In the News
SCOTUSblog: Thursday round-up
By Edith Roberts
At Reason, Zac Morgan and Luke Wachob urge the justices to review McKesson v. Doe and reverse a lower court decision that allowed a policeman who was injured by an unknown attacker at a Black Lives Matter protest to sue the protest’s organizer; they argue that “the Fifth Circuit’s opinion handed a terrible weapon to would-be censors.”
New from the Institute for Free Speech
There Should Be Qualified Immunity for Protesters
By Alec Greven
The right to protest is clearly enshrined in the First Amendment and is central to any legitimate democratic or free society. Protest challenges orthodoxy and injustice and draws attention to pressing issues that need to be remedied. The Supreme Court has an opportunity to increase protections for protesters by hearing Mckesson v. Doe. The Institute for Free Speech recently filed an amicus brief arguing that there should be higher standards before a lawsuit can be brought against a protest organizer. These higher standards would protect the speech of individuals by requiring “a more particularized and direct connection” between the harm resulting from a protest and the actions of the protest organizer.
Fortunately, a solution exists. Qualified immunity is a higher legal standard that would offer protections to protesters. Typically reserved for government officials, qualified immunity shields individuals from legal liability unless they clearly violate the law or the constitutional rights of others. The doctrine of qualified immunity should be extended to the content of the speech within a protest to protect the constitutional rights of citizens. This immunity should not be absolute, of course. For example, if someone negligently organized a protest with too little space and a large amount of people set off a panic, causing injury, then qualified immunity would not apply. However, merely speaking on a controversial issue should not expose protesters to liability unless they intentionally incite violence.
ICYMI
Yes, Politicians, “False” Speech About You Is Protected by the First Amendment
By Alex Baiocco
Lawmakers should keep in mind that any effort to use the force of law to inflict punishment for allegedly false political speech will have [a] chilling effect.
In fact, the mere threat of legislation (along with a relentless pressure campaign) from Congress has already chilled political speech online. Shortly after Rep. David Cicilline announced he was working on legislation to impose liability on social media companies for false statements in political ads that appear on their platforms, Twitter announced it would no longer allow any political ads on its services. Rep. Jan Schakowsky is also interested in legislation to address her concerns “about how far one can go in paid political advertising where Facebook will take no responsibility for anything that is said in a paid political ad.”
Cicilline insists that “[r]ather than being a First Amendment issue, it’s really a kind of revenue generation issue for a business.”
Importantly, in [the landmark 1964 case New York Times v. Sullivan,] the Supreme Court held that “[e]xpression does not lose constitutional protection to which it would otherwise be entitled because it appears in the form of a paid advertisement.”
Cicilline, perhaps aware of the serious constitutional issues in his original idea, has apparently now settled on “Protecting Democracy from Disinformation” by forcing online platforms to limit the ability of political advertisers to microtarget” their messages. The proposal would also force platforms to report detailed information about individual ads and advertisers. The imposition of liability in the proposal would likely cause more platforms to follow Twitter’s lead in banning all political ads.
Trump Administration
Washington Examiner: Justice Department proposes reforming online company protections under Section 230
By Jerry Dunleavy
The Justice Department issued a report proposing that the laws governing internet companies should be reformed and some immunities should be rolled back to help incentivize internet businesses to be “responsible actors.”
Attorney General William Barr said Wednesday that Section 230 of the Communications Decency Act of 1996 must be updated after nearly two decades…
The Justice Department’s 28-page report, titled Section 230 – Nurturing Innovation or Fostering Unaccountability?, was the culmination of a 10-month review…
Republican Sen. Josh Hawley of Missouri also introduced a bill on Wednesday to enable U.S. citizens to sue Big Tech companies who act in bad faith by selectively censoring political speech. The bill would forbid Big Tech companies such as Google, Facebook, or Twitter from receiving Section 230 immunity unless they update their terms of service to promise to operate in good faith…
The American Civil Liberties Union has repeatedly argued against Republican proposals to reform Section 230, saying that “setting aside the obvious constitutional problems with a government entity judging the political content of speech, or dictating the censorship decisions of online platforms, these proposals would make it far less palatable for online services to host others’ speech at all.” The group previously argued that “if enacted, the internet’s marketplace of ideas – and our freedom to communicate online – would suffer.”
The Atlantic: The Obscure Supreme Court Decision the Trump Administration Could Use to Gut the First Amendment
By Garrett Epps
My attention . . . was caught by a curious case citation in [President Trump’s executive] order that has gone mostly unnoticed. In Section 4, “Federal Review of Unfair or Deceptive Acts or Practice,” the order reads: “It is the policy of the United States that large online platforms, such as Twitter and Facebook, as the critical means of promoting the free flow of speech and ideas today, should not restrict protected speech. These sites are providing an important forum to the public for others to engage in free expression and debate. Cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 85-89 (1980).”
PruneYard?
If that name doesn’t ring a bell, don’t feel bad-even for First Amendment nerds, PruneYard is obscure…
I’ve been wondering whether the citation is a legal Easter egg, a hidden sign pointing to the direction that William Barr’s Justice Department would like to take the law. If the administration is serious about raising PruneYard as a rallying cry for internet regulation, it would mark yet another curious deformity that Trumpism has imposed on what was once called conservatism. Because PruneYard was, until now, considered a disgraceful liberal assault on property rights. It may be a harbinger that Trump seeks to apply a new kind of eminent domain to cyberspace.
The Courts
Washington Post: Free speech – not national security – is at stake in Trump’s absurd lawsuit against John Bolton’s book
By Editorial Board
In a lawsuit filed Tuesday, the Justice Department insists that it wants to stop former national security adviser John Bolton from damaging national security by revealing secret information in his forthcoming book, “The Room Where It Happened.” In fact, the primary danger is to President Trump, who, if early leaks are any indication, has much to fear from an unvarnished account of his behavior. The suit is absurd, and the Justice Department should be ashamed to be associated with a clear attempt to harass a man trying to detail Mr. Trump’s malfeasance…
At this point, no self-respecting judge would order Mr. Bolton to halt publication. The government seeks a “prior restraint” of speech on matters of critical public interest…
The lawsuit could simply be a feeble attempt to mollify Mr. Trump, who only likes freedom of speech when the message praises him, and who routinely pressures the Justice Department to help his friends and punish his enemies. But even a long-shot bid to silence a Trump critic may intimidate other disillusioned former officials from revealing disturbing things they saw during their time in the administration, lest the Justice Department sic taxpayer-funded lawyers on them, too…
Former government employees need not fear telling the truth.
Courthouse News: Fighting Slander Suit Over Tucker Carlson, Fox Calls Host Hyperbolic
By Adam Klasfeld
“Remember the facts of the story; these are undisputed,” Fox News personality Tucker Carlson told his 2.8 million viewers in 2018, before labeling former Playboy model Karen McDougal as a presidential extortionist.
On Wednesday, an attorney for the network asserted that no reasonable viewer would believe that what followed this preamble was factual reporting.
“It’s a commentary show,” Fox’s lawyer Erin Murphy, of the firm Kirkland & Ellis, insisted during arguments trying to swat away McDougal’s defamation lawsuit. “It’s a show that markets itself … as opinion and spirited debate. That context matters.” …
McDougal’s defamation claims cannot advance without her showing that Carlson acted with actual malice.
U.S. District Judge Mary Kay Vyskocil noted at Wednesday’s hearing this requires more than showing the Fox personality has bias and an agenda…
[McDougal’s] lawyer added there were other reasons to suspect Carlson peddled a false narrative to advance his “symbiotic” relationship with the president.
Trump had promoted Carlson’s book “Ship of Fools” a little less than two months before the segment…
In trying to dismiss the lawsuit, Fox News could encounter an ironic hurdle: Sarah Palin, the folksy Alaskan politician who became a pundit for the network, sued The New York Times over its editorial tying her to a trend of partisan rhetoric fueling mass shootings.
The Second Circuit’s revival of that defamation case could now undermine Fox’s argument that Carlson’s commentary is protected opinion, if the court finds it makes false claims with reckless disregard to the facts.
Hollywood Reporter: YouTube Alleged to Racially Profile Via Artificial Intelligence, Algorithms
By Eriq Gardner
A group of African American content creators has launched a putative class action against YouTube and its Alphabet parent company for allegedly violating various laws intended to prevent racial discrimination. The lawsuit represents the latest courtroom attack on the increasingly controversial immunities afforded digital services under Section 230 of the Communications Decency Act.
The complaint filed on Tuesday in California federal court objects to the way in which YouTube is employing artificial intelligence, algorithms, and other filtering tools…[T]he complaint adds, the system is rife with “digital racism,” where users are essentially profiled on race, identity and viewpoints. The plaintiffs assert that this interferes with their ability to monetize their content…
More specifically, the suit alleges that YouTube is applying “Restricted Mode” to videos titled or tagged with abbreviations like “BLM” or “KKK”; ones that use terms like “racial profiling” or “police shooting” or “Black Lives Matter”; those that include names of individuals killed by law enforcement; and videos titled or tagged with the names “Bill Cosby” or “Louis Farrakhan.” …The suit also targets other alleged practices of YouTube ranging from “shadow banning” to what’s excluded on the “trending” and “up next” video recommendation lists.
The latest suit is being handled by attorneys at Browne George Ross, who notably were involved in two other recent court actions against YouTube…
[P]laintiffs claim Trump’s [recent executive order] precludes the government from stepping in to enforce Section 230 to claims based on viewpoint discrimination.
Congress
National Review: Ted Cruz Lambastes Google CEO for ‘Politically Motivated’ Crackdown on The Federalist Comments Section
By Tobias Hoonhout
Senator Ted Cruz (R., Texas) demanded in a Wednesday letter that Google CEO Sundar Pichai explain why the platform threatened to demonetize the right wing news website The Federalist over comments on articles related to recent Black Lives Matter protests.
“As evidence by its actions yesterday, Google seems more than happy to play this censorship role by trying to break the financial back of a media publication it disagrees with,” wrote Cruz, who serves as chairman of the Senate Judiciary’s Constitution Subcommittee. Attorney General Bill Barr and Federal Trade Commission chairman Joseph Simons were also copied on the letter…
He also challenged Google over its “deeply ironic” defense of Section 230, which grants it liability immunity for third-party content published on its platform.
“While Google demands that it cannot be held financially accountable for unlawful speech on its own platform, it is all too willing to use its market power to hold a conservative media outlet financially responsible for allowing disfavored speech on its platform,” Cruz argued…
Cruz ended his letter by requesting answers from Google over whether it was tipped off by NBC News or the Center for Countering Digital Hate (CCDH) that the Federalist had violated its policies.
The Hill: House Republican accuses Facebook, Twitter, YouTube of not doing enough to combat Chinese propaganda
By Maggie Miller
Scorecards released by House Foreign Affairs Committee ranking member Michael McCaul (R-Texas) on Wednesday accused Twitter, Facebook, and YouTube of not taking adequate steps to limit the spread of Chinese disinformation and propaganda.
The scorecards graded the three social media giants on whether they labeled state-sponsored media outlets on their sites, blocked Chinese Communist Party (CCP) officials from having verified accounts, fact checked posts, and initiated comprehensive removal of CCP propaganda and disinformation…
McCaul highlighted his concerns about CCP-backed online propaganda in a letter sent to Secretary of State Mike Pompeo in March, urging Pompeo to intensify efforts to push back against China for spreading misinformation around the COVID-19 pandemic.
Sen. Ben Sasse (R-Neb.) and Mike Gallagher (R-Wis.) also sent a letter to Twitter in March asking the platform to ban the CCP from the platform.
IRS
Salon: Exclusive: Tucker Carlson-founded Daily Caller violated tax law, IRS complaint alleges
By Roger Sollenberger
The Daily Caller, a conservative news outlet co-founded by Tucker Carlson, and its related nonprofit, the Daily Caller News Foundation (DCNF), appear to have operated in violation of tax law, according to a complaint filed Tuesday with the IRS by a public transparency watchdog.
The complaint – which the group, Campaign for Accountability (CFA), shared exclusively with Salon – calls for the IRS to strip the foundation of its tax-exempt status. It alleges that The Daily Caller has used the foundation to effectively subsidize its business, while the nonprofit entity has engaged in political activities in violation of the rules governing its tax status…
The CFA complaint singles out political activity. Because the two entities are nearly indistinguishable, political activity on the part of The Daily Caller may violate the foundation’s special tax status, it says.
For instance, The Daily Caller’s email newsletter regularly features foundation-generated content. In 2016, The Daily Caller rented its email list to Donald Trump’s presidential campaign for $150,000. The campaign used the list to solicit contributions…
Additionally, the complaint alleges that DCNF employees have engaged in political activity in their official foundation capacities, in violation of rules governing 501(c)(3) organizations.
Right to Protest
Washington Post: Protesting should not result in a lifelong criminal record
By Margaret Love and David Schlussel
Protesters should not wind up with a lifelong criminal record…
An Atlanta woman arrested for being a “pedestrian in a roadway” and “refusing to comply when asked to leave” told the Guardian newspaper, “Now I have my mugshot taken, my fingerprints taken and my eyes scanned. Now I’m a criminal over an illegal arrest.” …
Failure to clear arrest records such as these is not only bad policy but also an ironic outcome for protesting excessive policing. It will likely serve as a deterrent not just to free speech and assembly but also to media coverage of protest events.
Media
Wall Street Journal: NBC Tries to Cancel a Conservative Website
By Ben Domenech and Sean Davis
NBC News attempted this week to use the power of Google to cancel our publication, the Federalist. The effort failed, but it should serve as a warning about the unchecked power of big tech companies, particularly when they can be manipulated by partisans, including partisan journalists…
NBC News colluded with a foreign left-wing group in an attempt to destroy us because it disagrees with our political commentary and media criticism. The episode illustrates how dangerous the combination of partisan media and monopolistic tech companies is to America. We survived the attack because our organization is well-known.
This is only the latest example of media outlets using social-media platforms to attack and destroy Americans who don’t kowtow to left-wing orthodoxy. Ask Brendan Eich, who was fired from a Silicon Valley job in 2014 for contributing to a referendum against same-sex marriage six years earlier, or Nicholas Sandmann, who at age 16 was labeled a bigot by journalists for CNN and other outlets for attending a pro-life rally in D.C. and politely staying silent while an adult berated him and his classmates.
These attacks target not only individuals but free speech itself.
Fundraising
Capital Research Center: ActBlue: The Left’s Favorite “Dark Money” Machine
By Hayden Ludwig
As InfluenceWatch explains, ActBlue is a service for left-wing groups and Democratic politicians to fundraise without setting up an online donation infrastructure themselves. Money passes through ActBlue to the ultimate recipient and ActBlue collects a fee as payment. This also has the added effect of obscuring the ultimate recipient, since money passing through ActBlue looks like a donation to ActBlue-not to, say, Black Lives Matter…
But the trick to ActBlue is understanding that it’s a single brand encompassing 3 separate nonprofits: a 501(c)(3) called ActBlue Charities, a 501(c)(4) called ActBlue Civics, and a PAC (also called a “527”) simply called ActBlue…
[T]hese are three money “pots” which don’t spill over into each other…
ActBlue Charities and ActBlue Civics file Form 990 reports with the IRS, meaning that their top-line finances are publicly disclosed…
But nearly all the money ActBlue Charities and ActBlue Civics paid out is reported generically in one lump, as “passed-through contributions”-meaning those ActBlue nonprofits don’t have to disclose which groups they passed money to or how much each group received in total.
Considering the Left’s loathing for untraceable “dark money,” that’s shocking hypocrisy…
I’m not aware of any other nonprofits that hide that lumping everything into the generic expense of “passed-through contributions” the way ActBlue does. In fact, I wonder if any reporter has ever asked ActBlue Charities and ActBlue Civics if the IRS has explicitly okayed their highly convenient non-reporting?
Online Speech Platforms
New York Times: Now You Can Opt Out of Seeing Political Ads on Facebook
By Mike Isaac
On Tuesday, [Facebook] said it would allow people in the United States to opt out of seeing social issue, electoral or political ads from candidates or political action committees in their Facebook or Instagram feeds. The ability to hide those ads will begin with a small group of users, before rolling out in the coming weeks to the rest of the United States and later to several other countries.
“Everyone wants to see politicians held accountable for what they say – and I know many people want us to moderate and remove more of their content,” Mark Zuckerberg, chief executive of Facebook, wrote in an op-ed piece in USA Today on Tuesday. “For those of you who’ve already made up your minds and just want the election to be over, we hear you – so we’re also introducing the ability to turn off seeing political ads. We’ll still remind you to vote.”
The move allows Facebook to play both sides of a complicated debate about the role of political advertising on social media ahead of the November presidential election. With the change, Facebook can continue allowing political ads to flow across its network, while also finding a way to reduce the reach of those ads and to offer a concession to critics who have said the company should do more to moderate noxious speech on its platform.
Mr. Zuckerberg has long said that Facebook would not police and moderate political ads. That’s because the company does not want to limit the speech of candidates, he has said, especially in smaller elections and those candidates who do not have the deep pockets of the major campaigns.
Knight Foundation & Gallup, Inc.: Free Expression, Harmful Speech and Censorship in a Digital World
[A Knight Foundation/Gallup study found:]
Nearly two-thirds of Americans (65%) favor allowing people to express their views on social media, including views that are offensive, over restricting what people can say on social media based on societal norms or standards of what is fair or appropriate (35%)…
Americans are somewhat divided on Section 230 of the Communications Decency Act, which largely shields major internet companies from liability for content posted on their websites and apps by third parties…
Levels of trust in social media companies to make the right decisions about what people can say or post on their websites and apps are low, with more than 8 in 10 Americans saying they trust the companies “not much” (44%) or “not at all” (40%).
A slim majority of Americans (54%) say that social media companies are “not tough enough” in policing content on their sites, and 25% say they get it right. Men, whites and less educated Americans are all more likely to say content oversight is “too tough.” …
More than 8 in 10 Americans say they think a content oversight board is a “good idea” (54%) or “very good idea” (27%), while 12% say it is a “bad idea,” and 7% say it’s a “very bad idea.”
By Robby Soave
People have every right to complain about Google but, as a private company, Google is not obligated to treat all of its users equally. People on the right often grasp this intuitively when the issue is slightly different: Many conservative writers do not want a Christian bakery to be compelled to bake cakes for gay weddings, for instance. But if it’s wrong for the government to force a private company to do business with an LGBT couple, it should also be wrong to force a private company to do business with The Federalist.
One can find hypocrisies in every direction. Anyone who wants to argue that an outlet like The Federalist should not be held responsible for its comment section is actually making a philosophical case for Section 230, which extends precisely this protection to large platforms. In general, the internet works best when the government takes a hands-off approach, allowing all sorts of viewpoints to flourish. Still, if Google would like to avoid losing its own protection, the company might think twice about arguing that outlets like The Federalist should be held to a harsher standard.
The States
Portland Press Herald: Would-be Clean Elections candidates find it harder to qualify during pandemic
By Scott Thistle
The number of legislative candidates running publicly funded campaigns is down dramatically in 2020, largely because of the COVID-19 pandemic.
Officials at the Maine Commission on Governmental Ethics and Campaign Finance, the independent state agency that oversees Maine Clean Elections Act funding, said about 43 candidates who wanted to participate in the program were unable to qualify – a much higher figure than usual…
Although 208 candidates did successfully qualify by collecting $5 contributions from each of 60 registered voters in their districts, that’s a decrease from 229 in 2016 and 249 in 2014 – the last two legislative elections…
Jim Cyr, an Auburn Republican who is challenging incumbent state Rep. Gina Melaragno, a Democrat, for the city’s House District 62 seat, said…the economic pressure some voters were feeling made them hesitant to give even $5. But collecting funds as a traditional candidate presents fewer restrictions on who can give and how much.
“I’ve actually been much more successful as a traditional candidate in trying to get checks,” Cyr said.
