May 8, 2024

In the News

The Federalist: Trump Trial Judge Censors Federalist Writer, Former FEC Chairman From Testifying Key Defense Facts

By Jordan Boyd

.....Judge Juan Merchan, a financial supporter of Trump’s campaign opponent with a “rabid pro-Democrat bias,” has gone along with this plan by entertaining Bragg’s weak case and gagging Trump. Merchan further hindered Trump’s legal efforts by declaring former FEC Chairman Bradley Smith is only allowed to testify about limited aspects of his job.

Smith professionally enforced campaign finance laws including the one Bragg has chosen to target Trump over. He has long asserted that “almost anything a candidate does can be interpreted as intended to “influence an election” but “not every expense that might benefit a candidate is an obligation that exists solely because the person is a candidate.”

In an April 15 article for The Federalist, Smith reiterated that almost all purchases by politicians could be construed as meeting the “for the purpose of influencing an election” clause in the FECA but are not scrutinized because they are classified as “personal use.” 

The Courts

Politico: TikTok sues to challenge law forcing sale or ban

By Rebecca Kern

.....TikTok and its parent company ByteDance sued Tuesday to challenge a law President Joe Biden signed to force the sale or ban of the video sharing app.

The petition filed with the U.S. Court of Appeals for the District of Columbia Circuit claims the law violates the First Amendment rights of its 170 million American users. It says the law shuts down the platform based on “speculative and analytically flawed concerns about data security and content manipulation.”

“For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban,” the filing said...

“Congress has never before crafted a two-tiered speech regime with one set of rules for one named platform, and another set of rules for everyone else,” TikTok and ByteDance wrote.

Legal Insurrection: Court Denies Qualified Immunity to U. Central Florida Administrators On First Amendment Claims of Prof. Charles Negy

By William A. Jacobson 

.....The federal court in the Middle District of Florida ruled last week, dismissing part of the case based on sovereign immunity, lack of standing to seek injunctive relief, and dismissing some ancillary claims for failure to state a claim. But importantly, the court allowed the key First Amendment claims to move forward against the administrative officials finding that enough had been alleged to overcome qualified immunity.

The full Order is at the bottom of the post, but here is the key portion on Negy’s First Amendment claims (starting at page 13 of the Order):

New York Times: I Love Facebook. That’s Why I’m Suing Meta.

By Ethan Zuckerman

.....[L]ike many people, I wish I had more control over how Facebook delivers my friends’ updates to me. Facebook’s inscrutable feed algorithm, which is supposed to calculate which content is most likely to appeal to me and then send it my way, forgets friends I want to hear from, becomes obsessed with people to whom I’m only loosely connected and generally feels like an obstacle to how I’d like to connect with my friends.

When the British software developer Louis Barclay developed a software workaround [called Unfollow Everything] to address this problem, I was intrigued...

Unfortunately, Mr. Barclay was forced by Facebook to remove the software…

After talking with Mr. Barclay, I decided to develop a new version of Unfollow Everything. And rather than wait to see whether Meta, Facebook’s parent, would take legal action against me, I — and the lawyers at the Knight First Amendment Institute at Columbia — asked a federal court in California last week to rule on whether users should have a right to use tools like Unfollow Everything that give them increased power over how they use social networks, particularly over algorithms that have been engineered to keep users scrolling on their sites.

Liberty Justice Center: Fighting for Free Speech: The Liberty Justice Center Sues North Carolina School Board for Wrongly Suspending Student for Question About “Aliens Who Need Green Cards”

.....On May 7, the Liberty Justice Center filed a lawsuit against the Davidson County Board of Education on behalf of Christian McGhee, a sixteen-year-old student whose question about the word “aliens” in English class led to a harsh suspension and false accusations of racism by his own school.

On April 9, sophomore Christian McGhee raised his hand and asked his English teacher whether her reference to the word “aliens” referred to “space aliens, or illegal aliens who need green cards?” Although there was no substantial disruption to the class, the school decided to suspend Christian for three days out of school, with the administration equating his question to a vicious racial slur. Christian was also prohibited from competing in a season-defining track meet. No appeal was permitted.

Free Expression

Reason (Volokh Conspiracy): Free Speech Unmuted: Campus Speech, with Dean Erwin Chemerinsky (Berkeley Law)

By Eugene Volokh

.....Berkeley Dean Erwin Chemerinsky—who is also a noted scholar of constitutional law and academic freedom—joins Jane Bambauer and me to discuss student speech controversies (including the one that was literally in Erwin's back yard), as well as faculty academic freedom in scholarship, public commentary, and teaching.

Washington Post: How ‘fighting disinformation’ turns into political censorship

By Freddie Sayers

.....UnHerd, the Britain-based publication I lead, published an investigation on April 17 into a transatlantic organization called the Global Disinformation Index. We revealed that, having received money from the U.S. State Department, as well as the British, German and European Union governments, the GDI issues what amount to blacklists of news publications, on highly tendentious grounds, that online advertising exchanges then consult and can use to justify turning off ad revenue.

With worries about the rise of “disinformation” in recent years, various projects were launched in the United States, Britain and elsewhere, many no doubt with good intentions, to combat disinformation’s deleterious effects on democratic values. What has emerged, though, is an opaque network of private and government-supported enterprises that appear intent on censoring political views they find unpalatable.

Wall Street Journal: Why I Ended the University of Chicago Protest Encampment

By Paul Alivisatos

.....As president of the University of Chicago, I ended the encampment that occupied the University’s Main Quad for more than a week. The Tuesday morning action resulted in no arrests. Recent months have seen tremendous contention over protests on campuses, including pressure campaigns from every direction. That made this a decision of enormous import for the university.

When the encampment formed on our campus, I said I would uphold the university’s principles and resist the forces tearing at the fabric of higher education. I didn’t direct immediate action against the encampment. I authorized discussions with the protesters regarding an end to the encampment in response to some of their demands. But when I concluded that the essential goals that animated those demands were incompatible with deep principles of the university, I decided to end the encampment with intervention.

The Free Press: Exclusive: Columbia Custodian Trapped by ‘Angry Mob’ Speaks Out

By Francesca Block

.....Now, in an exclusive interview with The Free Press, Mario Torres describes the experience of being on duty as protesters stormed the building in the early hours of the morning, breaking glass and barricading the entrances. “We don’t expect to go to work and get swarmed by an angry mob with rope and duct tape and masks and gloves,” he said…

Torres has not been to campus since the incident. He says he does not feel safe. “When it comes to the public safety, the workers’ safety, people don’t feel comfortable walking through a mob to punch in to get into campus. That’s crazy,” he said.

He added that he’s worried Columbia might take disciplinary action against him for speaking out. He worries about losing a job he loves. He worries about supporting his young family.

“Is Columbia going to retaliate and find a reason to fire me? Is someone going to come after me? So I’m taking a big risk doing this, but I think that they failed. They failed us. And I think that’s the bigger story. They failed us. They should have done more to protect us, and they didn’t.”

Online Speech Platforms

Oversight Board: Oversight Board Announces New Cases on Posts That Include “From the River to the Sea”

.....Today, the Board is announcing three new cases for consideration. As part of this, we are inviting people and organizations to submit public comments by using the button below.

Candidates and Campaigns

The Hill: China is trying to undermine Western elections

By Zac Morgan

.....When hostile foreign governments meddle with the electoral process of the United States and allied democracies, they are threatening the fundamental legitimizing function of the polity itself. While the severity of an attack may ratchet up or down — posting memes on X or buying small-dollar ads on Facebook is not the same as recruiting candidates or laundering Chinese Communist money to campaign committees — the West needs to recognize these efforts for what they are: political warfare waged by a foreign adversary...

But too often, our defensive posture seems to run towards decreasing the margins of political conversation in civil society. Zapping so-called misinformation, restricting microtargeting or forcing onerous disclosure on American speakers in the hope of exposing a nefarious foreign national campaign inevitably involves disproportionately imposing burdens on the speech and association of U.S. citizens and organizations.

Not only is this one-sided, but it risks placing America’s posture regarding an adversary’s political warfare measures in a precarious constitutional space. The First Amendment reflects, as the Supreme Court held in New York Times v. Sullivan, “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

The States

People United for Privacy: Privacy Prevails in the Peach State: Georgia Becomes 19th State to Pass the PPPA

By Luke Wachob

.....Following Nebraska’s unanimous passage of the Personal Privacy Protection Act (PPPA) earlier this spring, Georgia became the 19th state to enshrine privacy protections into law for nonprofit members, donors, and volunteers when Governor Brian Kemp signed S.B. 414 into law on May 6.

S.B. 414 and its companion, H.B. 1113, received strong support during the legislative process from both sides of the aisle. H.B. 1113 was introduced by a bipartisan group of legislators and was reported favorably from committee by voice vote. It was S.B. 414, however, that ultimately moved forward, passing 33-22 in the Senate and in a robustly bipartisan 135-32 vote in the House of Representatives.