May 3, 2024

New from the Institute for Free Speech

Free Speech Arguments – Episode 9: Diei v. Boyd

.....Diei v. Boyd, argued before Judges Joan L. Larsen, Chad A. Readler, and Stephanie Dawkins Davis in the U.S. Court of Appeals for the Sixth Circuit on May 2, 2024

Statement of the Issues, from the Appellant’s Opening Brief:

FEC

Agenda Document No. 24-19-A (Draft A): Proposed Directive Concerning Requests to Withhold, Redact, or Modify Contributors’ Identifying Information

From Commissioner Allen J. Dickerson

.....The Federal Election Campaign Act’s disclosure requirements are not absolute. From the beginning, the Supreme Court has recognized that the compelled publication of individuals’ political affiliations, street addresses, and employment details encroaches upon the “privacy of association and belief guaranteed by the First Amendment.” Such intrusions have survived constitutional scrutiny only because they have been found properly tailored to the government’s legitimate interests. But they are also subject to individual exceptions. Where a person or group can show “a reasonable probability” that compelled disclosure “will subject them to threats, harassment, or reprisals from either Government officials or private parties,” they must be excused from disclosing the information that will put them at risk. This is a Constitutional right – Americans are entitled to make political contributions without being attacked, threatened, or fired – but it is also common sense and the right thing to do. The Commission has acted accordingly. For nearly twenty-five years, it granted a blanket exception permitting the Socialist Workers Party to protect its donors’ confidentiality.

Congress

Intelligencer: The House Antisemitism Bill Is Bad for the Jews And Free Speech.

By Jonathan Chait

.....Wednesday, the House of Representatives passed the “Antisemitism Awareness Act,” which requires colleges to enforce rules on discrimination using a definition that equates anti-Zionism with antisemitism. The problem of campus anti-Israel activism creating an atmosphere of antisemitism is real. The “solution” of regulating anti-Zionism as hate speech is absurd.

Representative Josh Gottheimer, a moderate Democrat and co-sponsor of the bill, is at least blunt about what he hopes the bill would accomplish. “It allows criticism of Israel,” he said. “It doesn’t allow calls for the destruction or elimination of the Jewish state.”

But why shouldn’t colleges allow students or faculty to call for the destruction or elimination of the state of Israel? To be clear, destroying or eliminating Israel is a ghastly idea that could only be accomplished through Hitlerian-scale violence. Colleges are supposed to allow people to advocate bad ideas.

Just the News: Ohio Rep. Davidson 'confident' Congress will investigate anti-Israel protests' funding

By Charlotte Hazard

.....Congressman Warren Davidson, R-Ohio said Thursday that he is sure that the House will investigate what groups are funding anti-Israel protests all over college campuses.

The Courts

Knight First Amendment Institute: New Lawsuit Seeks to Wrestle Control of Newsfeed from Meta for Facebook Users

.....The Knight First Amendment Institute at Columbia University today filed a lawsuit on behalf of Ethan Zuckerman—a professor of Public Policy, Communication and Information at the University of Massachusetts Amherst—asking the court to recognize that Section 230 protects the development of tools designed to empower people to better control their social media experiences. Zuckerman would like to release a tool he’s calling Unfollow Everything 2.0, which would give Facebook users the ability to escape the platform’s engagement-driven newsfeed, but he hasn’t yet done so out of fear that Meta will sue him.

Free Expression

The Free Press: Abigail Shrier: There Are Two Sets of Rules for Speech

By Abigail Shrier

.....A police officer who pulls over speeding black motorists—and only black motorists—isn’t protecting “law and order.” He’s engaging in invidious discrimination. So too the university administrators who suddenly discover they are free speech absolutists only when student protesters call for the death of their Jewish classmates…

Speech on college campuses has been stultifyingly narrow—and very far from free—for decades. That pro-Hamas students cheer freely for “intifada” doesn’t make it any freer now. The fact that certain students are allowed to call for the death of their Jewish classmates does not herald a new era of free expression. It only underscores that some bigotries enjoy the official sanction of these schools, and are accepted, tolerated, and rewarded with special dispensations and, indeed, goodies.

Use of the N-word on campus or misgendering a classmate will no doubt be met with as swift punitive consequences as they have been for decades, as have a vast and more minute array of “microaggressions.” I invite anyone who doubts this to parade through any of our elite campuses with insulting cartoon depictions of the Prophet Muhammad. 

The Atlantic: America’s Colleges Are Reaping What They Sowed

By Tyler Austin Harper

.....Administrators have spent much of the recent past recruiting social-justice-minded students and faculty to their campuses under the implicit, and often explicit, promise that activism is not just welcome but encouraged. Now the leaders of those universities are shocked to find that their charges and employees believed them. And rather than try to understand their role in cultivating this morass, the Ivory Tower’s bigwigs have decided to apply their boot heels to the throats of those under their care.

I spoke with 30 students, professors, and administrators from eight schools—a mix of public and private institutions across the United States—to get a sense of the disconnect between these institutions’ marketing of activism and their treatment of protesters. A number of people asked to remain anonymous. Some were untenured faculty or administrators concerned about repercussions from, or for, their institutions. Others were directly involved in organizing protests and were wary of being harassed. Several incoming students I spoke with were worried about being punished by their school before they even arrived. Despite a variety of ideological commitments and often conflicting views on the protests, many of those I interviewed were “shocked but not surprised”—a phrase that came up time and again—by the hypocrisy exhibited by the universities with which they were affiliated.

Online Speech Platforms

Washington Examiner: Elon Musk reinstating hard-right commentator Nick Fuentes on X

By Asher Notheis

.....Billionaire and X owner Elon Musk announced Thursday that Nick Fuentes, a hard-right political commentator, will have his account on the social media platform reinstated.

The reinstatement of Fuentes’s X account comes almost three years after it was suspended in July 2021, with his account briefly being reinstated in January 2023 before getting suspended a day later.

“Very well, he will be reinstated, provided he does not violate the law, and let him be crushed by the comments and Community Notes,” Musk posted on X. “It is better to have anti whatever out in the open to be rebutted than grow simmering in the darkness.”

The States

New Jersey Monitor: Court rejects constitutional challenge of law shielding public officials’ addresses

By Dana DiFilippo

.....A state appellate panel on Friday ruled against a journalist who challenged the constitutionality of a state law barring the publication of judges’, prosecutors’, and law enforcement officers’ home addresses.

The three-judge panel affirmed a lower court’s ruling denying journalist Charlie Kratovil’s request for an injunction to prohibit New Brunswick officials from pursuing penalties against him if he publishes the home address of Anthony Caputo, who lived in Cape May while serving as director of the city’s police department and parking authority.

The appellate panel, as well as the trial court, agreed with Kratovil that Caputo’s residency in Cape May, two hours from his public job, was a matter of public concern. But both also agreed his exact street address was not.

Kratovil, founder and editor of New Brunswick Today, disagreed and said he will appeal to the state Supreme Court.

Texas Tribune: False ad depicting Dade Phelan with Nancy Pelosi could inspire new anti-deepfake legislation

By Renzo Downey

.....A recent “deepfaked” ad targeting House Speaker Dade Phelan could inspire further legislation to crack down on doctored imagery in political ads.

At the end of Monday’s hearing of the House Select Committee on Artificial Intelligence and Emerging Technologies, political attorney Andrew Cates suggested the committee should recommend an update to Senate Bill 751 from 2019, which created a Class A misdemeanor offense for distributing a “deep fake video” created with the intent to deceive voters.

“Not to bring up sensitive stuff, but the speaker got hit a couple days ago with a fake image, or a deceptively altered image,” Cates said. “It’s not against the law here.”

That mailer, paid for by the Jeff Yass-bankrolled Club for Growth Action PAC, depicted Phelan in an intimate hug with former U.S. House Speaker Nancy Pelosi, apparently a remake of Pelosi hugging new House Democratic Leader Hakeem Jeffries.

Cashmere Valley Record: Washington PDC seeks public comment on proposes rules on "Deepfake" political ads

.....The Washington State Public Disclosure Commission (PDC) is seeking public comment on proposed rules regarding the use of synthetic media, also known as "deepfakes," in political advertising.

Senate Bill 5152, passed in the 2023 legislative session, created a private cause of action that allows candidates to sue sponsors of electioneering communications that feature synthetic media of the candidate. Sponsors can avoid liability by including a disclaimer in the ad stating that it contains artificially manipulated content.

The Legislature directed the PDC to adopt rules to further the purpose of SB 5152. The proposed rules would amend sections of Washington Administrative Code to require: