February 26, 2024

Ed. note: The Daily Media Update will return Thursday, February 29.

In the News

Tech Policy Press: Review of Amicus Briefs Filed in NetChoice Cases Before the Supreme Court

.....Moms for Liberty and Institute for Free Speech write that platforms should be afforded First Amendment protections over their own speech, but not the speech of others based on viewpoint. Rather than choosing a single analogy between platforms and newspapers, common carriers, or other discrete entities, they note that ‘[t]he key distinction between those who have a right to exclude speech and those who do not is whether the putative speaker acts primarily as a conduit for other people’s speech, or whether it would publish the speech of others as a means of expressing its own message.”

They then go on to argue that the platforms are primarily conduits for speech – ordinary users do not view individuals’ posts to be espousing the platforms’ views, platforms do not curate speech to the point of showing all users the same viewpoints, and platforms themselves argued that they are conduits for speech in past cases. They note that the Court has also accepted this argument by agreeing platforms do not have the same legal obligations as publishers in its decision in Twitter v. Taamneh.

Supreme Court

SCOTUSblog: Social media content moderation laws come before Supreme Court

By Amy Howe

.....Once again, the relationship between the government and social media will headline arguments at the Supreme Court on Monday. NetChoice v. Paxton and Moody v. NetChoice are just the second of three social media disputes the court will hear this term. The justices on Monday will consider the constitutionality of controversial laws in Texas and Florida that would regulate how large social media companies like Facebook and X (formerly known as Twitter) control content posted on their sites.

Defending the laws, Texas and Florida characterize them as simply efforts to “address discrimination by social-media platforms.” But the tech groups challenging the laws counter that the laws are “an extraordinary assertion of governmental power over expression that violates the First Amendment in multiple ways.”

New York Times: Supreme Court to Decide How the First Amendment Applies to Social Media

By Adam Liptak

.....The most important First Amendment cases of the internet era, to be heard by the Supreme Court on Monday, may turn on a single question: Do platforms like Facebook, YouTube, TikTok and X most closely resemble newspapers or shopping centers or phone companies?

FEC

FEC Weekly Digest: Week of February 19-23, 2024

.....Advisory Opinion Request 2024-01 (Texas Majority PAC) On February 21, the Commission made public two draft advisory opinions (Draft A and Draft B) and made public one comment from Elias Law Group on the advisory opinion request.

...

Campaign Legal Center v. FEC (Case No. 22-5339): On February 20, Plaintiff-Appellant filed a Petition for Rehearing En Banc in the U.S. Court of Appeals for the District of Columbia Circuit.

Candidates and Campaigns

NBC News: A New Orleans magician says a Democratic operative paid him to make the fake Biden robocall

By Alex Seitz-Wald

.....A Democratic consultant who worked for a rival presidential campaign paid a New Orleans magician to use artificial intelligence to impersonate President Joe Biden for a robocall that is now at the center of a multistate law enforcement investigation, according to text messages, call logs and Venmo transactions the creator shared with NBC News.

Paul Carpenter says he was hired in January by Steve Kramer — who has worked on ballot access for Democratic presidential candidate Dean Phillips — to use AI software to make the imitation of Biden’s voice urging New Hampshire Democrats not to vote in the state’s presidential primary. 

“I created the audio used in the robocall. I did not distribute it,” Carpenter said in an interview in New Orleans, where he is currently residing. “I was in a situation where someone offered me some money to do something, and I did it. There was no malicious intent. I didn’t know how it was going to be distributed.”

The States

AZ Central: How much has Katie Hobbs raised to give Democrats control of AZ's Legislature? You soon might know

By Stacey Barchenger

.....Arizona lawmakers are advancing measures to shed light on the political fundraising of Democratic Gov. Katie Hobbs and other statewide officeholders by eliminating a three-year period during which no public reporting is currently required.

The Arizona House of Representatives passed House Bill 2403 on Thursday with a bipartisan 49-9 vote. The bill would require candidates for four-year offices, like governor, attorney general, superintendent of public instruction and others, report their campaign finances four times a year, even in the years between election cycles…

The bills are a response to reporting by The Arizona Republic that detailed a 2016 change to state campaign finance law. That change allowed four-year officeholders to go three years between elections without public disclosure of their political fundraising. Before 2016, at least annual and sometimes more frequent reporting was required.

Reason (Volokh Conspiracy): Indiana Bill Would Mandate "Intellectual Diversity" in the Classroom

By Keith E. Whittington

.....Indiana Senate Bill 202 is discussed here. The state senator sponsoring the bill is a former aide to Mitch Daniels when Daniels served as the president of Purdue University. He hopes the bill would help change perceptions about American higher education among conservatives, but I'm skeptical that this bill would help much in changing those perceptions and I don't think it would make much progress in addressing the underlying concerns that conservatives have. The text of the bill can be found here.

The bill (ch. 2, sec. 1(b)(1)) directs the regents to develop a policy to block tenure of professors who are "unlikely to foster a culture of free inquiry." I think this is actually quite interesting and raises difficult questions. I'm not enthused about trying to do it through board policy, however. Could universities under this rule hire a professor who subscribed to various postmodern views about free speech or agreed with Marcuse on the need for "repressive tolerance"? Could universities hire professors with various views derived from critical race theory about the need to suppress certain ideas in the public sphere and in the universities specifically? Could universities hire conservative faculty who agree with Christopher Rufo and others about the need to weed out campus radicals and dispense with what they might characterize as luxury disciplines like women's studies? Perhaps not. There are classic problems regarding whether we must tolerate the intolerant, and universities do need to resist being captured by those who are hostile to their core mission of free inquiry and the neutral pursuit of the truth and the advancement of knowledge. But this kind of blanket ban is unlikely to have good effects.

ACLU of South Carolina: You First Amendment Rights Are In Danger and Lawmakers Know It

By JaTaune Bosby Gilchrist

.....We are less than ten days into the 2024 legislative session. Five bills that have been prioritized this year — SB4, SB10, SB57, SB77, and SB129 — create barriers for Alabamians who have constitutionally protected rights to freedom of speech and assembly.