New from the Institute for Free Speech
You Can’t Protect First Amendment Rights Without Protecting Privacy
By Alec Greven
We live in an increasingly connected world. This trend has only intensified in an era of internet and video communication brought forth by COVID-19. Social media, in particular, has been an incredible driving force for building coalitions and organizing people that share common interests. This has dramatically changed and improved the ability of Americans to associate with one another.
Technology, however, is a double-edged sword, and the ability to more openly communicate with others has also exposed large amounts of our private lives to scrutiny. Social media allows us to share more of ourselves with others but can open a window into aspects of our lives that we may not want to be public. This loss of privacy comes at a serious cost, and there is a danger of individuals who want to preserve their privacy self-silencing and refraining from exercising their First Amendment rights.
If we want more speech and association in our society (and we should), then we need to focus on bringing down the costs for individuals who wish to speak out. Protecting privacy while allowing individuals to speak is an important way we can lower the cost of speech and promote more of it.
Congress
Politico: Senators say intel officials will give more details on 2020 election interference
By Andrew Desiderio
The U.S. intelligence community is preparing to disclose more information to the public about foreign interference in the 2020 presidential election, top senators said Monday, as Democrats continue to push the Trump administration to detail Russia’s intentions.
Their assessments came after senior officials, including Director of National Intelligence John Ratcliffe, briefed senators in a classified setting in the Capitol on Monday about foreign efforts to meddle in the campaign, in addition to other issues related to election security.
Much of the discussion in both sessions Monday afternoon centered on how much information to share with the public, according to two sources familiar with the briefings. National Counterintelligence and Security Center Director William Evanina, the nation’s top counterintelligence official, was also in attendance.
Reclaim The Net: New bill aims to punish tech companies that censor “lawful speech”
By Didi Rankovic
A group of Republican members of US Congress just proposed a new legislation – “Stop the Censorship Act of 2020” aimed at stripping tech and social media giants of Section 230 protections – but only where they remove “lawful speech on their platform.”
We obtained a copy of the bill for you here.
“Online platforms should not have special immunity to censor competition and lawful political speech,” said Rep. Gosar. “The broad and undue immunity for content and user removal granted by Section 230 must be reined in by Congress. We cannot continue to subsidize, deputize, or blackmail Silicon Valley to decide what is or isn’t an allowable conversation. Stop the Censorship Act of 2020 empowers users and limits Big Tech to the same rights and liabilities as everyone else.”
“Freedom of speech and market competition are two of the strongest pillars of American freedom. But ‘Big Tech,’ has shown little regard for either. Congress must protect the values that make America great.” said Rep. Banks.
Politico: House panel launches probe into DHS intel office
By Betsy Woodruff Swan
The House Intelligence Committee has opened an investigation into the Department of Homeland Security’s intelligence arm, according to a letter its chairman sent to top DHS officials on Monday.
The probe will scrutinize how the department’s Office of Intelligence and Analysis has responded to protests against racism and police brutality in Portland and around the country. In the letter, the panel’s chairman, Rep. Adam Schiff (D-Calif.), cited reports that the office had disseminated intelligence about journalists and protesters…
Schiff’s letter also cited a POLITICO article from the weekend that reported that DHS’s second-in-command, Ken Cuccinelli, limited the ability of department’s Office of Civil Rights and Civil Liberties to oversee I&A’s work. That move came several months before the office’s reports on journalists and protesters drew national criticism.
Schiff’s letter asked for a host of documents, as well as transcribed interviews with a number of DHS officials.
DHS
New York Times: Homeland Security Shuts Down ‘Intelligence’ Reports on Journalists
By Zolan Kanno-Youngs and Marc Tracy
The acting secretary of homeland security said on Friday that he had shut down an intelligence examination of the work of reporters covering the government’s response to protests in Portland, Ore., beginning an investigation into what he suggested was an infringement on First Amendment rights.
The effort by the Department of Homeland Security’s intelligence and analysis directorate – first revealed by The Washington Post – in part targeted The New York Times’s release of an intelligence analysis indicating that even as federal agents in camouflage deployed to quell the protests in Portland, the administration had little understanding of what it was facing.
The acting secretary, Chad F. Wolf, “is committed to ensuring that all D.H.S. personnel uphold the principles of professionalism, impartiality and respect for civil rights and civil liberties, particularly as it relates to the exercise of First Amendment rights,” said Alexei Woltornist, the department’s spokesman.
The intelligence office issued three “open-source intelligence reports” in the past week that summarized the Twitter posts of a Times reporter and the editor in chief for the blog Lawfare, noting that they had published leaked unclassified documents.
Mr. Wolf ordered the intelligence arm to “immediately discontinue collecting information involving members of the press” once he found out about the practice, Mr. Woltornist said.
The Courts
Reason (Volokh Conspiracy): No Claim Against Facebook Based on President’s Social Media Executive Order
By Eugene Volokh
From the Report-Recommendation by Magistrate Judge Therèse Wiley Dancks (N.D.N.Y.) in Gomez v. Zuckenburg [sic]:
According to Plaintiff, Defendants are preventing him from logging into his old Facebook account or opening a new account. He asserts his difficulties with Facebook started after President Donald Trump issued Executive Order 139251…
Plaintiff asserts his claim arises under EO 13925 for purposes of asserting subject matter jurisdiction pursuant to 28 U.S.C. § 1331…
Given EO 13925’s purpose and impact, the Court is unclear how it provides Plaintiff with a cause of action against Defendants. Even assuming Facebook removed his account without a “good faith” reason to do so, EO 13925, at best, would provide a basis for a defamation plaintiff to argue Facebook is not entitled to protection under Section 230(c).
However, EO 13925 was not intended to-and specifically precluded-a private right of action for individuals who assert an online platform targeted their accounts. To that end, EO 13925, Section 8(c) provides “[t]his order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.” Thus, the Court finds EO 13925 does not provide a basis for Plaintiff’s claim even if Defendants arbitrarily removed his account or prevented him from creating a new account…
Clearly correct, especially since all the Executive Order can do with regard to the platforms’ liability is to instruct government officials to ask the FCC to interpret § 230 in a particular way, which hasn’t yet happened.
FEC
Republican National Lawyers Association: RNLA Thanks Caroline Hunter For Her Service On The Federal Election Commission
The Republican National Lawyers Association (RNLA) thanks former Federal Election Commission (FEC) Commissioner Caroline Hunter for her years of public service on the FEC. Ms. Hunter resigned from the FEC earlier this month…
RNLA President David Warrington praised Ms. Hunter: “Throughout her service at the FEC, Caroline demonstrated her commitment to public service, to protecting the First Amendment rights of all Americans, and to ensuring due process and fair procedures for everyone who is regulated by the FEC. She refused to bow to political pressure, even when she was the sole voice standing up for the rule of law as the only Republican on the Commission.”
Two former FEC Chairmen who are members of the RNLA Board of Governors and who served with Ms. Hunter on the FEC agreed. Matt Petersen said: “For 11 years, I had the privilege of serving alongside Caroline at the FEC. Not only was Caroline an esteemed colleague, she was also a valued friend. As she departs the Commission, Caroline will leave behind a legacy of principled decision-making, keen judgment, and a commitment to the rule of law. Those characteristics will serve her well in the next chapter of her career, and I wish her all the best.”
Lee Goodman added: “Caroline was a stalwart defender of the First Amendment for citizens and limited government. She served long and well and left a lasting imprint on the agency.”
FCC
By Ted Johnson
The White House withdrew the nomination of Michael O’Rielly to serve another term as commissioner at the FCC, just days after he gave a speech in which he signaled his opposition to President Donald Trump’s executive order to try to limit liability protections for social media companies.
O’Rielly, a Republican who joined the commission in 2013, was facing Senate confirmation for another term that would have extended through 2024.
The White House did not give a reason for the withdrawal of the nomination, and it was unclear if it was related to O’Rielly’s comments on Trump’s social media order…
Last week, O’Rielly addressed in a speech he gave to the Media Institute in which he criticized the effort to target the social media platforms.
“The First Amendment protects us from limits on speech imposed by the government-not private actors-and we should all reject demands, in the name of the First Amendment, for private actors to curate or publish speech in a certain way,” he said.
“Like it or not, the First Amendment’s protections apply to corporate entities, especially when they engage in editorial decision making. I shudder to think of a day in which the Fairness Doctrine could be reincarnated for the Internet, especially at the ironic behest of so-called free speech ‘defenders.'”
Ars Technica: Ajit Pai calls for “vigorous debate” on Trump’s social media crackdown
By Jon Brodkin
The Federal Communications Commission today asked the public for responses to the Trump administration’s attempt to punish social media websites for alleged anti-conservative bias.
“Longstanding rules require the agency to put such petitions out for public comment ‘promptly,’ and we will follow that requirement here,” FCC Chairman Ajit Pai said.
Trump issued an executive order in May, instructing the National Telecommunications and Information Administration (NTIA) to petition the FCC for a new interpretation of Section 230 of the Communications Decency Act that would limit social media platforms’ legal protections for hosting third-party content when the platforms take down content they consider objectionable.
The NTIA filed that petition last week, asking the FCC to define “information content provider” more broadly to include entities that make “editorial decisions that modify or alter content.” Under that interpretation, websites like Facebook and Twitter would be treated as the publisher or speaker of information posted by their users, and they would lose the legal protections Section 230 provides when websites block and screen offensive material. Lawyers who work at several advocacy groups say that the FCC doesn’t have this authority, that the Trump petition “is utterly incompatible with the plain language” of Section 230, and that the petition’s proposal would violate the First Amendment.
The FCC’s public notice asking for comments says that “Interested persons may file statements opposing or supporting the Petition for Rulemaking.” The deadline for initial statements is 30 days from today, and another 15 days will be provided for replies. The docket is available here (click “New Filing” or “Express” to file a comment).
Right to Protest
Washington Post: Two protesters arrested while chalking ‘Black Pre-Born Lives Matter’ on sidewalk
By Emily Davies
Two protesters outside a Planned Parenthood facility were arrested and charged with defacing public or private property early Saturday, according to D.C. police and video footage.
Erica Caporaletti, a 22-year-old student at Towson University, and Warner DePriest, a 29-year-old D.C. resident, were writing “Black Pre-Born Lives Matter” with chalk on the sidewalk when police arrested them.
The arrests happened just before 6 a.m., soon after a group of about two dozen people, led by the antiabortion advocacy group Students for Life of America, showed up to paint in the street of the 1200 block of Fourth Street NE as part of what they called a campaign to highlight the impact of abortion on Black communities.
Tina Whittington, executive vice president of Students for Life of America, said police first warned that they would detain the group if they painted the street and then told them they could not write on the sidewalk with chalk…
“This is government censorship,” Caporaletti said through a bullhorn…
Representatives of Students for Life of America said they plan to sue D.C. Mayor Muriel E. Bowser (D) on the grounds that the police action violated their First Amendment rights…
The arrest provides a window into ongoing controversy surrounding the painting of slogans on streets. Ever since Bowser commissioned the painting of “Black Lives Matter” on 16th Street NW near the White House in June, activists across the country have demanded the right to paint their own messages. City officials have conceded in some cases, allowing protesters in the District, for example, to paint “Defund the police” next to Bowser’s original declaration.
Online Speech Platforms
Politico: Silicon Valley is losing the battle against election misinformation
By Mark Scott and Steven Overly
Four years after an election in which Russia and some far-right groups unleashed a wave of false, misleading and divisive online messages, Silicon Valley is losing the battle to eliminate online misinformation that could sway the vote in November.
Social media companies are struggling with an onslaught of deceptive and divisive messaging from political parties, foreign governments and hate groups as the months tick down to this year’s presidential election, according to more than two dozen national security policymakers, misinformation experts, hate speech researchers, fact-checking groups and tech executives, as well as a review of thousands of social media posts by POLITICO…
Silicon Valley’s efforts to contain the new forms of fakery have so far fallen short, researchers and some lawmakers say. And the challenges are only increasing.
“November is going to be like the Super Bowl of misinformation tactics,” said Graham Brookie, director of the D.C.-based Atlantic Council’s Digital Forensics Lab, which tracks online falsehoods. “You name it, the U.S. election is going to have it.”
Anger at the social media giants’ inability to win the game of Whac-A-Mole against false information was a recurring theme at last week’s congressional hearing with big tech CEOs, where Facebook boss Mark Zuckerberg attempted to bat down complaints that his company is profiting from disinformation about the coronavirus pandemic.
Salon: Trump suggests Microsoft should pay Treasury big money amid talks to acquire TikTok’s business in US
By Matthew Rozsa
The American technology company Microsoft confirmed Sunday that it is in discussions to purchase the Chinese social media app TikTok. The news came days after President Donald Trump threatened to ban the popular video-sharing company from operating in the U.S…
Salon reached out to Kurt Opsahl, the deputy executive director and general counsel of the Electronic Frontier Foundation, about the legal implications of a potential ban of TikTok.
“Banning Americans from using the TikTok app would infringe the First Amendment rights of those users as an overly broad restriction on a means of expression (and on reaching the TikTok audience) unnecessary to achieve the government’s national security purpose,” Opsahl said by email.
Prohibiting the app in stores would violate the First Amendment right to distribute software, Opsahl added, since courts have argued that software is a form of speech. He pointed out that “if the Trump administration’s motives were based on anti-Trump content, this is obviously not a legitimate government purpose. Courts would not balance the ban against that purpose. If censoring political speech was shown to be the true purpose, courts would subject the ban to closer constitutional scrutiny, which the ban would not survive.”
Speaking to Salon at the time of Pompeo’s comments, Leonard M. Niehoff, a professor from practice at the University of Michigan Law School who specializes in the First Amendment, explained that there were constitutional concerns about a potential ban amid Trump’s pattern of retaliation against social media companies.
“One of the primary concerns is that this is part of a pattern of retaliation against social media platforms that the president does not like, either because of how the platform has treated his speech or because of how users have deployed the platform against him,” Niehoff told Salon.
Politico: Google announces steps to counter spread of hacked materials before election
By Leah Nylen
Google will penalize websites that distribute hacked materials and advertisers who take part in coordinated misinformation campaigns, the search and advertising giant announced Friday in an effort to crack down on deception in the months ahead of the November U.S. elections.
The changes will go into effect on Sept. 1 and will affect all advertising…
Had the policies been in place in 2016, advertisers wouldn’t have been able to include screenshots of e-mails from the massive, Russian-sponsored hacks of the Democratic Party and then-presidential nominee Hillary Clinton’s campaign. Publishers who accept Google advertising also can’t directly distribute hacked materials, though links to places like Wikileaks or BlueLeaks – a collection of information leaked from police departments – would be allowed.
The policy still allows ads that mention or quote from leaked documents, but seeks to prevent ones that directly facilitate or advertise access to illegally obtained materials…
“Today we are expanding our policies to prevent the coordinated spread of disinformation from domestic actors who conceal their identity and illegally obtained materials via ads,” Google spokesperson Charlotte Smith said. “We believe these new measures strike the right balance in helping preserve trust in our elections while allowing for robust dialogue and public discourse about current events.”
The States
Michigan Capitol Confidential: Big Power Company Looks To Be Pursuing Best Legislature Money Can Buy
By Bill Zeiser
People who live in Michigan’s 58th House of Representatives district have almost certainly seen social media ads for Republican state representative candidate Andrew Fink, sponsored by a lobbying group called Citizens for Energizing Michigan’s Economy, or CEME.
The group, which is funded by the energy industry, is also flooding the district with mailers, [TV commercials, and internet ads.] …
The ads make no mention that Fink is running for office. Instead, they ask people to call their representatives and tell them to support Fink’s “plan” to defend Michigan’s Christian conservative values. The plan is not explained in the ads, nor on a CEME website about Fink, despite the fact that at least one of the ads encourages readers to visit the site to learn more.
CEME is what is sometimes called a “dark money” organization. Established under section 501(c)(4) of the federal government’s Internal Revenue Code, such groups are allowed to receive unlimited donations from corporations and individuals in order to fulfill a mission of “social welfare.” These organizations are distinct from political campaigns which have strict limits on how much money they can receive from donors.
In contrast, these groups are only required to disclose very limited information about their donors, which is how those that do not make disclosures earned the “dark money” sobriquet. They are also allowed to spend unlimited money on lobbying, provided that they do so in support of their social welfare mission. That is why the ads about Fink mention a “plan,” but never say what he is running for, or even that he is a candidate.
Toledo Blade: LaRose seeks to shine light on ‘dark money’ entities
By Jim Provance
Money spent to influence elections or policy in Ohio would have to be publicly disclosed – regardless of the entity’s source or tax status – under a bill pushed by Secretary of State Frank LaRose in the wake of the largest public bribery scandal in state history.
The proposal unveiled Monday would also require the registration with the state of individuals or firms hired to block petitioners from gathering signatures. The secretary of state would have subpoena power to go after such entities’ financial records too.
“We don’t do our jobs anonymously,” said Mr. LaRose, Ohio’s top elections official. “If you’re going to spend your money, then you should own it. You should put your name on it. You should be proud of it. Otherwise, why are you doing it?”
Reps. Gayle Manning (R., North Ridgeville) and Jessica Miranda (D., Forest Park) have already introduced House Bill 737, one of multiple proposals unveiled since now former Ohio House Speaker Larry Householder (R., Glenford) and four other allies were charged in an alleged $61 million racketeering scheme…
“To us your tax status is irrelevant,” Mr. LaRose said. “If you’re spending money in Ohio to influence the political life of our state, you need to disclose the original source of your funds.”
Mr. LaRose met with the bill’s sponsors on Monday to expand its scope to take advantage of any momentum from the current scandal…
Over the last decade state lawmakers have used a 2010 U.S. Supreme Court ruling that equated corporate money with protected political speech as an excuse not to force disclosure. But Mr. LaRose argues nothing in that decision blocked states from requiring transparency of such activity.
Techdirt: Tennessee Court Strikes Down Law Criminalizing Calling Political Candidates ‘Literally Hitler’
By Tim Cushing
Free speech keeps getting freer in Tennessee. The state was once home to a host of vexatious defamation lawsuits — including one where someone subjected to mild criticism sued a journalist over things someone else said. Thanks to the state’s new anti-SLAPP law, litigation is slightly less vexatious these days.
But there are still state laws posing threats to free speech by criminalizing stuff the First Amendment says is perfectly acceptable. Tennesseans for Sensible Election Laws (represented by Daniel Horwitz, whose work has made multiple headlines here at Techdirt) sued the state over a campaign law that made it a misdemeanor to publish false information about candidates.
The statute says this:
It is a Class C misdemeanor for any person to publish or distribute or cause to be published or distributed any campaign literature in opposition to any candidate in any election if such person knows that any such statement, charge, allegation, or other matter contained therein with respect to such candidate is false.
The plaintiffs argued the law effectively criminalized satire and hyperbole. It pointed out it risked prosecution if it distributed its campaign material, which used a word that literally no longer can be taken literally in every context: “literally.” …
The court declares the law a violation of both the First and Fourteenth Amendments.
