In the News
The Federalist: You Can’t Fight Hate With Censorship, Says Former ACLU President
By Zac Morgan
Just recently, a federal court in Oregon prevented a public high school from banning an anti-immigration T-shirt from its campus, notwithstanding the shirt’s capacity to be viewed as offensive, even hateful. According to Nadine Strossen’s latest volume, ‘Hate: Why We Should Resist It with Free Speech, Not Censorship’, this is an outcome to be celebrated-not merely because it comports with the Constitution, but because so-called “hate speech” bans are unconstitutional and ultimately counterproductive.
‘Hate’ is a slim volume, consisting of nine chapters where Strossen, a former president of the American Civil Liberties Union, makes her case. The book presents itself as an accessible legal brief aimed at the social justice left, which appears to be forsaking its 1970s-era robust view of free speech, as well as First Amendment practitioners looking for a distillation of the state of play…
Strossen makes the case that if hate speech laws were on the books throughout the last half of the twentieth century, there would have been no civil rights era, and precious little advance of the gay rights agenda in the twenty-first century.
After all, hate speech laws, like all laws, must be enforced by the state-and in a democratic society, that means the present majority. The law is a blunt and powerful censorial tool that, as Strossen demonstrates using examples from Europe to Africa, is often used in actual practice to silence the minority groups “hate speech” laws purport to protect…
Ultimately, Strossen counsels that people must listen to one another, persuade, convince, and when necessary-without state coercion-apologize. Not only is this more effective than enacting hate speech codes, people of all sides might come to simply “know better.” And people cannot do that if the state gets in the way.
Supreme Court
CNN: Rand Paul backs Trump’s pick for the Supreme Court
By Lauren Fox
“After meeting Judge Kavanaugh and reviewing his record, I have decided to support his nomination. No one will ever completely agree with a nominee (unless of course, you are the nominee). Each nominee however, must be judged on the totality of their views character and opinions,” Paul said…
“I have expressed my concern over Judge Kavanaugh’s record on warrantless bulk collection of data and how that might apply to very important privacy cases before the Supreme Court,” Paul tweeted. “In reviewing his record on other privacy cases like Jones, and through my conversation with him, I have hope that in light of the new precedent in Carpenter v. United States, Judge Kavanaugh will be more open to a Fourth Amendment that protects digital records and property.”
Paul also applauded Kavanaugh’s record on the Second and First Amendments.
“His strong defenses of the First and Second Amendments in landmark cases show someone who isn’t afraid to challenge the status quo and will fight with backbone,” Paul wrote, adding, “Judge Kavanaugh will have my support and my vote to confirm him to the Supreme Court.”
The Courts
Reason: ACLU Accuses Memphis Police of Monitoring the Private Communications of Black Lives Matter Activists
By Zuri Davis
The suit stems from the city’s response last year to an open records request. When Memphis released the names of civilians who required a police escort during City Hall visits, several people on the list turned out to be activists who participated in “protests, rallies or other free speech activities in the city.” …
The lawsuit accuses officers of using activists’ private Facebook posts to track their movements and meetings. Information including pictures, previous arrests, and connections with other activists were presented in weekly PowerPoint presentations. One of the weekly PowerPoints accused local activists of trying to use “legitimate community organizations to advance a radical agenda” and having an “expressed goal” to “embarrass law enforcement in order to undermine the bond between law enforcement and the community.” The PowerPoint contained private social media posts and admitted to the use of undercover officers.
The police apparently followed activists’ activities through a fake Facebook user account, accessed private social media communications, and placed undercover officers at meetings and events. All this, the ACLU argues, violates a 1978 consent decree that banned Memphis city officials from surveilling “constitutionally-protected political activities.” …
That 1978 consent decree exists for good reason. “During the civil rights movement,” the ACLU points out, “Memphis police engaged in the questionable practice of gathering domestic intelligence on demonstrators and activists in an attempt to intimidate people from exercising their right to free speech and assembly.” Now as then, the city’s cops are spying on nonviolent activists exercising their First Amendment right to free speech.
Politico: The Sex-Trafficking Case Testing the Limits of the First Amendment
By Paul Demko
The longtime business partners portray themselves as First Amendment martyrs, fighting to preserve free speech on the internet. They believe this battle isn’t just a self-preservation strategy but a natural extension of the pioneering newspaper company they planted in the Arizona desert more than four decades ago, a network of alternative weeklies that would span the country before taking a massive revenue hit from the internet. Their innovation-Backpage.com-not only saved the company, they say, but it brought needed sunlight to a sexual underground…
Backpage has repeatedly evaded civil and criminal penalties over the past decade for its purported complicity in criminal enterprises. The reason Backpage has emerged largely unscathed from previous legal fights is that since 1996 federal law has provided broad protections for online publishers of third-party content. Backpage has successfully argued that it can’t be held legally responsible for the criminal conduct of others…
Still, these prosecutions could be different. That’s because an exhaustive Senate investigation published last year documented in painstaking detail how company officials systematically altered ads in order to remove explicit references to prostitution and suggestions that services were being offered by juveniles. It’s also the first time they’ve faced federal criminal charges, pitting them against the vast legal resources of the Justice Department…
Larkin and Lacey came of age crusading against government corruption and blasting away at the political and media establishment, often relying on First Amendment protections to help send bad guys to jail. Forced to adapt to a rapidly changing business model, they latched on to one segment of the advertising market that has survived untouched: sex. Now, they’re clinging to the First Amendment again, but this time they’re the ones in the investigative crosshairs.
Courthouse News Service: Ninth Circuit Hands Roughed-up Trump Supporters a Win
By Matthew Renda
The Ninth Circuit granted attendees of a Trump rally who suffered violence at the hand of protesters a win on Friday, denying qualified immunity to the police who they say directed them into the path of danger.
A Ninth Circuit panel ruled against the city of San Jose, finding that claims police officers violated the rights of attendees by steering them toward an angry crowd of protesters and then doing little when chaos and violence erupted are credible enough to deny police recourse to immunity.
“Because the officers placed them in danger, which resulted in their injuries, and their rights were clearly established at the time of the rally, the attendees contend we should deny the officers qualified immunity. We agree,” U.S. Circuit Judge Dorothy Nelson wrote on behalf of the unanimous panel.
The three-judge panel – also comprised of Circuit Judges Andrew Kleinfeld and William Fletcher – only considered the narrow question of qualified immunity and did not rule on whether the police violated rally attendees’ rights…
City of San Jose Attorney Richard Doyle said he will discuss whether to appeal en banc or to the Supreme Court in the coming days.
IRS
Daily Caller: The IRS Just Protected Financial Donor Privacy – And Free Speech
By Dan Backer
The Internal Revenue Service just stopped requiring 501(c)(4) nonprofit organizations – which bring Americans together for the betterment of their communities – to identify their financial donors.
The federal government previously required such groups to disclose all contributors who donate $5,000 or more. While supposedly not made public, the IRS would keep the donors’ information on hand, which was hardly encouraging for those conservative groups who saw the “non-public” information made public, or those still reeling from the Lois Lerner scandal…
In Senate Majority Leader Mitch McConnell’s (R-Ky.) words: “It’s particularly welcome news to those of us who are intently focused on defending the First Amendment, for those of us who raised concerns during the last administration about activist regulators punishing free speech and free association.” …
Treasury’s move protects donor privacy and the First Amendment for liberals and conservatives alike – because both sides should be allowed to speak and associate free from government red tape. Our public discourse depends on it.
Missoulian: Montanans must fight to shine light on dark money
By Editorial Board
Last week, the Internal Revenue Service and U.S. Treasury Department decided to exempt certain nonprofits from having to disclose their major donors, making it even easier for these organizations to hide the “dark money” they spend to influence elections.
Gov. Steve Bullock and U.S. Sen. Jon Tester moved swiftly to counter this assault on campaign transparency, with Montana’s governor filing a federal lawsuit while Montana’s senior senator introduced legislation to overturn the new rule…
Bullock’s lawsuit seeks to block the IRS from tossing out the rules, put in place more than 50 years ago, that require a variety of 501(c) nonprofits to provide the names and addresses of their major donors…
The Spotlight Act introduced by Tester last week would make this requirement explicit. It would nullify the decision from Treasury Secretary Steven Mnuchin by requiring three classes of nonprofits – 501(c)(4), 501(c)(5), and 501(c)(6) – to disclose to the IRS the names of any donors who contribute more than $5,000, a generous threshold.
Independent Groups
Politico: Liberal secret-money network hammers House GOP
By Scott Bland
A network of secret-money nonprofit groups has spent millions of dollars attacking swing-seat House Republicans on health care and taxes, quietly becoming one of the biggest players in the 2018 political landscape.
The groups have local members and names like Floridians for a Fair Shake, Michigan Families for Economic Prosperity and North Carolinians for a Fair Economy. But they are all linked to one obscure nonprofit in downtown Washington, D.C.: the Sixteen Thirty Fund, which has funneled millions of dollars to progressive causes in recent years and set up each of the new groups, according to D.C. corporation records.
Added together, the Sixteen Thirty Fund groups have been among the most prolific political advertisers of 2018…
The ads don’t expressly advocate voting against House Republicans, but they do blast incumbents for their votes on Obamacare repeal and the new tax law in more than a dozen congressional districts…
These multimillion-dollar issue ad campaigns have been a hallmark of Republican politics in recent years, especially since 2010, when conservative nonprofits spent millions criticizing House Democrats over Obamacare and cap-and-trade climate change proposals before the fall elections. But this activity shows that the left is increasingly embracing the same tactics – even while criticizing “dark money” and its effects on politics.
“I don’t believe in unilateral disarmament,” said Cliff Schecter, the CEO of Ohioans for Economic Opportunity, a group that is pressing Rep. Steve Chabot (R-Ohio) on his votes ahead of what could be the Republicans’ first competitive reelection race in years. “I’d be happy to disclose all my donors if [the Koch groups] disclose them. But not having a fair playing field does a disservice to people worried about their health care and taxes.”
Washington Post: Liberal activists embrace ‘dark money’ in Supreme Court fight
By Michelle Ye Hee Lee
Liberal activists, who were dramatically outspent in their last fight to fend off President Trump’s Supreme Court nominee, are embracing a tactic that has been a mainstay of the conservative political playbook: tapping a war chest financed by unidentified donors to try to influence judicial nominations.
Demand Justice, a new group run by former aides to Hillary Clinton and President Barack Obama, plans to raise and spend at least $5 million to try to block the confirmation of Brett M. Kavanaugh, Trump’s pick to replace Justice Anthony M. Kennedy. The group is housed within another nonprofit, allowing it to mask not only the names of its donors but the size of their contributions.
Their effort is part of a multimillion-dollar advertising battle already underway over the latest seat to open on the high court. As the White House and Senate Republicans wrangle with Democrats over the release of documents in advance of confirmation hearings, which Republicans hope can begin in a matter of weeks, these groups are already blanketing the airwaves in key states, with the aim of influencing a small group of senators who will cast the decisive votes…
These nonprofits are required to spend a majority of their money on activity that doesn’t relate to elections. Since judicial nominations aren’t directly related to elections, the groups are able to spend freely – without having it count as electoral activity.
“Spending money now on issues surrounding this judicial nomination free up funds to spend on electoral activity in the fall,” said Charlie Spies, a Republican campaign finance lawyer. “Liberal groups spending $1 million on ads advocating against Kavanaugh in August frees up almost $1 million in capacity to run ads against Republicans in October.”
The Media
New York Times: New York Times Publisher and Trump Clash Over President’s Threats Against Journalism
By Mark Landler
Mr. Trump said on Twitter that he and Mr. Sulzberger had discussed “the vast amounts of Fake News being put out by the media & how that Fake News has morphed into phrase, ‘Enemy of the People.’ Sad!”
In a five-paragraph statement issued two hours after the tweet, Mr. Sulzberger said he had accepted Mr. Trump’s invitation for the July 20 meeting mainly to raise his concerns about the president’s “deeply troubling anti-press rhetoric.” …
“I told him that although the phrase ‘fake news’ is untrue and harmful, I am far more concerned about his labeling journalists ‘the enemy of the people,'” Mr. Sulzberger continued…
The president fired off a series of angry tweets in the afternoon, accusing newspapers of being unpatriotic.
“I will not allow our great country to be sold out by anti-Trump haters in the dying newspaper industry,” he wrote. “The failing New York Times and the Amazon Washington Post do nothing but write bad stories even on very positive achievements – and they will never change!” …
Mr. Sulzberger recalled telling Mr. Trump at one point that newspapers had begun posting armed guards outside their offices because of a rise in threats against journalists. The president, he said, expressed surprise that they did not already have armed guards.
At another point, Mr. Trump expressed pride in popularizing the phrase “fake news,” and said other countries had begun banning it. Mr. Sulzberger responded that those countries were dictatorships and that they were not banning “fake news” but rather independent scrutiny of their actions…
[Mr. Sulzberger] said he encouraged the president to complain about news coverage in The Times that he viewed as unfair. But he appealed to him not to systematically attack journalists and journalism around the world.
Online Speech Platforms
Forbes: Profit Versus Privacy: Facebook’s Stock Collapse And Its Empty “Privacy First” Promise
By Kalev Leetaru
Instead of demanding that the entire planet conform its ideas, beliefs and speech to the ideals of a single white western male of privileged upbringing, the web allowed us to celebrate our differences and bring us together to the degree we were comfortable, letting us retain that which was important to us. Most importantly, control was delegated to the local level, with no single individual able to control what the entire planet could see or say.
Terrorism, hate speech and other illegal conduct was delegated by the web to the court systems of the world that have the power to punish such speech, not merely delete it in whack-a-mole fashion. Similarly, the contours of what constituted “acceptable speech” was left to the governments of the world to determine for their respective societies, ensuring that in countries with free speech their rich systems of checks and balances and appeals processes meant that all voices could be heard, not just those that brought in the greatest monetary profits.
In contrast, the majority of the issues facing Facebook today stem from its centralized approach to building a single governance structure that subjugates the entire planet. To the elite technologists perched comfortably in their ivory towers, the grand utopian vision of “fixing” the rest of the world by using technology to force everyone on the planet to conform to Silicon Valley’s ideals may seem like the path to perfection, but in reality it is merely a colonial dystopia that necessarily leads to all of the uncomfortable and destructive forces that have come to confront the company’s ambitions.
Cato: Some Reasons to Trust Mark Zuckerberg with Freedom of Speech
By John Samples
Zuckerberg is the CEO of Facebook which comprises the largest private forum for speech. Because Facebook is private property, Facebook’s managers and their ultimate boss, Mark Zuckerberg, are not bound by the restrictions of the First Amendment. Facebook may and does engage in “content moderation” which involves removing speech from that platform (among other actions).
What might be loosely called the political right is worried that Facebook and Google will use this power to exclude them. While their anxieties may be overblown, they are not groundless. Zuckerberg himself has said that Silicon Valley is a “pretty liberal place.” It would not be surprising if content moderation reflected the dominant outlook of Google and Facebook employees, among others. Mark Zuckerberg is presumably setting the standards for Facebook exercising this power to exclude. How might he exercise that oversight? …
[I]t would have been easy and rather conventional for Mark Zuckerberg to endorse censoring Holocaust denial. Who would have criticized him for that? After all, many people equate tolerating extreme speech with advocating it. And yet, against his interests, Zuckerberg decided to subscribe to an essentially American view of the limits of speech…
Zuckerberg at times seems too willing to accommodate European approaches to extreme speech. He also tends to see only the benefits (and not also the costs) of transparency.
On the whole, however, conservatives and libertarians should be reassured about the future of online speech. Zuckerberg took a risk he did not have to take by endorsing a broad conception of free speech. In an age of populisms of the left and right, Mark Zuckerberg seems a better bet for protecting free speech than current and future politicians.
Washington Examiner: Devin Nunes looking at ‘legal remedies’ to take against Twitter for ‘shadow banning’
By Daniel Chaitin
Rep. Devin Nunes said he is looking at possible legal action against Twitter over the “shadow banning” fiasco that temporarily decreased the visibility he and other Republicans had on the social media platform.
Last week, Vice News reported that Nunes, along with several other conservative Republican figures, were harder to find on Twitter as their accounts did not show up on the auto-populated drop-down search box.
“It sure looks to me like they are censoring people and they ought to stop it. We are looking at any legal remedies to go through,” Nunes, R-Calif., said at the end of a Sunday morning interview on Fox News…
Nunes’ comments follow a tweet by President Trump saying “We will look into this discriminatory and illegal practice at once!”
Those GOP individuals who were effected by the “shadow banning” debacle didn’t completely disappear from Twitter – their profiles did appear when a full search was conducted – but they did express ire at what they said could be a politically charged maneuver to make it less convenient for users to find them. These GOP figures – Nunes, along with Reps. Matt Gaetz, Jim Jordan, and Mark Meadows, as well as Republican National Committee Chairwoman Ronna McDaniel – felt the impact…
Gaetz announced last week on Fox News that he filed a Federal Election Commission complaint against Twitter because his account didn’t appear in auto-complete search results. “Congressman Gaetz continues to believe that interactive computer services, such as Twitter, should not discriminate against content while simultaneously asserting that they are a nonbiased public forum under federal law,” a spokesperson for Gaetz told Breitbart News.
Candidates and Campaigns
NBC News: ‘Giving circles’: Female fundraisers are powering women candidates
By Benjy Sarlin
It’s one of the defining stories of the midterms: An explosion of Democratic women running for office in record numbers and outperforming male rivals in primaries, potentially reshaping the party for years to come.
Behind the scenes, Democratic women are looking to fuel the trend by expanding their reach within another historically male-dominated field: Political fundraising.
Over several cycles, donors have helped lay the groundwork for a national network of women’s “giving circles,” informal organizations in which mostly upscale members pledge a minimum amount of cash toward candidates for an election cycle. The model is adapted from the philanthropy world, where similar groups pool together charitable donations…
Women have been winning, too: In 107 Democratic House primaries featuring at least one man, one woman, and no incumbent, a woman has advanced in 70, according to an NBC News analysis.
“We are seeing an enormous growth in interest, in part because there’s so many women candidates out there that it’s hard for us to even support them all,” said Stacy Mason, who serves as executive director of Electing Women Bay Area.
Organizers say groups focused on electing women make an impact by providing a ready-made fundraising circuit for first-time candidates.
Washington Examiner: No ‘smoking gun’ of campaign finance violations by Trump in Michael Cohen tape, experts say
By Melissa Quinn
“I think there could potentially be campaign finance violations, but I don’t think the recording alone is a smoking gun,” Rick Hasen, an election law expert and professor at the University of California, Irvine, told the Washington Examiner. “There are a lot of questions that need to be resolved before we conclude that Cohen or [American Media Inc.] or Trump or the Trump campaign” committed campaign finance violations…
“I don’t think it’s a slam dunk,” Jessica Levinson, a law professor at Loyola Law School who focuses on election law, told the Washington Examiner.
But Levinson said the recording indicates “the payment was made to keep the campaign together and not to keep a marriage together.”
“If the payment was made for personal reasons, then we’re outside campaign finance contexts,” she said. “But it looks like the payment was made for campaign finance reasons.”
Demonstrating the payment was part of efforts to protect Trump’s campaign rather than his marriage to Melania Trump would hinge on the president’s intent, proof of which is difficult for prosecutors to obtain, Hasen said.
“The applicable test would be whether he was making these payments irrespective of his campaign,” he said. “If he decided to do something at this point in time that he otherwise wouldn’t have done would make it campaign related.”
Washington Post: Rudy Giuliani just obliterated the goal posts on Trump-Russia collusion
By Aaron Blake
Trump’s lawyer/spokesman Rudolph W. Giuliani appeared on Fox News’s and CNN’s morning shows on Monday to downplay the idea that colluding with the Russians would have even been illegal and to argue against strawmen.
The most notable portion of the interviews was when Giuliani rekindled the idea that collusion isn’t even a crime. Trump’s defenders have occasionally noted that the word doesn’t appear in the criminal code – which is true but misleading– but Giuliani took it a step further: He basically suggested Trump would have had to pay for Russia to interfere on his behalf.
“I don’t even know if that’s a crime – colluding with Russians,” Giuliani said on CNN. “Hacking is the crime. The president didn’t hack. He didn’t pay for the hacking.” …
Giuliani also seemed to offer a very narrow denial of what happened with the Trump Tower meeting. While discussing Michael Cohen’s allegation that Trump knew about the meeting, Giuliani focused his defense on arguing not necessarily that Trump didn’t know about it – but that he wasn’t physically at meetings at which information from Russians was discussed…
At other times, Giuliani appeared to say that Trump also was not present for a separate alleged meeting before the Trump Tower meeting in which the Trump Tower meeting was discussed.
Harassment
Mercury News: Googlers threatened after fired engineer Damore identifies them in court filings: judge
By Ethan Baron
In his lawsuit, Damore has filed initial and amended complaints. To support his case, both contained numerous screenshots from internal Google forums, showing comments and messages concerning politics and diversity at Google, wrote Judge Brian Walsh in an order issued Friday that grants the company a protective order to prevent the identification of employees.
“In many cases, the screenshots reflect the full name of the message’s author, and some screenshots also show the author’s email address,” Walsh wrote in his Santa Clara County Superior Court ruling.
“In other cases, identifying information regarding the author has been
redacted.”The cases in which Googers’ identities were redacted appear to share a similarity, according to the judge’s ruling.
Damore, Walsh wrote, “chose to redact the names of employees sympathetic to (his) cause.”…
Walsh said Google sent Damore’s lawyer 13 screenshots of “threatening online comments about Google employees.”
A July 13 filing by Damore’s lawyer Harmeet Dhillon indicated that some of the purported online threats and harassment were made on the right-wing Breitbart news website, on Twitter, and on the far-right social media website Gab.
Although the purported threats against employees cannot be conclusively said to have resulted from Damore’s filings identifying the workers, Walsh noted “the increased volume” of reports to Google by employees identified in the filings who had “concerns about online harassment and threats.”
The States
U.S. News & World Report: Agency Hit Hard With Campaign Finance Grant Requests
By Associated Press
The executive director of Connecticut’s State Elections Enforcement Commission says the agency received a “staggering” number of grant applications this year for public campaign financing.
Michael J. Brandi, the commission’s executive director and general counsel, said says more grants for the statewide primary were awarded than ever before. Friday marked the final day the commission could award Citizens’ Election Program grants for the Aug. 14 primary.
State law forbids awarding grants 12 days before the primary.
Brandi says the volume of statewide grant applications submitted this year – and “all the qualifying contributions they represent – is staggering.” All of the qualifying, small-dollar contributions that candidates must raise to demonstrate public support must be vetted by the commission’s staff.
The commission will now focus on general election grants.
