In the News

The Ross Kaminsky Show: David Keating (Inst for Free Speech): H.R.1 is an assault on free speech (Audio)

[Ed. note: IFS President David Keating discusses how H.R. 1 threatens free speech with host Ross Kaminsky.]

Congress

Politico: Weekly Score

By Zach Montellaro

The For the People Act’s path in the Senate remains steep. Senate Majority Leader Chuck Schumer has guaranteed the bill will make it to the floor: “Make no mistake: Democracy reform must be a top priority of this Congress and I will put S.1. — the For the People Act — on the floor of the Senate,” he said on Wednesday. “S.1. is going to be a top priority this Congress. We will fight and fight and fight to get this done legislatively. Failure is not an option.” …

Then there’s the filibuster, which we have mentioned in detail in Score previously. Since the bill is unlikely to get any Republican support — the AP’s Nick Riccardi and Michael Biesecker reported that Sen. Ted Cruz (R-Texas) told a conservative group that he participated in an “all-day strategy call with national conservative leaders to coordinate opposition” — it would require Manchin, Sen. Kyrsten Sinema (D-Ariz.) and other Democrats to support changing Senate rules to approve it. As for the idea du jour of having a carveout in the filibuster for voting rights bills, that was immediately shot down by Manchin, who compared it to like “being a little bit pregnant.”

One thing to watch: Is there a universe in which pieces of H.R.1 are chunked off and pushed through as standalone bills? Noted election law professor Rick Hasen floated the idea of a more targeted piece of legislation in an op-ed in The Washington Post, writing that not doing so runs the risk of nothing getting passed. In conversations Score has had with aides and activists, not many seemed to be entertaining that idea yet. But the battle over S.1 in the Senate is just beginning — there is a Senate Rules hearing on Wednesday — so any ultimate outcome isn’t close to being clear yet.

Protocol: Mark Warner is ready to fight for Section 230 reform

By Issie Lapowsky and Emily Birnbaum

Sen. Mark Warner’s SAFE TECH Act, which he introduced with a coalition of powerful Democrats after they won the Senate, has been creating controversy since it was introduced last month. Advocates for Section 230 reform, including prominent civil rights groups, have called it an important first step toward creating equity online. Meanwhile, prominent defenders of the original statute say the Democrats’ approach is overly broad and could crush companies that are smaller than Facebook or Google.

Protocol spoke with Warner about why he thinks the SAFE TECH Act is the right approach, how he predicts the Section 230 debate will play out in Congress this year and why he disagrees with his critics.

Axios: Inside the Democrats’ strategy to bombard Big Tech

By Jonathan Swan and Margaret Harding McGill

Outside of his antitrust work, [Rep. David] Cicilline also is readying a proposal taking aim at online companies’ key protection against liability from users’ posts, Section 230 of the Communications Decency Act.

Cicilline said his proposal, which is in the early stages, would focus on the decisions companies like Facebook make to amplify content that’s posted by users.

“That’s a very complicated algorithm that is designed to maximize engagement to drive up advertising prices to produce greater profits for the company,” Cicilline said. “That whole set of decisions, one could argue, is different than the initial post. That’s a set of business decisions for which, it might be quite easy to argue, that a company should be liable for.”

Free Speech

Reason (Volokh Conspiracy): Academic Freedom Alliance Statement on the University of San Diego Law School / China Controversy

By Eugene Volokh

This is the matter I blogged about here, here, and here; the Academic Freedom Alliance has just released its own statement on the subject:

Academic freedom includes the right of professors to publish blog posts on matters of general public concern without the threat of investigations and sanctions by their university employer. Unfortunately, the University of San Diego Law School is not respecting that basic principle.

Reason (Volokh Conspiracy): Our Right to Criticize Governments and Countries

By Eugene Volokh

I wanted to step back a bit from the University of San Diego / Tom Smith / China controversy to make a broader point:

We must always have the right—not just as a legal matter, but as a matter of academic freedom and social mores—to criticize governments: American, Chinese, Israeli, Russian, Saudi, or whatever else.

Such freedom of criticism is necessary so that we can help influence our own governments’ internal behavior. It’s necessary so that we can help influence our own governments’ behavior towards other governments. It’s necessary so that we can figure out the perils that these governments might be posing, to us, to their own citizens, or to their neighbors.

Governments are powerful, important institutions. They need to be constantly subject to discussion, evaluation, and criticism. (The same is also often true as to other powerful institutions within countries, and as to the broad current of public opinion in countries, especially democracies.) Even if it ultimately turns out that the governments are being mistakenly accused, or their misconduct is exaggerated, we can only figure out if we’re free to discuss it.

Independent Groups

HuffPost: Democrats Now Dominate Dark Money Spending. They Still Want To End It.

By Paul Blumenthal

Democrats are pushing a sweeping package of voting rights, campaign finance and ethics reforms as their top legislative priority in 2021. One of the pieces of the bill is a section requiring independent political groups that currently don’t have to disclose their donors ― whose donations are known as “dark money” ― to finally do so. 

This provision, previously known as the DISCLOSE Act, has been a major part of Democrats’ campaign finance reform agenda for years. But one major thing has changed since 2010, when Republicans dominated dark money spending: Today, it’s Democrats.

Democratic Party-aligned dark money groups ― nonprofits that are not required to disclose their donors ― spent more than $514 million on the 2020 elections, according to a review of FEC records by the Center for Responsive Politics. That compared to around $200 million by Republican Party-allied groups.

The totals reported by the Center for Responsive Politics include both independent expenditures made by dark money groups and contributions from dark money groups to super PACs, which do have to report their donors.

Wall Street Journal: Pro-Biden Group to Raise Unlimited Sums, Won’t Disclose Donors

By Ken Thomas and Chad Day

[Pro-Biden organization] Building Back Together has the blessing of the White House…

The new group…will be a 501(c)(4) nonprofit, allowing it to operate without disclosing its donors. Similar groups have been criticized by government ethics groups and Democrats such as Oregon Sen. Ron Wyden, for being able to spend unlimited amounts of money to influence public policy without the transparency required of campaigns, political parties and super PACs…

Mr. Biden, in his campaign pledges, called for more transparency among political nonprofits involved in elections. Mr. Biden’s campaign said at the time he would seek legislation to bar “social welfare” nonprofit groups, such as Building Back Together, from spending in elections and would ensure that “any entity of any kind that spends more than $10,000 on federal elections” must register with a Commission on Federal Ethics, which Mr. Biden intends to propose, “and publicly disclose its donors” …

His legislation would also require campaigns and outside groups that run ads within 60 days of an election to disclose any new contributions within 48 hours…

Tyson Brody, a former research director for Sen. Bernie Sanders’s 2020 presidential campaign who has advocated for more campaign-finance disclosure, said the arrangement ran counter to the spirit of Mr. Biden’s government reform agenda. “It is violating the notion that you’re going to clean up campaigning or make it more transparent,” Mr. Brody said.

Online Speech Platforms

Morning Consult: How We’re Tackling Misinformation Across Our Apps

By Guy Rosen

This week, the House Energy and Commerce Committee will examine how technology platforms like Facebook are tackling misinformation online. It is tempting to think about misinformation as a single challenge that can be solved with a single solution. Unfortunately, that’s not the case.

Thinking of it that way also misses the opportunity to address it comprehensively. Tackling misinformation actually requires addressing several challenges, including fake accounts, deceptive behavior and misleading and harmful content. As the person responsible for the integrity of our products, I wanted to provide an update on how we approach each of these challenges.

The States

Dallas Morning News: Texas GOP’s unconstitutional Senate Bill 12 can’t and won’t compel better behavior from Big Tech

By Jared Schroeder

Texas lawmakers’ plan for stopping social media firms from blocking or banning certain ideas or speakers has just one itty, bitty problem — it’s flagrantly unconstitutional.

Senate Bill 12, which Sen. Bryan Hughes, R-Mineola, filed earlier this month, would empower the state to legally compel social media firms to leave up, or republish, content they would take down — and reinstate speakers they would remove from their spaces.

Gov. Greg Abbott threw his support behind the bill earlier this month. He described social media spaces as “modern-day public squares” and congratulated Hughes for “taking a stand against Big Tech’s political censorship and protecting Texans’ right to freedom of expression.”

The problem is, social media sites are not public spaces. They are private. When these firms remove content or speakers, they are not violating the First Amendment. They are managing their property. Texans know all about property rights. Can you imagine a law that forced someone who plants a yard sign supporting a Republican candidate to also place one for the Democratic opponent beside it? That’s what we’re talking about. The law would force a private entity to share ideas that go against its beliefs.

Orlando Sentinel: Anti-protest bill takes away our rights, police officer writes

By Daniel McDonald

I began my career in law enforcement more than two decades ago as a patrol officer in Tampa. As someone who has spent many years working to keep our community safe, I feel the need to speak out against House Bill 1/SB 484, a misguided effort by Gov. Ron DeSantis that would criminalize free speech and shut down Floridians’ right to peacefully assemble.

The right to protest peacefully is protected under the First Amendment, and it provides an important avenue for Americans to influence government decisions about issues that impact their everyday lives…

DeSantis’ bill ignores the concerns of public-safety organizations and would make the jobs of law enforcement harder by making already dangerous situations even more dangerous. It would also make it harder to hold vigilantes accountable for violence and property damage against peaceful protesters by adding new loopholes allowing them to escape civil liability.