Internet Speech Regulation
New York Times: How to Keep the Rising Tide of Fake News From Drowning Our Democracy
By Richard L. Hasen
[T]he cheap speech era requires new legal tools to shore up our democracy.
Among the legal changes that could help are an updating of campaign finance laws to cover what is now mostly unregulated political advertising disseminated over the internet, labeling deep fakes as “altered” to help voters separate fact from fiction and a tightening of the ban on foreign campaign expenditures. Congress should also make it a crime to lie about when, where and how people vote…We also need new laws aimed at limiting microtargeting, the use by campaigns or interest groups of intrusive data collected by social media companies to send political ads, including some misleading ones, sometimes to vulnerable populations.
Unfortunately, the current Supreme Court would very likely view many of these proposed legal changes as violating the First Amendment’s free speech guarantees. Much of the court’s jurisprudence depends upon faith in an outmoded “marketplace of ideas” metaphor, which assumes that the truth will emerge through counterspeech. If that was ever true in the past, it is not true in the cheap speech era. Today, the clearest danger to American democracy is not government censorship but the loss of voter confidence and competence that arises from the sea of disinformation and vitriol.
What’s worse, some justices on the court who otherwise fashion themselves as free speech libertarians have lately espoused positions that could exacerbate our problems.
Free Expression
The Atlantic: Tolerating COVID Misinformation Is Better Than the Alternative
By Conor Friedersdorf
Human Rights Watch reports that at least 83 governments used the pandemic “to justify violating the exercise of free speech.”
The United States has avoided the worst excesses of this global authoritarian turn. The First Amendment constrains its government from infringing on freedom of speech. And many Americans reliably object to nongovernmental attempts to suppress ideas, favoring the liberal notion that “the remedy for speech that is false is speech that is true,” as Justice Anthony Kennedy once put it.
But like wars, terrorist attacks, and other events that confront us with mass death, pandemics cause some people to doubt the liberal project and to clamor for an alternative that feels safer. So a growing faction in the U.S. feels that, when it comes to “medical misinformation,” liberal remedies for false, unreasoned, or uninformed speech are insufficient to our new pandemic reality—as if being wrong on most subjects is permissible, but being wrong on COVID-19 is too costly to tolerate…
But that judgment is mistaken. During past crises, even wars, the case for liberal speech norms remained so strong that Americans look back on departures from them with regret. Likewise, I can think of at least four reasons why neither government officials nor corporate bosses should try to protect the public by newly restricting the expression of ideas, even during a pandemic.
New York Times: Putin’s Fear of Free Speech Speaks Volumes
By Jane Coaston
On Friday, the Russian government blocked access to Twitter, Facebook and multiple news sites, in an effort to stop people from speaking out against the war in Ukraine. The state also shut down the pillars of the country’s independent media, including the radio station Echo of Moscow that was launched by Soviet dissidents in 1990. And on Friday, the Duma passed a law punishing anyone who spreads “false information” about the Russian military, which could include anyone calling what is taking place in Ukraine a “war,” with a possible 15 years in prison.
These efforts reminded me of something that happened in my hometown, Cincinnati, three decades ago, when I first thought about what speech — and keeping it free — meant.
During the ’90s, when I was a kid, the city had a Christmas season tradition of sorts. The Ku Klux Klan would erect — or attempt to erect — a 10-foot plain wooden cross on Fountain Square downtown…
Permitted by a court of law to speak freely, the Klansmen did not strike fear into the hearts of Cincinnatians. They looked like idiots, their speech rendered inert and inept.
That’s the beauty of freeing even the worst speech: Sometimes it can shoot itself in the foot. The speech that offends me the most often represents ideas that are the most easily contested by basic facts, or gentle questioning.
So bring on the speech and the confidence to respond to it, challenge it or mock it out of hand. That’s the confidence the Russian government doesn’t have. And that’s the confidence we must re-establish within ourselves.
By Dominic Patten
Facing rising outcry, Disney CEO Bob Chapek has decided to play a political and cultural version of a church mouse when it comes to Florida’s new ‘Don’t Say Gay’ bill…
“As we have seen time and again, corporate statements do very little to change outcomes or minds,” said the Disney exec in an email sent out to staff this morning. “Instead, they are often weaponized by one side or the other to further divide and inflame,” Chapek added. “Simply put, they can be counterproductive and undermine more effective ways to achieve change.”
Axios: Scoop: High-powered group targets Trump lawyers’ livelihoods
By Lachlan Markay and Jonathan Swan
A dark money group with ties to Democratic Party heavyweights will spend millions this year to expose and try to disbar more than 100 lawyers who worked on Donald Trump’s post-election lawsuits, people involved with the effort tell Axios…
David Brock, who founded Media Matters for America and the super PAC American Bridge 21st Century and is a Hillary Clinton ally and prolific fundraiser for Democrats, is advising the group…
Some of the lawyers targeted describe the tactics as naked political intimidation…
Brock told Axios in an interview that the idea is to “not only bring the grievances in the bar complaints, but shame them and make them toxic in their communities and in their firms.”
“I think the littler fish are probably more vulnerable to what we’re doing,” Brock said. “You’re threatening their livelihood. And, you know, they’ve got reputations in their local communities.”
Congress
New Yorker: Turning the Focus on America’s Oligarchs
By Evan Osnos
In his State of the Union address, Biden asked Congress to pass the Disclose Act, which seeks to limit the role of dark money in elections, so that Americans “can know who is funding our elections,” as Biden put it. The bill’s sponsor, Senator Sheldon Whitehouse, of Rhode Island, told me, “The fact that all of this has blown up overseas, and we’re demanding all this transparency about foreign autocrats and kleptocrats, gives us a good argument for cleaning this up at home and for focussing public attention.”
Putin’s brutal, naked attack on a sovereign, democratic society has clarified the risk posed by illiberal forces around the world. But the broader assault on democracy has been building for years, orchestrated in obscure legal maneuvers and self-serving political projects that have sapped confidence in elected governments, eroded transparency, and fed public cynicism. “It’s the fossil-fuel industry’s dark money that is blocking Congress from passing climate-safety legislation,” Whitehouse said. “If ExxonMobil can hide its political spending behind dark-money fronts, then why can’t the Iranians? Why can’t Vladimir Putin? We need transparency.”
Privacy
Courthouse News (Podcast): Sidebar: The right to be forgotten
The internet never forgets.
It’s an invaluable tool, but also one that provides little forgiveness for some individuals whose past run-ins with law enforcement, financial woes and photos of a night out on the town become publicized.
We are coming to you in this episode with a primer on why the “right to be forgotten” became law in the European Union, and how the concept plays out in courtrooms and newsrooms across the United States as the government and the media try to determine what deeds can and should be erased from the internet at large.
While the EU requires search engines to remove links in search results upon valid request, the U.S. has long sided with people’s right to know and speak freely without fear of censorship. But that has not stopped the conversation from entering into our public discourse.
Special guests:
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Ali Arko, defamation and content removal attorney with Kohrman Jackson & Krantz
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Paul Sternberg, internet defamation attorney
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Daniel Castro, vice president of the Information Technology and Innovation Foundation
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David Krause, editor of The Aspen Times
The States
Florida Politics: Senate passes citizen initiative limits on out-of-state influence, awaits House answer
By Renzo Downey
A bill to curb out-of-state influence in the ballot initiative process is on its way back to the House as lawmakers revisit the proposal after it was struck down last year.
The Senate voted 22-16 Monday to pass the bill (HB 921), along near party lines. Because senators approved changes they hoped would avoid a second injunction in the courts, the bill must next return to the House.
The proposal, filed by Eucheeanna Republican Rep. Brad Drake, would limit non-Floridians from donating more than $3,000, and out-of-state political committees from receiving donations worth more than $3,000, when it comes to ballot initiatives in the petition-gathering process.
The provision comes after a federal judge ruled against the state in July regarding similar legislation to limit the influence of money in the petition-gathering process, saying it violated the First Amendment. The measure would have capped all donations to political committees backing proposed constitutional amendments at $3,000 during the signature-gathering process.
The Senate version (SB 1352), carried by Sanford Republican Sen. Jason Brodeur, initially did not contain the out-of-state influence provision and instead only addressed foreign contributions. However, as the sponsor of last year’s bill, Estero Republican Sen. Ray Rodrigues shepherded the new attempt to constrain funding for constitutional amendment initiatives, which have gone against Republican lawmakers’ interests in recent years.
