New from the Institute for Free Speech
Houston Community College System v. David Buren Wilson: Brief for the American Civil Liberties Union, Institute for Free Speech, and the Rutherford Institute as Amici Curiae in Support of Respondent
Houston Community College System (HCC) is a political subdivision of Texas, responsible for operating community colleges in the Houston area. It is managed by its Board of Trustees, each of whom is elected to represent the interests of the people in a specific district. Respondent David Wilson served as an elected trustee from 2013 through 2019. Over that same period, the Board faced many public accusations – some from local reporters, others via lawsuits – of significant mismanagement and corruption. During his tenure on the Board, Wilson openly criticized much of the Board’s conduct. On January 18, 2018, the Board censured Wilson for, among other things, “us[ing] public media to criticize[] other Board members,” accusing Board members of unethical conduct on his own website, filing lawsuits alleging that HCC violated its own bylaws, and otherwise “demonstrat[ing] a lack of respect for the Board’s collective decision-making process.” Critically, the Board did not merely express its disapproval, but imposed formal sanctions on Wilson, depriving him of multiple privileges of his office.
Most of the briefing in this case concerns a question the Court need not resolve: whether a pure censure resolution, imposed on a member of a legislative body for protected speech outside the chamber, triggers First Amendment scrutiny. The Court need not resolve that issue because the Board did not issue a “pure censure,” merely expressing its disapproval of Wilson’s speech. Instead, it imposed tangible penalties, stripping him of privileges enjoyed by all other trustees, and ordering him to cease and desist further public criticism of the Board. Houston Community College ignores these facts; the Court cannot.
Online Speech Platforms
Wall Street Journal: Facebook Asks Oversight Board for Guidance on How It Regulates High-Profile Users
By Sarah E. Needleman
Facebook Inc. said it plans to ask its Oversight Board to recommend ways the company can improve how it regulates content from high-profile users, acknowledging it has struggled in this area.
The request to the group, an outside body that Facebook created to ensure the accountability of its enforcement systems, comes after an investigation by The Wall Street Journal.
The Oversight Board last week said it was reviewing the company’s practice of holding high-profile users to separate sets of rules, citing apparent inconsistencies in the way the social-media giant makes decisions…
The request to the Oversight Board follows a directive Monday by Florida Republican Gov. Ron DeSantis to his secretary of state to investigate the company in relation to the Journal’s reporting on the social-media giant’s XCheck program.
The States
Reason: The Texas social media law is blatantly unconstitutional
By Jacob Sullum
Texas Gov. Greg Abbott, who this month signed a bill that aims to restrict the editorial discretion of social media platforms, says the new law “protects Texans from wrongful censorship” and thereby upholds their “first amendment rights.”
The law, H.B. 20, is scheduled to take effect on Dec. 2, but that probably will not happen, because it is blatantly unconstitutional and inconsistent with federal law.
Abbott, a former Texas Supreme Court justice who served as his state’s attorney general from 2002 to 2015, presumably knows that. But whether he is sincerely mistaken or cynically catering to his party’s base, H.B. 20 reflects widespread confusion among conservatives about what the First Amendment requires and allows.
Houston Chronicle: How Texas’ social media censorship law could mean more spam in your inbox
By Ariana Garcia
Texas’ new social media censorship law is supposed to target social media giants. But a California law professor says the new bill has an inadvertent consequence: more spam emails.
House Bill 20, which passed on Sept. 9, prohibits email service providers from “impeding the transmission of email messages based on content.” Eric Goldman, a professor at Santa Clara University of Law whose research and teaching focuses on internet, IP and advertising law topics, says this restricts efforts to control email spam.
“The bill says you cannot ‘impede’ email based on its content, which is what every spam filter does, unless the email service provides a process for the spammer to contest the blocking,” Goldman explains. “The nuance is email services aren’t in the business of hearing billions of complaints from spammers saying ‘you didn’t have the right to block me.’ Email services can’t do that. It’s not a scalable option for them.”
Goldman says he believes the goal of the bill was to make sure solicitation emails from former president Donald Trump’s campaign did not end up in spam folders.
Open Secrets: Alaska may get rid of its campaign contribution limits, but that won’t make races more competitive
By Ciara O’Neill
The Ninth Circuit Court of Appeals ruled in July there is no justification for Alaska’s campaign contribution limits which “significantly restrict the amount of funds available to challengers to run competitively against incumbents.” However, an OpenSecrets analysis has found that not only do low contribution limits not affect the competitiveness of races, raising those limits actually tends to benefit incumbents more than challengers.
