May 15, 2024

In the News

Washington Examiner: Democrats try draconian ‘For the People Act,’ take two

By Bradley A. Smith

.....Congressional Democrats in 2021 attempted to ram through a series of draconian election reforms aimed at harassing and limiting the speech of donors to their political opponents. Republicans rightly objected to S.1, laughably called the “For the People Act,” and successfully killed the bill.

Now Democrats are back, and since they gussied up their approach with attacks on artificial intelligence and slick rhetoric about the bill regulating Big Tech, which is simply not true, some Republicans seem willing to join this misguided effort.

The Senate is poised to consider two bills, the Protect Elections from Deceptive AI Act and the AI Transparency in Elections Act of 2024. While proponents claim these bills target artificial intelligence, for the most part, they merely recycle many of the proposals in the infamous For the People Act that would have trampled on free speech. In fact, the PEDA Act copies language verbatim from Section 4421 of S.1, not bothering to disguise its resurrection of the same unconstitutional provisions that were rightly rejected in 2021.

New from the Institute for Free Speech

Moms for Liberty Secures Victory for Free Speech in Yolo County

.....A federal lawsuit filed earlier this year by the Institute for Free Speech and Alliance Defending Freedom (ADF) on behalf of Moms for Liberty (M4L) and several other civic organizations and individuals has earned a victory for free speech rights in California.

Attorneys with the Institute and ADF reached a favorable settlement with Yolo County Library officials after those officials violated the First Amendment rights of several women’s groups who met in a local library to discuss the harms of allowing men to participate in women’s sports.

The case stemmed from an August 2023 “Forum on Fair and Safe Sport for Girls” organized by M4L at the Yolo County Public Library. Despite M4L paying to reserve the space, library officials invited disruptive protesters to interfere with the event. The officials then ended the event almost immediately after it began, claiming that participants were “misgendering” by referring to biological males as “males” or stating that “men” are participating in women’s sports.

The Courts

Reason (Volokh Conspiracy): Excluding "FCANCER" Personalized License Plate Violates First Amendment

By Eugene Volokh

.....So Judge Gregory Williams (D. Del.) held today, in Overington v. Fisher: Even if FCANCER is understood as meaning "Fuck Cancer" (rather than, say, "Fight Cancer"), the exclusion of "any plate considered offensive in nature" from the state's personalized plate program was unconstitutionally viewpoint-based and discretionary.

To reach this result, the judge had to decide whether the plates in the personalized plate program were private speech or government speech, and concluded that they were private speech. The court's analysis was close to the one I wrote about two years ago in this post about Ogilvie v. Gordon (N.D. Cal.).

Bloomberg Law: RFK Jr. Sues Meta, Says Presidential Campaign Video Censored

By Isaiah Poritz

.....Robert F. Kennedy Jr. sued Meta Platforms Inc. in federal court on Monday claiming Facebook and Instagram censored his presidential campaign documentary.

The two Meta-owned social media platforms removed “Who is Bobby Kennedy,” a film produced by his political action committee, shortly after its May 3 release and blocked users from “watching, sharing, or even posting a link to it,” Kennedy and his American Values 2024 PAC alleged.

The lawsuit, filed in the US District Court for the Northern District of California, claimed Meta blocked the 30-minute video detailing Kennedy’s career and his criticism of vaccines because the federal government has repeatedly demanded suppressing the independent candidate’s communications.

The complaint pointed to a pending Supreme Court case, Murthy v. Missouri, which involves claims that the Biden administration coerced social media companies of banning anti-vaccine content.

New York Times: TikTok Creators Sue to Block U.S. Law Requiring Sale or Ban

By Sapna Maheshwari

.....A group of TikTok creators, including a rancher, a skin care entrepreneur and a promoter of biblical literacy, sued the federal government on Tuesday over a new law that would force the app’s Chinese owner, ByteDance, to sell the company or face a ban in the United States. They said it violated their First Amendment rights.

The eight creators “have found their voices, amassed significant audiences, made new friends and encountered new and different ways of thinking — all because of TikTok’s novel way of hosting, curating and disseminating speech,” the complaint says. The potential ban “threatens to deprive them, and the rest of the country, of this distinctive means of expression and communication.”

Congress

Leader McConnell: McConnell Opening Remarks At Rules Committee Markup On A.I. In Political Speech

.....“Today, the committee is considering actions with the potential to profoundly change the landscape of political speech.

“On the frontier of artificial intelligence, the emergence computer-generated ‘deepfakes’ video and audio has prompted some valid concerns.

“But especially in cases of sincere concern, the way Congress engages with new technology matters. And the legislation in front of us today comes from a familiar playbook where the first response is to limit political speech.

“Each of us here has had our fair share of experience running campaigns. Most of us, at some point, have had an ad taken down by a broadcaster, or challenged the veracity of an opponent’s ad to have it taken down. 

“This activity falls squarely within an existing, well-developed legal regime – a regime that is also easily applied to deepfakes.

“But today, we’re considering bills that would tamper with this framework and create new definitions that could reach well beyond deepfakes.

Reason (Volokh Conspiracy): Can Nonprofits That Help Organize Protests Lose Their Tax Exemptions?

By Eugene Volokh

.....Senate Republicans have called on the IRS to investigate various nonprofits that have helped organize university protests, and see if they should be stripped of their tax exemptions. Would that be permissible?

FEC

People United for Privacy: FEC Commissioner Proposes Redaction Process for Vulnerable Donors

By Brian Hawkins

.....On May 2, Federal Election Commissioner Allen Dickerson proposed that the Commission adopt a formalized redaction request policy for donors to political committees who value their privacy and fear harassment for their beliefs. The proposal would allow individual donors and political committees regulated by the Federal Election Commission (FEC) to request to have sensitive personal information redacted from public disclosure reports. Commissioner Dickerson’s proposal would standardize the process for the Commission to evaluate and receive exemption requests, a shift from the agency’s current ad hoc procedure when faced with such asks.

Free Expression

Daily Beast: PEN America Is Right to Stay Out of Gaza War Activism

By Jacob Mchangama

.....PEN America’s very purpose is “to protect free expression in the United States and worldwide” and to “champion the freedom to write… unite writers and their allies to celebrate creative expression and defend the liberties that make it possible.” PEN America’s mission is not to advance the political or ideological goals of a specific portion of the diverse range of writers around the globe. To succumb to external and internal pressures to take positions on contentious policy issues threatens to undermine its very purpose and its efforts on other issues.

The States

Inside Political Law (Covington): Georgia Governor Vetoes “Baby” FARA Bill

By Robert Kelner

.....Georgia Governor Brian Kemp has vetoed Georgia Senate Bill 368, which would have created a requirement in state law for certain “agents of foreign principals” to register and report certain lobbying and political activities in Georgia. This is the first of the wave of recently proposed baby FARA bills at the state level, designed to mirror the federal Foreign Agents Registration Act, that made it to a state governor’s desk, and also the first to be vetoed. In the Governor’s brief veto message, he wrote that “Senate Bill 368 would prohibit foreign nationals from making political contributions, which is already prohibited by federal law, and impose additional state-level registration requirements on agents of foreign principals, some of which were unintended by the bill’s sponsor.” He indicated that the bill’s own sponsor had requested that he veto it.