June 7, 2024

New from the Institute for Free Speech

Letter to House Leadership on No Foreign Election Interference Act

.....On June 6, 2024, the Institute for Free Speech sent a letter to Speaker of the House Mike Johnson and House Minority Leader Hakeem Jeffries to express concerns about H.R. 8314 (the “No Foreign Election Interference Act”) and its implications on Americans’ First Amendment rights.

Read a PDF of the letter here.

Supreme Court

Bloomberg Law: NRA Ruling Doesn’t Clarify Boundaries of Official Censorship

By Peter Shane

.....One might hope the US Supreme Court’s unanimity in National Rifle Association of America v. Vullo provides clarity on two issues of First Amendment jurisprudence: When does government action hostile to a private party’s views become unconstitutional censorship? And what is the evidentiary role of government officials’ speech in finding unconstitutional intent?

Ultimately, the decision poses as many questions as answers.

The Courts

Bloomberg Law: Texas Library Must Reshelve Controversial Books, 5th Cir. Says

By Julie Steinberg and Isaiah Portz

.....A Texas public library must reshelve eight books, including LGBTQ+, sex ed, and racism topics, it removed from circulation, after a ruling by a hotly divided federal appeals court panel.

The US Court of Appeals for the Fifth Circuit, known for its slate of conservative justices, on Thursday found the First Amendment rights of public library patrons limits which books libraries are allowed to remove based on objections to the book’s content.

The court modified, but largely upheld, a preliminary injunction granted in March 2023 by Judge Robert Pitman of the US District Court for the Western District of Texas, who had ordered the library to put the books back into general circulation.

But in a strongly worded dissent [p.31], Judge Stuart Kyle Duncan, a Trump appointee, accused his two colleagues on the panel of creating a “train wreck” of rules to determine when a library can and can’t remove books.

“And who will apply these rules?,” Duncan said. “Federal judges, naturally. You’ve heard of the Soup Nazi? Say hello to the Federal Library Police.”

Congress

Breitbart: Exclusive – Senate Republicans Accuse FCC of Being ‘De Facto Arm’ of Biden Campaign for Advancing Election-Year AI Advertising Regulations

By Sean Moran

.....Senate Republicans on Thursday accused the Democrat majority at the FCC of acting as a “de facto arm” of the Biden campaign for advancing AI regulations during an election year, Breitbart News learned exclusively.

Sen. John Thune (R-SD) led a letter, which was obtained by Breitbart News, with Sens. Eric Schmitt (R-MO), Ted Cruz (R-TX), and Mitch McConnell (R-KY), to Federal Communications Commission (FCC) Chairwoman Jessica Rosenworcel, as the Democrat majority at the agency has moved to regulate artificial intelligence (AI) in political advertising.

The Senate Republicans said the move raises serious “statutory and constitutional concerns” and that the agency should police political advertising, especially ahead of a contentious presidential election. The lawmakers also made it clear that the proposal would enact onerous regulations on cable companies and broadcasters and not “unregulated” big tech companies.

Free Expression

Reason (Volokh Conspiracy): Does the First Amendment Protect Speech on Private Property?

By Eugene Volokh

.....I've recently heard some people (serious people, though not First Amendment experts) argue that private universities have a duty to suppress certain kinds of anti-Semitic speech—or perhaps, more broadly, anti-Israel speech—when it creates a "hostile educational environment" based on national origin. Title VI of the Civil Rights Act of 1964 bans race and national origin discrimination in federally funded programs, and courts have read that as requiring such programs (including at universities) to prevent such hostile environments. And, this particular argument goes, applying this legal requirement to anti-Semitic/anti-Israel speech doesn't violate the First Amendment because the First Amendment doesn't apply to private universities.

This argument, I think, is wrong, because it misunderstands the nature of the "state action" doctrine.

New York Times: U.C. Berkeley’s Leader, a Free Speech Champion, Has Advice for Today’s Students: Tone It Down

By Kurt Streeter

.....Dr. Christ says she has always believed campuses should reflect the philosophy of John Stuart Mill: “The concept,” she said, “that you need a kind of free marketplace of ideas for truth to prevail.”

She remains wedded to First Amendment speech protections. Still, after seven years leading Berkeley, her views have an extra layer of seasoning: Mill’s ideals no longer hold up. Not in this age of acrimony and division…

Social media has damaged nuance and empathy, she noted. Too many are siloed in chambers of information, walled from opposing views and wanting opposition silenced. There is no consensus on truth.

In previous decades, the most significant protests on her campus united students, she noted. “Now it is student against student,” she said. “Faculty member against faculty member. Staff member against staff member.” And each faction leans hard on talking over one another.

Then there is the ethos and sensitivity of the current generation, brought up with an extra awareness of slights large and small.

Students, she said, “feel sticks and stones can break my bones and names can always hurt me.”

To her, John Stuart Mill’s marketplace of ideas seems “less powerful” than ever.

Columbia Spectator: Columbia Law Review student editors to strike after directors intervene with article on Nakba

By Ayaan Ali

.....The Columbia Law Review administrative board of student editors voted on Thursday to begin a strike, according to documents obtained by Spectator. The motion passed with 20 votes in favor, five opposed, and two abstentions.

The strike came after the review’s board of directors shut down the review’s website on Monday in response to the publication of the article “Toward Nakba as a Legal Concept” by Rabea Eghbariah, a Palestinian human rights lawyer and doctoral candidate at Harvard Law School. On Thursday, the board of directors relaunched the website, adding at the bottom of the front page a statement regarding Eghbariah’s article, in which it wrote that it received reports that the article went through a “secretive” editing process.

The editors are demanding the removal of the disclaimer statement and total editorial independence from the board of directors.

Reason: Report: E.U. Censorship Laws Mostly Suppress Legal Speech

By J.D. Tuccille

.....Among those who think the United States is an unseemly cesspool of unrestrained opinions voiced by those people, Europe is often touted as an alternative for speech regulation. European Union law, following in the footsteps of national legislation, imposes enforceable duties on private platforms to purge "hate speech" and "disinformation"—or else. But free speech advocates warn that these laws are clumsy and dangerous tools that threaten to muzzle expression far beyond the bounds of their nominal targets. They're right, and they now have receipts.

Online Speech Platforms

Vox: Is TikTok breaking young voters’ brains?

By Christian Paz

.....About a third of adults under the age of 30 are now regularly getting their news from TikTok specifically…

And the platform’s design makes political spaces different from the algorithm or feeds of other social media.

Much of the engagement on the app happens on the individualized For You page, a hub for videos the algorithm suggests for a user. Once you engage a video, the For You page algorithm responds by showing you similar content from like-minded individuals or accounts...

TikTok’s political and social discourse...can feel at once secluded and totalizing. That creates an echo chamber: a sense of shared community or identity dealing with the same frustrations or worries you might have and insulating you from views outside that sphere…

It’s not so clear, however, that TikTok uniformly moves people to the extremes. In a 2022 University of Oregon study, the vast majority of TikTok users reported that their ideology shifted after using the app, and most said it had shifted “a great deal” or “a lot” during their use.

The States

Alaska Beacon: Alaska state judge considers fine against backers of ranked choice repeal measure

By James Brooks

.....An Anchorage Superior Court judge will decide by the end of the month whether to uphold a significant fine levied by Alaska’s campaign finance regulators against backers of a petition seeking to roll back the state’s election laws.

The Alaska Public Offices Commission, the state agency involved in campaign finance regulation, fined petition supporters more than $90,000 after concluding they had illegally funneled money through a church in Washington state...

Former attorney general Kevin Clarkson is representing supporters of the repeal initiative, which include Alaskans for Honest Elections, the Ranked Choice Education Association, Arthur Mathias and Wellspring Ministries.

In written and verbal arguments, he said that a state law prohibiting campaign contributions in someone else’s name doesn’t apply to ballot initiatives, and that no fine should be issued.

If the court does believe that the law applies, he said, the First Amendment would prohibit any law that forbids someone from giving money to a political cause under someone else’s name.

“Ballot petition circulation constitutes core political speech,” Clarkson wrote in a brief arguing his case.

Politico (California Playbook): California’s top watchdog wants to make AI work for democracy

By Lara Korte and Dustin Gardiner

.....[Adam Silver, t]he new leader of California’s top political watchdog wants to speed up investigations and is looking to artificial intelligence to do it…

Among other things, I really want to make it easier for regular Californians to run for office, and for them to hold public office.

Silver: “I think it can be really difficult and daunting, especially when they’re subject to thousands of dollars in penalties from us. They could go to prison if they violate some of these rules.

While we have incredibly detailed campaign manuals, campaign law is extremely complex. Our manual is 320 pages. So if you get someone who wants to run for school district board, it’s going to be really daunting for them to open a 320-page manual.

One thing I’m thinking about doing is creating an LLM (large language model) — using artificial intelligence that’s based solely on our manual. That would make our manual searchable, and will also give them citations as to the pages that they can look at — that’ll have FAQs, examples, that sort of thing.

On how AI can improve enforcement — In a lot of the more complex cases, we look for patterns in campaign contributing and voting to identify campaign money laundering, conflicts of interest. It can take a lot of time for a human to do that.

But if you upload a bunch of campaign reports into something like ChatGPT, they can identify the patterns. They’re going to mess up a lot, but that’s why you have your expert staff who can look at all this stuff.”

Gothamist: NYC Council eyes stricter fundraising rules amid legal probes into Mayor Adams' campaign

By Brigid Bergin

.....A member of the New York City Council is floating a plan to give new power and added responsibilities to the watchdog agency running the city’s taxpayer-funded campaign matching funds program amid deepening investigations into Mayor Eric Adams’ 2021 campaign fundraising.

Councilmember Lincoln Restler, who chairs the Council’s committee on government operations, is introducing legislation this week that would empower the city’s Campaign Finance Board to withhold taxpayer matching money to political campaigns that do not respond to the agency’s requests for information about their contributors within 30 days. The agency would also be mandated to verify the identities of certain campaign contributors.

The proposals come amid federal and local probes into the mayor’s 2021 fundraising operation, where his campaign secured $10 million in matching funds even after the Campaign Finance Board sought, but never received, information about hundreds of flagged donations.