October 5, 2023

The Courts

Washington Post: Appeals court limits cyberdefense agency’s contacts with tech companies

By Cat Zakrzewski

.....The U.S. Court of Appeals for the 5th Circuit on Tuesday ruled that a key cybersecurity defense agency probably violated the First Amendment in its efforts to coordinate with Silicon Valley to protect elections from online hoaxes, in a decision that could have sweeping implications for government efforts to secure the vote in 2024.

The panel of three judges nominated by Republican presidents wrote that the Cybersecurity and Infrastructure Security Agency “used its frequent interactions with social media platforms to push them to adopt more restrictive policies on election-related speech,” revising an injunction issued last month.

Reason (Volokh Conspiracy's "Cyberlaw Podcast"): Is silencing a few million Americans a form of protected speech?

By Stewart Baker

.....The Supreme Court has granted certiorari to review two big state laws trying to impose limits on social media censorship (or "curation," if you prefer) of platform content. Paul Stephan and I spar over the right outcome, and the likely vote count, in the two cases. One surprise: we both think that the platforms' claim of a first amendment "right to curate" is in tension with their claim that they, uniquely among speakers, should have an immunity for that form of speech.

Courthouse News: Trump’s First Amendment case against Twitter gains little traction on appeal

By Edvard Pettersson

.....Former President Donald Trump's bid to sue X, the platform formerly known as Twitter, for violating his free speech rights appeared to gain little ground before the Ninth Circuit Court of Appeals.

Trump claims it was a First Amendment breach when social media juggernaut suspended his account in the wake of the Jan. 6, 2021 attack on the Capitol.

A three-judge panel, which included one jurist Trump himself appointed, showed little enthusiasm for the notion that X had been acting as an agent for the federal government when it banned Trump because Democratic lawmakers had supposedly threatened to revoke or amend Section 230 of Communications Decency Act, which shields social media platforms and other websites from liability for the content that users post on them.

Washington Examiner: Supreme Court 'watchdog' pressuring Thomas and Alito tied to left-wing dark money empire

By Gabe Kaminsky

.....A "nonpartisan" project accusing conservative Supreme Court justices of ethics violations while highlighting right-leaning "dark money" is now housed under a charity bankrolling groups in the largest secretive Democratic-linked donor network in the United States.

FBI

Newsweek: Exclusive: Donald Trump Followers Targeted by FBI as 2024 Election Nears

By William M. Arkin

.....The federal government believes that the threat of violence and major civil disturbances around the 2024 U.S. presidential election is so great that it has quietly created a new category of extremists that it seeks to track and counter: Donald Trump's army of MAGA followers.

The challenge for the Federal Bureau of Investigation, the primary federal agency charged with law enforcement, is to pursue and prevent what it calls domestic terrorism without direct reference to political parties or affiliations—even though the vast majority of its current "anti-government" investigations are of Trump supporters, according to classified data obtained by Newsweek.

Free Expression

Fox News: Swiss writer being jailed for insulting lesbian journalist alarms free speech advocates

By David Rutz and Brian Flood 

.....A court in Switzerland fined and sentenced a writer and pundit to 60 days in jail for calling a journalist a "fat lesbian," alarming free speech advocates across the globe. 

Online Speech Platforms

Engadget: Meta’s Oversight Board will weigh in on ‘altered’ Facebook video of Joe Biden

By Karissa Bell

.....Meta’s Oversight Board is set to take on a new high-profile case ahead of next year’s presidential election. The board said it planned to announce a case involving a user appeal related to an “altered” video of President Joe Biden. The board didn’t disclose specifics of the case, which it said would be announced formally “in the coming days,” but suggested it will touch on policies that could have far-reaching implications for Meta.

Oversight Board: Oversight Board overturns Meta's decision in Call for Women’s Protest in Cuba case

.....The Oversight Board has overturned Meta’s decision to remove a video posted by a Cuban news platform on Instagram in which a woman protests against the Cuban government, calls for other women to join her on the streets and criticizes men, by comparing them to animals culturally perceived as inferior, for failing to defend those who have been repressed. The Board finds the speech in the video to be a qualified behavioral statement that, under Meta’s Hate Speech Community Standard, should be allowed. Furthermore, in countries where there are strong restrictions on people’s rights to freedom of expression and peaceful assembly, it is critical that social media protects the users’ voice, especially in times of political protest.

The States

CBS Miami: Florida Supreme Court parses controversial protest law

.....Attorneys for Gov. Ron DeSantis and the Jacksonville sheriff on Wednesday told the Florida Supreme Court that innocent bystanders and peaceful protesters are not threatened by a controversial 2021 law that seeks to crack down on protests that turn violent.

"Participating in a crime means more than mere presence," Sonya Harrell, an attorney for the Jacksonville Sheriff's Office, said as justices tried to parse the meaning of a key part of the law championed by DeSantis after nationwide protests following the 2020 death of George Floyd, a Black man who was killed by a Minneapolis police officer.

The Supreme Court heard arguments as an outgrowth of a federal lawsuit filed by groups such as the Dream Defenders and the Florida State Conference of the NAACP alleging the law violated First Amendment rights. The civil-rights groups argued the law could lead to peaceful demonstrators facing charges when protests turn violent.

New Jersey Monitor: N.J. panel to hear dispute over anti-teachers union emails sent to educators

By Nikita Biryukov

.....A little-known state commission is set to decide whether school districts must block anti-union emails sent to their teachers.

The Public Employment Relations Commission agreed last week to a hearing to potentially settle the dispute, which finds the Wayne Education Association accusing the Wayne Board of Education of violating state law by not stopping a third party from sending emails to teachers urging them to revoke their union dues.

Both sides wanted the commission to issue a ruling in their favor, but the body said it needs more information to reach a decision and cautioned that the case could bring First Amendment issues that may be a better fit for state courts.

Reason (Volokh Conspiracy): No California Bar Discipline for Lawyer Who Tweeted "They Should Be Shooting the Looters" and "Shoot the Protesters"

By Eugene Volokh

.....Yesterday's decision by State Bar Court of California Judge Dennis Saab in In the Matter of Brown stemmed from the Office of Chief Trial Counsel of the State Bar of California (OCTC) charging a lawyer with, among other things, engaging in "moral turpitude" and violating state and federal law "by directing others to commit acts of violence." Here's an excerpt from the (long) opinion (for more factual details and for more on the other charges, see the full opinion):