May 13, 2024

Ed. note: The Daily Media Update will return Wednesday, May 15.

New from the Institute for Free Speech

Free Speech Arguments – Episode 10: U.S. v. Sittenfeld

.....U.S. v. Sittenfeld, argued before Judges John K. Bush, John B. Nalbandian, Eric E. Murphy in the U.S. Court of Appeals for the Sixth Circuit on May 9, 2024

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

1. Whether objectively ambiguous evidence can prove an “explicit” quid pro quo, and whether the concededly ambiguous evidence here sufficed to do so.

2. Whether the Government constructively amended the indictment by relying on a “bribe” different from the one specified in the indictment’s “to wit” clause.

The Courts

Just the News: Amid protest violence, University of Washington gets legal permission to punish parody

By Greg Piper

.....U.S. District Judge John Chun…ruled for UW in a First Amendment retaliation and viewpoint discrimination lawsuit by award-winning computer science instructor Stuart Reges.

The President Biden appointee agreed with Reges that the "land acknowledgment" parody he put in a class syllabus "related to scholarship or teaching" and was thus governed by a Supreme Court precedent on the speech rights of public employees that came from a teacher fired for criticizing the district's spending priorities in the local newspaper.

Yet the taxpayer-funded institution did not violate the First Amendment by unilaterally removing the syllabus, reposting a sanitized version, putting Reges through a disciplinary investigation and creating a "shadow section" of his required course so students could avoid him, according to Chun's ruling granting summary judgment to UW.

New Yorker: Can Suing People for Lying Save Democracy?

By Charles Bethea

.....Protect Democracy, which now has more than a hundred employees and a budget of thirty million dollars, aims to defend America from authoritarianism; it has worked on a range of litigation, legislation, research, communications, and software projects…and has successfully advocated for changes to election laws. One of its founders, Ian Bassin, was recently given a MacArthur “genius” grant. But P.D. has often pursued its goals in novel ways. It has recently begun to use defamation law—which was designed to protect against reputational damage rather than authoritarian takeover—to fight against the flood of disinformation. If the group sued the right liars, its members believed, they could stop dangerous lies from spreading. The strategy has concerned some free-speech advocates. But Bassin believes that targeted defamation suits can “produce a systemic rebalancing of incentives to advance truth.” …

“This kind of litigation may make liars more cautious,” Eugene Volokh, who teaches First Amendment law at U.C.L.A., told me. “But the good chilling effect on lies and the bad chilling effect on truths walk hand in hand.” …

Samantha Hamilton, an attorney at the University of Georgia Law School’s First Amendment Clinic, told me that defamation law was a deficient tool in the fight against disinformation because the biggest lies, such as “The election was stolen” or “Vaccines don’t work,” typically don’t cause reputational harm to a specific individual.

RealClearPolicy:  Why Is DHS Keeping ‘Disinformation’ Regulation Docs Secret?

By Kevin Schmidt

.....Nearly two years after Nina Jankowicz briefly led the Disinformation Governance Board at the Department of Homeland Security, she’s launched an organization demanding transparency and the public release of documents about the public debate on disinformation. An interesting move, likely without true transparency in mind.

My organization, Americans for Prosperity Foundation, has spent the same two years fighting DHS for documents on the federal board Jankowicz managed. We’re filing a second lawsuit under the Freedom of Information Act to fight continued government stonewalling of our requests. Thus far, DHS has refused to provide unredacted versions of documents that outline its purported authorities to regulate disinformation. Nor will the agency release more information about its work on misinformation related to “irregular migration” and “Ukraine” before the board was disbanded in August 2022.

So, taxpayers are unable to find out what legal authority DHS is exercising, and they aren’t allowed to learn about the work being done with their tax dollars. Does this sound like a dystopian novel yet?

FEC

Law & Crime: ‘Illegal activity carried out by Donald Trump’s campaign’: Federal complaint says MAGA PAC, lawyer and GOP firm violated campaign finance laws to secretly settle lawsuit

By Colin Kalmbacher

.....On Friday, Citizens for Responsibility and Ethics in Washington submitted a hard-charging nine-page complaint with the Federal Election Commission (FEC) alleging the Make America Great Again PAC tried to hide settlement payments in a sexual harassment, gender and pregnancy discrimination lawsuit by routing those payments through a third party or parties in violation of mandatory disclosure laws.

The complaint specifically likens the alleged “use of pass-throughs to hide the true purpose of payments” to the ongoing criminal woes Trump is facing on a personal level in New York City.

Congress

Just the News: Senator Warner spills beans on federal-social media election coordination as SCOTUS mulls legality

By Greg Piper

.....A powerful Democratic senator claims the feds are in regular communication again with social media platforms about removing purported disinformation related to the upcoming election, possibly because of encouraging signs from Supreme Court justices at oral argument in a landmark First Amendment lawsuit in March.

Remarks to reporters at this week's RSA Conference by Senate Intelligence Committee Chairman Mark Warner of Virginia, as reported by NextGov/FCW, sent the feds scrambling to downplay the scope and nature of the talks and promise further answers later this month.

Wall Street Journal: Sunset of Section 230 Would Force Big Tech’s Hand

By Cathy McMorris Rodgers and Frank Pallone Jr.

.....Unfortunately, Section 230 is now poisoning the healthy online ecosystem it once fostered. Big Tech companies are exploiting the law to shield them from any responsibility or accountability as their platforms inflict immense harm on Americans, especially children. Congress’s failure to revisit this law is irresponsible and untenable. That is why we’re taking bipartisan action…

Our measure aims to restore the internet’s intended purpose—to be a force for free expression, prosperity and innovation. It would require Big Tech and others to work with Congress over 18 months to evaluate and enact a new legal framework that will allow for free speech and innovation while also encouraging these companies to be good stewards of their platforms. Our bill gives Big Tech a choice: Work with Congress to ensure the internet is a safe, healthy place for good, or lose Section 230 protections entirely.

The proposal would likewise ensure that social-media companies are held accountable for failing to protect our children.

The Atlantic: The Wrong Way to Fight Anti-Semitism on Campus

By Conor Friedersdorf

.....Bigotry against Jews is vile and warrants the nation’s attention…But the Antisemitism Awareness Act is the wrong way to fight those ills. If passed by the Senate and signed into law, it would codify a controversial definition of anti-Semitism (among its 11 specific examples of anti-Semitic rhetoric: “The existence of a State of Israel is a racist endeavor”). And it would direct the Department of Education to consider that definition when judging complaints against colleges under Title VI of the 1964 Civil Rights Act, which says that no person, on the grounds of race, color, or national origin, can be “excluded from participation” in a program, denied its benefits, or “be subjected to discrimination.”

Free Expression

New York Times: Justice Alito Warns of Threats to Freedom of Speech and Religion

By Adam Liptak

.....Justice Samuel A. Alito Jr. warned on Saturday that freedom of speech was under threat at universities and that freedom of religion was in peril in society at large.

“Troubled waters are slamming against some of our most fundamental principles,” he said.

He made his remarks at a commencement ceremony at the Franciscan University of Steubenville in Ohio, a Catholic institution.

“Support for freedom of speech is declining dangerously, especially where it should find deepest acceptance,” he said.

A university, he said, should be “a place for reasoned debate.” But he added that “today, very few colleges live up to that ideal.”

New York Times: A Way Back from Campus Chaos

By The Editorial Board

.....For several years, many university leaders have failed to act as their students and faculty have shown ever greater readiness to block an expanding range of views that they deem wrong or beyond the pale. Some scholars report that this has had a chilling effect on their work, making them less willing to participate in the academy or in the wider world of public discourse. The price of pushing boundaries, particularly with more conservative ideas, has become higher and higher.

Schools ought to be teaching their students that there is as much courage in listening as there is in speaking up. It has not gone unnoticed — on campuses but also by members of Congress and by the public writ large — that many of those who are now demanding the right to protest have previously sought to curtail the speech of those whom they declared hateful.

Business Insider: Woke no more

By Emily Stewart

.....Plenty of companies are reining in their rhetoric and in some cases action on issues such as sustainability and diversity. They're being extra cautious about weighing in on the social and political debates of the day, especially in an election year. In some cases they're telling their workers to cool it, too; Google, for example, fired more than two dozen workers for protesting its contract with Israel's government.

"Many executives have made the decision that it's sometimes safer to just be silent versus to take a stance, because they have a fiduciary responsibility to their shareholders and their bottom line and are very concerned about how this will be perceived," said Naomi Wheeless, a board director for Eventbrite who was formerly a global head of customer success at Square.

Call it the great un-wokening.

The States

Wall Street Journal: Campus Protesters, Unmasked

By The Editorial Board

.....In a letter to university presidents last week, Ohio Attorney General Dave Yost reminded them that the state has a law against those who use masks to disguise their identity…

Under the 1953 state law, “no person shall unite with two or more others to commit a misdemeanor while wearing white caps, masks, or other disguise.” Doing so can result in felony charges and six to 18 months in prison. Mr. Yost explained that “The First Amendment is a shield against the government, not a sword against fellow students.” …

Student protesters have admitted they are concealing their identities because they don’t want to be identifiable to potential employers. But the ubiquity of masks on campus has allowed many outsiders to infiltrate the student masses without universities knowing if they are members of the school community.

AG Yost said protesters need to “own their advocacy,” and he’s right. The anti-Vietnam war protesters of the 1960s didn’t hide behind masks. If progressive political activists have the courage of their convictions, they’ll proudly show who they are. Masks can make it easier for protesters to think they can get away with crimes and violent acts. Kudos to Mr. Yost for enforcing the law.