This is the Daily Media Update published by the Institute for Free Speech. For press inquiries, please contact [email protected].
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In the News
By Fred Stokeld
.....Ten years after the IRS acknowledged it had inappropriately given extra scrutiny to applications for tax-exempt status submitted by conservative organizations, debate continues as to what happened and how things stand today, with observers on the political right and left suggesting that more guidance on exempt organizations and political activity could help prevent such controversies from happening again...
David Keating of the Institute for Free Speech said he doesn’t believe the Obama White House explicitly instructed the IRS to target conservative nonprofits.
“But, like Henry II wondering aloud whether someone could ‘rid me of this troublesome priest,’ it has an impact when a powerful leader speaks,” Keating added.
“President Obama and several U.S. senators made ill-advised public comments during this time that created enormous pressure on the IRS to act against these groups,” Keating said. “As Lois Lerner told the inspector general, ‘the IRS was urged to do something about’ section 501(c)(4) organizations spending money on election campaigns. And act it did.”
The IRS made many mistakes, and Lerner was biased, Keating continued.
“The fundamental problem is that the IRS knows nothing about free speech or Supreme Court First Amendment jurisprudence, which is hardly surprising given its tax collection and compliance mission,” Keating said. “As a result, the IRS guidance on political activity is unconstitutionally vague. When lines aren’t drawn clearly, that lack of clarity creates an environment for abuse.”
For multiple reasons, the IRS shouldn’t be in the “speech police” business at all, Keating said. To the extent the government performs that function, it’s the job of the Federal Election Commission, which has more expertise in it, he said.
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New from the Institute for Free Speech
By Tom Garrett
.....Many Americans may be surprised to learn that laws punishing libel as a criminal offense still exist, even though such laws contradict fundamental First Amendment principles.
Frese v. Formella seeks to rectify that error. The case concerns Robert Frese, a New Hampshire citizen who posted negative online comments about a law enforcement officer. Those comments led to charges against Frese under New Hampshire’s criminal libel law. Frese’s case asks the Supreme Court to declare criminal libel laws unconstitutional on First Amendment grounds.
The Institute for Free Speech has filed an amicus brief supporting Frese’s position. As the brief explains, the law of criminal libel raises fears of prosecution for merely speaking, and the threat of prosecution may cause speakers to self-censor. Moreover, prosecutions, even if ultimately dismissed or overturned on appeal, can cause long-lasting injuries to the speaker.
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Supreme Court
By Luke Wachob
.....Critics of Justice Clarence Thomas are working overtime to cancel him. That’s no surprise. A longtime thorn in the side of liberal causes, Thomas has evoked a particular hatred from the proponents of cancel culture since he put them on notice over a decade ago.
Thomas not only blasted their unseemly tactics, but he tried to do something about them. In a concurring opinion in the 2010 case Citizens United v. FEC, Thomas called for stronger privacy protections to fight this toxic trend.
The core of Citizens United was not about privacy at all. The case primarily concerned a nonprofit group’s ability to promote and distribute a documentary criticizing Hillary Clinton. But the Supreme Court also reaffirmed by an 8-1 margin its past decisions allowing certain invasions of privacy when citizens contribute to a campaign for election. The lone holdout was Thomas.
Terms such as “cancel culture” and “doxxing” were still years away from catching on, but Thomas described something almost identical. He wrote of political activists using new internet tools to wreak havoc on the lives and careers of ordinary people. He told the stories of everyday people who had lost their jobs, reputations, and even their sense of safety after supporting a California ballot proposition on traditional marriage in 2008.
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The Courts
By Ben Protess, Kate Christobek, Jonah E. Bromwich, William K. Rashbaum and Sean Piccoli
.....A New York Times analysis of about 30 false business records cases brought by Mr. Bragg and his predecessor — based on court records, interviews and information the office provided — shows that in this respect, the case against Mr. Trump stands apart. In all but two of the indictments reviewed by The Times, the defendant was charged with an additional crime on top of the false records charge.
The decision to charge Mr. Trump with 34 counts of falsifying business records — and no other crimes — highlights the unique nature of the case, the first indictment of a former American president. Mr. Bragg, a Democrat, has drawn criticism from Mr. Trump’s allies, who say that he bumped up the charges to a felony for political reasons...
While the Trump indictment does not reference a second crime, Mr. Bragg suggested three possible options during his news conference: Two versions of an election crime — one state, one federal — as well as tax fraud.
The election law crimes might put Mr. Bragg on uncharted ground, raising the possibility that the courts could throw out or limit the case.
Never before has a New York State prosecutor brought an election law case involving a federal campaign, The Times analysis strongly suggests. An untested case against any defendant, let alone a former president of the United States, raises the risk for Mr. Bragg legally — and could expose him to political blowback.
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Congress
By Ken Klippenstein
.....Within the federal government, offices dedicated to fighting foreign disinformation are springing up like daisies, from the Pentagon’s new Influence and Perception Management Office to at least four organizations inside the Department of Homeland Security alone, as well as ones inside the FBI and State Department.
To oversee the growing efforts — which arose in response to concerns about the impact of Russian meddling in the 2016 election but have now expanded — the director of national intelligence has created a new office.
In testimony before the Senate Armed Services Committee Thursday, Director of National Intelligence Avril Haines for the first time mentioned the creation of the Foreign Malign Influence Center, or FMIC. “Congress put into law that we should establish a Foreign Malign Influence Center in the intelligence community; we have stood that up,” Haines said, referring to legislation passed last year. “It encompasses our election threat work, essentially looking at foreign influence and interference in elections, but it also deals with disinformation more generally.”
The FMIC was established on September 23 of last year after Congress approved funding, but its creation was announced publicly only after The Intercept’s inquiry. Because it is situated within the Office of the Director of National Intelligence, or ODNI, it enjoys the unique authority to marshal support from all elements of the U.S. intelligence community to monitor and combat foreign influence efforts such as disinformation campaigns.
The FMIC is authorized to counter foreign disinformation targeting not just U.S. elections, but also “the public opinion within the United States” generally, according to the law.
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FEC
.....On October 18, 2022, the Commission voted 5-1 to find reason to believe (“RTB”) that News for Democracy, a § 501(c)(4) nonprofit corporation,1 violated the Federal Election Campaign Act (“FECA” or “Act”) “by failing to report independent expenditures” and “by failing to include [the] required disclaimer on ads containing express advocacy.” The Commission also approved a factual and legal analysis setting forth the basis for that decision. I was the lone dissenter. To be clear, I agree with the Commission’s determination concerning an ad opposing the reelection of Senator Rick Scott and its decision not to find RTB that News for Democracy was a political committee — questions that were properly before us. But the decision to include an ad opposing Senator Marsha Blackburn’s reelection in our conciliation efforts is a different matter.
By pursuing that additional communication, the Commission ratified what was, in my view, the Office of General Counsel’s (“OGC”) mishandling of its pre-RTB review. Because that investigation exceeded our statutory authority and cherrypicked from the available information, I could not join my colleagues in acting upon its fruits.
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Online Speech Platforms
By Paul Bedard
.....It’s no secret that conservatives are concerned about bias in artificial intelligence platforms.
And they should be. The Media Research Center told Secrets that it tested ChatGPT for bias and found lots.
“All it took was for MRC Free Speech America researchers to type the word ‘Biden,’ and ChatGPT launched into what appeared to be a public relations campaign for the Democratic Party,” MRC said.
“OpenAI readily admits on its site that ChatGPT ‘sometimes’ will ‘exhibit biased behavior.’ Oh, I’ll say,” said MRC Free Speech America & MRC Business Director Michael Morris. “OpenAI also acknowledges on its site that 'we expect it to have some false negatives and positives for now.’ But what OpenAI doesn’t seem to want to address is why its AI chatbot’s bias seems to constantly run in one direction — in favor of the Left. Its responses to the terms 'Trump’ and ‘Biden’ are just the latest in a long list of examples of biased behavior.”
Enter GIPPR AI. The conservative browser Tusk told us it is introducing a right-leaning AI chatbot that "is a nod to" the commonsense phraseology of the 40th president and Republican icon, though there is no official connection.
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The States
By Andy Monserud
.....Minnesota’s governor signed a number of changes to the state’s election rules into law Friday, including provisions for automatic voter registration and a crackdown on the spread of misinformation intended to stop people from voting....
More controversially, the bills would create new disclosure requirements for would-be election advertisers and pamphleteers, closing loopholes that allow them to avoid reporting their political activities if they don’t expressly advocate for or against a candidate or ballot question using certain words, and bar “foreign-influenced” corporations and nonprofits from spending money to influence elections.
Democrats, including the law’s Minnesota House sponsor and voting-rights lawyer Emma Greenman from Minneapolis, have argued that this is comparable to federal rules and one of the few options still available to the state to regulate campaign contributions after the Supreme Court’s 2010 Citizens United decision. Republicans, meanwhile, have expressed skepticism that it clears that bar...
Republicans chafed against the law’s passage, with some arguing that the contribution restrictions should be expanded to ban political contributions from unions and other traditionally Democratic donors.
“I would love to get rid of all the dark money, because most of it benefits someone other [than] my party,” Senator Mark Koran, a Republican from North Branch, was quoted as saying in the Star Tribune in February. Koran, apparently paying reference to Democrats’ substantial fundraising advantage in Minnesota in recent years, continued: “We would love to have confidence that whatever we did would actually do that.”
Representative Paul Torkelson, a Republican from Hanska, put it more bluntly when the bill passed the house 70–57 in mid-April. “The Protect Democracy Act feels a little more like ‘let’s protect Democratic victories’ Act,” he said.
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By Jesse Bedayn
.....Colorado lawmakers pushed a bill to the governor’s desk that would allow politicians to block social media users from their private accounts, just weeks after the U.S. Supreme Court announced it would consider to what extent that’s legal.
The bipartisan measure Colorado’s Democrat-controlled Legislature approved Thursday allows lawmakers to block people for any reason they choose. The rule wouldn’t apply to some politicians’ accounts, such as one of Gov. Jared Polis’ Twitter accounts, @GovofCO…
“The U.S. Supreme Court acknowledged that social media is an instrument for ‘speaking and listening in the modern public square,’ and that it affords ‘perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard,’” said Catherine Ordoñez, the ACLU of Colorado’s policy counsel, in a committee hearing on the bill.
“Legislators following the text of this bill will regularly violate the First Amendment rights of the individuals interacting with their social media accounts,” said Ordoñez.
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By Luke Wachob
.....Two more states just made it safer for citizens to exercise their First Amendment rights. Kentucky and Indiana became the 15th and 16th states to adopt the Personal Privacy Protection Act (PPPA) when S.B. 62 and H.B. 1212, respectively, became law this spring. The bills protect Americans against unlawful disclosures of their personal information when giving to nonprofits.
The PPPA is an increasingly popular response to the trends of doxing and cancel culture, wherein malicious actors weaponize public records and target Americans for harassment based on their beliefs. These actions undermine free speech and jeopardize the ability and willingness of citizens to support the causes of their choice. Drawing on recent Supreme Court precedent, the PPPA addresses the problem at its root by prohibiting state agencies from arbitrarily collecting, demanding, or releasing nonprofit donation or membership records.
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The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Please support the Institute's mission by clicking here. For further information, visit www.ifs.org.
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