The Courts
Reason (Volokh Conspiracy): Puerto Rico Banned Political Officials from Mentioning Their Positions and Accomplishments on Social Media
By Eugene Volokh
From P.R. Ass’n of Mayors v. Vélez-Martínez, decided Friday by Judge Gustavo A. Gelpi (D.P.R.):
The current mayors of 45 Commonwealth municipalities, represented by plaintiff the Puerto Rico Association of Mayors and its president, challenge the constitutionality of Circular Letter OCE-DET-2020-02, issued by defendant, the Puerto Rico Elections Comptroller. This circular letter becomes effective on August 17, 2020. The same broadens what is considered official electronic media to web/social media pages of any “principal officer”, regardless of whether these are official government or personal…
By virtue of its dispositions sitting mayors (or any other elected officials) campaigning for the November 3, 2020 general election are barred under penalty of stiff monetary sanctions from disclosing in their social media that they currently hold a public position, as well their achievements as government officials…
The mandate of the circular letter at bar unquestionably restricts the political speech of all political candidates who currently hold government office. More so, throughout the Covid-19 pandemic all candidates have had to reinvent their mode of political expression to necessarily rely more and more on social media. However, even if the pandemic ended today, the First Amendment does not distinguish between various lawful modes of expression.
Daily Caller: Conservative Group Sues FEC For Failing To Act On Allegations Against Media Matters
By Andrew Kerr
A conservative watchdog group sued the Federal Elections Commission (FEC) on Thursday for failing to act on a complaint it filed against Media Matters for America and three other groups founded by liberal political operative David Brock.
The Patriots Foundation filed an FEC complaint in April alleging that Media Matters, a charity, had made unlawful contributions to Hillary Clinton’s 2016 presidential campaign as well as to two super PACs founded by Brock, Correct the Record and American Bridge 21st Century. The group also alleged that American Bridge’s affiliated nonprofit group had made unreported in-kind contributions to the super PAC.
“It’s been more than four months and the Federal Election Commission has failed to even begin an investigation of these allegations,” Patriots Foundation Senior Adviser Craig Robinson said in a statement. “Patriots Foundation is alleging that serious campaign finance violations have been committed by these four organizations related to their activities in the 2016 election. We hope the federal district court moves quickly to force the FEC to do its job.”
Wall Street Journal: The FBI’s 2016 Abuse Turns Criminal
By The Editorial Board
At last, some accountability for the Federal Bureau of Investigation’s outrageous intervention in the 2016 presidential campaign. On Friday U.S. Attorney John Durham charged former FBI lawyer Kevin Clinesmith with doctoring an email to justify a surveillance warrant against former Trump campaign aide Carter Page.
Mr. Durham is digging into the origins of the FBI’s 2016 Crossfire Hurricane investigation into collusion between the Trump campaign and Russia. Mr. Page was a minor Trump adviser. But four times in eight months the FBI told the secret Foreign Intelligence Surveillance Court that there was probable cause that Mr. Page was a foreign agent.
One not-so-small detail: The CIA had told the FBI as early as August 2016 that Mr. Page had been an “operational contact” for the CIA from 2008 to 2013. This was highly exculpatory information, yet the FBI didn’t include it in its first three applications to surveil Mr. Page.
Right to Protest
Reason (Volokh Conspiracy): Protests Outside People’s Homes (Residential Picketing) and the First Amendment
By Eugene Volokh
We’ve heard a good deal in recent years about demonstrations outside people’s homes. Is this sort of targeted residential picketing protected by the First Amendment?
The short answer: No, but any restrictions on such picketing have to be imposed through content-neutral statutes or ordinances (or, in some situations, injunctions); and they have to leave people free to demonstrate in the same neighborhood:
- In Carey v. Brown (1980), the Court struck down a ban on residential picketing that had an exemption for labor picketing.
- In Frisby v. Schultz (1988), the Court upheld a ban that had no exemption, because it was content-neutral and narrowly tailored to serving an important interest in protecting residential privacy, and because “General marching through residential neighborhoods, or even walking a route in front of an entire block of houses” remained allowed.
- In Madsen v. Women’s Health Center, Inc. (1994), the Court struck down an injunction that barred residential picketing within 300 feet of clinic employees’ homes, because it was too broad.
MIT Technology Review: There is a crisis of face recognition and policing in the US
By Tate Ryan-Mosley
The recent wave of Black Lives Matter protests…have called into question much of what we’ve accepted about modern policing, including their use of technology. The dark irony is that, when people take to the streets to protest racism in policing, some police have used cutting-edge tools with a known racial bias against those assembled. We know, for example, that the Baltimore police department used face id on protestors after the death of Freddie Gray in 2015. And we know that a handful of departments have put out public calls for footage of this year’s protests. It’s been documented that police in Minneapolis have access to a range of tech, including ClearviewAI’s services. According to Jameson Spivack of the Center on Privacy and Technology at Georgetown University, who we interview in the show, if face recognition is used on BLM protests, it’s “targeting and discouraging Black political speech specifically.”
Online Speech Platforms
Wall Street Journal: Facebook’s Hate-Speech Rules Collide With Indian Politics
By Newley Purnell and Jeff Horwitz
In Facebook posts and public appearances, Indian politician T. Raja Singh has said Rohingya Muslim immigrants should be shot, called Muslims traitors and threatened to raze mosques.
Facebook Inc. employees charged with policing the platform were watching. By March of this year, they concluded Mr. Singh not only had violated the company’s hate-speech rules but qualified as dangerous, a designation that takes into account a person’s off-platform activities, according to current and former Facebook employees familiar with the matter.
Given India’s history of communal violence and recent religious tensions, they argued, his rhetoric could lead to real-world violence, and he should be permanently banned from the company’s platforms world-wide…
Yet Mr. Singh, a member of Indian Prime Minister Narendra Modi’s Hindu nationalist party, is still active on Facebook and Instagram, where he has hundreds of thousands of followers. The company’s top public-policy executive in the country, Ankhi Das, opposed applying the hate-speech rules to Mr. Singh and at least three other Hindu nationalist individuals and groups flagged internally for promoting or participating in violence…
The way [Facebook] has applied its hate-speech rules to prominent Hindu nationalists in India…suggests that political considerations also enter into the calculus.
New York Times: QAnon Was a Theory on a Message Board. Now It’s Headed to Congress.
By Charlie Warzel
For almost three years, I’ve wondered when the QAnon tipping point would arrive – the time when a critical mass of Americans would come to regard the sprawling pro-Trump conspiracy theory not merely as a sideshow, but as a legitimate threat to safety and even democracy…
But it seems the true tipping point came this week. First was the report from Ari Sen and Brandy Zadrozny at NBC News about an internal Facebook investigation that gives the first real glimpse into the size of QAnon’s online footprint. The investigation found millions of members across thousands of QAnon groups and pages…
QAnon’s rise is the direct result of a world in which media and politics are distorted by the dizzying scale of social networks, by their lack of adequate content moderation, and by the gaming of algorithms and hashtags. While the social media platforms didn’t create QAnon, they created the conditions for it to thrive. One can draw a straight line from these companies’ decisions – or, more accurately, their inaction – to where we are today.
Washington Post: QAnon is a menace. Ignoring it isn’t an option.
By Editorial Board
That QAnon is tiptoeing ever closer to the political mainstream is only one of many challenges for social media sites. These sites can’t ignore QAnon, but neither can they simply ban it – not really. Platforms tend to prefer to focus on behavior rather than content, so they have ready-made recourse in their terms of service when they want to act against manipulation of algorithms or tactics such as “swarming”… When platforms do focus on content, they are far more likely to act when there is a risk of real-world harm. QAnon has caused real-world harm, surely. But not every post related to the theory runs that risk, and swinging the moderator’s mallet could needlessly squelch speech – perhaps fueling the same accusations of a scheming liberal conglomerate that are the movement’s raison d’etre. And even if platforms did decide QAnon as a whole was too much of a menace to countenance, they’d run into trouble determining which posts qualified.
QAnon is poised to act as a test case for the convoluted rules and enforcement apparatuses social media sites have developed over their years-long shift toward taking responsibility. These technology companies will need to navigate the labyrinths they themselves have constructed. They should also explain to the rest of us the routes they are taking.
Cato Daily Podcast: Before Punishing ‘Bias’ in Social Media, Let’s Define It First
Featuring Will Duffield and Caleb O. Brown
Is regulating “bias” on internet speech platforms a proper role for Congress? Will Duffield comments.
The Hill: Internet platforms should exercise their own free expression to protect democracy
By Eileen Donahoe
Ironically, members of both political parties, frustrated with the lack of coherence in platform policies, have threatened revocation of the Communications Decency Act Section 230, (the provision of U.S. law most essential to the protection of free expression online), but for antithetical reasons. While Republicans see bias against conservative voices and want less content taken down, Democrats see election interference and want more content taken down…
Here are seven principles to re-frame this debate:
#1 Platform rules are a manifestation of the free expression of the platforms themselves. Companies should not shrink from exercising their rule-making powers in the public interest, including by considering the impact of political disinformation on election processes…
#3 Free expression for platform users entails more than the right to speak. It also involves freedom to seek and receive information, as well as freedom to form opinions. If the ability of platform users to freely form political opinions is distorted by rampant political disinformation, a key dimension of their free expression is undermined…
#4 Platform powers to promote, demote, label and curate content also are a manifestation of their own expression…
#5 Platforms should not selectively retreat into the mistaken presumption that they are bound by the First Amendment when governing speech of elected officials. The First Amendment applies to government, not private actors…
Candidates and Campaigns
Wired: Nanoinfluencers Are Slyly Barnstorming the 2020 Election
By Katie Joseff, Anastasia Goodwin, and Samuel Woolley
Gone are the simple days when we fought off armies of clunky and clearly fake bots trying to sway our votes. Now we face sophisticated and organic-seeming campaigns driven by people with an even more keen understanding of how to manipulate the flow of information. Check your feed: Partisan, paid nanoinfluencers may be your friends or people you follow…
Concerns about how the actions of these users-and those who pay and organize them-might affect both public health and public opinion are all the more heightened as Instagram rolls out its TikTok competitor, Instagram Reels. Partisan influencers have told our research team that they’re eyeing this new space because it appears to have a more laissez-faire approach to content restriction than TikTok…
The political mobilization of nanoinfluencers teeters between authentic grassroots organizing and manipulative exploitation of intimate (or seemingly intimate) relationships. With this in mind, there are serious ethical quandaries when it comes to political campaigns and other groups leveraging nanoinfluencers during elections. How are influencers being recruited and coordinated? Are the influencers transparent about being paid by political organizations? Are they abiding by campaign finance regulations as well as laws related to electioneering and similar activities?
The States
Fresno Bee: Judge tells Devin Nunes for 3rd time he can’t sue Twitter over anonymous tweets
By Kate Irby
A Virginia judge on Thursday told Rep. Devin Nunes for the third time that he cannot sue Twitter over tweets made by a fake cow, a parody account of his mother and a Republican political strategist.
Judge John Marshall first told Nunes, R-Tulare, in a June ruling that he could not sue Twitter for negligence as part of his lawsuit. Nunes had argued that Twitter was negligent in allowing the two Twitter parody accounts known as Devin Nunes’ Cow and Devin Nunes’ Mom and Republican strategist Liz Mair write messages that the congressman believed were defamatory about him.
Marshall issued a second ruling in July, clarifying Twitter was no longer a defendant in the lawsuit.
Nunes then filed a new complaint in the same court four days after that ruling.
This time, Nunes dropped his allegation that the San Francisco social media company was negligent, and instead alleged it was responsible for the messages by “aiding and abetting” the anonymous writers who criticize him.
Marshall said in a new ruling it was too late for the congressman to amend his complaint against Twitter and that the company’s dismissal from the case stands.
Reason (Volokh Conspiracy): “To Refute the Belief That BLACK LIVES MATTER … Through Words, Actions, Vandalism, or Destruction IS A HATE CRIME”
By Eugene Volokh
That’s from the New Castle (N.Y.) Town Board (and then reposted by N.Y. state senator Pete Harckham):
Make no mistake, to refute the belief that BLACK LIVES MATTER in any way, shape, or form, through words, actions, vandalism, or destruction IS A HATE CRIME.
The statement is in response to what appears to be the burning of a Black Lives Matter sign that had been put up at a local Quaker meeting house; and that of course is a crime, which should be punished. (It’s not clear to me whether it’s a hate crime under New York law, since it doesn’t seem to be motivated by the religion of the Quakers, or the race of any particular person; in any event, though, it’s certainly a crime even apart from that.)
But the language of the Town Board doesn’t focus on this being vandalism or arson-rather, it focuses on the action “refut[ing] the belief that BLACK LIVES MATTER” (presumably using “refute” in the sense of “deny or contradict” rather than “prove wrong”), which is to say on the political viewpoint that the vandalism and arson express. And, to make that clear, the Town Board says that “refut[ing this] belief” “in any way, shape, or form,” including “through words” (the first item in that list) “IS A HATE CRIME.” That’s targeting not just a viewpoint expressed through “vandalism” or criminal “destruction,” but also through “words.”
