The Latest News from the Institute for Free Speech February 5, 2024 Click here to subscribe to the Daily Media Update. This is the Daily Media Update published by the Institute for Free Speech. For press inquiries, please contact [email protected]. In the News PennLive: Lawmakers should protect free speech in Pennsylvania and pass the Anti-SLAPP bill | Opinion By David Keating .....State lawmakers have a golden opportunity to strengthen free speech for all Pennsylvanians this year. A bill currently under consideration by the General Assembly, HB1466, would correct a significant weakness in the law—a weakness that puts you and other Pennsylvanians at risk of costly lawsuits for speaking out. Those suits are “SLAPPs,” which means “strategic lawsuits against public participation.” Such suits aim to prevent people from exercising their First Amendment right to speak out on a matter of public concern. Deep-pocketed plaintiffs bring SLAPPs, usually in the form of a frivolous defamation lawsuit, not only to silence a particular speaker but also as a way of “chilling” the speech of other would-be speakers who may now remain silent for fear of facing a similar suit. Archive.today link Supreme Court SCOTUSblog: Supreme Court to decide whether insurrection provision keeps Trump off ballot By Amy Howe .....The Supreme Court will hear oral arguments on Thursday in what is shaping up to be the biggest election case since its ruling nearly 25 years ago in Bush v. Gore. At issue is whether former President Donald Trump, who is once again the front runner for the Republican nomination for president, can be excluded from the ballot because of his role in the Jan. 6, 2021, attacks on the U.S. Capitol… Although Trump had contended in an earlier brief that Jan. 6 was not an “insurrection,” he now argues only that Section 3 does not apply to him because he himself did not “engage in” insurrection. Trump never told his supporters to enter the Capitol on Jan. 6, he says, nor did he lead or encourage any of the violence that occurred there that day. To the contrary, he emphasizes, in his remarks at the Ellipse on Jan. 6, he told the crowd to “peacefully and patriotically make your voices heard” and “support our Capitol Police and Law Enforcement.” Trump adds that even if he didn’t respond when rioters entered the Capitol, that is not, by itself, “engaging” in insurrection. Moreover, he notes, although he has been the subject of several investigations since 2021, he has never been charged with insurrection. First Amendment Watch: ACLU’s David Cole on the Decision to Represent the NRA Before the Supreme Court By Susanna Granieri .....In an interview with First Amendment Watch, ACLU Legal Director David Cole, who will argue the NRA’s case in front of the Supreme Court, said that despite the pushback the national organization received from its state-based chapters, it vows to protect free speech rights of those with whom they may disagree. Cole warned of the sweeping consequences a decision against the NRA could have for other advocacy organizations, including those protecting women’s and trans rights, and noted that a decision against the NRA could give former President Donald Trump a “powerful tool” to punish his opponents if he returns to the Oval Office. Yale Law Journal: “We Do No Such Thing”: 303 Creative v. Elenis and the Future of First Amendment Challenges to Public Accommodations Laws By David Cole .....In 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are narrow, and the decision should have minimal effect on public accommodations laws. The Courts New York Times: Federal Judge Dismisses Disney Lawsuit Against DeSantis By Brooks Barnes .....In a significant victory for Gov. Ron DeSantis of Florida, a federal judge on Wednesday threw out a lawsuit filed by the Walt Disney Company claiming that Mr. DeSantis and his allies violated the First Amendment by taking over a special tax district that encompasses Walt Disney World. Disney said it planned to appeal the ruling. Fox News: Judge refuses action against DeSantis over effort to remove Students for Justice in Palestine off campuses By Danielle Wallace .....Chief U.S. District Judge Mark Walker on Wednesday denied injunctions sought by the University of Florida and University of South Florida chapters of Students for Justice in Palestine to prevent their deactivation on free speech grounds, essentially because nothing has been done to follow through with the directive and the groups are still active. State university Board of Governors Chancellor Ray Rodrigues wrote to university presidents in October at DeSantis' urging, directing them to disband chapters of Students for Justice in Palestine. He argued the groups were violating Florida law deeming it a felony to "knowingly provide material support ... to a designated foreign terrorist organization."… The American Civil Liberties Union sued on behalf of the University of Florida Students for Justice in Palestine chapter to prevent deactivation, but Walker wrote that Rodrigues overstepped his authority. "Neither the Governor, nor the Chancellor, nor the BOG (Board of Governors) have the formal power to punish student organizations," Warner said. Reason: He Was Arrested for Making a Joke on Facebook. A Jury Just Awarded Him $205,000 in Damages. By Jacob Sullum .....On a Friday in March 2020, a dozen or so sheriff's deputies wearing bulletproof vests descended upon Waylon Bailey's garage at his home in Forest Hill, Louisiana, with their guns drawn, ordered him onto his knees with his hands "on your fucking head," and arrested him for a felony punishable by up to 15 years in prison. The SWAT-style raid was provoked by a Facebook post in which Bailey had made a zombie-themed joke about COVID-19. Recognizing the harm inflicted by that flagrantly unconstitutional arrest, a federal jury last week awarded Bailey $205,000 in compensatory and punitive damages. "I feel vindicated that the jury agreed that my post was satire and that no reasonable police officer should have arrested me for my speech," Bailey said in a press release from the Institute for Justice, which helped represent him in his lawsuit against the Rapides Parish Sheriff's Office and Detective Randell Iles, who led the investigation that tarred Bailey as a terrorist based on constitutionally protected speech. "This verdict is a clear signal that the government can't just arrest someone because the officers didn't like what they said." Congress Reason: Mark Zuckerberg Is Not a Murderer, Mr. Senator By Robby Soave .....In order to obtain [greater government control over social media content], senators from both parties have sponsored legislation to repeal or reform Section 230, the federal statute that protects internet companies from some liability. Section 230 was a frequent punching bag at the Wednesday hearing. "For the past 30 years, Section 230 has remained largely unchanged, allowing Big Tech to grow into the most profitable industry in the history of capitalism without fear of liability for unsafe practices," said Durbin. "That has to change." Graham was even more explicit, calling on Congress to repeal Section 230 altogether. In the past, former President Donald Trump, Biden, Warren, Klobuchar, Cruz, Hawley, and other major political figures have all said similar things. But without Section 230, free speech on social media would be fundamentally threatened. The reason that the platforms permit users to post content at will is Section 230, which establishes that the content in question is the responsibility of the user rather than the platform. If Facebook, Instagram, and X were liable for all the content that appeared in their feeds, they would have to vet it much more carefully. For one thing, this would dramatically increase the need for the platforms to engage in content moderation to protect themselves from libel lawsuits. Does Graham really want that? Does Donald Trump? On the contrary, complaining that social media companies engage in too much moderation is a standard conservative talking point—and there's merit to it. Free Expression PBS (American Masters): Dan Abrams on Defending his Father's Work on Citizens United .....In this outtake from "Floyd Abrams: Speaking Freely," ABC News Chief Legal Affairs Correspondent Dan Abrams discusses how he admires his father for his work on McConnell v. FEC and Citizens United. Candidates and Campaigns New York Times: How Much Cash Did Ron DeSantis Burn Through Against Trump? By Rebecca Davis O’Brien and Nicholas Nehamas .....It cost more than $160 million for Gov. Ron DeSantis of Florida to come in second place in a single nominating contest. That astounding sum makes Mr. DeSantis’s failed presidential bid among the most expensive in modern Republican primary elections... The enormously costly effort produced negligible results, and Mr. DeSantis decided to drop out before the New Hampshire primary and endorse Mr. Trump. But it did test the limits of campaign finance law. Online Speech Platforms Oversight Board: Oversight Board Upholds Meta's Decision in Altered Video of President Biden Case .....The Oversight Board has upheld Meta’s decision to leave up a video that was edited to make it appear as though U.S. President Joe Biden is inappropriately touching his adult granddaughter’s chest, and which is accompanied by a caption describing him as a “pedophile.” The Facebook post does not violate Meta’s Manipulated Media policy, which applies only to video created through artificial intelligence (AI) and only to content showing people saying things they did not say. Since the video in this post was not altered using AI and it shows President Biden doing something he did not do (not something he didn’t say), it does not violate the existing policy. Additionally, the alteration of this video clip is obvious and therefore unlikely to mislead the “average user” of its authenticity, which, according to Meta, is a key characteristic of manipulated media. Nevertheless, the Board is concerned about the Manipulated Media policy in its current form, finding it to be incoherent, lacking in persuasive justification and inappropriately focused on how content has been created, rather than on which specific harms it aims to prevent (for example, to electoral processes). Meta should reconsider this policy quickly, given the number of elections in 2024. The States Iowa's News Now: Iowa bill would limit financial entities' rights to deny service over 1st amendment issues By Skylar Tallal .....Monday, two Republicans in the Iowa Senate advanced a proposal limiting financial discrimination by entities such as banks and payment processing companies. Under that new bill, financial institutions could not deny services based on rights protected by the first amendment, like personal opinions on greenhouse gas emissions or social issues such as abortion, race, diversity, gender, or firearms. 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." The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the political rights to free speech, press, assembly, and petition guaranteed by the First Amendment. Please support the Institute's mission by clicking here. For further information, visit www.ifs.org. Follow the Institute for Free Speech The Institute for Free Speech | 1150 Connecticut Ave., NW, Suite 801, Washington, DC 20036 Unsubscribe [email protected] Update Profile | Constant Contact Data Notice Sent by [email protected]