New from the Institute for Free Speech
When the Government Tries to Silence Its Own Employees
By Daniel Ortner, Pacific Legal Foundation
The First Amendment protects the right of each of us to speak freely on social media without fear of government retaliation or punishment. But employees of the City of New Orleans, a government entity, were recently denied that right under an onerous speech and civility code.
In June 2020, in the middle of a national debate over COVID-19 policies and the Black Lives Matter movement, the City of New Orleans adopted a policy governing “Standards of Behavior for City Employees.” The city’s new policy applies to all forms of private social media, including popular sites such as Reddit and Facebook but also extending to chat rooms and even multiplayer online games like World of Warcraft…
Even worse, the city barred all its employees from “engag[ing] or respond[ing] to negative or disparaging posts about city departments, employees or policies.” But this is precisely the type of speech that the Supreme Court has held employees must be allowed to engage in. Public employees have important insights into the operations of government. In extreme cases, we laud whistleblowers who shed light on unlawful activity. But even short of that, we still rely on government employees to shed light on abuses of power or corruption…
Fortunately, two city employees represented by the First Amendment Clinic at Tulane Law School have sued the City of New Orleans to defend their right to speak. In light of the growing threat of cancel culture, this case, Okun v. City of New Orleans, is an important one; hopefully, it will help vindicate fundamental First Amendment freedoms.
The Courts
Reuters: Pa. attorney sues to stop resurrected anti-discrimination rule
By David Thomas
A free-speech advocate and Pennsylvania attorney has renewed his bid to block the adoption of a now-revised anti-harassment and discrimination rule for lawyers, which is set to go into effect Wednesday.
Attorney Zachary Greenberg filed an amended complaint Thursday in Philadelphia federal court following the Pennsylvania Supreme Court’s adoption of an amended Rule 8.4(g).
Greenberg had successfully challenged the state’s adoption of the American Bar Association-backed Rule 8.4(g) last year — a federal judge blocked its implementation in December, finding it would chill an attorney’s right to free speech outside of the courtroom or a pending case.
After abandoning an appeal to the 3rd U.S. Circuit Court of Appeals in March, the state amended Rule 8.4(g) in July…
Greenberg has asserted that the rule’s broad scope puts him unfairly at risk of violations due to his job as a program officer for the non-profit Foundation for Individual Rights in Education, which involves presenting and writing about offensive and derogatory language, including racial and homophobic slurs.
Even if the state promised not to pursue disciplinary charges against him, Greenberg said he would have to censor himself out of fear of inadvertently offending someone, who in turn might file a complaint against him.
The Hill: OAN loses appeal in defamation lawsuit against Rachel Maddow
By Celine Castronuovo
A federal appeals court on Tuesday upheld a San Diego federal judge’s decision last year to dismiss One America News’s (OAN) defamation lawsuit against Rachel Maddow, arguing that the MSNBC host’s statement that the far-right network was “paid Russian propaganda” was “an obvious exaggeration,” rather than an asserted fact.
In a 3-0 decision, a three-judge panel of the U.S. District Court of Appeals for the 9th Circuit said that Maddow’s statement “was well within the bounds of what qualified as protected speech under the First Amendment.”
“The challenged statement was an obvious exaggeration, cushioned within an undisputed news story,” Judge Milan D. Smith Jr. wrote in the opinion.
Washington Post: Fox News’ ‘big lie’ segments face judicial comeuppance
By Erik Wemple
All those hoping for some in-your-face accountability to visit proponents of the “big lie” would have enjoyed the hearing on Tuesday in the virtual courtroom of New York State Supreme Court Judge David B. Cohen. At issue was a $2.7 billion lawsuit by voting-technology company Smartmatic against Fox News for rolling the company into various segments alleging a grand conspiracy to steal the 2020 election from former president Donald Trump…
Tuesday’s hearing featured arguments over Fox News’s motion to dismiss the complaint…
The thread running through Cohen’s questioning is an incredulity that the network, in effect, had failed to fact-check the “big lie.” He noted that as late as Nov. 26, [Lou] Dobbs was still “claiming that Dominion and Smartmatic had close ties to the government agency that found no irregularities in the 2020 voting. Does this ever stop?”
Reuters: Elias departs Perkins Coie, as firm says will continue political law practice
By David Thomas
Famed election rights lawyer Marc Elias has departed Perkins Coie to strike out on his own, as the law firm said it would continue advising clients on campaign finance and other political matters.
Elias, 10 other Perkins Coie partners and three counsel left the firm to form Elias Law Group, Perkins Coie announced Sunday. The new Washington, D.C.-based firm, which will also have an office in Perkins Coie’s hometown of Seattle, will represent candidates, party committees, political committees, nonprofit organizations, entities and voters. It will also back Democratic candidates and supporting voting rights.
Some observers said they believe the new firm will allow Elias, a Democrat, and his colleagues to take on more work than they could at Perkins Coie, something Elias alluded to in his statement: “The formation of Elias Law Group will allow us to more fully engage in representing our clients in the political process at this unique moment in history.”
Fundraising
Chicago Sun-Times: Illinois Democrats may have opened legal can of worms with new fundraising committee
By Rich Miller
Illinois Senate President Don Harmon decided last week to join House Speaker Chris Welch in his decision to not participate in the Democratic Party of Illinois’ new “BLUE Committee” structure.
The state party chair, U.S. Rep. Robin Kelly, is barred by federal election laws from participating in any fundraising or spending of money that is raised outside the federally regulated campaign system. So, with direction from the Federal Election Commission, the state party cobbled together the BLUE (Building Leadership, Unity, and Equity) Committee to oversee that activity and insulate Chair Kelly from possible legal violations.
The committee has five members, two of whom would be the Democratic leaders of the House and Senate. But Speaker Welch has said for weeks that he had concerns about whether the new committee actually followed federal law, and had his own issues to deal with as a new chamber leader ahead of a remap election year. So, he wouldn’t be participating and wouldn’t be appointing a proxy.
Independent Groups
Madison.com: Evers’ re-election campaign trying to get attack ad off the air
By Adam Rogan
Gov. Tony Evers’ re-election campaign is trying to get an attack ad, targeting how the Democrat responded to riots in Kenosha last summer, pulled off the air.
The ad in question features a Kenosha businesswoman who claims that Evers did not send help to Kenosha until after two people — Anthony Huber and Joseph Rosenbaum — died; the two men were killed by Kyle Rittenhouse on Aug. 25, the third night of unrest in the city…
A letter from attorneys supporting Evers’ re-election campaign, reportedly sent to the four TV stations [that aired the ad], says the the ad “must be pulled from the air now.”
That advertisement opens with [businesswoman Kimberly] Warner saying: “We were scared and we were hoping and hoping that help would come, and night after night it didn’t come.”…
Evers’ campaign and the Wisconsin National Guard have contested this narrative. They claim the National Guard could not have mobilized more quickly or in more force than it actually did.
The letter tells the stations that “failure to prevent the airing of ‘false and misleading advertising’ … can be cause for the loss of a station’s license.”
The attorneys also argue that “independent political organizations” such as Empower Wisconsin have less freedom to run attack ads than candidates themselves do.
Free Speech
Washington Post: We built a system like Apple’s to flag child sexual abuse material — and concluded the tech was dangerous
By Jonathan Mayer and Anunay Kulshrestha
Earlier this month, Apple unveiled a system that would scan iPhone and iPad photos for child sexual abuse material (CSAM)…
We wrote the only peer-reviewed publication on how to build a system like Apple’s — and we concluded the technology was dangerous…
Our research project began two years ago, as an experimental system to identify CSAM in end-to-end-encrypted online services…
The concept was straightforward: If someone shared material that matched a database of known harmful content, the service would be alerted. If a person shared innocent content, the service would learn nothing. People couldn’t read the database or learn whether content matched, since that information could reveal law enforcement methods and help criminals evade detection…
But we encountered a glaring problem.
Our system could be easily repurposed for surveillance and censorship… [A] service could simply swap in any content-matching database, and the person using that service would be none the wiser.
A foreign government could, for example, compel a service to out people sharing disfavored political speech. That’s no hypothetical: WeChat, the popular Chinese messaging app, already uses content matching to identify dissident material. India enacted rules this year that could require pre-screening content critical of government policy.
Online Speech Platforms
Reason: 48% of Americans Want the Government To Restrict Misinformation on Social Media
By Robby Soave
The American appetite for social media censorship is apparently increasing: 48 percent of survey respondents now want the government to restrict misinformation, compared with just 39 percent in 2018.
That’s according to recent findings from the Pew Research Center, which asked respondents what should be done about “false information online.” The percentage of people who thought the social media companies themselves should curb misinformation has barely changed over the last few years (59 percent today versus 56 percent three years ago), but support for government action jumped 9points.
That figure—48 percent—is significant. It means, that just about half of all people want the government to violate the First Amendment, which protects the free speech rights of private actors, including tech companies. Free speech can be messy, but the authors of the Bill of Rights believed that the federal government should not have the right to decide what ideas the people are allowed to express. After all, the government might accidentally criminalize true information rather than false information, or nefariously censor criticism of its own actions.
USA Today: Twitter blocked and labeled Donald Trump’s tweets on election fraud. They spread anyway.
By Jessica Guynn
Twitter blocked and labeled some of Donald Trump’s claims of election fraud in the run-up and aftermath of the 2020 presidential election.
The tweets spread on and off Twitter anyway.
That’s according to a new study from New York University researchers published Tuesday in Harvard Kennedy’s School Misinformation Review and shared exclusively with USA TODAY.
The study is raising new questions about the ability of social media companies to halt the flood of falsehoods on mainstream social media platforms during election cycles.
NYU researchers say Trump tweets with fact-check labels spread further on Twitter than those without. And when Twitter blocked engagement with the former president’s tweets, they leaped to Facebook, Instagram and Reddit where they were more popular than tweets that Twitter labeled or did not flag at all.
It’s not clear if Twitter intervened on social media posts that were more likely to spread or if it was the intervention itself that gave the tweets a boost, the researchers said.
The States
NC Policy Watch (“The Progressive Pulse”): N.C. legislators rush bill to limit nonprofit donor disclosure
By Yanqi Xu
North Carolina House Republicans rushed to pass a “donor privacy” bill Thursday shortly after a Judiciary Committee hearing. The bill (SB 636) would limit the disclosure required for a range of 501(c) nonprofit organizations. It is now up to Gov. Roy Cooper to decide whether to sign it into law.
The bill would prohibit nonprofits from disclosing the list of donors without the donors’ permission, unless otherwise required by law, such as investigations by state agencies including the State Board of Elections.
Rep. Hugh Blackwell, a Burke County Republican, said the bill seeks to protect donors’ First Amendment rights. He said, “This is designed to say that if you are a donor to a charitable organization, unless you give your permission, you don’t have to worry that someone is going to disclose your name broadly to other folks who may have other purposes in mind than just being well informed.”
He said legislators proposed this bill in keeping with a recent U.S. Supreme Court decision that blocked the California Attorney General’s office from collecting the nonprofit Americans for Prosperity’s tax forms containing donor information.
