In the News
Real America’s Voice: Live from Studio 6B
[Ed. note: Interview of IFS President David Keating discussing the Pennsbury School Board’s censorship of parents and community members. Learn more about the case here.]
New from the Institute for Free Speech
Davi v. Roberts: Brief of Institute for Free Speech and Cato Institute as Amici Curiae in Support of Plaintiff-Appellee
Government employees are entitled to broad First Amendment protection when they speak on matters of public concern because they are well positioned to inform the public about the government and its problems. The reasoning of the Office of Temporary Disability Assistance (OTDA) would significantly reduce this flow of information to the public, by allowing a public employee to be fired for any social media post that may engender mild controversy. OTDA’s reasoning would also allow the “intrusion of the government’s ear into the private lives of its employees” and would pressure government employees to self-censor even when speaking off-duty among friends. This would infringe the right of government employees to speak to those who will find them most persuasive and will infringe their friends’ right to receive information from those by whom they are most likely to be persuaded. Accordingly, amici respectfully ask that the judgment of the District Court be affirmed.
This amicus brief was filed jointly with the Cato Institute and was authored by Professor Eugene Volokh’s First Amendment Amicus Brief Clinic at UCLA School of Law.
DOJ
Wall Street Journal: The Patriot Act Wasn’t Meant to Target Parents
By F. James Sensenbrenner
As principal author of the Patriot Act and chairman of the House Judiciary Committee during its consideration, I find it necessary to remind the Biden administration that the Patriot Act doesn’t apply to parents’ behavior at school-board meetings.
In recent months, parents across the country have expressed their views on issues ranging from pronoun selection and Critical Race Theory to the medical basis of certain Covid restrictions and age-inappropriate, sexually explicit curricular materials. Parents have a right—indeed an obligation—to participate actively at school-board meetings to ensure the safety and well-being of their children…
Freedom of expression is a touchstone of self-government. Our laws and jurisprudence draw a clear distinction between acts of terrorism calculated to influence a civilian population and the robust expression of views that sustains democratic self-government…
Federal agencies lack roving jurisdiction to investigate and prosecute noncriminal conduct. They also lack authority to invoke federal antiterrorism laws to chill protected expressive conduct.
The Courts
Reason (Volokh Conspiracy): Challenge to California’s New Content-Based Restriction on Speech Outside Vaccination Centers
By Eugene Volokh
It was just filed Sunday by Michael Millen and by Catherine Short (of the Life Legal Defense Foundation), Aubin v. Bonta (N.D. Cal.):
[1.] The Statute is not content-neutral.
Section 594.39(d) expressly exempts “lawful picketing arising out of a labor dispute, as provided in Section 527.3 of the Code of Civil Procedure.” Laws that exempt labor picketing are content-based restrictions on speech. Carey v. Brown (1980) (striking down residential picketing ordinance containing an exception for labor picketing); Police Department of Chicago v. Mosley (1972) (striking down ordinance banning picketing of schools, with an exception for labor picketing). Thus, the Statute must be enjoined unless it serves a compelling governmental interest and is narrowly drawn to serve that interest….
The Statute is also content-based and underinclusive because of its banning only those approaches made for the purposes of “oral protest, education, or counseling,” as opposed approaching for any other reason, such as asking directions or panhandling. No compelling governmental interest supports this distinction….
Courthouse News: Montana Democrats challenge statewide ban on college voter drives
By Nicholas Iovino
A Montana law that bars political organizing and voter registration drives on college campuses is intended to suppress the youth vote and unconstitutionally restrict free speech, the Montana Democratic Party claimed in a federal lawsuit filed Tuesday.
In May, Montana legislators passed Senate Bill 319, a seemingly innocuous piece of legislation enabling two or more political candidates to create joint fundraising committees. Before the legislation passed, lawmakers added three eleventh-hour amendments pertaining to judicial recusals, student group fundraising and political organizing on college campuses.
The amendment at issue in the lawsuit filed Tuesday bans all “voter identification efforts, voter registration drives, signature collection efforts, ballot collection efforts or voter turnout efforts” on Montana universities and college campuses.
Any group that participates in a get-out-the-vote effort at college residence halls, athletic facilities or dining halls could face civil penalties of $1,000 per violation…
In its complaint, the state Democratic Party claims the law violates students’ constitutional right to engage in political speech on campus.
Free Speech
Knight First Amendment Institute: Drawing the Line Between False Election Speech and False Campaign Speech
By Richard L. Hasen
In a book to be released in March 2022, Cheap Speech: How Disinformation Poisons Our Politics—and How to Cure It, I explain how technological change has allowed the spread of disinformation, and particularly disinformation about how elections are run, to threaten the integrity of the election system. And I offer a host of both legal and norm-based solutions to lessen the risk that disinformation will bring down American democracy, as was threatened on Jan. 6.
I cannot offer the full argument in this brief blog post, but I do think it is useful to address a point I will make in the book about a distinction between false election speech and false campaign speech. I believe that Congress or states may constitutionally ban the former but not the latter, and government may require social media companies to remove false election speech from their platforms.
False election speech is false speech about when, where, and how people vote. Lying about the location of a polling place or the dates of voting fall into this category. False campaign speech is false speech in the context of a campaign that is about any other subject besides when, where, and how people vote. A candidate lying about whether her opponent voted to raise taxes falls into this category.
Internet Speech Regulation
Washington Post: Lawmakers’ latest idea to fix Facebook: Regulate the algorithm
By Will Oremus
Amid a broader backlash against Big Tech, [Frances] Haugen’s testimony and disclosures have brought fresh urgency to debates over how to rein in social media and Facebook in particular. And as lawmakers and advocates cast about for solutions, there’s growing interest in an approach that’s relatively new on the policy scene: regulating algorithms themselves, or at least making companies more responsible for their effects. The big question is whether that can be accomplished without ruining what people still like about social media — or running afoul of the First Amendment…
Daphne Keller, who directs the Program on Platform Regulation at Stanford University’s Cyber Policy Center, has thrown cold water on the idea of regulating what types of speech that platforms can amplify…
“Every time a court has looked at an attempt to limit the distribution of particular kinds of speech, they’ve said, ‘This is exactly the same as if we had banned that speech outright. We recognize no distinction,’ ” Keller said.
Politico EU: Big Tech to be forced to hand over data on political ads
By Clothilde Goujard and Mark Scott
Facebook and Google will have to provide reams of detailed information on how political groups target people via online ads or face steep fines, according to European Commission draft proposals seen by POLITICO.
The proposals, which the Commission is expected to unveil on November 23, aim to protect elections from undisclosed political ads, stop political parties from misusing social media and combat the manipulation of voters through microtargeting…
Brussels wants to boost transparency around online political ads by forcing partisan groups and the world’s largest platforms to disclose more information about who is buying ads and the types of people they are targeting. These changes, it argues, could stop European Union elections from falling victim to underhanded political tactics, and allow voters to understand who is peppering them with political messaging.
But in its upcoming proposals, the EU executive stopped short of outlawing all microtargeting — despite a public consultation showing strong appetite for more stringent restrictions on how political groups find would-be voters…
In the draft text, Commission officials floated the possibility of a ban on political targeted ads. In a public consultation as part of the internal assessment, EU officials also noted that 58 percent of respondents backed additional limits on targeted political ads, including a ban or opt-in by users.
But the Commission eventually decided to reject such a moratorium, arguing that smaller political groups would be penalized if they weren’t allowed to target groups of voters.
Daily Caller: GOP Senator Lays Out Framework For Fighting Big Tech Censorship Of Conservatives
By Ailan Evans
Republican Sen. Ron Johnson of Wisconsin laid out a framework for conservatives seeking to escape alleged censorship by major tech companies on Tuesday, urging them to migrate to alternative social media platforms while recommending legal challenges to Big Tech.
“I don’t see a legislative solution occurring on this. It’s going to be the private sector,” said Republican Sen. Ron Johnson of Wisconsin during a discussion Tuesday on issues surrounding social media censorship hosted by the Media Research Center (MRC), a conservative media watchdog. “We as conservatives need to stop patronizing these liberal, leftist social media sites.” …
Republican Rep. Greg Steube of Florida, who also participated in the discussion, echoed Johnson’s thoughts.
“Why are we staying on Facebook and Twitter when they’re censoring us?” Steube said.
Steube introduced a bill earlier this year designed to curb censorship of conservatives by social media platforms, reforming Section 230 to remove liability protections from the largest social media platforms unless they adhered to “First Amendment standards” of content moderation.
“If we did away with Section 230 completely, then these smaller companies couldn’t take advantage of that protection,” Steube said. “We put in a market dominance test that would only apply to these bigger actors.”
Both lawmakers cited a study published Tuesday by the MRC which found that social media companies “censored Republican members of Congress by a rate of 54-to-1 compared to congressional Democrats.”
60 Minutes: Synthetic Media: How deepfakes could soon change our world
[M]ost deepfakes are considered protected free speech. Attempts at legislation are all over the map. In New York, commercial use of a performer’s synthetic likeness without consent is banned for 40 years after their death. California and Texas prohibit deceptive political deepfakes in the lead-up to an election.
Online Speech Platforms
The Intercept: Revealed: Facebook’s Secret Blacklist of “Dangerous Individuals and Organizations”
By Sam Biddle
To ward off accusations that it helps terrorists spread propaganda, Facebook has for many years barred users from speaking freely about people and groups it says promote violence…
But as with other attempts to limit personal freedoms in the name of counterterrorism, Facebook’s DIO policy has become an unaccountable system that disproportionately punishes certain communities, critics say. It is built atop a blacklist of over 4,000 people and groups, including politicians, writers, charities, hospitals, hundreds of music acts, and long-dead historical figures.
A range of legal scholars and civil libertarians have called on the company to publish the list so that users know when they are in danger of having a post deleted or their account suspended for praising someone on it. The company has repeatedly refused to do so, claiming it would endanger employees and permit banned entities to circumvent the policy…
The Intercept has reviewed a snapshot of the full DIO list and is today publishing a reproduction of the material in its entirety, with only minor redactions and edits to improve clarity. It is also publishing an associated policy document, created to help moderators decide what posts to delete and what users to punish.
Washington Examiner: Google crackdown will affect any user contradicting consensus on climate change
By Nihal Krishan
The new Google and YouTube crackdown on climate change skeptics will allow for discussion of climate science but will entail demonetizing anyone who contradicts the scientific consensus, even credentialed users, the search and video giant clarified…
First Amendment scholars say that the tremendous power and reach of platforms like YouTube pose thorny problems in regards to free speech.
“Given how much power YouTube and other platforms have in our public debates, it’s troubling that so much really important social policy is being dictated by advertising and brand safety,” said Kyle Langvardt, a First Amendment scholar at the University of Nebraska who focuses on the internet’s implications for free speech…
“Being cornered into enforcing the scientific consensus is not good. We should try to restructure our media environment to ensure that isn’t necessary in the first place,” Langvardt added.
By reducing the amount of control and sway YouTube has over public conversations, Langvardt said, the government and people concerned about climate change would have less fear of false information on the platform spreading far and wide…
As an alternative to censorship, Langvardt suggested reducing the power of targeted advertising on social media, curbing engagement-based algorithms, and putting an end to addictive features like YouTube’s autoplay.
The States
The Providence Journal: Vote postponed on proposal to shield ‘maybe’ candidates from having to report finances
By Katherine Gregg
Faced with a wall of opposition, state election officials on Tuesday pushed off a vote until at least December on letting potential candidates for state and local office “test the waters” without revealing how much they raise or spend.
The Rhode Island Board of Elections decided to hold off after a 36-hour flurry of opposition from state Republican Party Chairwoman Sue Cienki, the citizens advocacy group Common Cause, two of the already announced Democratic candidates for governor and an army of legislators.
Fifteen Democratic members of the R.I. House of Representatives co-signed a letter raising multiple concerns. Among them: the proposed rule “does not appear to incorporate our current fundraising limits of $1,000 per calendar year.
“Could a potential candidate use a $5,000 donation from a supporter to run a poll? To pay consultants to plan a potential campaign? To create a large future-campaign bank account prior to announcing?
“If a person exploring to run becomes a candidate, what happens to money raised in excess of our campaign contribution limits?” …
“We believe it is in the public interest to require disclosure as soon as a person begins raising or spending money to explore running for state or local office,” said John Marion, executive director of Common Cause Rhode Island, in his written testimony.
His main concern: “The proposed rules would allow a person to hide that spending for an indefinite period of time as long as they don’t undertake one of the triggering activities,” such as running ads for “JaneDoe2022.”
