The Courts
National Review: The Second Circuit Court of Appeals Was Wrong to Rule That Trump Can’t Block Twitter Users
By David French
By no traditional legal measure of “control” does Trump control his Twitter account. Twitter owns and controls his account, and he has no legal right to wrest control of it from Twitter…
There is no exchange of money, the user has no right to the platform, and Twitter can not only eliminate your access entirely but censor any single tweet. If it chooses, it can even remove Trump’s ability to block, mute, or take any other action…
Writing in response to the trial court’s ruling against Trump last year, law professor Greg Dolin compared Twitter to a radio call-in show that is hosting a government official as a guest. The politician has no right to be on the show, the host can send the politician packing at any time, and the host has ultimate control over not only the politician’s presence but also any callers’ speech. In other words, Trump remains on Twitter entirely at Twitter’s discretion.
In that circumstance, there is no “public forum.” There is instead a public official using a private platform to attempt to amplify his specific message, with the permission of the entity that controls the platform. The court’s ruling, in this circumstance, represents government intervention in Twitter’s control of its own service. The court is overriding the permissions Twitter gave its own user…
Again, to borrow one of Professor Dolin’s analogies, “If a politician is holding a rally in a park (a traditional public forum), it doesn’t follow that he must permit critics to share the stage with him.” The Twitter thread beneath any tweet can undermine or amplify the president’s chosen message. So long as Twitter grants the user the ability to regulate his or her Twitter replies, then that regulation is an integral part of the user’s expression.
If, say, Kamala Harris wins the White House and Twitter permits her to use its services to announce that she’s forming a committee to study the feasibility of reparations for slavery, does she then have to allow that thread to be hijacked by white nationalists and other vile alt-right voices? I say no. The Second Circuit says yes.
Congress
The Verge: Conservative groups push Congress not to meddle with internet law
By Makena Kelly
Over a dozen right-leaning groups wrote to Congress on Wednesday asking leaders to reject any changes to the law that provides social media platforms with their largest legal shield, even as members on both sides of the aisle are now calling for major changes to the law.
Over the past few months, members of Congress and the White House have ramped up attacks on social media platforms. Democrats have often targeted them for poor data privacy practices, and Republicans have focused more on content moderation methods that they believe favor liberal-leaning views. Republicans have floated around changes to Section 230 of the Communications Decency Act, which relieves companies from liability for content posted on their platforms, as the solution to all of their content moderation woes, and legislation making major changes to the law has already been introduced.
Other right-leaning groups like FreedomWorks and Americans for Prosperity see any changes to the law as a mistake. According to these groups, changes to Section 230 would hurt Republicans and Democrats equally.
“Countless conservative voices benefit from the liability protections guaranteed by Section 230, and oppose any attempts to end this vital provision,” David Williams, president of the Taxpayers Protection Alliance, said. “The internet flourishes when social media platforms allow for discourse and debate without fear of a tidal wave of liability. Ending Section 230 would shutter this marketplace of ideas at tremendous cost.”
Washington Post: House panel votes to subpoena Kushner, former attorney general Sessions in investigation of whether Trump obstructed justice
By John Wagner
The committee is also seeking to compel testimony related to payments before the 2016 election to women who claimed to have had affairs with Trump years ago.
To that end, the committee voted to authorize subpoenas of Keith Davidson, a former attorney for adult-film star Stormy Daniels, National Enquirer editor Dylan Howard and American Media Inc. chief executive David Pecker. Prosecutors allege that Howard and Pecker were involved in deals to silence Daniels and former Playboy model Karen McDougal.
Wall Street Journal: Congress, Internet Players and Section 230 (Letters)
Like my friend Chris Cox (“Hawley’s Bad Idea to Protect Speech,” op-ed, June 24), I sponsored Section 230 of the Communications Decency Act and agree that it is essential to a free and open internet.
But Section 230 is only one part of a much larger problem. Twenty years ago Congress made lots of decisions about new policy issues presented by the internet. Most of the decisions have worked well, but some haven’t.
Even worse, the internet community hasn’t helped Congress fix policy problems when they do show up. That’s why Sen. Josh Hawley and others feel compelled to offer solutions on free speech, privacy, antitrust, etc., even if the solutions are highly imperfect…
The internet community may have time to redeem itself. Nothing will happen in Congress in the next two years, and there is encouraging talk about “convening the internet community” to deal with a handful of key problems. A task force on “Internet Policy 20 Years Later” could have a big impact, as long as it includes all parts of the internet community, not just a few large companies or trade associations. Unlike Congress it has hands-on experience with the issues. We need its help so that version 2.0 of internet policy will be better.
Rick White, Member of Congress 1995-99
Andy Kessler suggests that as an alternative to censorship or tight regulation, social media sites could implement a “Trustworthy Index” for posts, ranging between 0 and 99-suggesting that The Wall Street Journal would rank at 99 (“Kill Section 230, Kill the Internet,” Inside View, July 1). But it seems likely that if users are allowed to contribute to this index, it would come to reflect how well the source agrees with the users’ biases, not how accurate the source is objectively…
Alex Prieger
DOJ
Daily Beast: Mueller Missed the Crime: Trump’s Campaign Coordinated With Russia
By Jed Shugerman
The bottom line is that the Mueller Report is a failure not because of Congress or because of public apathy, but because it failed to get the law, the facts, or even the basics of writing right. When Mueller testifies before Congress on July 17, he should be pressed on all of this.
The DOJ’s initial appointment explicitly tasked Mueller with investigating campaign “coordination,” and it is not too much to ask that he get the law of “coordination” right. The report stated that “‘coordination’ does not have a settled definition in federal criminal law. We understood coordination to require an agreement-tacit or express.”
However, Congress purposely sought to prevent such narrow interpretations: in 2002, it passed a statute directing that campaign finance regulations “shall not require agreement or formal collaboration to establish coordination.” The Federal Election Commission established the regulations for the implementation of the statute: “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate,” with no need to show any kind of agreement.
Outside spending for coordinated communications is an in-kind contribution, and foreign contributions are completely prohibited. And Congress made the criminal penalties unmistakably clear: “Any person who knowingly and willfully commits a violation of any provision of this Act” commits a crime. The Supreme Court upheld these limits in McConnell v. FEC with crucial observations about the functional role of suggestions, rather than agreements: “[E]xpenditures made after a wink or nod often will be as useful to the candidate as cash.” This timeline is full of suggestions far more explicit than winks and nods.
Online Speech Platforms
Washington Post: It’s time to treat tech platforms like publishers
By Charlie Kirk
Now, with Trump’s Social Media Summit on Thursday, we have an opportunity to challenge another progressive hegemony, this time in Big Tech. If we don’t yet know the exact solution to the problem, Thursday’s summit is an important step in fighting to ensure social media platforms remain forums where all ideologies have a voice…
Conservatives by and large believe in the corrective power of the free market above all. If we don’t like how private companies are doing business, we should just start our own to compete, right?
There is one glaring problem with this: The free market must be functioning freely for this to be true. There is now ample reason to believe the market’s normal corrective powers are being blocked by anti-competitive forces.
Many reputable economists and business executives have already made compelling arguments that these companies should be considered monopolies and are unfairly stifling competition…
The second obstacle to the free market is Big Tech’s exploitation of preexisting laws, namely Section 230 of the Communications Decency Act that was passed by Congress in the ’90s. Social media companies have leveraged Section 230 to great effect, and astounding profits, by claiming they are platforms – not publishers – thereby avoiding under the law billions of dollars in potential copyright infringement and libel lawsuits. YouTube, for example, advertises itself as an open platform “committed to fostering a community where everyone’s voice can be heard.” Facebook and Twitter make similar claims. Let’s be clear, when these companies censor or suppress conservative content, they are behaving as publishers, and they should be held legally responsible for the all the content they publish. If they want to continue hiding behind Section 230 and avoid legal and financial calamity, they must reform.
American Enterprise Institute: When conservative pundits attack social media bias, the facts are often the first victims
By James Pethokoukis
Op-ed writers usually don’t write their own headlines, but this one from activist Charlie Kirk’s piece in The Washington Post neatly sums up a strangely persistent tech policy error on the right: “It’s time to treat tech platforms like publishers.” …
This supposed platform/publisher distinction is not found in the law. Nor does it seem such a distinction was intended by either of the provision’s authors – or the plethora of industry and civil liberties groups that helped get it passed. In fact, Section 230 was explicitly created to encourage internet companies to moderate their content. Here’s a bit from my recent interview with Jeff Kosseff, author of the new book, “The Twenty-Six Words That Created the Internet”:
PETHOKOUKIS: Whenever I tweet about Section 230, someone will say that these companies have a choice to make: They can either be a neutral platform or a publisher. Is that pulled from the law in any way?
KOSSEFF: “No. I don’t know what they’re talking about. I always hesitate to even respond to this, because I’m not quite sure what their parameters are for publisher or platform. Are they saying you don’t do any moderation at all? A free for all? I seriously would not want to be on the internet at all if that was the case.”
The rest of the piece – despite some pro-market boilerplate – is hardly any better, displaying zero understanding of even the basics of antitrust law and doctrine. Kirk also continues to spread the “anti-conservative bias” fiction, despite no real evidence that it’s actually a thing. Yet there is the Trump White House is holding a “social media summit” addressing such supposed bias. There is “intense irony,” NBC News report Ben Collins tweets, “in inviting YouTube stars and Facebook disinformation peddlers to the White House to bemoan ‘censorship’ and ‘bias’ when it was those sites’ algorithms that prized their sensational, extreme views to begin with, allowing them to famously complain about it.”
The States
Seattle Times: Washington state Supreme Court unanimously upholds Seattle’s pioneering ‘democracy vouchers’
By Daniel Beekman
“The Democracy Voucher Program does not alter, abridge, restrict, censor, or burden speech. Nor does it force association between taxpayers and any message conveyed by the program. Thus, the program does not violate First Amendment rights,” Justice Steven Gonzalez wrote in a unanimous opinion published Thursday, affirming a 2017 ruling by a King County Superior Court judge…
Two Seattle property owners brought a lawsuit against the city last year, claiming the vouchers system was violating their constitutional rights to free speech by forcing them – through their tax dollars – to support candidates they didn’t like.
“Elster and Pynchon argue the Democracy Voucher Program is not viewpoint neutral because the vouchers will be distributed among qualified municipal candidates unevenly and according to majoritarian preferences,” Gonzalez wrote, referring to the plaintiffs, Mark Elster and Sarah Pynchon.
However, the justice wrote, “Here, the decision of who receives vouchers is left to the individual municipal resident and is not dictated by the city or subject to referendum … That some candidates will receive more vouchers reflects the inherently majoritarian nature of democracy and elections, not the city’s intent to subvert minority views.”
Represented by the libertarian-leaning Pacific Legal Foundation, Elster and Pynchon also cited the U.S. Supreme Court’s 2018 Janus decision…
“Unlike the employees in Janus, Elster and Pynchon cannot show the tax individually associated them with any message conveyed by the Democracy Voucher Program,” Gonzalez wrote…
In an email, Pacific Legal attorney Ethan Blevins said, “The Court’s opinion is a blow to the First Amendment, which prohibits government from forcing private individuals to sponsor other people’s campaign contributions.”
There could be an appeal to the U.S. Supreme Court. “As for next steps, we’re considering our options and should know what our plan is soon,” Blevins said.
Concord Monitor: Sununu vetoes election finance reform bills
By Ethan Dewitt
Gov. Chris Sununu vetoed a series of Democratically-backed election finance reform laws Wednesday, blocking attempts at increased transparency and oversight while citing free speech considerations.
As part of a batch of 42 bills signed and 10 vetoed, Sununu struck down Senate Bill 156, a bill supporters said would close the “LLC loophole.” …
He also struck down a bill, SB 106, that would broaden who counts as a political advocacy organization – and is thus subject to greater disclosure…
The governor also vetoed House Bill 504, which would call on Congress to support a U.S. constitutional amendment to increase regulation over “role of money in elections and governance.” That bill, he said, was “part of a national campaign designed to overturn constitutional protections of free speech” and represented more of the Legislature attempting to stifle speech from those they disagree with.
Bangor Daily News: NH woman living in public housing told to take down her Trump 2020 flag
By CBS 13
A New Hampshire woman who lives in public housing said she was told by the housing authority that her Trump 2020 flag must come down.
Kay Keenan, who lives in a public housing unit of the Rochester Housing Authority, is a President Donald Trump supporter, and she put up a Trump 2020 flag outside her apartment by the U.S. flag…
“They took the flag out of the post while I wasn’t home,” Keenan said. “And saw it down by my mailbox with a note, a handwritten note, that said, ‘We’ve received too many complaints about your flag. And you are not to put it up again.'”
Under the Rochester Housing Authority rules, “No items of any kind are allowed to be exhibited by a tenant on any part of the outside or inside common space of the buildings. These items include signs, advertisements, notices, banners, flags and more.”
Attorney Jerry Grossman said the Trump flag violates the lease agreement, but the housing authority did not say she had to take down the American flag, even though flags are against the rules.
“I would say an American flag would be OK, in my personal opinion, cause that’s our country’s flag,” Grossman said…
Keenan believes the housing authority is trampling on her First Amendment rights…
Keenan is appealing the housing authority rule against flags. Until then, the housing authority is allowing her to keep her flag up.
