March 22, 2024

Congress

Daily Caller: Sen. Eric Schmitt Introduces Amendment To Prohibit Use Of Funds In Spending Package From Suppressing Free Speech

By Henry Rodgers

.....Missouri Republican Sen. Eric Schmitt introduced an amendment Thursday to the government spending package to prohibit the use of funds to label speech protected by the Constitution or to pressure online platforms to suppress or remove constitutionally protected speech, the Daily Caller has first learned.

The introduction is part of Schmitt’s effort to protect the First Amendment. Missouri v. Biden (Murthy v. Missouri) was just argued in the Supreme Court on Monday. Schmitt was the original filer of the lawsuit.

Wall Street Journal: TikTok’s Conduct Isn’t Free Speech

By Brendan Carr

.....Yet as the Senate considers this bill, some argue that requiring TikTok to sever ties with the Communist Party would violate the First Amendment. That isn’t true.

The Supreme Court draws a distinction between laws based on the content of speech and conduct. Laws proscribing the former almost always violate the First Amendment, while those affecting the latter don’t. The House bill falls squarely on the conduct side. It isn’t based on the content of TikTok’s speech or anything its users express. The text specifically concerns TikTok’s actions, which present a serious national-security threat.

The high court’s decision in Arcara v. Cloud Books (1986) resolves the issue.

The Atlantic: Critics of the TikTok Bill Are Missing the Point

By Zephyr Teachout

.....Any effort to restrict a communication platform inevitably invites concerns about the First Amendment, but constitutional claims on behalf of foreign governments are extremely weak. In 2011, for example, a federal court rejected a challenge to the federal laws prohibiting foreign nationals from making campaign contributions. Then-Judge Brett Kavanaugh wrote that the country has a compelling interest in limiting the participation of foreign citizens in such activities, “thereby preventing foreign influence over the U.S. political process.”

Some opponents of the TikTok bill argue instead that if the app is blocked in the U.S., that will restrict the free-speech rights of its users. The ACLU, for example, argues that a TikTok ban would be “a dangerous act of censorship on the free speech of so many Americans.” This is an argument that the ACLU and others might want to reconsider, because its boundless logic could swallow up any effort to regulate communication-based tech platforms. Suppose Congress passed a tough data-privacy law, for example, and Discord, unable to afford the cost of compliance, announced it would have to shut down U.S. operations. By the ACLU’s logic, the data-privacy law could be struck down as a violation of Discord users’ First Amendment rights. The free-speech argument against the TikTok bill is, in other words, a powerful and indiscriminate deregulatory weapon.

Supreme Court

The Free Press: Free Speech on Trial

By Oliver Wiseman

.....On Monday morning, Jay Bhattacharya was feeling optimistic. The Stanford professor of health research policy was in Washington, D.C., to listen to oral arguments in the Supreme Court in Murthy v. Missouri. He is one of the plaintiffs in the case looking at the Biden administration’s efforts to police speech relating to the pandemic and the 2020 election on social media. Last year, Jay’s side won in a lower court. (You can read his op-ed about that victory in The Free Press here.) …

Jay expected things to go well in the Supreme Court. But, as he told me when we spoke on Tuesday, “some of the justices showed almost no regard whatsoever for the free speech rights of Americans.” For example, Justice Ketanji Brown Jackson said her “biggest concern” is that the case uses the First Amendment as a means of “hamstringing the government in significant ways.” 

As Jay points out, “That’s the very purpose of the First Amendment: to restrict the government from violating basic speech rights.” 

The Courts

Tucson.com: Judge rejects latest legal challenge to Arizona's dark money law

By Howard Fischer, Capitol Media Services

.....There’s nothing inherently unconstitutional about ensuring Arizona voters know who is spending money to try to influence elections, a federal judge has ruled.

In a 30-page opinion, Judge Roslyn Silver knocked down a series of arguments by Americans for Prosperity on how Proposition 211 infringes on its free speech rights and those of its donors. The judge was no more sympathetic that requiring disclosure runs afoul of other constitutional protections that protects the ability of individuals and groups to refuse to associate themselves with others.

This is actually the third failed challenge to the 2022 ballot measure.

But what makes this significant is that other rulings were issued by state court judges based on issues of state law and state constitutional provisions. This is the first decision by a federal judge who rejected any claim that the voter-approved “Voters Right to Know Act” runs afoul of federal constitutional protections.

And Silver showed little sympathy to the legal arguments presented by the organization’s attorneys, saying more than once they were making a “strained reading” of the law, describing one of their arguments as “hard to follow,” and even calling their reading of the statute “implausible and divorced from context.’’

FEC

FEC: Advisory Opinion 2024-01 (Texas Majority PAC)

.....We are responding to your advisory opinion request on behalf of Texas Majority PAC (“TMP”), asking several questions regarding the application of the Federal Election Campaign Act, 52 U.S.C. §§ 30101 – 30145 (the “Act”), and Commission regulations to TMP’s proposal to hire vendors to canvass potential voters, namely whether canvassing literature and scripts, and their associated costs, are public communications, coordinated communications, or coordinated expenditures, and whether TMP can provide data acquired during the canvass to a federal candidate or party committee at less than fair market value. The Commission concludes that the canvassing literature and scripts are not public communications, and as a result are not coordinated communications under Commission regulations. Further, the costs to produce and distribute the canvassing literature and scripts are not coordinated expenditures. Finally, the Commission concludes that if TMP provides the data that arises from its paid canvass to a federal candidate or party committee at less than its fair market value, it would be an in-kind contribution.

DOJ

NBC News: FBI resumes outreach to social media companies over foreign propaganda

By Kevin Collier and Ken Dilanian

.....The FBI has resumed some of its efforts to share information with some American tech companies about foreign propagandists using their platforms after it ceased contact for more than half a year, multiple people familiar with the matter told NBC News.

The program, established during the Trump administration, briefed tech giants like Microsoft, Google and Meta when the U.S. intelligence community found evidence of covert influence operations using their products to mislead Americans. It was put on hold this summer in the wake of a lawsuit that accused the U.S. government of improperly pressuring tech companies about how to moderate their sites and an aggressive inquisition from the House Judiciary Committee and its chair, Jim Jordan, R-Ohio.

Online Speech Platforms

New York Times: Reddit’s I.P.O. Is a Content Moderation Success Story

By Kevin Roose

.....There are a lot of lessons in Reddit’s turnaround. But one of the clearest is that content moderation — the messy business of deciding what users are and aren’t allowed to post on social media, and enforcing those rules day to day — actually works.

Content moderation gets a bad rap these days. Partisans on the right, including former President Donald J. Trump and Elon Musk, the owner of X, deride it as liberal censorship. Tech C.E.O.s don’t like that it costs them money, gets them yelled at by regulators and doesn’t provide an immediate return on investment. Governments don’t want Silicon Valley doing it, mostly because they want to do it themselves. And no one likes a hall monitor.

But Reddit’s turnaround proves that content moderation is not an empty buzzword or a partisan plot. It’s a business necessity, a prerequisite for growth and something every social media company has to embrace eventually, if it wants to succeed.