December 4, 2023

Supreme Court

Election Law Blog: Justice O’Connor’s Complex Election Law Legacy

By Rick Hasen

.....[Justice O’Connor] changed her views in the campaign finance cases multiple times: first supporting some limits on corporations in elections (MCFL), then opposing such limits (dissenting in Austin) then embracing them again (in McConnell v. FEC). In her later years she was one of the Court’s strongest supporters of limits on money in politics, voting to uphold much of the 2002 McCain-Feingold law. After she left the Court and was replaced by Justice Alito, much of her work here was reversed, in cases including WRTL II and Citizens United.

Tampa Free Press: U.S. Supreme Court Urged To Reject Florida Big-Tech Law

By Jim Saunders, News Service of Florida

.....Arguing the law is “entirely incompatible with the First Amendment,” two industry groups Thursday urged the U.S. Supreme Court to uphold a ruling that blocked key parts of a 2021 Florida law placing restrictions on large social media companies.

Attorneys for the groups NetChoice and the Computer & Communications Industry Association filed a 52-page brief that said the law, approved by Gov. Ron DeSantis and the Republican-controlled Legislature, was designed to punish social-media platforms that were perceived as having a liberal viewpoint.

Congress

Racket News: Not a Nothingburger: My Statement to Congress on Censorship

By Matt Taibbi

.....Exactly one year ago today I had my first look at the documents that came to be known as the Twitter Files. One of the first things Michael, Bari Weiss and I found was this image, showing that Stanford’s Dr. Jay Bhattacharya had been placed on a “trends blacklist”:

This was not because he was suspected of terrorism or incitement or of being a Russian spy or a bad citizen in any way. Dr. Bhattacharya’s crime was doing a peer-reviewed study that became the 55th-most read scientific paper of all time, which showed the WHO initially overstated Covid-19 infection fatality rates by a factor of 17. This was legitimate scientific opinion and should have been an important part of the public debate, but Bhattacharya and several of his colleagues instead became some of the most suppressed people in America in 2020 and 2021.

That’s because by then, even true speech that undermined confidence in government policies had begun to be considered a form of disinformation, precisely the situation the First Amendment was designed to avoid. 

Free Expression

City Journal: The “Shouting Fire” Pretext

By Corbin K. Barthold

.....The First Amendment protects many forms of falsehood, and Kosseff’s goal [in his new book Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation] is to justify and defend those protections. On the surface, that might seem a difficult task. (Who’s in favor of lying?) As Kosseff shows, however, the case for censorship is riddled with faulty premises. Those who would regulate false speech assume that the government is well-equipped to mediate truth. They assume that the power to silence dissent will not be abused. They assume that the public will accept the state’s pronouncements of fact at face value. Beyond all, they assume that censorship works—that it doesn’t tend to backfire.

Jonathan Turley: “The Responsibility to Not Report”: Irish Journalist Defends Suppressing Stories for the Public Good

.....We have been discussing the latest Irish law to crackdown on free speech. Yet, even with the criminalization of speech, there is apparently still the danger of citizens reading or hearing facts from reporters that are best kept from them. Thus, Kitty Holland, a correspondent with the Irish Times, is defending the media’s decision to suppress stories that would “incite hatred” and undermine journalistic viewpoints.

Online Speech Platforms

New York Times: 4,789 Facebook Accounts in China Impersonated Americans, Meta Says

By Steven Lee Myers

.....Meta announced on Thursday that it had removed thousands of Facebook accounts based in China that were impersonating Americans debating political issues in the United States. The company warned that the campaign presaged coordinated international efforts to influence the 2024 presidential election.

Candidates and Campaigns

CNN: Biden campaign prepares legal fight against election deepfakes

By Donie O'Sullivan and Brian Fung

.....President Joe Biden’s 2024 campaign has assembled a special task force to ready its responses to misleading AI-generated images and videos, drafting court filings and preparing novel legal theories it could deploy to counter potential disinformation efforts that technology experts have warned could disrupt the vote.

The task force, which is composed of the campaign’s top lawyers and outside experts such as a former senior legal advisor to the Department of Homeland Security, is exploring what steps Biden could take if, for example, a fake video emerged of a state election official falsely claiming that polls are closed, or if an AI-generated image falsely portrayed Biden as urging non-citizens to cross the US border to cast ballots illegally.

Washington Examiner: Trump vows to cancel Biden executive order on AI to protect free speech

By Christopher Hutton

.....Former President Donald Trump said Saturday during one of his 2024 campaign stops that he would take action against President Joe Biden's efforts to set guardrails for artificial intelligence to protect free speech.

The States

The City: As Israel-Gaza Activism Flares Up, NYC Labor Unions Struggle to Stay on the Sidelines

By Claudia Irizarry Aponte

.....On Nov. 8, ahead of a planned citywide walkout by high school students to demand a ceasefire, Banks issued a memo that many teachers interpreted as barring them from exercising their right to free speech — even outside the classroom. City rules already bar teachers from expressing personal political views in class, but Banks went further, specifically citing guidelines for social media and other non-classroom expression that “crosses a line when it disrupts the school or work environment.” 

Teachers who spoke with THE CITY say they are not getting guidance on how to handle productive discussions with students, many of whom are personally impacted by the conflict or by anti-Palestinian, Islamophobic and antisemitic rhetoric.

Wisconsin Public Radio: Bipartisan bill would enshrine student newspaper free speech rights in state law

By Rich Kremer

.....Student newspapers in Wisconsin would be protected from interference by college or high school administrators under a new, bipartisan bill that would guarantee free speech protections for student journalists in state law.

If backers are successful, Wisconsin would be the 18th state to address a 1988 U.S. Supreme Court ruling allowing administrative review of school-sponsored news stories.