June 6, 2024

New from the Institute for Free Speech

Letter to House Leadership on the Foreign Grant Reporting Act

.....On June 5, 2024, the Institute for Free Speech sent a letter to Speaker of the House Mike Johnson and House Minority Leader Hakeem Jeffries to express concern about H.R. 8290 (“Foreign Grant Reporting Act”).

Read a PDF of the letter here.

Supreme Court

Persuasion: The Supreme Court Is About to Decide the Future of Free Speech

By Nadine Strossen

.....The current Supreme Court term includes a cluster of cases that could well shape the future of online free speech. These cases invite the Court to determine the power of both government officials and social media platforms concerning “content moderation” policies, which in turn define platform users’ speech rights. Given the unparalleled importance of these platforms for all manner of communication—personal, professional, and political—meaningful free speech rights depend on the platforms’ policies. It is hardly an exaggeration to say that the Court’s rulings over the next weeks may well determine the shape of speech online for years to come...

While these six pertinent cases are complicated, both legally and factually, a few core principles help to illuminate their powerful impact on our future free speech. 

The Courts

Cato: Companies Have the Right to Decide What Speech Belongs in Their Stores

By Thomas A. Berry and Christopher Barnewolt

.....The government cannot force Americans to speak (or otherwise convey) messages with which they disagree. Such “compelled speech” violates the freedom of speech protected by the First Amendment. Yet the National Labor Relations Board (NLRB) disagrees. Citing the National Labor Relations Act (NLRA), the NLRB believes that the government can force employers to allow controversial political speech in the workplace—regardless of whether the speech harms business or violates the beliefs of employers…

Now Home Depot has appealed the NLRB’s order to the Eighth Circuit Court of Appeals, and Cato has filed an amicus brief supporting Home Depot. In our brief, we make three key points explaining why enforcing the NLRB’s order would violate Home Depot’s First Amendment rights.

Courthouse News: Yoga teachers sue San Diego for banning donation based classes in public parks without permits

By Sam Ribakoff and Sergio Frez

.....In their suit, filed in federal court in San Diego on Monday, the teachers claim the city attorney’s office specifically added teaching yoga to a list of activities deemed “services” under a recent update of a city ordinance that regulates street vendors in certain areas of the city…

What separates their yoga classes from other commercial activities is that their classes don’t charge students and are instead funded through donations, they add. 

“Plaintiffs are engaged in pure speech, teaching yoga to anyone who wishes to listen and participate. They are not charging fees, and they are not blocking or restricting access to any public space. Passively accepting donations in a way that is not ‘inherently intrusive or potentially coercive’ is similarly protected speech under California law,” they write in their complaint. 

Congress

Roll Call: Congress wrestles with AI’s boost to campaigns, potential misuse

By Gopal Ratnam

.....At a recent Senate committee makeup of legislation that would prohibit the distribution of deceptive AI in campaigns for federal office and require disclosure when AI is used, some Republicans espoused support for the measures’ ideals while voting against them, citing the potential limits on free speech.

“We have to balance the potential for innovation with the potential for deceptive or fraudulent use,” Nebraska Republican Sen. Deb Fischer, ranking member of the Senate Rules and Administration Committee, said at the markup. “On top of that, we can’t lose sight of the important protections our Constitution provides for free speech in this country. These two bills do not strike that careful balance.” …

The technology is here to stay, proponents say, because AI greatly increases efficiency. 

“Campaigns can positively benefit from AI-derived messaging,” said Mark Jablonowski, who is president of DSPolitical, a digital advertising company that works with Democratic candidates and for progressive causes, and chief technology officer at its parent, Optimal. “Our clients are using AI successfully to create messaging tracks.” 

FEC

Washington Post: The AI election is here. Regulators can’t decide whose problem it is.

By Cristiano Lima-Strong and Eva Dou

.....FEC Chairman Sean Cooksey wrote in a letter to Rosenworcel that the [FCC] proposal would trample on his agency’s role as the top enforcer of federal campaign law. The FCC’s maneuver could create “irreconcilable conflicts” with the FEC’s potential rules and prompt a legal challenge, Cooksey wrote.

The FCC proposal has not yet been made public, but Rosenworcel said that the move would not prohibit AI use but instead make “clear consumers have a right to know when AI tools are being used in the political ads they see.”

In an interview, Cooksey argued that rolling out disclosure requirements so close to an election could do more harm than good by creating public confusion about the standards.

“That will sow chaos with political campaigns and interfere with the upcoming election,” he said.

Fellow Republicans in Congress and at the FCC balked at Rosenworcel’s plan. The chair of the House Energy and Commerce Committee, Rep. Cathy McMorris Rodgers (R-Wash.), said in a statement the agency “does not have the expertise or authority to regulate political campaigns or AI.”

Free Expression

New York Times: Columbia Law Review Website Is Taken Offline Over Article Criticizing Israel

By Sharon Otterman

.....The website of the Columbia Law Review, one of the United States’ most prestigious student-edited law journals, was taken offline Monday by its board of directors after its editors published an article that argues Palestinians are living under a “brutally sophisticated structure of oppression” by Israel that amounts to a crime against humanity.

As of Tuesday evening, visitors to the website of the 123-year-old journal saw only a blank page with the message “Website is under maintenance.”

The decision to suspend access to the website is the latest example of how American universities have sought to regulate expression that is highly critical of Israel amid concerns that it veers into antisemitism. That, in turn, has spurred complaints about censorship and academic freedom when it comes to Palestinian scholarship.

The Atlantic: Canada’s Extremist Attack on Free Speech

By Conor Friedersdorf

.....The Online Harms Act states that any person who advocates for or promotes genocide is “liable to imprisonment for life.” It defines lesser “hate crimes” as including online speech that is “likely to foment detestation or vilification” on the basis of race, religion, gender, or other protected categories. And if someone “fears” they may become a victim of a hate crime, they can go before a judge, who may summon the preemptively accused for a sort of precrime trial. If the judge finds “reasonable grounds” for the fear, the defendant must enter into “a recognizance.”

New. York Times: As China’s Internet Disappears, ‘We Lose Parts of Our Collective Memory’

By Li Yuan

.....Chinese people know their country’s internet is different. There is no Google, YouTube, Facebook or Twitter. They use euphemisms online to communicate the things they are not supposed to mention. When their posts and accounts are censored, they accept it with resignation.

They live in a parallel online universe. They know it and even joke about it.

Now they are discovering that, beneath a facade bustling with short videos, livestreaming and e-commerce, their internet — and collective online memory — is disappearing in chunks.

Candidates and Campaigns

Wall Street Journal: America’s Disinformation Wrong Turn

By Holman W. Jenkins, Jr.

.....Let’s not succumb to motivated hype about Russian influence in the 2024 election. Not hyperbole, not even a slight exaggeration for effect: A Russian propaganda video is a drop in the ocean compared with tens of millions of videos posted on YouTube, TikTok, Instagram and other sites daily.

Its effect is small and inevitably ephemeral unless and until the New York Times, the Economist and MSNBC make a fuss about it to their news audiences as an example of Russian disinformation activities…

Don’t picture the public as “hapless dupes” whose political behavior is so easily explained by online memes. This “pessimism” about our democratic “resilience,” about its ability to tolerate “misconceptions” and “skullduggery,” makes us sound more like Moscow than ourselves, with the Kremlin’s “simplistic” notions of thought control and manipulation.

The States

People United for Privacy: Oklahoma Legislature Should Consider Campaign Finance Task Force’s Recommendations in 2025 Session

By Alex Baiocco

.....At the start of this year, Oklahoma was among the top 10 states in which speech and privacy rights faced the most significant threats from potential new nonprofit donor exposure mandates. By February, Representative Cody Maynard (R) had already submitted a Rulemaking Request – although he subsequently “decided to postpone the submission” – urging the Oklahoma Ethics Commission to enact an exact replica of one of the most expansive, convoluted, and speech-chilling disclosure laws in the nation: Arizona’s Proposition 211. On top of this threat, and other lawmakers’ previously expressed interest in passing nonprofit donor disclosure legislation, loomed recommendations from Governor Kevin Stitt’s (R) “Governor’s Task Force on Campaign Finance and Election Threats.”

Governor Stitt signed the Executive Order creating the Task Force in November of 2023 to “study, evaluate, and develop policy and administrative recommendations related to campaign finance and foreign investment and/or interference in Oklahoma elections.” Prior to amending the Order, findings and recommendations were initially due January 15, 2024. In accordance with the amended deadline, the Task Force released its report on March 31.

Ed. note: Earlier this year, the Institute for Free Speech offered input to Gov. Stitt's Task Force on Campaign Finance and Election Threats. The final list of reforms from the Task Force at least partially responded to several of the Institute's suggestions. More details here.