Supreme Court
National Law Journal: Nationwide Protests May Resound in Supreme Court First Amendment Case
By Tony Mauro
The U.S. Supreme Court will soon consider a petition that pits police against a leader of the Black Lives Matter movement in a dispute over the First Amendment rights of assembly, petition and speech.
[T]he case, Mckesson v. Doe, . . . dates back to a 2016 protest in Baton Rouge, Louisiana, triggered by the death of Alton Sterling, an African American man shot and killed at close range by police responding to an anonymous 911 call…
During the demonstration, an unidentified person threw a rock and injured an unnamed Baton Rouge police officer. The officer, referred to as “John Doe,” filed a lawsuit against DeRay Mckesson, a Black Lives Matter movement organizer.
Mckesson was a leader of the protest but was not the person who injured the officer. Nonetheless, the U.S. Court of Appeals for the Fifth Circuit ruled last December that the lawsuit could proceed against Mckesson.
The dispute may sound small-gauged for Supreme Court status, but First Amendment advocates and the American Civil Liberties Union have framed it as a major cause. They assert that upholding the Fifth Circuit could result in chilling the right to assemble and petition by opening the door to nuisance lawsuits against protest leaders for injuries they did not cause…
Media lawyer Floyd Abrams, a senior counsel at Cahill Gordon & Reindel, said, the case “addresses the issue of whether the organizer of a lawful protest can be held personally liable for the misconduct of one of the protestors. If that were the case, the right to protest could far too easily and routinely be stifled.”
Abrams is one of several First Amendment advocates and scholars who joined a friend of the court brief in support of Mckesson. The brief emphasizes that “Officer Doe is entitled to recover for his injury. But his remedy is owed by the rock thrower, not Mckesson.”
[Ed. note: The Institute for Free Speech filed an amicus brief in support of Mckesson.]
The Courts
Multichannel News: DOJ: First Amendment Protects Peaceful Protests
By John Eggerton
The Justice Department is invoking the First Amendment–and the peaceful protests of George Floyd’s murder–to support peaceful protest assemblies in the time of COVID-19, specifically a gathering to protest COVID-19-related restrictions in California.
The Justice Department has filed an amicus brief in the Ninth Circuit in support of Ron Givens and Christine Bish, who are suing the State of California because they want to hold a protest with 500-1,000 people on the grounds of the State Capitol Building.
Justice said a district court was wrong to to side with the plaintiffs against what DOJ says it the state’s “total ban on peaceful protests.”
“While States have broad authority to protect the public during the COVID-19 pandemic, the First Amendment does not give them carte blanche to ban peaceful public protests and rallies,” Justice told the court…
“[T]he real and legitimate national outcry over George Floyd’s tragic killing has shown the importance of peaceful public protests to maintaining our civic fabric-and has highlighted the extreme nature of a blanket protest ban in California,” DOJ said.
“Political speech in traditional public gathering spaces is at the core of the First Amendment’s protection of speech and assembly,” wrote Assistant Attorney General Eric Dreiband of DOJ’s Civil Rights Division.
Courthouse News: Journalist Blinded in One Eye During Protest Sues Minneapolis Police Chief
By Andy Monserud
A journalist who was left permanently blind in one eye after she was hit with a projectile during recent protests in Minneapolis claims in a federal lawsuit Wednesday that the city and law enforcement officials used excessive force and violated her First Amendment rights…
[Plaintiff Linda] Tirado’s complaint also alleges that police may have been deliberately targeting the press, citing earlier incidents in which the Minneapolis Police Department appeared to do so and a letter from Police Officers Federation President Lt. Bob Kroll to his union’s rank-and-file disparaging the media.
“Whatever one’s view of police conduct in relation to the protestors, and of protestors’ actions, there can be no doubt that under the United States Constitution and the First Amendment, the police must not shoot journalists reporting on civil protests,” states the complaint…
On Tuesday, U.S. District Judge Wilhelmina Wright, a Barack Obama appointee, denied class certification in a similar lawsuit brought by freelancer Jared Goyette and the American Civil Liberties Union. Goyette was also shot in the face with less-lethal ammunition, and cited Tirado’s lost eye and several other injuries to reporters in his complaint.
Courthouse News: Judge Restrains Portland, Oregon Police From Using Tear Gas
By Karina Brown
Tear gas was the subject of a court ruling late Tuesday, when a federal judge in Portland issued a two-week restraining order, partly granting [activist group] Don’t Shoot Portland’s request to ban police use of tear gas. U.S. District Judge March Hernandez said police may use the chemical weapon against protesters only as a life-saving measure.
Hernandez found credible Don’t Shoot’s claim that police used tear gas indiscriminately against peaceful protesters.
“In some of these instances, there is no evidence of any provocation,” Hernandez wrote. “In others, individuals appear to have shaken fences and thrown water bottles and fireworks at the police. Either way, there is no dispute that plaintiffs engaged only in peaceful and non-destructive protest. There is no record of criminal activity on the part of plaintiffs. To the contrary, there is even evidence that some protesters were confronted with tear gas while trying to follow police orders and leave the demonstrations.”
The ruling follows on Mayor Wheeler’s recent directive limiting the use of tear gas to situations where “there is a serious and immediate threat to life safety, and there is no other viable alternative for dispersal.”
Courthouse News: Seattle Sued Over Tear Gas, Rubber Bullets Fired at Protesters
By Martin Macias Jr.
Seattle protesters brought a federal complaint against the city Tuesday, saying police used excessive force in firing tear gas and rubber bullets at them in recent demonstrations…
Seattle police responded to peaceful demonstrations by deploying tear gas, less-lethal rubber bullets, flash-bang grenades and pepper spray.
Direct actions from protesters denouncing the police tactics prompted Mayor Jenny Durkan to announce a 30-day ban on the use of tear gas for crowd control.
But Black Lives Matter Seattle-King County says in the lawsuit that the Seattle Police Department deployed chemical agents, also called CS gas, against demonstrators as recently as Sunday night.
Represented by the American Civil Liberties Union of Washington, Black Lives Matter is joined as a plaintiff by one journalist, one woman who says the risk of police violence has deterred her from protesting, and four protesters who say they were injured by police weapons during recent actions.
“In response to these protests, the SPD has exercised an overwhelming and unconstitutional use of force to discourage these protesters from exercising their constitutional rights,” the 27-page complaint states. “On an almost nightly basis, the SPD has indiscriminately used excessive force against protesters, legal observers, journalists, and medical personnel.”
Congress
Politico: Morning Tech
By Steven Overly
QUOTE DU JOUR – “There is a difference between being a platform that facilitates public discourse and one that peddles incendiary, race-baiting innuendo guised as political speech for profit. Last week, your employees walked out to stand up against racism and in support of truth. You should decide which side you are on.” -House Homeland Security Committee Chair Bennie Thompson (D-Miss.) and other House Democrats in a letter to Facebook CEO Mark Zuckerberg.
Washington Times: McConnell shames ‘far left’ for banning debate, ideas
By Alex Swoyer
Senate Majority Leader Mitch McConnell shamed the far-left and the media on Wednesday for picking and choosing what speech it will allow during the national debate over racism and policing, saying censorship runs afoul of the nation’s core beliefs.
“We cannot let the First Amendment become another casualty of this troubled moment,” the Kentucky Republican said on the Senate floor…
Republicans have grown increasingly outraged by push back from social media and some liberal news outlets looking to ban political speech and the free exchange of ideas.
A key example, Mr. McConnell said, was an op-ed in The New York Times written last week by Sen. Tom Cotton, an Arkansas Republican who defended President Trump’s authority to use active military troops to stop the rioting and looting engulfing scores of U.S. cities.
An uprising of New York Times reporters, who were dismayed by the notion that the military would confront citizens, caused the publisher to pull the op-ed and the opinion editor to resign…
Mr. McConnell said that a recent survey found 58% of people agreed with Mr. Cotton’s position but the far-left wanted to end the discussion.
“We’ve seen this movie before. The far-left then decides to silence the speaker,” he said. “All of the facts couldn’t hold a candle to the hurt feelings.”
By Mike Masnick
[Senators Marco Rubio, Josh Hawley, Kelly Loeffler, and Kevin Cramer] have sent a letter to the FCC, picking up on President Trump’s silly executive order and asking FCC chair Ajit Pai to reinterpret Section 230 at direct odds with the plain language of the law and the way that every single court to this day has interpreted it…
Everything about this letter is silly. But because some people might take it seriously, let’s go through why it’s silly. [They write:]
The unequal treatment of different points of view across social media presents a mounting threat to free speech. This Executive Order is an important step in addressing this form of censorship.
Once again, there is literally no evidence that there is any “unequal treatment” of different points of view, but even if there was the 1st Amendment would protect it. There is no law, anywhere, that says that you have to treat all speech equally, and that if you don’t it somehow leads to you facing liability. And, honestly, Republicans like these Senators should recognize that if that situation were to change, the first ones in trouble would be partisan organizations like Fox News.
But, thankfully, the 1st Amendment says that sites can moderate how they want.
Furthermore, Section 230 is not a “mounting threat to free speech.” Taking it away, however, would very much be a threat to free speech. Again, without Section 230, websites will have strong incentives not to host third party content, because the risks of liability will be huge, meaning that many places that now enable people to speak out will likely scale that back significantly, and in some cases entirely. The threat to free speech is coming from these Senators, not Section 230.
NBC29: Sen. Tim Kaine vows to fight use of military against peaceful protesters
By Kasey Hott
[Tuesday, U.S. Senator Tim Kaine said] introducing an amendment that would block the use of military funds or personnel against people who are peacefully protesting is something he never thought he’d have to do.
“We all take an oath to uphold the Constitution of the United States, and in the First Amendment, and it’s in the First Amendment for a reason, people are guaranteed the right to peacefully assemble, and they are guaranteed the right to petition government for redress of grievances,” Sen. Kaine said.
Right to Protest
The Hill: 1,200 DOJ alumni call for probe of Barr’s role in crowd clearing outside White House
By John Kruzel
More than a thousand Department of Justice (DOJ) alumni called on the department’s internal watchdog to investigate Attorney General William Barr’s role in the aggressive dispersal last week of protesters gathered near the White House.
Some 1,260 former federal prosecutors, judges and department officials penned a letter Wednesday asking DOJ Inspector General Michael Horowitz to investigate after law enforcement used chemical agents and rubber bullets to scatter the peaceful crowd.
“If the Attorney General or any other DOJ employee has directly participated in actions that have deprived Americans of their constitutional rights or that physically injured Americans lawfully exercising their rights, that would be misconduct of the utmost seriousness, the details of which must be shared with the American people,” the former officials wrote on Medium.
The letter comes after the Washington, D.C., chapter of Black Lives Matter, the American Civil Liberties Union and other groups backed a lawsuit brought by several protesters against President Trump and members of his administration, including Barr, as well as security personnel.
Washington Post: U.S. Olympic officials take step to support protesting athletes
By Rick Maese
For decades, the U.S. Olympic and Paralympic Committee has struggled with the best way to handle athletes staging political protests during competitions, usually handing down punishments and kowtowing to international rules. On Monday, in the wake of civic protests and wide-ranging discussions on race and equality across the country, the governing body signaled its intent to challenge long-standing Olympic rules and support American athletes’ ability to make political statements.
Sarah Hirshland, the USOPC’s chief executive, sent a letter to U.S. athletes late Monday announcing the formation of “an athlete-led group to challenge the rules and systems in our own organization that create barriers to progress, including your right to protest.
“We will also advocate for change globally,” she wrote.
Media
By Charlie Nash
CNN responded to President Donald Trump’s 2020 campaign after its lawyers sent the network a cease and desist letter over a poll which showed Democratic presidential candidate Joe Biden ahead by 14 points.
“To my knowledge, this is the first time in its 40 year history that CNN had been threatened with legal action because an American politician or campaign did not like CNN’s polling results,” wrote CNN’s General Counsel David Vigilante. “To the extent that we have received legal threats from political leaders in the past, they have typically come from countries like Venezuela or other regimes where there is little or not respect for a free and independent media.”
Vigilante concluded, “Your letter is factually and legally baseless. It is yet another bad faith attempt by the campaign to threaten litigation to muzzle speech it does not want voters to read or hear. Your allegations and demands are rejected in their entirety.”
President Trump’s campaign had accused CNN in the cease and desist of publishing a poll “designed to mislead American voters through a biased questionnaire and skewed sampling,” and described it as a “stunt and a phony poll to cause voter suppression, stifle momentum and enthusiasm for the President, and present a false view generally of the actual support across America for the President.”
Online Speech Platforms
Nonprofit Times: Nonprofits Mull Leaving Facebook Amid Multiple Concerns
By Richard H. Levey
Leaders of several prominent nonprofits are discussing reducing Facebook’s role in their media mix, if not leaving it entirely. The conversation reflects a growing perception that the online platform is censoring nonprofits’ messaging, thwarting organizing efforts and putting barriers between nonprofits and donors…
“On a platform like Facebook, that data is going to be tracked and monetized and monitored,” said Amy Sample Ward, CEO of NTEN, a Portland, Ore., nonprofit that promotes racially ethical technology strategies. “This is creating a lot of data about who in your community agrees with certain things, or is willing to take certain actions, and that [creates] a data paper trail that certain folks could do a lot of harm with.”
Facebook’s efforts to screen “political statement” advertising have frustrated some nonprofit leaders. The criteria used are not transparent, in an effort to prevent bad actors from tweaking their messaging to circumvent censorship. But legitimate organizations are caught in the filter, and leaders suspect aspects inherent to their identities might be triggering alerts.
“When we are trying to promote or boost our ads on stories or issues that have us quoted in them, [the ads] will get rejected because they are classified as political,” said Shireen Mitchell, founder of Washington, D.C.-based Stop Online Violence Against Women. “The work we do is tracking online harassment threats or actions that are taken against certain groups of people, particularly women of color,” she said. Mitchell suspects that, under the filtering algorithms, “being a woman of color in the [science, technology, engineering and mathematics fields] is a ‘political statement’.”
Ars Technica: The Internet’s most important-and misunderstood-law, explained
By Timothy B. Lee
There’s at least one thing that Joe Biden and Donald Trump seem to agree on: that federal law gives unfair legal immunity to technology giants.
In an interview with The New York Times published in January, Biden argued that “we should be worried about” Facebook “being exempt” from lawsuits. The Times, he noted, “can’t write something you know to be false and be exempt from being sued.” But under a 1996 law known as Section 230, Biden claimed, Facebook can do just that.
“Section 230 should be revoked immediately,” Biden said.
Just last month, Trump very publicly expressed a similar view.
“Social media giants like Twitter receive an unprecedented liability shield based on the theory that they are a neutral platform, not an editor with a viewpoint,” he said during an Oval Office signing ceremony for an executive order designed to rein in big technology companies…
There’s a sliver of truth to these descriptions… The law really does give broad immunity to websites that wasn’t available to anyone before the Internet. But [both] comments fundamentally misrepresent how Section 230 works.
Biden is wrong to suggest that Section 230 treats Facebook differently from The New York Times. If someone posts a defamatory comment in the comment section of a Times article, the company enjoys exactly the same legal immunity that Facebook gets for user posts. Conversely, if Facebook published a defamatory article written by an employee, it would be just as liable as the Times.
Meanwhile, Trump [is] wrong to suggest that Section 230 requires online platforms to be neutral. In reality, the law was written to encourage, not discourage, online platforms to filter user-submitted content. It has no requirement for neutrality-political or otherwise.
The Hill: Twitter testing tool to prompt users to open article before retweeting
By Chris Mills Rodrigo
Twitter is testing a new tool that prompts users to open articles before retweeting them.
The pilot program announced Wednesday is currently limited to Android users in English.
The test will be run “for at least a few weeks to get enough data to make an informed decision on next steps,” a company spokesperson told The Hill.
“Sharing an article can spark conversation, so you may want to read it before you Tweet it,” Twitter Support tweeted.
“To help promote informed discussion, we’re testing a new prompt on Android — when you Retweet an article that you haven’t opened on Twitter, we may ask if you’d like to open it first,” it added.
This is the latest in a series of tests Twitter has run aimed at improving discourse on the platform and limiting misinformation.
Last month it rolled out a test feature allowing users to limit who can reply to their tweets.
Twitter has also recently given users the ability to hide certain replies to the posts.
The States
KAWC: Arizona Asks Appeals Court to Block Laws That Regulate Campaign Finance
By Howard Fischer, Capitol Media Services
An attorney for the state asked the Court of Appeals to block the Citizens Clean Elections Commission from enforcing certain laws that regulate how much candidates and others can spend on campaigns and what the public must be told about it.
Tim Berg told the judges on Wednesday that the Republican-controlled Legislature was within its power in 2016 in crafting exceptions to campaign finance laws. He said the changes were not directly part of the Clean Elections Act which voters enacted in 1998.
But commission attorney Joseph Roth said that the 2016 alterations violated the Voter Protection Act, which bars legislators from tinkering with what voters have enacted, because it effectively nullified what voters had approved because of the way lawmakers crafted the proposal. And that, he said, unconstitutionally undermined the intent of the 1998 law which was designed to reduce the influence of money on politics.
What the appellate court decides ultimately will determine the legality of what foes of the 2016 changes be considered loopholes that legislators put in the law. That includes including one that allows supporters to effectively provide unlimited amounts of cash to get candidates elected without having to disclose who they are.
The 2016 law was championed by then-House Speaker J.D. Mesnard, R-Chandler, [who] said that existing laws interfered with the rights of free speech and people to participate in the political process with their dollars without giving up their right of privacy.
