We’re Hiring!
Legal Director – Institute for Free Speech – Washington, DC or Virtual Office
The Institute for Free Speech anticipates the need for a highly experienced attorney to direct our litigation and legal advocacy. President Trump announced plans to nominate our longtime Legal Director to the Federal Election Commission, in which case he likely would be confirmed in late summer or fall.
This is a rare opportunity to develop and implement a long-term legal strategy directed toward the protection of Constitutional rights. You would work to create legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, that threaten citizens’ privacy if they speak or join groups, and that impose heavy burdens on organized political activity. The Legal Director will direct our litigation and legal advocacy, lead our in-house legal team, and manage and expand our network of volunteer attorneys.
A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country.
[You can learn more about this role and apply for the position here.]
FCC
Wall Street Journal: Mike O’Rielly’s Free Speech Fall
By The Editorial Board
Michael O’Rielly has done yeoman work as a member of the Federal Communications Commission, but this week the White House abruptly pulled his renomination for another five-year term. The decision speaks better of Mr. O’Rielly than of the President.
The Monday announcement gave no reason for dumping Mr. O’Rielly…
But our reporting suggests that Mr. O’Rielly was scuttled for remarks about regulating speech. In vogue on the right and left is rewriting Section 230 of the Communications Decency Act of 1996, which empowers social-media companies to scrub objectionable content and shields them from liability for what users say on their platforms.
President Trump and allies are eager to rewrite this standard to punish online platforms that have applied selective treatment to mainstream political views. The White House earlier this year issued an executive order on “Preventing Online Censorship” that, among other things, calls for the Commerce Secretary to petition the FCC to regulate.
Mr. O’Rielly said in a June C-SPAN interview that he was talking to experts but had “deep reservations” that Congress intended the FCC to have such authority. This modesty is unusual for a regulator, and conservatives are supposed to respect the limits of the law.
In July 29 remarks to the Media Institute, Mr. O’Rielly pressed a broader First Amendment case…
The episode is a warning that the left isn’t the only movement that demands ideological conformity.
Treasury Department
By Tyler Coward
On July 10, President Donald Trump tweeted that he was directing the Treasury Department to scrutinize the tax-exempt status of universities for “Radical Left Indoctrination, not Education.” Colin Wilhelm, a reporter for Bloomberg Tax, recently tweeted that the Treasury Department is beginning the process of reviewing “the generally applicable regulations and guidance implicated by the President’s comment.” …
[T]he department should make explicit that a faculty member’s pedagogical approach or curricular choices in accord with constitutional rights and the principles of academic freedom will not be the basis for any investigation or revocation of an institution’s tax-exempt status. Even more significantly, Treasury should affirm that faculty research, publication, and extramural expression will remain fully protected.
Otherwise, universities may come under tremendous pressure to regulate faculty speech, posing a grave threat to academic freedom. Such an outcome would be at odds with the First Amendment as well as with the administration’s stated policy to promote free speech and open inquiry at institutions of higher education…
It wasn’t so long ago that the Treasury Department and the IRS were embroiled in a controversy subjecting conservative educational nonprofit organizations to “heightened scrutiny and inordinate delays” based on these organizations’ names or perceived conservative viewpoints…
Likewise, the President’s tweet singling out “Radical Left Indoctrination” invites accusations of a viewpoint-discriminatory basis for any investigation, as it explicitly targets only indoctrination that comes from the President’s political adversaries.
The Courts
KIRO 7 News: Protesters sue Seattle, claim they need ‘expensive’ protective gear to safely protest
By Michael Spears
A lawsuit filed Monday against the city of Seattle argues protesters’ constitutional rights have been violated by the police department’s “indiscriminate” use of chemical and less-lethal crowd control tactics, which have forced demonstrators to buy “expensive” protective gear in order to safely bring their message against police brutality to the streets.
“Because the Seattle Police Department has acted above and outside the law in dispensing its unbridled force, and the City has failed to prevent same, the government effect is to establish a de facto protest tax,” the lawyers wrote. “Individual protesters subjected to SPD’s unabated and indiscriminate violence now must purchase cost-prohibitive gear to withstand munitions – even when peacefully protesting – as a condition to exercising their right to free speech and peaceable assembly.”
The suit, filed on behalf of five protesters who attended the July 25 protest on Capitol Hill that police later declared a riot, seeks an order from a judge to stop the city from using controversial crowd control tactics on protesters, including blast balls and pepper spray…
“But the continued misuse of war munitions by SPD against civilians turns the streets – a public forum and site of protest – into a pay-to-protest racket where only a privileged few who are wealthy enough or popular enough to crowdsource funds to purchase gear akin to that used by the police department they fund can truly be in the streets,” the lawsuit claims.
Free Speech
Reason: What’s the Best Way To Protect Free Speech? Ken White and Greg Lukianoff Debate Cancel Culture
By Ken White and Greg Lukianoff
Even as debates over cancel culture have swept the nation, free speech defenders have disagreed about what, exactly, cancel culture is, and what it means for freedom of speech. In many ways, these disagreements represent differences of opinion about how best to protect and uphold true freedom of speech.
And what better way to deal with questions about free speech than with a debate? Ken White is an attorney, a co-host of All the President’s Lawyers, and a frequent commenter on issues of speech and law. Greg Lukianoff is the president of the Foundation for Individual Rights in Education (FIRE), a nonprofit whose mission is to “defend and sustain the individual rights of students and faculty members at America’s colleges and universities.” In the following exchange, the pair debate the resolution: Free speech law is the best defense against cancel culture.
NBC News: ‘Cancel culture’ censorship can be most dangerous for those who promote social justice
By Suzanne Nossel
As social movements gain momentum…their supporters should recognize that the free speech rights that make possible their progress should form a part of what they are fighting for. Instead, in some instances, we see the opposite: an attempt to silence those who question or buck the cause through demands for institutional punishments directed at speech.
The campaign for a more just and equitable society is vital. Those who campaign against offending speech are themselves exercising their free speech rights; a noxious opinion revealing racism or misogyny deserves a scathing rebuke. But when citizen-led campaigns cross over into demanding official retribution for offending speech, they can yield unintended consequences.
Reflexive demands to punish errant speech discourage people from engaging in the kinds of dissent and deliberation that keep a society dynamic and prevent rigid orthodoxies from hardening. Even more dangerously, demands for such reprisals reinforce the notion that society’s powerful institutions should act as gatekeepers defining the bounds of acceptable ideas and discourse.
It’s risky to assume that institutional authorities can be empowered to suppress the expression of odious views on issues such as race and gender, without that license someday being used to stamp out the views of those advocating social justice, challenging officialdom or demanding reform.
Indeed, the very premise of free speech protections is that without them – if authorities are at liberty to punish expression – they will, on balance, deploy that prerogative self-servingly to suppress critics.
The Hill: Is antifa the greatest movement against free speech in America?
By Jonathan Turley
That fact is that antifa works to strike fear…in the heart of anyone who will oppose the movement. The antifa handbook states how the group has rejected the idea of free speech and has spent years organizing protests to prevent opposing views from getting heard. That practice has been adopted by other groups as well. Antifa violence can give colleges or politicians cover for barring conservative speakers…
Silence hurts free speech. Antifa knows that. It is the silence of professors who watch as their colleagues are harassed, investigated, or threatened. It is the silence of students who watch as others are attacked for dissenting ideas. It is the silence of reporters who watch as other journalists are fired or forcibly retired for challenging orthodox views. Finally, it is the silence of those politicians who dismiss the destruction of property as a case, in the words of Pelosi, that “people will do what people will do.”
Antifa will do a great deal of damage if allowed. It is why, for academics and writers, its existence is frightening. As Virgil explained, Keyser Soze became the “spook story that criminals tell their kids at night.” Antifa has achieved the agenda against free speech to a degree that even critics like me never imagined possible. It simply took inaction from our government and silence from our citizens. Threats against free speech are reaching a critical mass in our schools and on our streets. We can either take action or remain passive bystanders to what inevitably comes next.
Media
National Review: Americans Think ‘Fake News’ Is More Prevalent Than Ever
By Tobias Hoonhout
The most recent iteration of a multiyear project conducted by Gallup and the Knight Foundation on “Trust, Media and Democracy” shows that Americans are increasingly likely to believe that “fake news” is a real and damaging phenomenon.
The latest version of the poll, conducted between Nov. 8, 2019, and Feb. 16, 2020, shows a four-point increase in the number of respondents who perceive a heavy bias in political media coverage compared to the last Gallup/Knight survey, which was released in 2018.
In 2020, the number of Americans who believe the media is biased is six times as large as the group that perceives no bias whatsoever. Among that group, 49 percent see “a great deal” of bias while 37 percent see “a fair amount.”
Republicans perceive media bias at a much greater rate than their Democratic counterparts: A whopping 94 percent of self-identified Republicans believe the media is biased compared to 79 percent of Democrats. Republicans are also much more willing to acknowledge that their primary news sources are compromised: 63 percent of Republicans are willing to acknowledge bias in their primary source of news coverage, compared to just 46 percent of Democrats.
Nearly three out of every four respondents (74 percent) believe “owners of news outlets attempting to influence the way stories are reported” is “a major problem,” a five-point increase from the 2017 survey…
The new poll found that Americans who detect inaccuracies in a news story are more than five times as likely – 82 percent to 16 percent – to believe that the mistakes are intentional rather than the product of good faith error.
Ariana N. Pekary: Personal news: why I’m now leaving MSNBC
July 24th was my last day at MSNBC. I don’t know what I’m going to do next exactly but I simply couldn’t stay there anymore. My colleagues are very smart people with good intentions. The problem is the job itself. It forces skilled journalists to make bad decisions on a daily basis.
You may not watch MSNBC but just know that this problem still affects you, too. All the commercial networks function the same – and no doubt that content seeps into your social media feed, one way or the other.
It’s possible that I’m more sensitive to the editorial process due to my background in public radio, where no decision I ever witnessed was predicated on how a topic or guest would “rate.” The longer I was at MSNBC, the more I saw such choices – it’s practically baked in to the editorial process – and those decisions affect news content every day…
“We are a cancer and there is no cure,” a successful and insightful TV veteran said to me. “But if you could find a cure, it would change the world.”
As it is, this cancer stokes national division, even in the middle of a civil rights crisis. The model blocks diversity of thought and content because the networks have incentive to amplify fringe voices and events, at the expense of others… all because it pumps up the ratings…
Context and factual data are often considered too cumbersome for the audience…
I’ve even heard producers deny their role as journalists. A very capable senior producer once said: “Our viewers don’t really consider us the news. They come to us for comfort.”
Online Speech Platforms
The Hill: Big Tech’s assault on free speech
By Chris Talgo
In some ways, Google has more power over information than the social media companies because Google completely dominates internet searches. Over the past year, Google’s market share of worldwide internet searches has hovered around 92 percent.
According to a recent study titled “An analysis of political bias in search engine results,” Google’s “top search results were almost 40% more likely to contain pages with a ‘Left’ or ‘Far Left’ slant than they were pages from the right. Moreover, 16% of political keywords contained no right-leaning pages at all within the first page of results.”
In other words, according to that study, Google’s algorithm is politically biased to favor the left over the right. Maybe that explains why Google and other Big Tech companies contribute so much money to the Democratic Party compared to the Republican Party.
According to the Center for Responsive Politics, 70 percent of donations by Facebook and its employees in the 2020 campaign cycle have gone to Democrats. Eighty-one percent of Google’s political contributions have gone to Democrats. The same trend applies to Amazon (74 percent) and Apple (91 percent).
Fortunately, Big Tech’s bias is becoming more and more apparent. Most Americans are well aware that in general, Big Tech favors leftwing causes, politicians and opinions.
Fox News: Facebook removes pro-Trump ad aimed at Joe Biden, claiming false information
By Sally Persons and Brooke Singman
A pro-Trump ad was removed from Facebook after claims that it contained false information, Fox News has learned.
America First Action PAC on Tuesday told Fox News that Facebook removed one of its ads, titled “On Hold,” which was placed in Arizona, Pennsylvania and Wisconsin on July 24. The ad was flagged by Politifact on July 29, according to the PAC.
“Facebook’s decision to take down this ad shows its anti-conservative bias,” America First Communications Director Kelly Sadler told Fox News…
Facebook confirmed to Fox News on Tuesday that the ad had, in fact, been fact-checked. A Facebook spokesperson told Fox News that ads that are fact-checked and found to contain false information are not eligible to run as a paid ad on the social media platform.
The spokesman added that the videos can, instead, run as original content on the group’s page.
Candidates and Campaigns
Politico: Trump’s campaign knocks on a million doors a week. Biden’s knocks on 0.
By Alex Thompson
Donald Trump’s campaign says it knocked on over 1 million doors in the past week alone.
Joe Biden’s campaign says it knocked on zero.
The Republican and Democratic parties – from the presidential candidates on down – are taking polar opposite approaches to door-to-door canvassing this fall. The competing bets on the value of face-to-face campaigning during a pandemic has no modern precedent, making it a potential wild card in November, especially in close races.
Biden and the Democratic National Committee aren’t sending volunteers or staffers to talk with voters at home, and don’t anticipate doing anything more than dropping off literature unless the crisis abates. The campaign and the Democratic National Committee think they can compensate for the lack of in-person canvassing with phone calls, texts, new forms of digital organizing, and virtual meet-ups with voters.
The States
Houston Chronicle: Court case could reveal unprecedented insight into dark money group Empower Texans
By Taylor Goldenstein
Empower Texans, the deep-pocketed conservative advocacy group, is well-known for its heavy hand in steering the Texas GOP further to the right and for its shadowy setup that hides its funding sources from the public.
But a court case seeking to force the group’s leader to register as a lobbyist could reveal more about the inner workings of the organization – and others like it in Texas – than ever known before, after the Texas Supreme Court last month ruled that it must divulge communications and financial records to the state ethics commission…
The suit stems from a 2014 fine the Texas Ethics Commission assessed against [Empower Texans CEO Michael Quinn] Sullivan for failing to register as a lobbyist starting in 2010. Sullivan appealed, and a series of delays have held up the case from going to trial, including a fight over the county where it should be held and attempts by Sullivan to have it dismissed…
In a parallel court case, Sullivan is trying to gut the state agency, alleging that the Texas Ethics Commission does not have the legal authority to carry out actions such as levying fines for campaign finance law violations, saying only an executive branch agency, not a legislative branch agency, can enforce laws.
That suit, which is before the 8th Court of Appeals in El Paso, also has the potential to reorganize the ethics commission, which already has some of the weakest enforcement capabilities in the country…
[Attorney General Ken] Paxton, who has received more than $400,000 in campaign contributions from Empower Texans since 2009, has sided with Sullivan – saying he agrees with the group’s legal stand and has a “duty to uphold the Constitution,” despite his obligation by statute to defend challenges to state laws, state agencies and state employees.
New York Post: De Blasio admits city skipped permit process to paint Black Lives Matter murals
By Julia Marsh
City officials ignored their own application process for public art projects to paint Black Lives Matter murals around the five boroughs, in order to mark an important moment in history, Mayor Bill de Blasio said as his administration faces claims of First Amendment violations for refusing to green-light other proposals.
“We haven’t said ‘no’ to people, we’ve said, ‘If you want to apply, you can apply, but there’s a process,'” de Blasio said during his City Hall press briefing Monday.
The pro-President Trump group Women for America First has sued City Hall for blocking a mural of their slogan “Engaging, Inspiring and Empowering Women to Make a Difference!” on a Manhattan roadway, while allowing multiple BLM paintings throughout the city.
Hizzoner insists he didn’t block the move, just referred groups like Women for America First and the pro-police Blue Lives Matter to the Department of Transportation’s permitting process. But there was no approval required for the BLM movement.
“That is something that again transcends all normal realities because we are at a moment of history when that had to be said and done, that’s a decision I made,” de Blasio said.
“But the normal process continues for anyone who wants to apply,” he added…
[C]ivil liberties lawyer Norman Siegel predicted de Blasio’s argument won’t hold up in court.
“Once you open the door and allow Black Lives Matter murals to be on the streets of New York, you can’t now turn down Blue Lives Matter. That would be a violation of the free speech provision of the Constitution,” Siegel told The Post.
Voice of San Diego: SDPD Is Punishing Speech Using a 102-Year-Old City Law
By Kate Nucci
Since 2013, as far back as the city would provide records, San Diego Police Department officers have issued 83 tickets to people they accused of using seditious language. The most recent was written in May.
Seditious language is generally defined as speech that aims to overthrow the government.
Yet the U.S. Supreme Court has ruled that seditious language can only be regulated if authorities can prove that it’s used as part of an imminent crime against the government. Legal experts questioned the constitutionality of the charge and one wondered whether police weren’t simply writing tickets against people who mouthed off…
While 83 San Diegans since 2013 may have been actively plotting to overthrow city government, said David Loy, the legal director at the ACLU of San Diego and Imperial Counties, it’s more likely police officers have been using the charge to punish people who insult or talk back to them…
“It’s well known in some situations that some officers give out citations for so-called ‘contempt of cop,'” Loy said. “When they’re citing this statute, or a disorderly conduct statute, what they’re really getting citations for is people being rude to cops in the eyes of a police officer.”
Being rude to police officers, however, is protected speech in the United States. The Supreme Court in Houston v. Hill struck down a Houston municipal code that prohibited “contempt of police officer,” arguing it violated the defendants’ First Amendment rights.
ABC 7 News: ‘Outrageous & politicized’: Martinez couple seen defacing BLM mural pleads not guilty to hate crime charge
By Amy Hollyfield
The Martinez couple accused of a hate crime for painting over a Black Lives Matter mural appeared in court Tuesday.
Nicole Anderson and David Nelson entered not guilty pleas to three misdemeanor charges. Their attorney calls the charges “outrageous and politicized.”“Just as peaceful protestors have the right to march and display their political views in a myriad of different ways, they have the same right to display their dissatisfaction and disagreement with their tax dollars being used to sponsor a radical organization, Black Lives Matter,” defense attorney Bill Essayli said outside the courthouse…
“It is a problem when you have elected officials using tax dollars to politicize an issue and now you have a District Attorney who is making it a crime to disagree with a political message and that’s a real problem,” Essayli said. “We cannot have two standards of justice in our country. We are thankful we are going to have our day in court.”
