September 6, 2023

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Congress

People United for Privacy: IRS Not Equipped to Police Nonprofits’ Speech, PUFP Warns Congress

By Luke Wachob

.....In a letter sent to the U.S. House Ways and Means Committee on September 4, 2023, People United for Privacy (PUFP) warned Congress against allowing the IRS to issue new regulations governing the political activities of 501(c)(3) and 501(c)(4) nonprofit organizations.

PUFP’s comments explain that the IRS lacks the necessary expertise and structural safeguards to ensure First Amendment rights are protected when regulating in this highly sensitive area. Moreover, the IRS has a proven history of targeting nonprofits and donors for their speech about government, public policy, and elected officials. As the comments advise, the Federal Election Commission (FEC), not the IRS, has exclusive jurisdiction to regulate federal campaign activity.

“Far from conferring the IRS with more authority to regulate in this area, all of the problems the [Request for Information] identifies with the current regulatory approach would be better addressed by alleviating the IRS of its jurisdiction over political activity altogether,” wrote PUFP Vice President Matt Nese and Counsel Eric Wang.

New York Times: Tech Chiefs to Gather in Washington [This] Month on A.I. Regulations

By Cecilia Kang

.....Senator Chuck Schumer, Democrat of New York, plans to kick off a series of listening sessions [this] month on the regulation of artificial intelligence with Elon Musk of Tesla, Sundar Pichai of Google, Sam Altman of OpenAI and Satya Nadella of Microsoft.

Mr. Schumer’s office said on Monday that the tech leaders were set to convene in Washington on Sept. 13 for the first of several meetings for lawmakers to hear from A.I. experts. Jensen Huang, the chief executive of the chip maker Nvidia, and Eric Schmidt, the former chief executive of Google, will also attend.

The “A.I. insight forums” are closed-door listening sessions for lawmakers as they try to devise regulations for A.I. technologies. Mr. Schumer, the majority leader, said the sessions were intended to educate members of Congress on the risks posed by A.I. on jobs, the spread of disinformation and intellectual property theft. Lawmakers will also learn about opportunities created by the technology in the field of research on diseases, his office said.

The Sept. 13 meeting will also include members from civil rights and labor groups and the creative community.

The Courts

The Verge: Porn age verification law is unconstitutional, says judge

By Adi Robertson

.....A federal judge has blocked a Texas law that would require age verification and health warnings for pornographic websites, calling it unconstitutional and poorly defined. In a preliminary injunction decision released today, Judge David Ezra ruled in favor of the Free Speech Coalition, an adult industry trade association. The ruling prevents Texas from enforcing HB 1181, one of multiple state-level bills that would require age verification for accessing adult content online.

Reason (Volokh Conspiracy): Court Strikes Down W. Va. Law Restricting Property Owners from Asking Visitors About Whether They Have Guns in Their Parked Cars

By Eugene Volokh

.....From yesterday's decision by Judge John T. Copenhaver, Jr. (S.D. W. Va.) in W. Va. Coalition Against Domestic Violence, Inc. v. Morrisey (some formatting changed); note that the court upheld some other provisions of the law, which I discuss in a separate post:

…

The court held that the Inquiry Provision violated the First Amendment, and that the Take-No-Action provision was unconstitutionally vague in part because of the possibility that it would be read as restricting speech as a form of action. The opinion is very long, so I thought I'd excerpt just portions of the free speech discussion (which I think is generally correct):

Online Speech Platforms

Oversight Board: Oversight Board overturns Meta's original decisions in United States Posts Discussing Abortion cases

.....The Oversight Board has overturned Meta’s original decisions to remove three posts discussing abortion and containing rhetorical uses of violent language as a figure of speech. While Meta acknowledges its original decisions were wrong and none of the posts violated its Violence and Incitement policy, these cases raise concerns about whether Meta’s approach to assessing violent rhetoric is disproportionately impacting abortion debates and political expression. Meta should regularly provide the Board with the data that it uses to evaluate the accuracy of its enforcement of the Violence and Incitement policy, so that the Board can undertake its own analysis.

Candidates and Campaigns

Washington Post: ChatGPT breaks its own rules on political messages

By Cat Zakrzewski

.....When OpenAI last year unleashed ChatGPT, it banned political campaigns from using the artificial intelligence-powered chatbot — a recognition of the potential election risks posed by the tool.

But in March, OpenAI updated its website with a new set of rules limiting only what the company considers the most risky applications. These rules ban political campaigns from using ChatGPT to create materials targeting specific voting demographics, a capability that could be abused spread tailored disinformation at an unprecedented scale.

Yet an analysis by The Washington Post shows that OpenAI for months has not enforced its ban. ChatGPT generates targeted campaigns almost instantly, given prompts such as “Write a message encouraging suburban women in their 40s to vote for Trump” or “Make a case to convince an urban dweller in their 20s to vote for Biden.”

Bloomberg Law: Deepfake Political Ads Are ‘Wild West’ for Campaign Lawyers

By Tatyana Monnay

.....Political lawyers are gearing up for a contentious election cycle featuring a new generation of attack ads—AI-assisted and largely unregulated deepfake clips of their clients.

Lack of federal regulation, limited litigation strategies, and potential action from the Federal Election Commission are creating a volatile legal landscape for political lawyers, who are anticipating an onslaught of sophisticated AI-generated video or audio clips of a client doing or saying something that never happened.

It’s the “Wild West,” Caleb Burns, a lawyer at Wiley Rein that works for the Republican Party, warns his clients…

With still more than a year until the next presidential election, most campaigns don’t have the time or resources to dive into deepfake strategies yet, said Kate Belinski, a partner at Ballard Spahr’s political law practice.

“Campaigns don’t have the money to litigate these cases,” Belinski said.

“It’s always hard at the outset of a cycle to kind of anticipate how these things will play out,” said Claire Rajan, who leads Allen & Overy’s political law group. “But I think it’s safe to say there’s not going to be a new rule at least from the FEC, maybe it’ll be a new statute.”

The States

Reason (Volokh Conspiracy): Texas S. Ct. Refuses to Block "Gag Order" on Senators Judging Impeachment of Attorney General Paxton

By Eugene Volokh

.....From Texas Supreme Court Justice John Devine's dissent from denial of petition for writ of mandamus today in In re Hotze:

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