In the News
One News Now: TX lawmakers defended for anti-BDS law
By Chad Groening
A pro-Israel activist calls it ridiculous that opponents of a Texas anti-BDS law claims the law violates the free speech rights of people seeking to punish Israeli businesses.
A federal judge in April struck down the state’s anti-BDS statute, which prohibits state entities from contracting with companies that boycott goods and services from Israel.
The boycott, divestment, sanctions movement has been used by supporters of the Palestinian cause to punish Israel but the movement is routinely accused of anti-Semitism.
The ACLU and the Council on American Islamic Relations had challenged the Texas law, and now Texas has appealed the lower court ruling to the Fifth Circuit Court of Appeals…
Two organizations, the Institute for Free Speech, and the Foundation for Individual Rights in Education, have filed an amicus brief claiming the Texas law violates the free speech of those who participate in the BDS movement.
Supreme Court
Washington Post: A police officer sued a Black Lives Matter protester for violence he didn’t commit. What’s next has free speech advocates worried.
By Marissa J. Lang
Civil rights lawyers have asked the Supreme Court to intervene in a lawsuit that activists and legal scholars fear could have wide-reaching consequences for protest organizers across the country.
A police officer, who was hit in the head by a rock thrown at a 2016 demonstration in Louisiana, sued prominent Black Lives Matter organizer DeRay Mckesson on the premise that Mckesson should have foreseen the possibility of violence at the protest and be held accountable for it. Mckesson didn’t throw the rock or tell anyone else to throw it…
“If this is allowed to stand, anybody can show up and throw a rock at a protest to bankrupt a movement they disagree with,” said Ben Wizner, director of the ACLU’s Speech, Privacy and Technology Project. “People know when they step into the street that they might have to spend some hours in jail or pay a fine. But if they might have to pay a multimillion-dollar civil judgment – that’s something they’re not prepared for, and can’t possibly be expected to prepare for.”
The ACLU earlier this month asked the Supreme Court to hear Mckesson’s appeal and urged justices to consider the potential ramifications on protesters’ rights.
Organizations that coordinate protests, such as the Women’s March, said the Fifth Circuit’s ruling could have ramifications beyond its jurisdiction…For starters, activists said, it raises the risks and monetary costs associated with organizing a demonstration. In addition to applying for permits and providing medics, amenities and toilets, organizers said, activists might also have to anticipate a possible lawsuit if someone in the crowd commits a violent act. That could mean legal counsel on standby and resources to cover the costs.
The Atlantic: Don’t Let the First Amendment Forget DeRay Mckesson
By Garrett Epps
During the demonstration, someone threw a hard object that injured Officer Doe.
The arrested protesters sued city and county law enforcement for excessive force, and received a settlement totaling around $100,000 and an agreement that their arrest records would be expunged. Then Officer Doe…brought a suit against Mckesson and the entire Black Lives Matter movement…Mckesson “incited the violence,” the suit alleged. But it offered no specific evidence…
A trial judge dismissed the case…
The officer appealed to the Fifth Circuit-arguably the most conservative circuit in the country-at which point the case took a strange turn into the constitutional Twilight Zone…The court panel gave no hint that it was considering a major doctrinal change-it did not request supplemental briefing, nor even allow oral argument. But it reinstated Doe’s lawsuit, writing that “the First Amendment does not protect violence.” Mckesson was liable for Doe’s injuries because he was “negligent”-he should have known he had a duty to control the actions of every member of the crowd.
Mckesson petitioned for rehearing en banc. Instead, the panel itself (which had not “heard” argument in the first place) granted “rehearing”-meaning that it again didn’t allow Mckesson to be heard, and simply agreed with itself in a second opinion saying, in essence, “and how!”
Earlier this month, Mckesson, represented by the ACLU, asked the Supreme Court to review the case. If the Court is serious about its First Amendment jurisprudence, it should grant the petition and, in a one-line opinion, summarily reverse the Fifth Circuit.
The Courts
Courthouse News Service: Panel Looks Likely to Overturn Ban on Anti-Muslim Ads
By Kevin Koeninger
A conservative free speech group appeared successful Friday at persuading a Sixth Circuit panel that a Detroit-area public transit authority cannot ban its anti-Muslim ads for being overtly political.
The American Freedom Defense Initiative sued the Suburban Mobility Authority for Regional Transportation in 2010 in an attempt to get its “Refuge From Islam” ad on the sides of public transit vehicles in metro Detroit.
The ad reads: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got questions? Get answers! RefugefromIslam.com.” It was rejected by the transit authority, known as SMART, as being political speech.
Although a federal judge initially granted AFDI’s motion for a preliminary injunction, the Sixth Circuit overturned the injunction in a 2012 ruling and told the district court that SMART’s ban on political advertisements is both reasonable and constitutional.
Upon remand, both parties conducted discovery and filed motions for summary judgment.
U.S. District Judge Denise Hood sided with SMART, ruling in March that because the public transit vehicles are a nonpublic forum, the speech contained in the ad is afforded less protection under the First Amendment.
AFDI appealed the decision, which returned the case to the Sixth Circuit for Friday’s arguments in front of a different panel of judges.
Broadcast Law Blog: Court of Appeals Finds Maryland Law Imposing Political Disclosure Obligations on Online Platforms to be Unconstitutional – Finding Different Treatment of Broadcasters is Justified
By David Oxenford
Late last week, the US Court of Appeals for the Fourth Circuit issued a decision in a case called Washington Post v. David J. McManus, upholding the ruling of the US District Court finding that the State of Maryland’s attempts to impose political advertising reporting obligations on online platforms to be an unconstitutional abridgment of these companies’ First Amendment rights…
Interestingly for broadcast readers, Maryland attempted to justify its rules by analogizing them to the rules imposed on radio and television stations (and on other certain other FCC-regulated entities) which require disclosures about political advertising in each station’s online public file (see, for instance, our articles here and here on the latest FCC-required disclosures on political issue ads, and our article here on the general political file obligations)…
The impact of this decision could be wide-ranging. As we wrote here, several states, including New York and Washington State, have laws adopting similar requirements for the disclosure of information about political advertising on online platforms (and, at least in the case of Washington, even on traditional media platforms). The Fourth Circuit’s analysis might be employed to question that regulation. Federal efforts, through various proposals, have advanced similar regulation on a nationwide basis. The First Amendment analysis by this appeals court would suggest that these efforts may also be subject to challenge.
Disclosure
Capital Research Center: The IRS Should Ditch Forced Donor Disclosure Rules
By CRC Staff
Last month, the IRS proposed a change to its longstanding rule requiring 501(c)(4) tax-exempt nonprofits to report the names and addresses of contributors in their annual Form 990 filings. If the new regulation is adopted, such groups would no longer have to report their donors’ private information, only the amounts of their donations.
Why is that a good thing? Consider instances where contributors’ confidential information was exposed to the public.
In 2012, the IRS leaked a list of donors to the conservative National Organization for Marriage (NOM), which opposes gay marriage, and the list ultimately appeared on the website of the left-wing Human Rights Campaign, a gay marriage lobby. The leak may have affected the 2012 presidential election, too, as Republican nominee Mitt Romney was listed among NOM’s donors. After a lawsuit, the agency agreed to pay $50,000 to NOM for violating its donors’ privacy…
And if you think that having your private information leaked across the Internet doesn’t have a chilling effect on public debate, think again. In 2014, Mozilla CEO Brendan Eich was forced to resign from the company after his name appeared on a donor list to California’s Proposition 8 campaign-which banned gay marriage with 52 percent of the vote statewide-in 2008. (Far from being a major donor, the tech executive gave the $39 million campaign $1,000.)…
Donors should be free to exercise their First Amendment right to support the causes of their choice without the threat of having their privacy torn away.
Trump Administration
New York Times: Anti-Semitism or Free Speech? College Students Cheer and Fear Trump Order
By Myah Ward and Dan Levin
According to the order, anti-Semitism would be covered under Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race, color and national origin, but does not mention religion. The directive also expanded the definition of anti-Semitism to include some anti-Israel sentiments, which the Education Department can now use when assessing whether incidents or activities violate Title VI.
The definition, already used by the State Department, labels as anti-Semitic the claim “that the existence of a State of Israel is a racist endeavor,” which prompted concerns about First Amendment issues and an outcry from pro-Palestinian supporters.
While Israel is not mentioned in the executive order, members of the Trump administration and its allies have made clear that the policy is aimed at protecting supporters of the Jewish state.
“Anti-Zionism is anti-Semitism,” wrote Jared Kushner, a senior White House adviser and the president’s son-in-law, in an Op-Ed article for The New York Times. “The inclusion of this language with contemporary examples gives critical guidance to agencies” enforcing civil rights law…
Gabrielle Zuckerman, 20, a Jewish student at U.N.C. and a member of Hillel, said she worried that the executive order “falsely equates anti-Zionism with anti-Semitism” and is targeted at eliminating criticism of Israel.
Students and faculty should not have to worry about violating federal policy when there are concerns about human rights violations, she said.
By Kenneth Stern
Fifteen years ago, as the American Jewish Committee’s antisemitism expert, I was the lead drafter of what was then called the “working definition of antisemitism”. It was created primarily so that European data collectors could know what to include and exclude. That way antisemitism could be monitored better over time and across borders.
It was never intended to be a campus hate speech code…
Jared Kushner, the president’s son-in-law and special adviser, wrote in the New York Times that the definition “makes clear [that] Anti-Zionism is antisemitism”. I’m a Zionist. But on a college campus, where the purpose is to explore ideas, anti-Zionists have a right to free expression…
The real purpose of the executive order isn’t to tip the scales in a few title VI cases, but rather the chilling effect. ZOA and other groups will hunt political speech with which they disagree, and threaten to bring legal cases. I’m worried administrators will now have a strong motivation to suppress, or at least condemn, political speech for fear of litigation. I’m worried that faculty, who can just as easily teach about Jewish life in 19th-century Poland or about modern Israel, will probably choose the former as safer. I’m worried that pro-Israel Jewish students and groups, who rightly complain when an occasional pro-Israel speaker is heckled, will get the reputation for using instruments of state to suppress their political opponents.
First Amendment
Washington Post: John Solomon claims the First Amendment protects him as a journalist
By Erik Wemple
In a Wall Street Journal op-ed published [last]Monday evening, Solomon writes that House Intelligence Committee Chairman Rep. Adam B. Schiff (D-Calif.) “intruded on my First Amendment rights.” He further compares the incident to the early 2000s when he himself worked for the AP, and the [DOJ]”obtained my home phone records and the FBI illegally seized my mail without a warrant in an effort to unmask my sources on federal corruption and stop publication of a story about the government’s counterterrorism failures before 9/11.”…
“John is just off-base in his attack here,” says attorney David Schulz, co-director of the Media Freedom and Information Access Clinic at the Yale Law School. He defended the AP in the 2013 phone-records case, as well as Solomon’s 2000s case. “I would defend to nth degree the importance of protecting journalists and their sources,” continues Schulz. However, those other cases involved situations where the government was going after sources. “That’s where the First Amendment comes in,” he says…
“If the committee gratuitously included embarrassing or scandalous or titillating information about John Solomon’s role in here simply because it wanted to punish him or chill others from talking to him in future, that would be wrong,” says Schulz. All such constitutional concerns fade, however, if inclusion of the Solomon call data is important to understanding how the “wrongdoing is carried out,” according to Schulz.
Real Clear Politics: Media Attack on John Solomon Is an Attack on the Free Press
By C. Boyden Gray
At the time of the American founding, the press had been both a target of monarchical tyranny and a catalyst for revolutionary sentiment. James Madison rightly hailed it as “one of the great bulwarks of liberty.” The framers of the First Amendment, not content to protect free speech, jealously guarded the freedom of the press from the new Congress.
But today the free press is under threat not primarily from government overreach but from a dangerous lack of integrity in the media itself. Nothing illustrates this new threat to the freedom of the press like the media’s concerted effort to destroy investigative journalist John Solomon…
Solomon has suddenly became the target of an unprecedented, coordinated hit job by his fellow journalists…
The media’s unprecedented and systematic conspiracy to destroy the good name of a journalist like Solomon does more than tarnish that reporter’s hard-earned reputation: It ultimately stifles public debate. Why dare to investigate the powerful or publish politically incorrect facts, only to be singled out by the rest of the media for destruction?
If the costs of investigative journalism become too great, the freedom of the press our founders cherished will die of a self-inflicted wound.
Citizens United
The Fulcrum: Inside the messy fight over strategy among campaign finance reformers
By Geoff West
At issue is the best strategy for slowing the flow of cash that’s surged through the political system in the decade since the Supreme Court decided that limiting election spending by corporations, unions and advocacy groups violates the First Amendment.
The underdog faction says calling the first constitutional convention since 1787, where the high court’s landmark ruling in Citizens United vs. FEC could face a significant step toward effective reversal, is the cleanest and quickest solution. The more dominant faction favors the traditional but politically difficult method for altering the Constitution – supermajorities of Congress sending language to the states for ratification – fearing a convention would open a Pandora’s box that conservatives could use to advance proposals that progressives would find horrific.
[Marty] Wulfe, a retired researcher from the D.C. suburb of Silver Spring, said his group has struggled for years to convince the Democrats who control Annapolis to pass a resolution calling for a convention – in large part due to Common Cause’s influence on progressive lawmakers…
Wulfe’s group is part of a small coalition pushing the convention approach, including allied statewide organizations in Wyoming, New Mexico and Massachusetts. By far the most prominent national player on their side of the disagreement is Wolf-PAC, which takes credit for successfully convincing five state legislatures to call for a convention specifically to address campaign finance laws.
Herald Tribune: Editorial: Politicians united – in taking big money
By the Ledger Editorial Board
Next month marks 10 years since the U.S. Supreme Court handed down its 5-4 ruling in the Citizens United case, upholding unlimited, independent campaign spending by corporations and labor unions through the use of political advocacy groups…
Democratic politicians have followed Obama’s lead in regularly and roundly criticizing Citizens United for prying open a gusher of cash into the political system, including nefarious “dark money,” so called because groups doing the spending do not have to identify their donors. They’ve characterized the ruling as a tool utilized by the rich and Big Business to keep their well-heeled boots on the necks of the hoi polloi…
The very first bill introduced and passed by House Democrats back in January was a campaign finance measure that included a provision to force “dark money” donors into the open…
Well, despite all this clamoring, it’s good to see Democrats have gotten over their fear of big money.
For instance, as the House was passing that reform bill 11 months ago, Roll Call reported that during 2018 dark money groups spent $150 million on the midterm elections. “Liberal groups spent about 54 percent of that total in the 2018 cycle, with conservative groups only spending 31 percent.”
FEC
New York Times: A Great Big Gift Not on Trump’s Disclosure Form: Giuliani’s Legal Advice
By Jim Dwyer and Eric Lipton
Mr. Trump did not mention Mr. Giuliani or his unpaid labor on the annual financial disclosure he filed in May, which requires that the value and source of gifts – including free legal work – be publicly listed.
That requirement is cut and dried, said Kathleen Clark, a law professor at Washington University in St. Louis. She cited guidance from the Office of Government Ethics, issued in November 2017, that states federal officials must disclose “gifts of legal defenses – in kind or by payment of the fees.”…
The president’s annual financial disclosure is required under the Ethics in Government Act of 1978, adopted after the Watergate scandal to “promote the integrity of public officials and institutions.” The purpose is to let the public know about businesses or property that top government officials have a stake in, or other financial ties that could create a conflict of interest.
Unlike other federal employees, presidents and vice presidents are allowed to accept gifts with few limitations. They face one major requirement: They must list the value and source of any goods or services, currently above a threshold of $390, on their annual forms.
There remains one possible loophole that Mr. Giuliani and Mr. Trump could turn to as an explanation.
Under federal campaign finance law, if an individual lawyer provides legal advice to a candidate without compensation, “the work is considered personal volunteer activity,” the Federal Election Commission says.
Online Speech Platforms
Washington Post: Pete Buttigieg: A transcript.
By Editorial Board
Pete Buttigieg: [W]hen you have tech companies making money off of political speech in the form of advertising, I do believe they have a responsibility to verify the truth of that advertising. We certainly would expect a TV station or a newspaper to bear responsibility for the veracity of anything they published by way of advertising for money. Why wouldn’t that also be an expectation for tech?…
Molly Roberts: There’s been in particular question of removing the shield that tech companies have that makes sure that they’re not liable for content posted by third parties or any old user. Do you have any thoughts on that?
Pete Buttigieg: I think it needs to be on the table. Again, I don’t think that there is a meat-cleaver approach that’s going to work here, because it does get into First Amendment issues. But you also see a lot of tech companies having it both ways, saying that, you know, this is protected speech and that, hey, we’re just a bulletin board, and at the same time monetizing what’s going on there. And if you’re drawing revenue from content directly or perhaps indirectly, that creates responsibilities.
Fred Hiatt: Let’s say you have a candidate who says climate change is a hoax. Do you want Mark Zuckerberg saying they’re not allowed to do that on Facebook?
Pete Buttigieg: So there is a reason why they don’t want to be in charge of that, and there are cases where the government can’t be in charge of that, either. But we do recognize as a matter of law some extent to which lying can lead to legal consequences. We can always craft problematic hypotheticals. But remember how fake news got started? It was not disagreeable news. It was newspaper or, you know, online articles circulating saying, you know, “the pope endorsed Donald Trump,” flatly, demonstrably, uncontroversially false statements. We can least begin there and assign responsibility for that, knowing that there will always be challenging boundary cases.
Wall Street Journal: Facebook Pledges $130 Million to Fund ‘Supreme Court’ for Content
By Jeff Horwitz
Facebook Inc. will pay $130 million to establish an independent board charged with reviewing how the company moderates its content, providing long-term backing to its experiment in better policing the platform.
The money, which Facebook described as an “initial commitment,” is meant to cover six years of operations, including salaries for board members, office space and a staff including case managers, lawyers and human resources personnel…
Sometimes dubbed “Facebook’s Supreme Court,” the board will function like an appeals court, with five-person panels adjudicating controversies arising from Facebook’s in-house efforts to enforce its content standards. In addition to rendering binding decisions on a case-by-case basis, the board can recommend policy changes to Facebook that the company must publicly address. While Facebook will select the first 11 members of the board, the eleven will choose the remaining board members, with terms lasting three years…
The review board has been in the works since last year, when Facebook Chief Executive Mark Zuckerberg wrote that despite his optimism about the company’s role in society, “without sufficient safeguards, people will misuse these tools to interfere in elections, spread misinformation, and incite violence.”…
“We feel a responsibility and have received feedback that the board should be grounded in human rights principles, including the rights to freedom of expression, privacy and remedy,” said Brent Harris, a director of governance at Facebook.
Washington Examiner: ‘I will not delete the tweet’: Fox News host defiant amid Twitter ban for posting Pensacola shooter manifesto
By Mike Brest
[Fox & Friends Weekend co-host Pete] Hegseth, 39, who is a former Army National Guard officer, was temporarily banned on [Twitter] over the weekend for sharing the manifesto of Saudi national Mohammed Alshamrani, who is accused of shooting and killing three people and injuring 12 more after opening fire at Navy Station Pensacola last week. The FBI is working under the “presumption” that the shooting “was an act of terrorism.” Hegseth’s suspension on the platform will go on until he deletes the tweet, though he has refused to do so.
“If Twitter can ban me for this, they can ban anyone for anything. I fought terrorists on the battlefield, and now I’m fighting for free speech (and against political correctness) to expose radical Islamist views. People deserve to know. I will not delete the tweet, and plan to fight this,” Hegseth told the Washington Examiner on Thursday.
Twitter previously stood by its decision to suspend Hegseth temporarily, noting that posting the manifesto is a violation of Twitter’s rules. A Twitter representative told the Washington Examiner that it enforces its policies “judiciously and impartially” for all Twitter users.
According to Twitter’s “terrorism and violent extremism policy,” no user is allowed to “threaten or promote terrorism or violent extremism.”
Andy Ngo of the Post Millennial was also suspended for tweeting out the shooter’s manifesto, although he later deleted the tweet and was reinstated.
New York Times: 2020 Campaigns Throw Their Hands Up on Disinformation
By Davey Alba
Less than a year before the 2020 election, false political information is moving furiously online. Facebook users shared the top 100 false political stories over 2.3 million times in the United States in the first 10 months of this year, according to Avaaz, a global human rights organization…
Still, few politicians or their staffs are prepared to quickly notice and combat incorrect stories about them, according to dozens of campaign staff members and researchers who study online disinformation. Several of the researchers said they were surprised by how little outreach they had received from politicians.
Campaigns and political parties say their hands are tied, because big online companies like Facebook and YouTube have few restrictions on what users can say or share, as long as they do not lie about who they are.
But campaigns should not just be throwing their hands up, said some researchers and campaign veterans like Ms. Kaplan, who now runs a start-up that helps fight disinformation. Instead, they said, there should be a concerted effort to counter falsehoods…
Academics and researchers said it was surprising how little outreach there had been from campaigns that faced disinformation operations. Many of the researchers can dissect when a false idea first appeared online, and how it spread.
New York Times: Singapore ‘Fake News’ Law Ensnares Government Critics
By Reuters
A Singapore opposition politician was asked to correct a Facebook post criticizing state education spending on Monday, the fourth use of a new “fake news” law that has been used against government opponents.
Government ministers are the arbiters of the Online Falsehoods and Manipulation Act (POFMA), which came into effect in October amid concern that it would be used to silence opposition ahead of an election…
In an effort to alleviate those concerns, Minister of Law K Shanmugam said when the legislation was passed in May that the law was meant to tackle “falsehoods”, “bots”, “trolls” and “fake accounts”, and that free speech would not be affected.
Since the law was invoked on Nov. 26, three figures linked to the opposition and an opposition party have been told their online posts must carry a banner stating that they contain false information.
The posts ranged from accusing the government of influencing decisions by the state investment fund to an assertion that white-collar unemployment was rising.
The Ministry of Education on Monday directed opposition politician Lim Tean to correct a Facebook post about foreign students receiving more government funding than domestic students.
Lim responded on Facebook to defend his initial post saying it referred to grants and scholarships, and not overall spending, and he was considering legal options.
