July 3, 2024

Ed. note: The Daily Media Update will return Wednesday, July 10. Happy Independence Day!

Supreme Court

Reason (Volokh Conspiracy): S. Ct. Will Decide: May States Require Age Verification to Access Porn Sites?

By Eugene Volokh

.....The Court just agreed to hear this case, Free Speech Coalition v. Paxton. You can read the majority and dissenting opinions in the Fifth Circuit here, and the petition, response, and reply here. Here's the issue in a nutshell:

Election Law Blog: In New Supreme Court Social Media Case, Echoes of Citizens United on “AntiDistortion” and the Foreign Campaign Spending Ban, with Implications for Shutting Down Tik-Tok

By Rick Hasen

.....I want to pick up a point first flagged yesterday by Eugene Volokh from yesterday’s decision in Moody v. NetChoice that could have relevance to new legislation, currently being challenged in court, that could ban Tik-Tok as being foreign owned. Some lines in Justice Barrett’s concurrence makes it more likely the Court would uphold a Tik-Tok ban, if the issue makes it to the Supreme Court.

I need to give a bit of wonky background to set the stage (and I’m writing about this more extensively in a larger piece that will post in a few weeks).

Slate: The First Amendment Just Dodged an Enormous Bullet at the Supreme Court

By Richard L. Hasen

.....Moody might seem like an unremarkable decision, consistent with long-standing First Amendment principles. And indeed, in an amicus brief in the cases that I filed with political scientist Brendan Nyhan and journalism professor Amy Wilentz and co-authored with Nat Bach and his team at Manatt Phelps, we argued that Tornillo is the right analogy.

But in endorsing this view of the First Amendment, the majority brushed aside a major argument made by Justice Clarence Thomas in earlier cases and by First Amendment scholar Eugene Volokh that social media companies should be treated differently because they function like “common carriers,” such as the phone company. Just like Verizon cannot deny you a phone because of what you might say using it, the argument is that Facebook had to be open to everyone’s view.

The Hill: Social media court case shows we must rein in bureaucrats to protect free speech

By Casey Mattox

.....The lesson of Murthy v. Missouri and the Supreme Court’s decision is not that First Amendment rights are not threatened by government coercion of social media platforms. They are. But the solution is larger than free speech rights, as much as it pains me to say it as a First Amendment attorney. Censorship is only the symptom. The root cause is government overreach. The real solution to a problem as large as a censorial pressure campaign by the federal bureaucracy is to rein in the power of the federal bureaucrats.

The Courts

San Francisco Chronicle: Oakland reporter sues Alameda County over sideshow ordinance

By David Hernandez

.....An Oakland-based reporter sued Alameda County on Tuesday over an ordinance that makes it illegal to watch sideshows, claiming it criminalizes reporting on the matter. 

Oaklandside reporter Jose Fermoso’s federal lawsuit seeks a court order declaring the ordinance unconstitutional. The lawsuit alleges the ordinance violates First Amendment rights that allow journalists — and the public — to observe, record and report on matters of public concern in public spaces, including unlawful activities, such as sideshows. 

Bloomberg Law: Teacher Fired for TikTok Posts Pre-Hire Loses Free Speech Appeal

By Patrick Dorrian

.....A Massachusetts school district defeated a First Amendment appeal by a high school teacher it fired over TikTok posts on gender identity, critical race theory, and illegal immigration that were deemed to violate the district’s “core values.”

The “six allegedly controversial memes” the teacher posted to her personal TikTok account weren’t discovered until after she was hired, but the usual test for determining when a public worker’s speech is shielded by the US Constitution still applied, the US Court of Appeals for the First Circuit said. It rejected the teacher’s argument that the First Amendment test “for claims by private individuals against government entities who retaliate against them” governed instead.

Fox News: Missouri AG sues New York over 'reprehensible lawfare' against Trump: 'Poisonous to American democracy'

By Stepheny Price

.....Missouri Attorney General Andrew Bailey filed a lawsuit against the state of New York, alleging it violated Missourians’ First Amendment right to hear from former President Trump during the 2024 presidential election.

Bailey’s lawsuit alleges New York’s "illicit prosecution, gag order, and sentencing" of Trump has undermined his ability to campaign for president, sabotaging Missourians’ ability to hear from him and cast a fully informed vote for a presidential candidate mere months before the election.

Congress

Washington Free Beacon: IRS Under Pressure To Pull Tax-Exempt Status for Pro-Hamas Groups Fomenting Unrest

By Adam Kredo

.....The IRS is under renewed congressional pressure to pull the tax-exempt status for several key U.S.-based nonprofits that are fomenting pro-Hamas protests across the country just years after they played a leading role in the anti-police riots that erupted as part of the 2020 Black Lives Matter movement.

Rep. Jim Banks (R., Ind.) alerted the IRS to "a network of donors, activists and media outlets that had helped organize many of the violent anti-police riots during the summer of 2020, and that, more recently, have organized many of the ongoing anti-Israel protests and encampments on college campuses," according to a letter sent last week and obtained by the Washington Free Beacon.

Free Expression

Reason: A Law Professor's Beef With a First Amendment 'Spinning Out of Control': Too Much Speech of the Wrong Sort

By Jacob Sullum

....."The First Amendment is spinning out of control," Columbia law professor Tim Wu warns in a New York Times essay. While Wu ostensibly objects to Supreme Court decisions that he thinks have interpreted freedom of speech too broadly, his complaint amounts to a rejection of the premise that the principle should be applied consistently, especially when it benefits speakers and messages he does not like.

Candidates and Campaigns

Daily Caller: FEC Commissioner Trey Trainor: Replacing Joe Biden Wouldn’t Be So Easy

By Trey Trainor

.....Moreover, the financial implications of replacing Biden are significant. President Biden’s campaign has raised substantial sums, and while the Democratic National Committee can redirect some resources, funds directly tied to Biden’s campaign might face certain restrictions.

Federal Election Commission requirements for new candidates would need to be met, posing additional challenges and potential delays. Beyond logistics and finances, replacing a nominee also raises ethical and democratic concerns.

The States

WITF: Campaign finance bill passes Pa. House, takes on Citizens United contradiction

By Sarah Nicell

.....A bill banning corporations with foreign influence from political spending in Pennsylvania is headed to the Senate.

The bill passed with bipartisan support in a 126-76 vote in the Democratic-controlled House.

The legislation prohibits “foreign-influenced corporations” from spending directly or indirectly on any political campaign, committee or party and from spending to support or denounce a question on the ballot.

The bill defines a foreign-influenced corporation as a business with at least 1% ownership by a single foreign investor or at least 5% ownership by multiple foreign investors.

NC Newsline: Cooper signs bill to establish an official state definition of antisemitism

By Ahmed Jallow

.....The SHALOM Act became law in North Carolina after Gov. Roy Cooper signed it on Monday. 

The law makes the “Working Definition of Antisemitism Adopted by the International Holocaust Remembrance Alliance on May 26, 2016” the state’s official definition of antisemitism...

Under the definition, several types of criticism directed against Israel, such as “claiming that the existence of a State of Israel is a racist endeavor,” would be deemed antisemitism...

Some of what the definition targets isn’t antisemitism, said Reighlah Collins with the ACLU of North Carolina at a committee hearing last week.  

“The right to engage in political speech is one of the most important First Amendment protections even if we don’t agree with it, and for this reason, the IHRA definition cannot serve as a yardstick for determining what is hate speech or religious discrimination and what is not.”