criminal conduct”-the criminal conduct being the sending of harassing e-mails, in violation of 47 U.S.C. § 223(a)(1)(C). Judge Weiss rejected that argument on the government’s part, in my view correctly so.
By John Beauge
Lewisburg is now the second community sued this year by activist Gene Stilp.
The Middle Paxton Twp. resident has sued the borough in U.S. Middle District, claiming his free speech rights have been violated by being charged for burning flags…
His court complaint states he had notified Lewisburg in February he planned to hold a public protest involving the burning of flags and was advised he would be violating the borough’s burn ordinance…
Among the reasons Stilp alleges the ordinance is constitutional is it violates his First Amendment right of free speech.
He also contends it is discriminatory because it allows open burnings by organizations dedicated to the public good but not for individuals like himself who want to publicly protest the Trump administration.
By Matthew Cunningham-Cook
[Rep. Lori] Trahan has little plausible deniability as to campaign finance law – she wrote it. She was chief of staff to former Rep. Marty Meehan, who was the lead Democratic sponsor of the McCain-Feingold Act in the House. “As a staffer, I was proud to work on the historic campaign finance reform legislation, Shays-Meehan,” Trahan said in a 2019 release…
“Trahan gave a number of conflicting and inconsistent responses” to queries from the Boston Globe, said Brendan Fischer, federal reform director at the Campaign Legal Center, “and ultimately it appeared it came from an account individually owned by her husband. The Office of Congressional Ethics recommended that the Ethics Committee find that Trahan did violate the law, but the Ethics Committee cleared Trahan. A big part of that is that the House Ethics Committee is made up of other members of Congress and there’s often an aversion to members of Congress holding other members accountable for ethics violations.”…
“Common Cause sees this as a public disclosure issue that has to be done in real time for everyday Americans to evaluate somebody running for office,” said [Beth Rotman, national director of Money in Politics and Ethics for Common Cause]. “The public lost here. To figure all of this out many months later is a loss for the public. In this case, delayed disclosure equated to nondisclosure.”
“It’s very challenging to have an in-house Ethics Committee do the investigation,” Rotman continued, “as they can absolutely bend over backwards to see themselves in the same shoes as the person they are evaluating. They all find the campaign finance laws burdensome. It’s very difficult to ask the legislature to police itself when it comes to campaign finance. Watchdog agencies like the OCE are not burdened by subconscious awareness where they could see themselves making the same mistake.”
By Emma Woollacott
After calls from Donald Trump for reform of the way social media content is moderated, the US National Telecommunications and Information Agency (NTIA)…has take the first steps to make it happen.
The NTIA has filed a formal petition to the Federal Communications Commission (FCC), asking it to issue rules on when internet platforms are liable for user content posted on their sites…
The petition has been welcomed by FCC commissioner Brendan Carr.
“The federal government has provided virtually no guidance on how the unique and conditional set of legal privileges Congress conferred on social media companies should be interpreted today,” he says.
“The Section 230 petition provides an opportunity to bring much-needed clarity to the statutory text. And it allows us to move forward in a way that will empower speakers to engage in ‘a forum for a true diversity of political discourse,’ as Congress envisioned when it passed Section 230.”
However, many – including Carr’s fellow commissioner Jessica Rosenworcel – have deep concerns.
“The First Amendment is not present to protect the president from media. It’s present to protect media from the president,” she says.
“In the United States we are a democratic, open society in which people can hold their government accountable, even if imperfectly. Whether we can keep it that way depends on the survival of a robust, independent digital space for activism and public discourse. These spaces only thrive if we say no to the President’s invitation to make our networks less open and more closed to civic debate.”
And some, such as campaign group TechFreedom, claim the aims of the petition are unconstitutional.
By Lachlan Markay
Political donations by non-disclosing groups-including LLCs…and 501(c)(4) nonprofits, commonly referred to as “dark money” groups-have skyrocketed in recent years. During the 2018 election cycle, such groups provided roughly $178 million to federal political committees, according to data provided by the Center for Responsive Politics. In 2020, they’re on track to far surpass that total. By the end of June, non-disclosing groups had donated $177 million to federal political committees, per CRP data.
The result, experts say, has been an erosion of fundamental rules governing American elections and the growing amounts of money spent to affect their outcomes.
“These dark money structures create opportunities for actors who want to undermine American Democracy,” according to Sheila Krumholz, CRP’s executive director. “The U.S. must be a leader on this issue, setting an incontrovertible example of functional democratic systems and oversight,” Krumholz told a congressional committee last year. “We cannot ignore these weaknesses that have been allowed to creep into the funding of U.S. elections.” …
“Transparency allows the public to assess who is behind the political ads they see from super PACs,” according to a new report on opaque political donors from Issue One, a nonpartisan good government group. “When super PACs simply list opaque shell companies or secretive dark money groups as contributors, the public is left in the dark about the true identity of the sources of the money being spent to influence elections.”
Online Speech Platforms
By Rachel Lerman, Katie Shepherd and Taylor Telford
Twitter on Tuesday penalized Donald Trump Jr. for posting misinformation about hydroxychloroquine, the social media giant said, underlining the tough stance it has taken in policing misleading posts from high-profile users, including President Trump, in recent months.
Twitter said that it ordered the president’s son to delete the misleading tweet and that it would “limit some account functionality for 12 hours.” …
The tweet, which featured a viral video showing a group of doctors making misleading and false claims about the coronavirus pandemic, was directly tweeted by Trump Jr.’s account. That contrasts with his father, who retweeted multiple tweets from others showing clips of the same video to his 84.2 million followers Monday night…
Twitter removed the videos, deleting several of the tweets that President Trump shared, and added a note to its trending topics warning about the potential risks of hydroxychloroquine use…
Donald Trump Jr. spokesman Andy Surabian said the restriction was “further proof that Big Tech is intent on killing free expression online and is another instance of them committing election interference to stifle Republican voices.”
By Steven Overly and Laura Kayali
The widely publicized advertiser boycott against Facebook has less than a week to show it has become a global coalition solid enough, and strong enough, to take on the social media giant.
Civil rights groups persuaded more than 1,100 companies and organizations from the U.S. to Germany to Australia to pull their money from the social network during July to pressure Facebook to take more action on hate speech and deceptive posts from politicians. But the month is almost over without Facebook meeting many of their demands. If the movement can’t up the ante, it risks watching its work evaporate.
Wall Street Journal: Tech CEOs Deserve an Apology
By Andy Kessler
Don’t be Jack Dorsey. During 2018 testimony, the Twitter CEO swore up and down that the site didn’t “shadow ban,” or stop certain users, mainly on the political right, from trending or showing up in searches. Twitter’s algorithms, he claimed, were merely tracking “behavioral signals.”
Then-whoops-hackers last week accessed the accounts of Joe Biden, Elon Musk, Barack Obama and others, and released screenshots showing a “secret admin panel.” Twitter hasn’t denied the images were real and quickly took them down. The panel has buttons for “Trends Blacklist” and “Search Blacklist”-the definition of shadow banning. It makes Mr. Dorsey’s denials sound fact-challenged at best. Maybe that’s why he said he plans to work from Africa. So his fellow CEOs should stick with facts. Heck, plead the Fifth-that would at least make the hearing memorable!
By Randy Ludlow
Ohio Gov. Mike DeWine wants state law to demand more transparency from “dark money” groups such as those at the center of Ohio’s biggest-ever public corruption case, but he is uncertain how to achieve it.
“I’m for as much openness as possible,” DeWine said. But, “the mere existence of these dark groups is not illegal today. … I would favor total transparency so the contributions that are given are fully disclosed.”
He noted that the 2010 U.S. Supreme Court decision in Citizens United permits corporations and other groups to spend unlimited funds on elections and issue advocacy without disclosing sources of money.
DeWine said he has asked his staffers to explore what Ohio might do to rein in dark money or require donations, such as those to Generation Now in the scandal involving House Speaker Larry Householder, to be disclosed.
“What kind of legislation can we actually get through that would be constitutional?” the governor asked.
“We will do whatever we can to have more openness and we will come back with a recommendation to the General Assembly,” DeWine said Tuesday during his coronavirus news conference.