December 11, 2023

Supreme Court

New York Times: The A.C.L.U. Has a New Client: The National Rifle Association

By Adam Liptak

.....[W]hen the Supreme Court agreed to hear the N.R.A.’s free-speech challenge to what it said were a New York official’s efforts to blacklist it, one of its lawyers had a bold idea. Why not ask the A.C.L.U. to represent it before the justices? ...

David Cole, the civil liberties group’s national legal director, said the request in one sense posed a hard question.

“It’s never easy to defend those with whom you disagree,” he said. “But the A.C.L.U. has long stood for the proposition that we may disagree with what you say but will defend to the death your right to say it.”

Mr. Cole’s group has been subject to occasional criticism that it has become less attentive to free-speech principles and more devoted to values rooted in equality in recent years. He rejected that critique, even as he acknowledged that the decision to represent the N.R.A. would not meet with universal praise.

“It will be controversial, within and outside the A.C.L.U.,” Mr. Cole said. “But if it was easy, it wouldn’t mean as much.”

He added: “In this hyper-polarized environment, where few are willing to cross the aisle on anything, the fact that the A.C.L.U. is defending the N.R.A. here only underscores the importance of the free speech principle at stake.”

Reuters: US Supreme Court declines chance to restrict abortion clinic 'bubble' zones

By Andrew Chung

.....The U.S. Supreme Court on Monday passed up a chance to consider overruling its own precedent allowing protective "bubble" zones around abortion clinic patients, turning away a challenge by a Catholic woman in New York to a now-repealed county law passed after the justices overturned abortion rights nationally in 2022.

The Courts

Washington Post:  Trump gag order reinstated but narrowed in Jan. 6 case

By Rachel Weiner

.....A federal appeals court narrowed an order limiting what former president Donald Trump can say about people involved in the criminal case alleging that he tried to subvert the 2020 election results, saying he cannot talk about witnesses’ involvement or single out other individuals in ways likely to interfere with the case.

“We do not allow such an order lightly. Mr. Trump is a former President and current candidate for the presidency, and there is a strong public interest in what he has to say,” Judge Patricia Millett wrote for the unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. “But Mr. Trump is also an indicted criminal defendant, and he must stand trial in a courtroom under the same procedures that govern all other criminal defendants. That is what the rule of law means.”

Bloomberg Law: Off-Campus Anti-Transgender Speech Cues First Amendment Quandary

By Jennifer Bennett

.....A Milwaukee elementary school counselor and the board that fired her after a vulgar speech against transgender rights faced tough questions on the First Amendment from a Seventh Circuit panel during oral arguments Friday.

The ex-counselor argued that she shouldn’t have lost her job because, although she said at a political rally that over her “dead [expletive] body” would students under her watch transition socially or medically, she later assured the Milwaukee Board of School Directors she’d comply with any school policies on pronoun and name use for transgender pupils...

The case is Darlingh v. Maddaleni, 7th Cir., No. 23-01610, argued 12/8/23.

Congress

Rolling Stone: Dems Demand Twitter, Meta Rein in Rampant Abortion Misinformation

By Nikki McCann Ramirez

.....Elon Musk and Mark Zuckerberg are facing scrutiny from House Democrats over the spread of rampant abortion misinformation on Facebook, Instagram, and X (formerly Twitter). 

A pair of letters issued by Democrats on the House Oversight Committee, obtained exclusively by Rolling Stone, demand that Musk’s and Zuckerberg’s platforms take “immediate action to combat the spread of abortion misinformation,” and request that the companies deliver briefings to Congress on the matter by December 14.

Free Expression

Los Angeles Times: Opinion: The trouble with Congress or college presidents policing free speech on campuses

By Eugene Volokh and Will Creeley

.....Magill’s reply — that the answer was “context-dependent” — has prompted rare bipartisan unity and a chorus of condemnation. Indeed, it led Magill to later backtrack, then to call for reevaluating university policy to restrict more speech, and finally to resign.

Antisemitism on campus is a real problem, and in this fraught moment, many Jewish students are understandably scared. But if freedom of expression is to survive on American campuses — and for our nation’s vitality, it must — Magill’s original answer was right. Context does matter.

Weekly Dish: The Day The Empress' Clothes Fell Off

By Andrew Sullivan

.....The critics who keep pointing out “double standards” when it comes to the inflammatory speech of pro-Palestinian students miss the point. These are not double standards. There is a single standard: It is fine to malign, abuse and denigrate “oppressors” and forbidden to do so against the “oppressed.”

Glenn Harlan Reynolds: Reverse Speech Codes Aren't the Answer

.....Top universities have for years been denying the value of free speech, and even suggesting it is some sort of questionable relic of white supremacy, or Christian Nationalism, or something. They’ve been centers for the belief that the way to deal with ideas you don’t like isn’t to refute them, but to ruthlessly suppress them.

Online Speech Platforms

The Hill: Al Gore calls social media algorithms ‘digital’ AR-15s

By Lauren Sforza

.....Former Vice President Al Gore took aim at social media algorithms Tuesday, saying sites that are “dominated by algorithms” are the “digital equivalent of AR-15s.”

Gore, speaking at the Bloomberg Green at COP28 event, said spending too much time scrolling on social media could be dangerous and suggested algorithms be banned…

“If you have social media that is dominated by algorithms that pull people down these rabbit holes that are a bit like pitcher plants, these algorithms, they are the digital equivalent of AR-15s,” he said. “They ought to be banned, they really ought to be banned. It’s an abuse of the public forum.”

He warned that social media users can find themselves in an echo chamber after spending time scrolling through the algorithm. 

The States

Broadcast Law Blog: Michigan Becomes the Fifth State to Require Disclosure of the Use of AI in Political Ads

By David Oxenford

.....Michigan’s Governor Whitmer just signed a bill that adds Michigan to 4 other states (Texas, California, Washington, and Minnesota) that have enacted laws requiring the clear identification of the use of AI in political ads.

Pensacola News Journal: Florida lawmaker wants to make it easier for public figures to win defamation lawsuits

By Jim Little

.....Florida Rep. Alex Andrade is bringing back a "pared down" version of a bill that makes it easier for public figures to win defamation lawsuits.

Critics say it would upend nearly 60 years of U.S. Supreme Court precedent regarding free speech and create a "chilling effect" around the use of anonymous sources.

Earlier this year, Andrade sponsored a bill that made it easier to sue for defamation, assumed anonymous sources in media reports were false, made it more costly to defend defamation suits by preventing defendants from recovering legal fees, and prevented people suing for discrimination from using a person's religious or scientific beliefs as evidence of discrimination.

The bill died during the 2023 legislative session after pushback from free speech advocates and conservative radio hosts who said the bill would increase their legal liability.

On Wednesday, Andrade filed a new bill that lacks many of the controversial elements of the previous version but still takes aim at the use of anonymous sources when commenting on public figures, like politicians or celebrities.