The Courts
Wall Street Journal: Political Consultants Sue for Access to Small Business Loans
By Brody Mullins and Ted Mann
A trade association of political consultants is suing the Trump administration, arguing that the Small Business Administration is violating the First Amendment rights of its members by barring pollsters, lobbyists and campaign operatives from receiving emergency loans linked to the coronavirus pandemic.
At issue for the political consulting industry are a few words in federal rules that prohibit certain industries from applying for loans from the government. Small Business Administration rules specifically bar “businesses primarily engaged in political or lobbying activities.”
These businesses “are not immune from the financial hardships that Covid-19 has inflicted on the nation,” the American Association of Political Consultants said in a filing Monday in U.S. District Court for the District of Columbia. “Rather, these businesses are acutely suffering the severe economic impacts” of the economic fallout from the pandemic…
In a court filing, the group argued that preventing consultants, strategists and polling firms from qualifying for small-business loans violates their First Amendment right to free speech and requires them to “forego their constitutional rights to obtain a loan.” The SBA’s prohibition, they wrote, “treats lobbying and political businesses differently when they are in fact similarly situated to other small businesses.”
Miami Herald: BSO union president sues sheriff for his job back, saying his free speech was violated
By Devoun Cetoute
The Broward Sheriff’s Office’s union president has sued Sheriff Gregory Tony for his job back after Tony suspended him Friday for saying BSO was not providing the deputies with proper equipment to protect themselves from the novel coronavirus, the lawsuit says.
On Wednesday, Jeff Bell, president of the Broward Sheriff’s Office Deputies Association, and his attorney Robert Buschel, filed the civil rights lawsuit against Tony in Fort Lauderdale federal court.
“This is a case about the scope of free speech during an unprecedented time in our nation’s history, while a pandemic of COVID-19 viral infections kills thousands every day,” the lawsuit said…
The lawsuit alleges Tony infringed on Bell’s First Amendment rights of free speech.
Reason (The Volokh Conspiracy): 12-Year-Old “Politically Vocal Boy” Loses Libel Claim Against Newsweek
By Eugene Volokh
From McCafferty v. Newsweek Media Group, Ltd., decided yesterday by the Third Circuit, written by Judge Stephanos Bibas and joined by Judges Thomas Ambro and Cheryl Krause (DISCLOSURE: I filed an amicus brief supporting Newsweek, on behalf of the Reporters Committee for Freedom of the Press and the Pennsylvania Center for the First Amendment, and with the help of UCLA School of Law student Brenna Scully):
Political discourse can be bruising. People often express opinions that offend others. But the First Amendment protects virtually all of those opinions, even offensive and hurtful ones, to promote a greater good: robust political discourse. The price of free speech is putting up with all sorts of name-calling and hurtful rhetoric.
C.M. is a politically vocal boy. He claims that a Newsweek article tarred him, at age twelve, by accusing him of “defending raw racism and sexual abuse.” But the article contained derogatory opinions based only on disclosed facts, which are not enough to show defamation or false light. Even if they could, C.M. does not plead facts showing actual malice, which the First Amendment requires of those who step into the political spotlight. So the District Court dismissed his claims, finding that no reasonable reader would think the article defamed him. We agree and will affirm….
Congress
Bloomberg Government: Big Tech’s Favorite Law in Congress’s Crosshairs (Video)
By Andrew Satter
In recent years, members of Congress from both parties have started to raise concerns about a nearly two-decades old law that helped create the modern internet. The law, Section 230 of the 1996 Communications Decency Act, made the web a haven for free speech and free expression and gave rise to big tech companies like Google, Facebook and Twitter. Critics say it has also made the internet a breeding ground for trolls, sexual predators, misinformation, and censorship. In this video, one of the law’s original authors, Sen. Ron Wyden (D-Ore.), lawyer and author, Jeff Kosseff, and Bloomberg Government’s Rebecca Kern discuss what Section 230 means to the modern internet, and the law’s uncertain future.
DOJ
Wall Street Journal: Steele Dossier Disinformation Update
By The Editorial Board
Russia interfered in America’s 2016 election, as several government reports have established. The latest disturbing news is that Russia may have received an assist from no less than the Federal Bureau of Investigation.
That’s the takeaway of newly released portions of last year’s Department of Justice Inspector General report about the FBI’s investigation into Trump-Russia collusion. That report showed how the FBI abused its powers by misleading a secret court into granting surveillance warrants on the Trump campaign. Thanks to Congressional pressure, the Justice Department has now declassified footnotes showing that the FBI’s main source for its collusion allegations-Christopher Steele-may have been targeted as part of a Russian disinformation campaign. The FBI was warned of this threat but ignored it.
Online Speech Platforms
Washington Examiner: Breaking up Big Tech would have left us worse off during the coronavirus quarantine
By Casey Given
If the current pandemic has taught us anything, it’s how vital our interconnected world has become.
During the coronavirus and the ensuing societal lockdown, websites that once seemed somewhat trivial such as Facebook, YouTube, and Twitter have become essential sources of information for White House livestreams, breaking news, Centers for Disease Control and Prevention guidelines, and so much more…
So, it sure is a good thing that policymakers so far have ignored the loud cries from the likes of populists such as Sens. Josh Hawley and Elizabeth Warren to break up or heavily regulate large tech companies. We would be in a significantly weaker position during the ongoing crisis had we heeded their misguided calls to cripple the entrepreneurial freedom that has allowed the American tech industry to become the envy of the world…
Last June, Hawley introduced the “Ending Support for Internet Censorship Act” that would have required tech companies with revenues over $500 million to be certified as “politically neutral” by a board of government bureaucrats or risk losing protection under Section 230 of the Communications Decency Act. Section 230 shields websites from being held liable for the content users post, such as comments, blog posts, and bad reviews.
Candidates and Campaigns
New York Times: Biden Is Losing the Internet. Does That Matter?
By Kevin Roose
In a normal election year, a former vice president and presumptive Democratic nominee would have no trouble filling an arena. But the coronavirus has forced Mr. Biden to abandon in-person gatherings and adapt to an all-digital campaign strategy – a daunting pivot even in the best of times, but one made even harder by the need to compete for attention amid a pandemic and a once-in-a-generation economic collapse.
The shift has been clumsy for Mr. Biden, an old-school retail politician who relishes face-to-face interactions. He lacks the social media firepower of Mr. Trump, whose 106 million combined followers on Facebook and Twitter dwarf Mr. Biden’s 6.7 million, and whose White House coronavirus briefings have allowed him to commandeer the news cycle. Mr. Biden’s first virtual town hall last month was marred by technical problems, and some of his other digital experiments – like a soporific campaign podcast, “Here’s the Deal,” which did not rank among the top 100 podcasts on Apple Podcasts as of this week – have not gone as well as hoped.
Online popularity doesn’t always lead to electoral success. (If it did, New Yorkers would be listening to daily coronavirus briefings from Gov. Cynthia Nixon.) But underestimating the internet’s influence is a mistake, too. In 2016, Mr. Trump’s surging popularity among the internet’s grass roots was a bellwether that indicated his candidacy might be stronger than it appeared in traditional polls. Conversely, Mr. Biden’s lack of support from meme makers and viral-content mavens could signal trouble ahead.
Wall Street Journal: Biden Campaign Indicates Priorities USA Is Preferred Super PAC
By Ken Thomas
Joe Biden’s presidential campaign signaled Wednesday that it favors a Democratic super PAC established during the Obama era over another group formed last year as the party prepares for a general-election battle…
The signal that Priorities USA, which was founded in 2011, is the campaign’s preferred political-action committee sends a message to top donors about where they should give money and is a key step as Mr. Biden takes charge of the Democratic fundraising infrastructure…
Campaigns are barred under federal campaign finance law from directly coordinating with outside groups, but candidates can appear at their events as long as they don’t directly solicit donations. Mr. Biden has no plans to appear before any outside groups, according to a person familiar with his plans.
Mr. Biden initially opposed any super PAC supporting him but reversed his position in October. The former vice president, now the presumptive Democratic nominee, faces a major disadvantage in fundraising compared with President Trump and will need the help of such groups to bridge the difference.
Star Tribune: Minnesota Rep. Ilhan Omar’s campaign keeps husband’s political firm on payroll
By Torey Van Oot
U.S. Rep. Ilhan Omar’s campaign continues to work with a political firm founded by a longtime consultant she recently married, campaign finance filings show.
The Minnesota Democrat’s campaign paid E Street Group, a firm founded by her husband, Tim Mynett, $292,000 for advertising, fundraising, travel and other services between January and March of this year, according to a federal campaign finance report filed Wednesday.
The law doesn’t prohibit hiring a spouse for a federal campaign and it’s not unheard of for candidates and members of Congress to employ and pay relatives through their committees…
Omar’s relationship with Mynett and his firm attracted scrutiny in August 2019, after Mynett’s wife alleged that the consultant was having an affair with the congresswoman. The claim prompted a conservative group to file a complaint with the Federal Election Commission (FEC) questioning whether the payments were for personal, not professional, travel. The FEC has taken no public action in response to the complaint.
States & Territories
Reason (The Volokh Conspiracy): Penn. S. Ct. Rejects Free Speech Challenge to Shutdown
By Eugene Volokh
From the majority in Friends of Danny DeVito v. Wolf, handed down yesterday (the three-Justice partial dissent expressed no opinion on this):
DeVito Committee [a political campaign committee] argues the Executive Order impinges upon these constitutional guarantees, as it interferes with the right to peacefully assemble, as it closed a “place of physical operations” they wish to use to “hold meetings and to engage in speech and advocacy.”
Constitutional rights to free speech and assembly, however, are not absolute, and states may place content neutral time, place, and manner regulations on speech and assembly “so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.” … [T]he right of assembly and expressive association are “‘no more absolute than the right of free speech or any other right; consequently there may be countervailing principles that prevail over the right of association[.]'”
There is no question that the containment and suppression of COVID-19 and the sickness and death it causes is a substantial governmental interest…
The Executive Order does not place a restriction on supporters of DeVito Committee to assemble with each other and speak to each other, it only forecloses doing so in the physical campaign office. It does not in any respect limit the ability to speak or assemble, however, as it does not in any respect prohibit operations by telephone, video-conferencing, or on-line through websites and otherwise. In this era, cyberspace in general and social media in particular have become the lifeblood for the exercise of First Amendment rights.
I think this is the right result, but I don’t entirely agree with the analysis. I think the order doesn’t leave open “ample alternative channels” for expression, especially given that the First Amendment singles out peaceable assembly as a separately protected right…
Techdirt: Puerto Rico Decides The 1st Amendment Doesn’t Apply To Its Citizens; Criminalizes ‘Fake News’
By Tim Cushing
The Puerto Rican government has added onto its Public Security law to criminalize certain kinds of speech. Here’s the Committee to Protect Journalists on the island’s “fake news” law. (h/t Sarah McLaughlin)
Puerto Rico Governor Wanda Vázquez signed an amendment to the island’s Public Security law on April 6 making it illegal for media outlets or social media accounts “to transmit or allow the transmission” of “false information” relating to government proclamations or executive orders concerning COVID-19 or other disasters…
The government will apparently be the final arbiter on the truthiness of transmitted information…
[I]t makes it illegal for media outlets or social media accounts “to transmit or allow the transmission” of “false information with the intention of creating confusion, panic, or public hysteria, with regards to any proclamation or executive order declaring an emergency, disaster or curfew.” …
As the CPJ notes, this doesn’t just violate the Constitution, it makes it more difficult for journalists to cover the pandemic as it unfolds. A lack of solid information isn’t the same thing as misinformation, but criminalizing speech the government feels is inaccurate (and costs money to respond to) is only going to result in less information being spread. “Fake news” laws tend to do collateral damage to non-fake news reporting as reporters in the middle of unfolding events opt to self-censor, rather than run the risk of being prosecuted.
By Andrew Giambrone
A District government agency last week removed hundreds of campaign signs showing support for an upstart political candidate who’s challenging a well-funded D.C. councilmember in the June Democratic primary. The agency now says the mass removal of 248 signs from street poles was an “honest mistake” by new employees, but its account of the incident has shifted since reporters and the candidate’s campaign began asking questions.
The D.C. Department of Public Works says it was responsible for removing the signs, which displayed the name of Janeese Lewis George, a former attorney for the District government, and had been posted on major corridors in Ward 4, where George is running against incumbent Brandon Todd. George’s were the only campaign signs taken down during the incident, even though Todd and third Democratic candidate Marlena Edwards also have campaign signs posted throughout the city’s northernmost ward…
Although most of George’s signs have since been restored, only 150 of the 248 that were taken down were salvageable, according to the department…
When George’s campaign followed up with DPW, the department said a new driver had removed the campaign signs and that someone had “submitted a service request for an illegal poster, which do fall under us” …
“Someone absolutely needs to explain this,” George stated at the time. “Political speech is not supposed to be censored by government agencies in any way. Full stop.”
Reason: Raleigh Police Department: ‘Protesting Is a Non-Essential Activity’
By C.J. Ciaramella
In response to a protest calling for North Carolina’s economy to reopen yesterday, the Raleigh Police Department arrested at least one person for violating the state’s stay-at-home orders.
But wait, don’t you have a constitutional right to assemble? Not so fast, says the Raleigh Police Department…
This blithe assertion that fundamental First Amendment activities are “non-essential” did not go over well, to put it mildly.
“Enforcement of emergency orders should not exacerbate racial disparities and should not lead to custodial arrest unless doing so is the last resort, because arresting people and sending them to jail is antithetical to public health,” Kristie Graunke, legal director of the American Civil Liberties Union of North Carolina, says. “The goal of enforcement should be to facilitate long-term compliance rather than to punish non-compliance.”
“Even under emergency orders, the First Amendment right to protected speech, including protest speech, remain in effect,” Graunke continues. “But government officials may temporarily limit in-person gatherings in circumstances where medical and scientific experts agree that assemblies of people pose an immediate and grave risk to public health. Any public health measure limiting civil liberties must be re-evaluated when the medical and scientific consensus changes.” …
Gathering in crowds right now is not a good idea. It’s a stupid and potentially deadly one. But governors, mayors, and police claiming that protected First Amendment activities are now verboten should give every civil libertarian the heebie-jeebies.
WMUR: NH Primary Source: Merged voting rights, campaign finance reform groups to begin NH field operation
By John DiStaso
Two leading progressive groups – pushing for campaign finance reform and voting rights – plan to launch a significant field operation in the Granite State ahead of the state elections later this year.
End Citizens United and Let America Vote said the joint effort will “work to elect legislative candidates, provide volunteers and organizational support for endorsed candidates and work with in-state partners to make voting safe, accessible and fair.” Jeff Taylor has been named New Hampshire state director…
“New Hampshire is a battleground state and a crucial state in the fight to root out corruption and make government work for everyone,” said Tiffany Muller, president of End Citizens United and Let America Vote. “The state Legislature has already passed several comprehensive government and voting reform bills, only to see Governor Sununu veto them.” …
The groups said that in 2019 Sununu vetoed legislation to call on Congress to pass a constitutional amendment to overturn the 2010 U.S. Supreme Court Citizens United ruling, to establish an independent redistricting commission and to allow absentee voting for any reason.
WXPR: Northwoods Voters Provided Clear Direction On Referendum Issues
By Ken Krall
Seventeen communities voted Tuesday to recommend amending the U.S. Constitution to clarify that only human beings should have inalienable rights and money is not the same thing as free speech.
