Free Speech

Lawfare: Informal Government Coercion and The Problem of “Jawboning”

By Genevieve Lakier

For years now, scholars have expressed alarm at the tendency of government officials to use informal means, rather than democratically enacted laws, to pressure the social media companies to take down what they consider to be harmful or offensive speech. The term commonly used to refer to this kind of informal (but often quite effective) practice of government speech suppression is “jawboning.” While by no means unique to the digital public sphere, jawboning has come to be a particularly common tactic of government regulation of the social media platforms, in part because the government has few other means of regulating what the social media companies do. Scholars have worried, for good reason, that the practice of jawboning allows government officials to evade the stringent constraints on their power to regulate speech imposed by the First Amendment. But relatively little attention has been paid to the constitutional question of whether, or rather when, government jawboning itself violates the First Amendment. 

Two recent events have pushed this question to the front page. 

The Courts

National Review: Bonkers Tenth Circuit Ruling Against Free Speech

By Ed Whelan

In a stunning ruling yesterday in 303 Creative LLC v. Elenis, a divided panel of the Tenth Circuit held that Colorado’s Anti-Discrimination Act “permissibly compels” a graphic and website design company to offer wedding websites that “celebrate same-sex marriages” if it is going to offer wedding websites that celebrate opposite-sex marriages. Judge Mary Beck Briscoe wrote the majority opinion, which Judge Michael Murphy joined. Chief Judge Timothy Tymkovich dissented…

More broadly, it is difficult to imagine a ruling more hostile to free speech. Briscoe understands the Colorado law to operate as a “content-based restriction” that “compels” the owner of a small website design company to engage in “pure speech” that expresses “approval and celebration” of something that she opposes. But the very fact that the owner would be customizing her speech for websites celebrating opposite-sex marriages somehow means that services comparable to hers can’t be obtained from other providers.

Briscoe’s ruling would have sweeping consequences. Tymkovich in dissent observes that Briscoe’s ruling, “[t]aken to its logical end, [would mean that] the government could regulate the messages communicated by all artists, forcing them to promote messages approved by the government in the name of ‘ensuring access to the commercial marketplace.’”

Courthouse News: OAN urges Ninth Circuit to revive defamation suit against Rachel Maddow

By Bianca Bruno

Conservative news network One America News asked the Ninth Circuit on Tuesday to revive its defamation suit against MSNBC host Rachel Maddow over six words she uttered on-air in 2019, when reporting that an OAN correspondent moonlighted as a reporter for Kremlin-backed Sputnik News.

Maddow said OAN “really literally is paid Russian propaganda” when reporting on what she called “a sparkly story” by The Daily Beast in July 2019 which revealed OAN’s on-air politics reporter Kristian Rouz simultaneously wrote for Sputnik News.

Colorado Politics: El Paso sheriff did not act reasonably in firing employee who supported political rival, court decides

By Michael Karlik

A suit against El Paso County Sheriff Bill Elder will move forward after a federal appellate court in Denver ruled Tuesday there is “ample evidence” that he allowed allies in the sheriff’s office to speak freely about politics, while punishing an employee who supported his election rival.

Fundraising

Daily Beast: The RNC Is Ramping Up Its ‘Predatory’ Fundraising Machine

By Roger Sollenberger

As the Republican National Committee ramps up its fundraising operation for the midterm elections, the GOP group is reviving some of its shadiest tactics—and taking them a step further.

Just this week, the RNC sent out text messages and emails to Republican supporters alerting them that their “payment status” was “incomplete,” seeming to masquerade a fundraising request as an unpaid bill. And emails on Monday from the RNC draw on the same theme, using the words “FINAL NOTICE” in the header to implore donors to activate a “lifetime membership.”

The RNC doesn’t bother explaining what a “lifetime membership” actually means.

Other solicitations claim that a “250% impact offer” is “exclusive to YOU,” while not clarifying what an “impact offer” is, or explaining how the implied 250 percent matching donation would be paid. (That ploy, which Democrats also routinely use, is reportedly under Justice Department review.) And other emails falsely suggest that contributions to the RNC will support Trump’s recent lawsuit against social media companies, even though the RNC plays no role in that litigation.

“Taken all together, these are the kinds of predatory tactics you only see in the scammiest models,” Jordan Libowitz, the communications director for government watchdog Citizens for Responsibility and Ethics in Washington (CREW), said.

The general idea behind having public donors in the first place, Libowitz said, is freedom of speech. “But that’s about the right to express your political views, as opposed to being tricked into doing it, which is in some places illegal,” he sadded. “What we’re seeing here comes pretty close to that.”

The States

New York Times: Biden Hater’s Banners That Town Called Obscene Can Stay Up, Court Rules

By Ed Shanahan and Tracey Tully

A New Jersey woman can leave up several banners that use what local officials called an obscenity to express her hostility toward President Biden, a state court ruled on Tuesday.

The ruling came after the woman, Andrea Dick of Roselle Park, enlisted the American Civil Liberties Union of New Jersey to fight a municipal judge’s order that she take the banners off a fence outside the house where she lives with mother or face $250 a day in fines.

After the civil liberties group joined the case, Roselle Park officials backpedaled on their earlier demand that Ms. Dick take down the banners and effectively dropped the matter…

“The First Amendment exists specifically to make sure people can express strong opinions on political issues, or any other matter, without fear of punishment by the government,” Amol Sinha, the executive director of the [ACLU’s] New Jersey chapter, said in a statement.

ABC 7: Gov. Cuomo’s harassment investigations prompt calls to change NY’s campaign finance rules

By Marina Villeneuve, Associated Press

Some legislators want to change New York’s campaign finance rules after Gov. Andrew Cuomo used $285,000 in political donations to pay lawyers representing him in sexual harassment and misconduct investigations…

That kind of campaign spending is allowed under certain conditions but many still find it distasteful.

“It’s completely bizarre and it makes no sense because campaign contributions are supposed to be for campaigns, not for other things,” said John Kaehny, executive director of the ethics watchdog group Reinvent Albany. “Defending yourself in a criminal matter is not the same as running a campaign and it’s fairly obvious.” …

But state Sen. Brad Hoylman, a Manhattan Democrat who is sponsoring one bill calling for changes, said politicians facing serious allegations related to personal misconduct should pay legal costs out-of-pocket.

“I think it’s a bait-and-switch when you solicit campaign support and then use it for your defense in a large investigation or a trial,” Hoylman said, adding that he doesn’t think the state should be paying Cuomo’s legal bills, either…

On the federal level, the Federal Elections Commission allows candidates to pay legal expenses with campaign funds, but not in matters where the expense wouldn’t exist if the person wasn’t a candidate or officeholder…

“Frankly, I think in the case of Cuomo, clearly if it’s allegations of sexual harassment, it would seem to me that the New York law is a little too expansive,” former FEC Commissioner Ann Ravel said in an interview. “Because that is a purely personal act, despite the fact that he was able to engage in it because of his position.”

Sacramento Bee: California bill targeting social media hate speech would hand keys to online extremists

By Adam Kovacevich

Imagine if we had given the January 6 insurrectionists a map of the U.S. Capitol, marked with the location of every security camera, every security officer, every fire alarm and emergency escape. It would even come with a manual on how police officers are trained to prevent an armed insurrection. That’s the metaphorical equivalent of the digital law under consideration in the California legislature.

Assembly Bill 587, now before the Senate, would require social media companies to share their entire playbook on taking down disinformation, hate speech, predatory content and scams. Just like a security map of the U.S. Capitol, that information is a roadmap to evading detection in the hands of bad actors…

Once you tell criminals or hate groups where they’re located or, in this case, exactly what phrases and images they’re looking for, they become less effective. There are well-documented cases of extremists and hoaxers using coded language or changing the images they use once they know what content social media platforms are scanning for.