Daily Media Links 8/26

August 26, 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 plans to nominate our longtime Legal Director to the Federal Election Commission, in which case he likely would 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.]

The Courts

The Popehat Report: Fourth Circuit Holds The Line On Brandenburg, Strikes Down Part of Anti-Riot Act

By Ken White

Yesterday the United States Court of Appeals for the Fourth Circuit struck down parts of the federal Anti-Riot Act under the First Amendment, but affirmed the convictions of two white supremacists convicted under the statute for travelling to Charlottesville to do violence…

To summarize and simplify, the Fourth Circuit determined that the Anti-Riot Act is unconstitutional to the extent it uses too broad a definition of “incite a riot,” including “to organize, promote, encourage, participate in, or carry on” a riot. There’s a well-established exception to the First Amendment for incitement. But under Brandenburg v. Ohio, that exception only encompasses speech that is intended and likely to cause imminent lawless action. Speech that doesn’t meet that test – like speech generally advocating for lawless action in the abstract, not aimed at an imminent result – remains protected. In this case, the Fourth Circuit found that a few parts of the statute stretched past this narrow exception by criminalizing efforts to “encourage” or “promote” a riot. Some speech encouraging or promoting a riot (like speech to a hot crowd looking for trouble) can fall under the incitement exception, but some speech (like speech generally discussing why a riot is justified or good) does not. 


New York Times (Book Review): The Never-Ending War Between the White House and the Press

By Jack Shafer

The next time President Trump chafes your free-speech sensibilities by yanking the White House credentials of a reporter who questioned him hard, insulting journalists at a news conference, tweeting about “fake news” being the enemy of the people or threatening to retaliate against one of the media outlets whose reporting has offended him, calm yourself by opening Harold Holzer’s “The Presidents vs. the Press” to almost any page. For all of Trump’s transgressions against the press – and they are many – Holzer’s book offers evidence that he’s not the greatest enemy of the First Amendment to have occupied the White House. He might not even rank in the top five.

Trump would definitely have to bow to both President John Adams, who signed into law sedition statutes used to prosecute journalists, and President Abraham Lincoln, who imprisoned scores of editors during the Civil War, purged news stories from the telegraph, banned some newspapers from the mails and even confiscated presses. “Altogether, nearly 200 papers would face federally initiated subjugation during the Civil War,” Holzer writes…President Woodrow Wilson reprised some of Lincoln’s worst tendencies during World War I, imposing censorship of the press and pushing propaganda. 

Online Speech Platforms

Reason: Big Tech Is Not a Big Threat to Conservative Speech. The RNC Just Proved It.

By Robby Soave

This is, by now, a familiar refrain. “Big Tech hates conservatives and will stop at nothing to silence them” has become the default conservative opinion, popularized by Republican ideological leaders like Sens. Josh Hawley (R-Mo.) and Ted Cruz (R-Texas).

And yet if there was ever a televised event that demonstrated the lameness of the conservative anti-tech position, it was the first day of the RNC. No major tech platform censored any of the content-on the contrary, they granted easy and unrestricted access…

Contrary to the anti-social media perspective peddled by [speakers at the RNC], it was traditional media outlets that restricted conservative speakers. CNN, MSNBC, and even Fox News cut away from the convention repeatedly. MSNBC host Rachel Maddow was petrified that unfiltered access to Republican speakers would cause her audience to succumb to disinformation, and thus she ceaselessly intervened to explain why certain GOP talking points were false. (Unsurprisingly, there was no live fact-check of the Democratic National Convention.)

Viewers with a cable subscription who preferred a selective, biased curation of the RNC could turn on their televisions. Viewers who just wanted to watch the event without interruption or interjection could do so for free on any of the major tech platforms.

The Dispatch: The Coming Wave of Disinformation

By Declan Garvey

Voting in the 2020 U.S. elections will come to a close in 70 days, and disinformation experts are working around the clock to safeguard the democratic process. “One of the things you can be pretty confident of,” said Ben Nimmo, the director of investigations at Graphika, a network analysis firm, “is that somebody is going to start posting a video which allegedly shows ballot box stuffing, or it shows people carousel voting or it shows … some kind of electoral irregularity.” 

“An awful lot of the time, if you reverse search the video or the photo, you find out it happened five years ago in a different country.”

But what if such a video gets picked up by an irresponsible media outlet-or worse, the president-before Facebook’s much-improved security teams can determine its origin and stop its dissemination?…

Welcome to democracy in 2020.

Protocol: After sending content moderators home, YouTube doubled its video removals

By Issie Lapowsky

When YouTube sent content moderators home in March due to the COVID-19 pandemic, it dramatically expanded its use of automated filters – and that led to twice as many videos being taken down in the second quarter of 2020 as the first. The spike stems from YouTube’s decision to “cast a wider net” for potentially violative videos in the absence of human moderators, and highlights the imperfect science of automatically policing content.

Candidates and Campaigns

Washington Post: Focus on Trump’s official White House actions as part of Republican convention programming raises Hatch Act concerns

By Michelle Ye Hee Lee and Josh Dawsey

The decision by the Republican National Convention to feature President Trump conducting official business inside the White House underscores how he is leveraging the powers of his office for political gain, raising questions about whether an event featured Tuesday night violated federal law.

In a remarkable pretaped scene packaged as part of the convention’s prime-time programming, Trump took part in a naturalization ceremony for five new citizens as acting Homeland Security secretary Chad Wolf administered the Oath of Allegiance…

Kathleen Clark, a legal and government ethics professor at Washington University in St. Louis School of Law, said that the event appeared to be designed as part of the convention, an action that would violate a criminal provision of the Hatch Act…

A White House official, who spoke on the condition of anonymity to describe the legal basis of the event, said it was part of the president’s official schedule that was publicized on a public website…

“This is a clear violation,” said Jordan Libowitz, spokesman for the government watchdog group Citizens for Responsibility and Ethics in Washington. “This is so obviously, blatantly, insultingly a Hatch Act violation that it’s starting to seem like the Trump administration is going out of its way to find new ways to violate the law. We’ll be filing a complaint.”

Wall Street Journal: Mike Pompeo’s RNC Address From Israel Stirs Criticism

By Michael R. Gordon and Courtney McBride

Secretary of State Mike Pompeo, in a prime-time address recorded against the backdrop of Israel’s holiest sites, told the Republican National Convention on Tuesday night that President Trump has made the U.S. more secure…

Mr. Pompeo’s decision to address the convention in a speech that was taped Monday in Jerusalem sparked complaints by former diplomats and congressional Democrats that he had overstepped the traditional boundary between diplomacy and politics.

Rep. Joaquin Castro, the Texas Democrat who is vice chairman of the House Foreign Affairs Committee, said that he would investigate whether the address violates State Department policies and the federal Hatch Act prohibiting federal officials from engaging in political activity in their official capacity…

A State Department official said that none of the agency’s resources or staff has been used to facilitate his appearance…

The convention address, however, appears to conflict with guidance issued this year by Mr. Pompeo as well as a separate guidance issued late last year by the department’s Office of the Legal Adviser.

The States

The Oregonian: Oregon campaign to allow limits on political contributions plows through cash

By Hillary Borrud

The campaign to legalize political contribution limits in Oregon is heading into the fall election season with less than $10,000 in the bank, after spending heavily during the summer on staff salaries and a statewide poll by a Washington, D.C. firm.

The poll findings could explain why backers of the measure haven’t worked to amass more campaign cash: Voters of every age, party and region of Oregon overwhelmingly favor campaign finance limits and disclosure requirements, a memo from pollsters says.

Last year, lawmakers from both parties voted to ask Oregonians this November if they want to amend the state constitution to allow campaign donation limits. If voters approve Measure 107, that would clearly establish that lawmakers or citizens can pass future limits on political money in Oregon.

Democrats and their political allies have taken the lead in the campaign to pass Measure 107, after both major parties and powerful interest groups for years fought attempts to place any constraints on campaign cash in the state.

Virginian-Pilot: A powerful Black leader. White opposition. Criminal charges. An old pattern continues in Portsmouth.

By Ana Ley and Gary A. Harki

Black leaders know what to expect when they fight for change in Portsmouth.

Supporters rally around them, fed up with the racism and systemic injustices that infect the city. Then, they say, white opponents come swinging, armed with the crushing weight of the law.

“It’s indicative of a (group) that is in the death throes of losing power,” Del. Don Scott said during a rally Wednesday on the front steps of the Portsmouth courthouse. “Any time we speak up, they try to take the leaders and make an example of them by making sure they silence the rest of you.”

To many advocates, the criminal charges filed this week against the city’s most prominent Black elected official, state Sen. Louise Lucas, were just the latest example – and perhaps the most dramatic…

Crowds on Wednesday denounced what many consider the most brazen effort in recent history, when Portsmouth police Sgt. Kevin McGee brought felony charges against Lucas and 13 others for “injury to” a Confederate monument.


Tiffany Donnelly

Tiffany Donnelly


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