New from the Institute for Free Speech
The Institute for Free Speech condemns the mob that stormed the U.S. Capitol last week. These rioters sought to undermine our Constitution, a peaceful transition of power, and intimidate or even physically harm public officials. We express our sympathies to the families of those victims whose lives were lost and our well wishes for full and quick recovery to the police officers injured in the rioting. Those responsible for violence and illegal acts should be punished.
We strongly support the rights to peacefully protest and to petition the government for a redress of grievances, but peaceful protest does not include assault, forced entry, property destruction, or incitement to riot. These actions threaten our democracy and our liberties.
Elected officials take an oath that says, in part, they will “support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.”
Elected officials do not “support and defend the Constitution” or “bear allegiance” by misleading citizens about how the government operates to transfer power. They have a responsibility not to mislead about any issue and to tell the public the truth, especially about the legitimacy of the elections.
Too many elected officials have failed in those responsibilities. Too many have acted recklessly.
In the tense weeks ahead, we call on all public officials and all Americans to respect the Constitution and rule of law. Exercise your First Amendment rights to speak, publish, assemble, and petition government. But always use your rights peacefully and respectfully.
Supreme Court
Ballotpedia: SCOTUS to take up donor disclosure appeal
By Jerrick Adams
California law requires nonprofits to file copies of their IRS 990 forms with the state. Schedule B of this form includes the names and addresses of all individuals who donated more than $5,000 to the nonprofit in a given tax year. The California law requires nonprofits to give the state copies of their Schedule B forms. Although the law does not allow the public access to Schedule B information, court documents indicate inadvertent disclosures have occurred.
In 2014, Americans for Prosperity Foundation (AFPF), a 501(c)(3) nonprofit, filed suit in U.S. district court, alleging the California law violated its First Amendment rights. In 2016, Judge Manuel Real of the U.S. District Court for the Central District of California found in favor of AFPF and barred the state from collecting the group’s Schedule B information…
In 2015, the Thomas More Law Center (TMLC), also a 501(c)(3) nonprofit, filed a similar suit in the same U.S. district court. In a separate 2016 ruling, Real also found in favor of TMLC and prevented the state from collecting the group’s Schedule B information.
The two suits were combined on appeal. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit unanimously overturned Real’s rulings in 2018.
The Courts
The Journal: Two employees file civil rights lawsuit against school superintendent
By Toni Milbourne
The suit, filed in the United States District Court for the Northern District of West Virginia in Martinsburg, claims that [superintendent of schools for Jefferson County, Bondy Shay] Gibson violated the First Amendment rights of Tina Renner and Pamela McDonald, two employees of the county school system, who attended the political rally in Washington D.C. on Jan. 6.
According to the suit, both employees are supporters of President Donald Trump who traveled to Washington to hear the President speak. The suit claims that neither of the Plaintiffs participated in any illegal action…
The suit alleges that Gibson is a known anti-Trump, left-wing activist, who “instructed school employees under her supervision to engage in surveillance of the social media accounts of employees of Jefferson County Schools, including the Plaintiffs, in order to ascertain whether any school employee had attended the Donald Trump rally in Washington, D.C.”
The plaintiffs received letters from Gibson notifying them they were on suspension while an investigation was underway.
“I was made aware that you took part in the Electoral College protest that erupted into deadly violence on January 6, 2021,” the letter to McDonald read. The letter went on to say that because McDonald was tagged in social media page with photos and videos “which included threatening and demeaning statements regarding federal government officials,” McDonald was placed on administrative leave.
Congress
Florida Politics: Greg Steube files bill to curb social media ‘censorship’ of conservatives
By Jacob Ogles
Days after Twitter shut down President Donald Trump’s Twitter account, Rep. Greg Steube [reintroduced] legislation to curb online censorship.
The Sarasota Republican has been among those concerned tech companies exerted more restrictions on conservative voices than progressives. The Curbing Abuse and Saving Expression in Technology Act, or CASE-IT, would demand equal treatment. It would do so in part by reforming Section 230, a controversial portion of the Communications Decency Act providing liability protections for social media companies.
“The American people should all demand equal treatment, especially in the public square,” Steube said…
The CASE-IT Act would make legal immunity conditional for “market-dominant” social media companies, and require the major platforms to adhere to First Amendment standards with content moderation.
Online Speech Platforms
Politico: YouTube suspends Trump for at least a week
By Cristiano Lima
YouTube said late Tuesday it’s suspending President Donald Trump’s channel for at least one week for violating the company’s policies amid fears of additional violence in the wake of the insurrection at the Capitol.
The Google-owned video-sharing service announced in a tweet that the action would count as an initial strike against Trump’s account, which could lead to Trump being permanently banned on the platform if he violates its rules twice more.
“After review, and in light of concerns about the ongoing potential for violence, we removed new content uploaded to Donald J. Trump’s channel for violating our policies. It now has its 1st strike & is temporarily prevented from uploading new content for a *minimum* of 7 days,” YouTube’s press arm tweeted late Tuesday.
YouTube added that it would be “indefinitely disabling comments” on Trump’s account, again citing “ongoing concerns about violence” surrounding his online postings.
The company did not specify what content violated its policies…
Civil rights groups demanded earlier Tuesday that YouTube remove Trump’s account, threatening to launch a broad boycott against the company if it did not, Reuters reported.
Washington Post: GoFundMe bans travel fundraising for political events with ‘risk of violence’
By Taylor Telford
The world’s biggest social fundraising platform is joining the growing chorus of businesses condemning the attempted insurrection and cracking down on the inflammatory rhetoric spread by President Trump and his supporters. GoFundMe will “remove fundraisers for travel expenses to a future political event where there’s risk of violence by the attendees,” a company spokesman told The Washington Post on Tuesday, adding that GoFundMe has removed “numerous” fundraisers intended to raise money for travel expenses in the wake of the violence.
“We strongly condemn the violence and attempted insurrection,” a GoFundMe spokesman told The Post in an email, “and will continue to remove fundraisers that attempt to spread misinformation about the election, promote conspiracy theories and contribute to or participate in attacks on US democracy.”
The Hill: 70K QAnon Twitter accounts suspended in the wake of Capitol riot
By Marina Pitofsky
Twitter on Monday announced that it has banned over 70,000 accounts that share content surrounding the QAnon conspiracy theory in the wake of the riot that erupted at the Capitol last week.
The social media giant confirmed in a blog post that it has removed the accounts as part of an effort following the riot last week “to protect the conversation on our service from attempts to incite violence, organize attacks, and share deliberately misleading information about the election outcome.” …
Twitter last week permanently suspended accounts for former national security adviser Michael Flynn, pro-Trump attorney Sidney Powell and former 8kun administrator Ron Watkins as part of efforts to crackdown on content related to the QAnon theory.
Flynn, who served as Trump’s first national security adviser, has been one of the most visible supporters of the QAnon conspiracy theory.
New York Times: Trump Was Kicked Off Twitter. Who’s Next?
By Eugene Volokh
What should we think about the power of such private corporations – and of the companies’ immensely wealthy owners – over American political speech?
That’s a hard question to answer. On the one hand, deplatforming a user like Mr. Trump is perfectly legal, and the perils of corporate power are often exaggerated.
On the other hand, these companies are exercising a sweeping ability to silence all of a politician’s speech, not just the dangerous parts…
[Y]ou might worry that this power is prone to abuse. Recall the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, which held that corporations and unions have the First Amendment right to speak about political candidates. I happen to agree with the court’s decision in that case, but four justices and a legion of commentators didn’t. Many were concerned that by using their wealth, corporations would undermine democracy and unduly influence elections and sway elected officials.
Yet Citizens United was just about whether corporations could spend money to convey their views. Now we have a few huge corporations actually blocking someone’s ability to convey his views. Plus, such blocking affects not just the speaker; it also affects the millions of people who use Facebook and Twitter to hear what their elected officials have to say.
Glenn Greenwald: How Silicon Valley, in a Show of Monopolistic Force, Destroyed Parler
Critics of Silicon Valley censorship for years heard the same refrain: tech platforms like Facebook, Google and Twitter are private corporations and can host or ban whoever they want. If you don’t like what they are doing, the solution is not to complain or to regulate them.
Instead, go create your own social media platform that operates the way you think it should.
The founders of Parler heard that suggestion and tried. In August, 2018, they created a social media platform similar to Twitter but which promised far greater privacy protections, including a refusal to aggregate user data in order to monetize them to advertisers or algorithmically evaluate their interests in order to promote content or products to them. They also promised far greater free speech rights, rejecting the increasingly repressive content policing of Silicon Valley giants.Over the last year, Parler encountered immense success…
But today, if you want to download, sign up for, or use Parler, you will be unable to do so. That is because three Silicon Valley monopolies – Amazon, Google and Apple – abruptly united to remove Parler from the internet, exactly at the moment when it became the most-downloaded app in the country.
Biden Transition
Axios: Biden inaugural returns cash from ex-senator-turned-foreign agent
By Lachlan Markay
President-elect Joe Biden’s inaugural committee will refund a donation from former Sen. Barbara Boxer after the California Democrat registered as a foreign agent for a Chinese surveillance firm accused of abetting the country’s mass internment of Uighur Muslims, officials tell Axios.
Boxer’s contribution was just $500, but the Biden team’s decision to return the money shows how the incoming administration will try to balance its sweeping ethics commitments with K Street efforts to enlist high-profile Democrats with an eye toward advancing clients’ interests in Biden’s Washington.
Candidates and Campaigns
New York Times: Companies Pull Back Political Giving Following Capitol Violence
By Kate Kelly, Emily Flitter, and Shane Goldmacher
Days after a pro-Trump mob attacked the United States Capitol, some of America’s biggest companies said they would pause political giving as they rethink their support of certain lawmakers and their own involvement in politics more broadly…
The moves are notable because corporations and their employees are active players in the political process, making campaign contributions through PACs and helping politicians raise funds in myriad ways. But it was not clear how long the pause would last – the first quarter is the slowest period of the cycle – and whether the companies would quietly roll back the changes after public attention had shifted.
In the last election cycle, American corporate PACs gave $91 million to members of the House of Representatives, accounting for 8 percent of that chamber’s total funds raised, and $27 million to senators, accounting for 3 percent of the total, according to figures compiled by the Center for Responsive Politics.
“Corporate PAC money is usually an arm of the lobbying interests of the corporation and is used to buy access and influence,” said Fred Wertheimer, president of Democracy 21, which advocates for campaign finance reform. “If that were to fundamentally change, and if small donors became a much bigger part of financing elections, we could potentially face a fundamental change in the financing of elections.”
The States
Cleveland.com: Public deserves to know who is backing dark money campaigns such as one that targeted CPP, advocates say
By Robert Higgs
Advocates for consumers and for good government told a Cleveland City Council panel Tuesday it was important to fully expose FirstEnergy Corp.’s use of dark money contributions in a campaign against Cleveland Public Power.
The public deserves to know who is funding organizations such as Consumers Against Excessive Fees so it knows who is really lobbying them.
“We all should be able to follow the money,” Catherine Turcer, executive director of Common Cause Ohio, told council’s Utilities Committee.
“You can urge the state legislature to act,” Turcer said. “More importantly, you can update your own campaign finance law to ensure the transparency of the funding of political advertisements surrounding the mayoral and city council races.”
Turcer urged the city to consider requiring disclosures on lobbying and campaign materials that list who is distributing the message and the top donors.
That would immediately inform residents who is behind the distribution of pamphlets and fliers, such as those Consumers Against Excessive Fees distributed in Cleveland.
Similar efforts have been made in New York City and San Francisco, she said.
Miami New Times: Environmental Groups Liken DeSantis’ Anti-Protest Bills to “Fascism”
By Joshua Ceballos
Two anti-protest bills introduced in Florida are drawing opposition from a seemingly unlikely source: environmentalists.
Originally proposed by Gov. Ron DeSantis in September…the two companion bills in the state Senate and House of Representatives attempt to crack down on protesters deemed to be participating in a “riot” or “unlawful assembly” and limit the rights of local governments to reduce police budgets.
In a scathing January 7 public statement, the Center for Biological Diversity condemned the bills as an affront to Floridians’ constitutional rights and called the proposed legislation “shockingly un-American.”…
“It’s a very disturbing turn of events in Florida to see our leaders moving in the direction of fascism,” Lopez tells New Times. “The threat to environmentalists may not be obvious, but the point [of these bills] is to squash the First Amendment rights of people who want to speak out…”
