Free Speech

Washington Post: UC Berkeley chancellor’s message on free speech

By Eugene Volokh

“The law is very clear; public institutions like UC Berkeley must permit speakers invited in accordance with campus policies to speak, without discrimination in regard to point of view…

But the most powerful argument for free speech is not one of legal constraint – that we’re required to allow it – but of value. The public expression of many sharply divergent points of view is fundamental both to our democracy and to our mission as a university. The philosophical justification underlying free speech, most powerfully articulated by John Stuart Mill in his book, On Liberty, rests on two basic assumptions. The first is that truth is of such power that it will always ultimately prevail; any abridgement of argument therefore compromises the opportunity of exchanging error for truth. The second is an extreme skepticism about the right of any authority to determine which opinions are noxious or abhorrent. Once you embark on the path to censorship, you make your own speech vulnerable to it…

Some constitutionally-protected speech attacks the very identity of particular groups of individuals in ways that are deeply hurtful. However, the right response is not the heckler’s veto, or what some call platform denial… Respond to hate speech with more speech.”

Wall Street Journal: An Aversion to Adulting

By Christine Rosen

A psychology professor at San Diego State University, Ms. Twenge assigns the label iGen (her own coinage) to people born between 1995 and 2012. It is a group, she notes, that doesn’t know a world without the internet and smartphones and is now 24% of the U.S. population…

Members of iGen, Ms. Twenge says, are more likely than their predecessors “to support restricting speech.” She found that “more than one out of four students (28%) agreed that ‘A faculty member who, on a single occasion, says something racially insensitive in class should be fired,’ ” while 16% believed a student who did the same thing once should be expelled. In a rare moment of judgmentalism, Ms. Twenge adds: “This is the dark side of tolerance; it begins with the good intentions of including everyone and not offending anyone but ends (at best) with a reluctance to explore deep issues and (at worst) with careers destroyed by a comment someone found offensive and the silencing of all alternative viewpoints.” 

The Atlantic: The Most Shortsighted Attack on Free Speech in Modern U.S. History

By Conor Friedersdorf

The Nazis and the KKK marched.

Yet even now, at the bottom of the slippery slope, a broad reading of the First Amendment is still the framework that best protects ethnic and religious minority groups. In fact, marginalized groups-street activists, Muslim immigrants, Black Lives Matter protesters-would suffer particularly at this very moment if the faction of progressives who want to limit free speech got their way…

Under a legal regime that treated more kinds of speech as incitement, on the theory that Nazis and other white supremacists are pushing an inherently violent ideology, Trump would very likely use the same rules and precedents to target, say, imams at whatever mosques Sessions judges to be inciting Islamist violence; or Twitter activists who tell their followers that punching Nazis is woke. Those whom Trump has taken to calling the “alt-left” would be most at risk…
A weakened First Amendment in today’s climate would be marshaled against Trump’s opponents, even as it robbed them of their ability to fight back.

Wall Street Journal: Was I Right to Pull the Plug on a Nazi Website?

By Matthew Prince

Before terminating the Daily Stormer, Cloudflare’s policy had been to stay neutral to the content that used our network. We’d comply with the law in the jurisdictions where we operate, but we wouldn’t bow to political or public pressure to boot anyone off our network. And make no mistake, there is pressure: Hackers actually tweeted to us asking that we get out of the way so they could take down the Daily Stormer.

When standing up to government requests or angry Twitter demands to silence unpopular speech, it was powerful to be able to say we’d never terminated a customer due to political pressure. I’m not sure we can say that anymore.

I’d like to fall back on the First Amendment. I’m the son of a journalist. I grew up with discussions around the dinner table on the importance of freedom of speech. But the First Amendment doesn’t compel private companies to let anyone broadcast on their platforms…

We’re going to have a long debate at Cloudflare to think these issues over. But terminating the Daily Stormer is likely to be the exception that proves the importance of content neutrality. My moral compass alone should not determine who gets to stay online.

The Courts

Electronic Frontier Foundation: Washington State Tries to Crack Down on Cyberbullying – But Routine Criticism Is Blocked Instead

By Rebecca Jeschke

At EFF, we’ve been watching Washington’s cyberstalking law for a long time. Among its provisions, it prohibits broadly defined “electronic communications” intended to “embarrass” someone that are made anonymously or repeatedly or include an obscenity. But a big part of political activism is naming and shaming folks who you think should do the right thing-it’s a powerful tool to get officials to do their job. It doesn’t take long to think of activities that could be criminalized by this law: one politician publishing various lists of questionable decisions made by an election challenger; a series of newspaper editorials arguing that a city official should be scorned because of misconduct; or an activist posting multiple videos of a lawmaker doing something unsavory. This is all important speech that is protected by the First Amendment, and no state law should be allowed to undermine these rights.

EFF and ACLU-WA’s amicus brief asks the judge to issue a preliminary injunction in this case, blocking enforcement of this unconstitutional law.

DreamHost Blog: A Win for Privacy Is a Win for the Web

Given the extraordinary privacy and First Amendment issues raised by this case, the court has chosen to effectively shackle the Department of Justice in several key ways, all of which act to limit exposure of sensitive and private user information.

The court has asked the DOJ to present it with a “minimization plan.” This plan is to include the names of all government investigators who will have access to this data and a list of all methods that will be used to comb through it in search of evidence.

The production of evidence from this trove of data will be overseen by the court. The DOJ is not permitted to perform this search in a bubble…

While we’ve been compelled by the court to share this (still) large cache of data (and will do so in the next few days), the DOJ will not gain access to it immediately. We are considering an appeal which would deny the government the ability to access that data temporarily and potentially forever if our appeal is found to have merit.

The Media

Reason: Why Are Media Outlets Giving Commentary Space to Wannabe Censors?

By Scott Shackford

This week, The Washington Post joins several other large media outlets in giving commentary space to an academic who thinks the First Amendment maybe shouldn’t protect so much free speech.

I’ll give Jennifer Delton-Skidmore College’s “Douglas Family Chair in American culture, history, and literary and interdisciplinary studies”-this much: She’s not disguising her calls for censorship of conservative opinion by claiming this will achieve some sort of racial enlightenment or equality. She openly describes this censorship as a tool for stopping the spread of political arguments she sees as dangerous…

We happen to have a president openly at war with the media and who has very little understanding or concern about the First Amendment. When major media outlets give such a high profile to commentaries that call for political censorship, are they not aware that this could blow back on them as well? Is this like media criticism of the Citizens United decision, where newspapers think that they’d be immune to censorship of corporations because the First Amendment has distinct, separate protections for the press?

Quillette: Fake News is Old News

By Jacob Mchangama

The fact that the truthfulness of news, reporting and information has always been contested does not necessarily mean that the reaction to current developments in the digital age should be shrugged off as a moral panic without any merit. But it should caution decision makers tempted to adopt draconian measures without fully understanding the likely consequences. The preceding history reveals the dangers of putting governments and institutions in charge of defining truth and error…

No doubt most kings, emperors, and popes were sincere in their belief that their version of orthodoxy was the truth and that deviations therefrom necessitated suppression of dissent, heresy, and apostasy. But liberal democracy’s commitment to individual liberty necessarily entails the right of individuals to reject and (peacefully) oppose the very tenets of the liberal order…

There is also an acute danger that laws against fake news will be abused. When does a government’s restriction of “fake news” aimed at safeguarding the institutions of democracy become a useful tool aimed at limiting the spread of information undermining the worldview of the powers that be?

IRS

Wall Street Journal: (Still) Seeking IRS Accountability

By Editorial Board

The Obama Justice Department dismissed the IRS political targeting scandal as no big deal, and the Trump Administration hasn’t been any better. At least the judiciary is still trying to hold someone to account for this government abuse.

In a little noticed decision last week, federal Judge Reggie Walton ordered the IRS to answer a series of questions by Oct. 16. Notably, the tax agency must finally explain the specific reasons for the specific delays in approving each of dozens of conservative nonprofit applications-delays that stifled free speech during a midterm and presidential election. Judge Walton is also requiring the IRS to name the specific individuals that it holds responsible for the targeting.

These are basic questions of political accountability, even if the IRS has stonewalled since 2013. President Obama continued to spin that the targeting was the result of some “boneheaded” IRS line officers in Cincinnati who didn’t understand tax law. Yet Congressional investigations have uncovered clear evidence that the targeting was ordered and directed out of Washington.

Daily Beast: Donald Trump Allies Push Legal Limits in Building the ‘ACORN of the Right’

By Lachlan Markay

The organization, Look Ahead America (LAA), has already drawn the attention of legal experts, who have questioned whether it should be given preferential tax-exempt status reserved for apolitical organizations. LAA has been classified as a 501(c)(3) nonprofit since its launch announcement last week…
But critics view the organization as a political arm for the White House…

[A]ccording to Evers, initial descriptions of LAA’s work suggest it will push the envelope of permitted activity. “A (c)(3) organization can violate those rules without saying the name of a candidate, without saying the word Republican, without saying the word Democrat,” Evers said. “Based on how the organization has presented itself to the media, they are going to have to be very careful about how they execute their mission.”… 

“The fact that Look Ahead America is staffed by former Trump campaign staffers and fundraising from Trump donors-and apparently targeting potential Trump voters-may cause the IRS to take a careful look at the group’s activities,” according to Brendan Fischer, the director of federal and Federal Election Commission reform efforts at the Campaign Legal Center, another watchdog group.    

Candidates and Campaigns

Salt Lake Tribune: Democrat Kathie Allen pledges to reject donations from corporate PACs

By Courtney Tanner

Democrat Kathie Allen vowed Thursday to hand back any donations from “deep-pocketed special interests” or corporate PACs during her bid to replace former Rep. Jason Chaffetz.

Since Allen launched her campaign in March, the first-time candidate and fundraising powerhouse has hauled in nearly $700,000 – none from political action committees…

Most of Allen’s money rolled in shortly after Chaffetz appeared on national television in March and remarked that “rather than get that new iPhone,” low-income Americans may have to prioritize spending on health care. Though he later sought to clarify the comment, angry people from across the country jumped on the fundraising site CrowdPac and flooded Allen’s page with contributions.

Roughly 60 percent of her donations come from people outside of Utah – which she credits to voters nationwide feeling Chaffetz, as chairman of the House Oversight Committee, was “not holding Trump accountable.”

The States

Kansas City Star: Greitens is right to protect private donations in Missouri

By Dan Caldwell

Hyperbole in political discourse is as old as the sun, but state Sen. Rob Schaaf, a St. Joseph Republican, really outdid himself when accusing Missouri Gov. Eric Greitens of “threaten(ing) the integrity of our republic.” Greitens’ crime? Supporting free speech.

Schaaf’s over-the-top comments come from the governor’s decision to protect the right of a nonprofit organization not to disclose its supporters…

Schaaf and others claim that they are looking out for Missourians by demanding nonprofit groups disclose their supporters. But by limiting free speech, it will only make it more difficult to hold our elected officials accountable and give citizens a voice in shaping public policy.

Greitens is right to protect a citizen’s ability to privately contribute to a nonprofit, ensuring that Missourians are not left open to harassment and intimidation by the government or their fellow citizens. 

Palm Beach Post: Florida House speaker pushes for repeal of public campaign financing

By Lloyd Dunkelberger

House Speaker Richard Corcoran announced Wednesday that he wants to repeal part of the Florida Constitution that provides public financing for statewide election candidates.

Corcoran, R-Land O’Lakes, and House Commerce Chairman Jim Boyd, R-Bradenton, announced they are asking the Florida Constitution Revision Commission to place the repeal on the 2018 general-election ballot…

“This (public financing) is a gross waste of taxpayer money and is nothing more than welfare for politicians,” Corcoran said in a statement. “You really have to be clueless or just plain selfish to accept money from our state coffers that could go to our schoolchildren, first responders, or be put back in the pockets of our taxpayers.”…

Pointing to the more than $10 million in public financing spent on “political consultants, TV ad buyers and politicians instead of school kids, substance abuse treatment or veterans” since 2010, co-sponsor Boyd said, “That is unacceptable, and repeal of the provision in the Constitution is the way to end this practice.”

Charlotte Observer: Watchdog group grades New Mexico lawmakers

By Associated Press

A New Mexico watchdog group issued a report card Wednesday that grades state legislators on their support of reforms for expanding campaign finance disclosures, voter registration opportunities and government ethics oversight.

The online report card from Common Cause New Mexico sums up each lawmaker’s voting record on three bills and two constitutional amendments during the legislative session that ended in March, including committee votes. Active sponsorship of the initiatives earned legislators extra points…

The monitored initiatives were aimed at greater financial disclosures by independent political groups and lobbyists, automation of voter registration, and the creation of independent commissions on redistricting and political ethics complaints. Four initiatives failed or were vetoed, while voters will decide on the ethics commission in November 2018 elections.

Argus Leader: Panel won’t recommend raising bar for repealing voter-approved laws

By Dana Ferguson

A legislative task force on Wednesday rejected a proposal to make it tougher for South Dakota lawmakers to gut voter-approved laws.

On a 6-7 vote, the Initiative and Referendum Task Force in Pierre voted against recommending that the Legislature require a two-thirds majority to strike down laws created by initiated ballot measures.

The decision comes six months after the Legislature using an emergency clause voted to repeal a campaign finance and ethics law narrowly approved by voters in 2016…

The measure’s backers said raising the bar for repealing voter laws would encourage people to use ballot measures rather than constitutional amendments as they would have a stronger guarantee that lawmakers couldn’t gut them.

Opponents, meanwhile, said the measure could make the hurdle too high in repealing bad bills and that voters could use their power on the ballot not to re-elect lawmakers if they disagree with their decisions.