July 5, 2023

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In the News

The National Desk (Video): America's News Now

.....America's News Now reports on the Institute for Free Speech case Johnson v. Watkin.

New Jersey Monitor: Legislators pass bill that would restrict lawsuits meant to silence critics

By Dana DiFilippo

.....State lawmakers unanimously passed legislation Friday intended to shut down lawsuits that aim to intimidate or silence detractors.

If Gov. Phil Murphy signs the bipartisan bill as expected, New Jersey will become the 33rd state to adopt a statute against civil lawsuits known as “SLAPPs,” short for strategic lawsuits against public participation…

Groups as disparate as the New Jersey Press Association to the Institute for Free Speech to the Motion Picture Association have advocated for anti-SLAPP laws.

The Courts

Washington Post: Judge blocks U.S. officials from tech contacts in First Amendment case

By Cat Zakrzewski

.....A federal judge on Tuesday blocked key Biden administration agencies and officials from meeting and communicating with social media companies about “protected speech,” in an extraordinary preliminary injunction in an ongoing case that could have profound effects on the First Amendment.

The injunction came in response to a lawsuit brought by Republican attorneys general in Louisiana and Missouri, who allege that government officials went too far in their efforts to encourage social media companies to address posts that they worried could contribute to vaccine hesitancy during the pandemic or upend elections...

The injunction was a victory for the state attorneys general, who have accused the Biden administration of enabling a “sprawling federal ‘Censorship Enterprise’” to encourage tech giants to remove politically unfavorable viewpoints and speakers, and for conservatives who’ve accused the government of suppressing their speech. In their filings, the attorneys general alleged the actions amount to “the most egregious violations of the First Amendment in the history of the United States of America.”

Ed. note: Read the injunction here. Read the ruling here.

Supreme Court

Reason (Volokh Conspiracy): How to Read 303 Creative v. Elenis

By Dale Carpenter

.....On Friday, the Supreme Court ruled in 303 Creative v. Elenis that Colorado cannot force a website designer to create messages celebrating same-sex marriages. Eugene and I joined others in an amicus brief arguing that this potential application of a state public accommodations law would be an unconstitutional speech compulsion. As Eugene has already noted, the Supreme Court agreed.

I read Justice Gorsuch's decision as broader in some respects than some may hope it is. It can't reasonably be cabined to all of its specific facts. The rationale for the vendor's message-based objection--religious or not, internally consistent or not, odious or not--does not matter. Op. at 24-25. Nor, in principle, are the speech protections the Court outlined limited to the creation of messages about same-sex marriage, marriage in general, or homosexuality.

On the other hand, the decision is also narrower in important ways than some progressives fear or some religious conservatives/libertarians may hope. I read 303 Creative to hold that a vendor cannot be compelled by the government:

Reason: What Will 303 Creative Mean for Social Media Regulation?

By Scott Shackford

.....I joked on Twitter not long after the [303 Creative v. Elenis] ruling Friday that the big loser of the decision was actually Florida Gov. Ron DeSantis, who signed and supports a law in his state that forces social media platforms to carry messages from candidates running for office within the state and threatens massive fines to qualifying platforms that refuse. The law's implementation was blocked a year ago by a panel of federal judges who ruled that "if social-media platforms currently possess the First Amendment right to exercise editorial judgment, as we hold it is substantially likely they do, then any law infringing that right—even one bearing the terminology of 'common carri[age]'—should be assessed under the same standards that apply to other laws burdening First-Amendment-protected activity."

In that Florida ruling, the judges decided that platforms have the right under the First Amendment to exclude political messages they find offensive.

The same logic is driving the Republican leaders in Florida, the liberal political regulators in Colorado, and even the American Civil Liberties Union: They each attempt to argue that certain businesses are merely providers of services. It shouldn't matter to them what content they're handed. They should just do the job. Bake the cake. Print the shirt. Post the statement.

They are wrong. Just as Smith shouldn't be required to design a gay wedding page, Elon Musk over at Twitter shouldn't be required to host political speech from anybody he deems offensive.

Online Speech Platforms

Washington Post: A viral left-wing Twitter account may have been fake all along

By Drew Harwell

.....In eight months, Erica Marsh has become one of the most consistently viral left-wing voices on Twitter, gaining more than 130,000 followers for her hyper-liberal, often melodramatic opinions on the biggest flash points in American news.

She’s been especially popular with conservatives, who promoted her as a perfect symbol of how overly theatrical and inane liberals can be — like when she attacked the Supreme Court’s affirmative action decision last week by saying “no Black person will be able to succeed in a merit-based system.” The tweet was viewed more than 27 million times.

There’s just one problem: She’s probably a fake.

The “proud Democrat” in Washington, as she described herself on Twitter, doesn’t show up in any local phone or voting records. The Biden presidential campaign, where she said she worked as a field organizer, has no record of her; neither does the Obama Foundation, where she claimed to have volunteered.

The States

New York Times: Guess Who’s Been Paying to Block Green Energy? You Have.

By David Pomerantz

.....State regulators are supposed to make sure that customers’ monthly utility bills cover only the cost of delivering electricity or gas and to set limits on how much utilities can profit. But large investor-owned utilities, with legions of lawyers to help them evade scrutiny, bake many of their political costs into rates right alongside their investments in electrical poles and wires. In doing so, they are conscripting their customers into an unknowing army of millions of small-dollar donors to prolong the era of dirty energy.

Fortunately, Colorado, Connecticut and Maine passed laws this spring that prohibit utilities from charging customers for their lobbying, public relations spending and dues to political trade associations like the American Gas Association and the Edison Electric Institute. Regulators in Louisiana are considering similar policy changes. Every state in the country should follow those leads.

These reforms are crucial because while all corporations in the United States can spend money on politics, in most cases, consumers who don’t approve can take their business elsewhere. Utilities — as regulated monopolies — have the unique ability to force customers to participate.

Read an article you think we would be interested in? Send it to Tiffany Donnelly at [email protected]. For email filters, the subject of this email will always begin with "Institute for Free Speech Media Update."

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