Ed. note: The Media Update will be on vacation beginning Wednesday, December 23. It will return Monday, January 4, 2021. Happy holidays from the Institute for Free Speech!
New from the Institute for Free Speech
Litigation Backgrounder: Eugene Mazo and Lisa McCormick v. Tahesha Way, New Jersey Secretary of State, et al.
The First Amendment forbids the government from controlling the content of political speech. But New Jersey law allows state officials to censor a candidate’s message to voters.
Candidates for any office may print a six-word slogan alongside their name on New Jersey primary election ballots. Yet the state’s “Slogan Statutes” prohibit any slogan that includes or refers to the name of any person, or any New Jersey incorporated association, without the written consent of that person or association. Consequently, candidates cannot mention the name of anyone, living or dead, or the name of a company on the primary election ballot without permission. Because the Slogan Statutes control the content of a candidate’s ballot slogan, they are an unconstitutional restraint on political speech.
[Read more about the case Mazo and McCormick v. Way, et al. here.]
The Courts
The Intercept: Detroit is Suing Black Lives Matter Protesters for “Civil Conspiracy”
By Chris Gelardi
At the end of August, activists in Detroit, like those in dozens of U.S. cities, sued their local government for its police department’s reaction to this year’s Black Lives Matter mobilization. Their complaint alleges that Detroit cops “repeatedly responded with violence” when they took to the streets and includes photos and descriptions of some of the gruesome resulting injuries: bruised and broken ribs, concussions, a collapsed lung, a fractured pelvis. In light of this brutality, the protesters asked a federal judge to bar the police from using “tools of excessive force,” like chemical weapons, sound cannons, and rubber bullets, against them.
Less than a month later, after the court issued temporary orders restricting the cops’ use of force, the city filed its official response. It includes a line-by-line denial of every brutality accusation – and a countersuit.
Detroit’s demonstrators are part of a “civil conspiracy,” the city’s countersuit alleges, “to disturb the peace, engage in disorderly conduct, incite riots, destroy public property,” and resist police orders, among other “illegal acts.” The countercomplaint asks the court to issue judgments declaring that the protesters engaged in this conspiracy and “defamed” the mayor and police, and to award the city damages.
The countersuit against Black Lives Matter protesters is a novel move in the post-George Floyd moment, and it has lit a fire under already boiling local tensions. The city has tried to portray it as a routine legal tactic, but many see the counterattack as an effort to suppress the right to protest and to shift the public narrative away from the police department’s violence. Rep. Rashida Tlaib, D-Mich., whose congressional district includes much of Detroit, has lambasted it as “an unthinkable assault on constitutional rights.”
Congress
Washington Times: How H.R. 1 allows Democrats to threaten democracy
By Matt Waters
The title of H.R. 1, dubbed “For the People Act” (the Senate companion measure is S. 949.) reminds one of the Orwellian doublespeak, “War is Peace, Freedom is Slavery.” It ought to be called, “For the Democrats Act.” …
Its designation as number 1 demonstrated its importance to the Democratic leadership. Of course, with Donald Trump as president it was doomed to fail. However, come January the political situation will be very different…
Explained Mr. Biden: “A first priority of a Biden Administration will be to lead on a comprehensive set of reforms like those reflected in the For the People Act (H.R. 1) to end special interest control of Washington and protect the voice and vote of every American.” …
Many provisions would harm the public and our democracy. Among the four worst ideas:
- Force Americans to support opposing candidates by creating a system of government financing for campaigns.
H.R. 1 includes public funding, long a favorite of the left. The federal government would provide a six-to-one “match” for smaller private contributions to candidates. A congressional candidate could get up to $5 million in public money. Forcing Americans to underwrite views they oppose is an unfair and inappropriate use of their tax dollars. Candidates unable to find private support should not be able to conscript other people’s money for their campaigns.
FEC
Inside Political Law (Covington): What to Expect as the FEC Reconvenes
By Robert Lenhard and Jasmine Jennings
With the swearing in of Shana M. Broussard, Sean J. Cooksey, and Allen Dickerson, the Federal Election Commission now has a full roster of six Commissioners for the first time since 2017. While the FEC briefly enjoyed a quorum with four Commissioners in May, since then it has lacked a sufficient number of Commissioners to promulgate rules or vote on enforcement matters. Now, the FEC will turn to the significant backlog of cases, many of which are nearing the five year statute of limitations.
We have argued elsewhere that the most important decision these new Commissioners will make is how they work together to reach the four votes necessary for the Commission to take formal action on matters before it. The first indications of this will appear internally, as they sort through the significant backlog of enforcement actions. But those votes will remain confidential until each matter is fully resolved. Externally, we will see the first signs of the approach the newly reconstituted Commission will take in Advisory Opinion votes, where the discussion, compromise and final decisions will be public.
For our clients last February, Covington’s Election and Political Law group looked back on the two prior years of agency decisions to identify trends in agency decision making. There were several areas that fairly consistently showed a strong, bipartisan agreement on what the law said, and how it should be enforced. We think there is a reasonable likelihood that consensus will remain in most of these areas. These include:
Independent Groups
Center for Responsive Politics: Outside spending in 2020 races reaches record $3.2 billion
By Eliana Miller
Campaign finance news has become a broken record, as this year’s roughly $14 billion election broke record after record. The latest: outside spending hit an all-time high of about $3.2 billion.
Since the 2010 Citizens United v. FEC decision, super PACs and “dark money” groups have consistently spent about $1 billion each election cycle, but this year marks a significant jump. In 2016, the previous record-holding election cycle, outside groups spent $1.7 billion, or half as much as they did in 2020.
Over $1.1 billion of this year’s $3.2 billion went to influence the presidential race. Outside groups supporting president-elect Joe Biden spent $687.3 million, while those supporting President Donald Trump spent only $369.6 million.
Atlanta Journal-Constitution: Georgia’s Senate runoffs: Special interest PACs flood the zone
By Chris Joyner
Apart from the candidates themselves, political action committees have spent at least $150 million since the November general election to rally voters back to the polls for the Senate runoff, records show.
While nearly two-thirds of that spending has come from super PACs connected to either Senate Majority Leader Mitch McConnell or Minority Leader Chuck Schumer, the rest has come from special interest groups with business before the new Congress.
Brendan Fischer, director of federal reform for the non-partisan Campaign Legal Center in Washington, D.C., said spending by PACs in the Georgia runoffs is akin to an arms race financed by “a small handful of extremely wealthy interests.”
“Elections increasingly look like a battle between billionaires and millionaires. My biggest concern is what happens after the election,” he said. “Very often they expect something in return and very often they get it.”
Fischer said sometimes that’s a political favor or a listening ear. It could be something that helps the donor’s bottom line or it might be a social issue or cause that’s important to them. Either way, he said, it’s access regular voters can’t get…
Fischer of the Campaign Legal Center said the Georgia races illustrate the continued role big money donors and powerful PACs play in how we elect our leaders. That’s unlikely to change without a significant push by voters putting pressure on politicians, he said.
Online Speech Platforms
Politico: Why social media hasn’t been able to shut down vaccine misinformation
By Alexandra S. Levine
[Vaccine misinformation] could be even more difficult to overcome than election misinformation, which centered largely around one day in November and could be debunked by officials pointing to well-established protocols…
“One of my biggest concerns is that social media companies will have difficulty handling the sheer volume of information,” said Rep. Michael Burgess of Texas, the top Republican on the House Energy and Commerce health subcommittee and a physician. “Some of it will be good and some of it will be misleading. It might be difficult to tell the difference.”
“Distrust of vaccines has increased with loud voices using the platforms to spread fear,” said House Intelligence Chair Adam Schiff (D-Calif.). He and a number of other congressional leaders are urging President-elect Joe Biden to tap a misinformation expert for his Covid-19 Task Force…
Congressional attention on content moderation issues remains high, and the deluge of Covid vaccine misinformation is likely to be a target early next Congress…
“One of the big loopholes is Section 230,” Burgess said of platforms’ vaccine misinformation policies, calling on Congress, and his committee in particular, to examine the issue in the coming year. “Right now, social media companies really cannot be held liable for the spread of misinformation by third parties under certain interpretations of that law. They could make the knowing spread of misinformation part of their terms of use, but we have seen that they do not always apply their content moderation policies equally.”
The Hill: Twitter and Facebook to censor vaccine discourse – this must stop
By Liz Peek
Earlier this month, Facebook promised to remove “false claims about these vaccines that have been debunked by public health experts.” They didn’t specify which public health experts, but said they would “update the claims we remove based on guidance from public health authorities as they learn more…”
Twitter just recently jumped aboard, saying that in 2021, they “may label or place a warning on Tweets that advance unsubstantiated rumors, disputed claims, as well as incomplete or out-of-context information about vaccines.”
In other words, even though the COVID vaccines are new and, by normal standards, untested, these social media firms will not permit naysayers to challenge their effectiveness or safety…
It is unclear whether the vaccine caused the outbreaks of Bell’s palsy, but Dr. Paul Offit, a member of the FDA’s Vaccines Advisory Committee who voted to approve the Pfizer preventative, said in an interview with CNBC that the condition should be monitored. “I’m not dismissing that yet,” he said.
Similarly, the data from [Dr. Peter] Merck’s trial showed that five participants who took the vaccine but none in the placebo group contracted Kawasaki disease, a “statistically significant” occurrence. Again, whether the vaccine had caused the illness was unclear.
These are important facts to put before the American people…The public deserves to know about possible side effects so they can weigh the risks. They deserve transparency, not censorship.
Courthouse News: Report: Social Media Manipulation Affects Even US Senators
By Erika Kinetz, Associated Press
The conversation taking place on the verified social media accounts of two U.S. senators remained vulnerable to manipulation, even amid heightened scrutiny in the run up to the U.S. presidential election, an investigation by the NATO Strategic Communications Centre of Excellence found.
Researchers from the center, a NATO-accredited research group based in Riga, Latvia, paid three Russian companies 300 euros ($368) to buy 337,768 fake likes, views and shares of posts on Facebook, Instagram, Twitter, YouTube and TikTok, including content from verified accounts of Sens. Chuck Grassley and Chris Murphy.
Grassley’s office confirmed that the Republican from Iowa participated in the experiment. Murphy, a Connecticut Democrat, said in a statement that he agreed to participate because it’s important to understand how vulnerable even verified accounts are.
“We’ve seen how easy it is for foreign adversaries to use social media as a tool to manipulate election campaigns and stoke political unrest,” Murphy said. “It’s clear that social media companies are not doing enough to combat misinformation and paid manipulation on their own platforms and more needs to be done to prevent abuse.” …
“These kinds of inauthentic accounts are being hired to trick the algorithm into thinking this is very popular information and thus make divisive things seem more popular and get them to more people. That in turn deepens divisions and thus weakens us as a society,” [NATO StratCom director Janis Sarts told The Associated Press.]
Slate: Is Zoom More Like the Phone or Facebook?
By Joshua Keating
[When Rabab Abdulhadi] co-organized a Zoom event on Sept. 23 featuring veteran Palestinian resistance figure Leila Khaled, there was reason to expect it would be controversial…
In the end, the event was hosted for 23 minutes on YouTube before it was taken down for “violating YouTube’s Terms of Service.” The Facebook event page was also taken down, with the company citing its policy “prohibiting praise, support and representation for dangerous organizations and individual.”
Following the event, faculty at a host of other universities, including NYU and the University of Hawaii, organized their own Zoom events with Khaled, which were all similarly shut down.
Dima Khalidi, director of the advocacy group Palestine Legal, is concerned about the precedent. “If Zoom is listening to groups that disagree with a particular speaker, there’s no end in sight. If they’re putting themselves in the positions of being a censor especially of what happens on college campuses, that’s an untenable situation,” she say. This is particularly worrisome considering that in the era of social distancing, universities and other institutions are often dependent on Zoom to have events at all.
Biden Transition
Government Accountability Project: Open Letter to the Biden-Harris Administration: Treating Disinformation as an Intersectional Threat
As a diverse coalition of leading advocacy organizations, we write to urge the Biden-Harris administration to treat disinformation as a fundamental and intersectional threat – one that stands as a barrier to progress on every issue the undersigned groups are devoted to advancing…
We believe you have a unique opportunity to begin repairing our broken information ecosystem – and that seizing that opportunity is essential to the health of our democracy, the success of your national agenda, and the progress this coalition seeks on the many issues we represent.
Proposals:
- Appoint a disinformation expert to the COVID-19 task force…
- Launch a website modeled on CISA’s “Rumor Control” resource that serves as a hub for real-time debunking of viral disinformation likely to cause harm, and encourage major platforms and/or NGOs to aid in the threat detection process.
- Establish an interagency task force to study the harms of disinformation across major social media platforms and present formal recommendations within six months.
- Push Congress to revive the Office of Technology Assessment (OTA) as a mechanism to facilitate nonpartisan research and analysis into emerging tech issues, including the impact of social media and online disinformation on democracy…
- Request funding for additional enforcement lawyers at the FEC and encourage stronger coordination between the FEC and other federal agencies, including at DOJ and Treasury to investigate foreign interference, and with the FTC to investigate deceptive practices in the form of election disinformation in digital ads.
Candidates and Campaigns
Center for Responsive Politics: Joint report examines the women who ran, won and donated in 2020
The 2020 elections saw unprecedented political giving at both the state and federal level and a new joint analysis from the Center for Responsive Politics and the National Institute on Money in Politics explores the role that women played in this record-breaking cycle, both as candidates and as donors.
Come January, Congress and many state legislatures will become more representative of the nation as a whole, with women holding more seats than ever before. And in both state and federal races, women raised more money than in any prior cycle.
Here are some of the key takeaways:
-Between 2016 and 2020, the percentage of women candidates in gubernatorial and state legislative races saw a massive jump, from 25 percent to 32 percent.
-At least 142 women will hold seats in the next Congress, an all-time high mark.
-While Democratic women won big in the 2018 midterms, it was Republican women who made record gains in 2020.
-In 2020 races for the House and Senate, women candidates outraised men on average, while also nearly closing the gap in state level contests.
-In 2020 races, women donors accounted for 33 percent of donations to congressional candidates and 31 percent of donations to state level candidates, both records.
The States
Center Square: Ohio Gov. DeWine signs bill that protects students’ free speech
By J.D. Davidson
Gov. Mike DeWine signed the Forming Open and Robust University Minds Act that prohibits “free speech zones” on public college and university campuses in the state.
Ohio becomes the 15th state with similar laws…
According to Senate sponsors Andrew Brenner, R-Powell, and Rob McColley, R-Napoleon, the bill prohibits colleges or universities from taking any action or enforcing any policy that limits or restricts the right of a student of that campus community to engage in political speech.
“Students should not be afraid that their speech will be squashed by institutions of higher education by restricting students to ‘free speech zones’ or using chilling tactics on those invited by students to the campus,” Brenner said.
Specifically, the bill protects peaceful activities, such as assembly, protests, speeches, petitions and guest speakers. It also bans “free speech zones” and allows for civil action by individuals or student organizations against violations of the provisions…
“The First Amendment already protects freedom of speech on Ohio’s campuses,” state Rep. Catherine Ingram, D-Cincinnati, said. “This bill is purely political and could have a detrimental effect on Ohio’s college campuses. It could make our campuses less safe by blocking a university’s ability to regulate speech, and that could potentially incite violence.”
