July 18, 2024

New from the Institute for Free Speech

Free Speech Arguments – Can California Compel Social Media Platforms to Report to the State How They Moderate Hate Speech, Extremism, Etc.? (X Corp. v. Bonta)

.....X Corp. v. Bonta, argued before Judges Milan D. Smith, Jr., Mark J. Bennett, and Anthony D. Johnstone in the U.S. Court of Appeals for the Ninth Circuit on July 17, 2024. Argued by Joel Kurtzburg (on behalf of X Corp.) and Gabrielle D. Boutin, Deputy Attorney General (on behalf of Robert Bonta, Attorney General of the State of California).

A Description of the Law, from the Appellant’s Opening Brief:

Supreme Court

Reason (Volokh Conpsiracy): Dean Kagan Would Rather Forget About Rumsfeld v. FAIR

By Josh Blackman

.....What a difference two decades make. In 2003, Elena Kagan was the Dean of Harvard Law School. At the time, many law schools had banned JAG officers from recruiting on campus, citing the "Don't Ask, Don't Tell" policy. Dean Kagan did not ban JAG recruiters, but voiced support for the ban. She articulated this position in an email to the community:

The Courts

Courthouse News: Ninth Circuit questions why California’s social media ‘transparency’ law isn’t compelled speech

By Edvard Pettersson

.....A Ninth Circuit Court of Appeals panel asked California on Wednesday why a state law requiring social media platforms to disclose their policies about moderating hate speech and disinformation doesn't amount to a violation of the First Amendment.

The three-judge panel took up X Corp.'s appeal of a federal judge's refusal to block what California Governor Gavin Newsom in 2022 said was a first-of-its-kind social media transparency law to protect Californians from hate and disinformation spread online.

Bloomberg Law: Texas City Didn’t Stifle Speech With Charity Box Restrictions

By Quinn Wilson

.....Arlington, Texas, didn’t violate the two nonprofits’ free speech when it regulated the placement locations of charity donation bins throughout the city, a federal appeals court panel ruled Wednesday in a reversal.

The National Federation of the Blind of Texas Inc. and Arms of Hope—nonprofits that support the blind and underprivileged children, respectively—sued the city in 2021, alleging its ordinance limiting the zoning locations of donation bins stifled free speech and was overbroad. They also challenged the ordinance’s setback requirement to keep valid donation boxes at least 40 feet from a right-of-way, alleging it also violated the First Amendment and ...

Washington Post (Tech Brief): Judges air free-speech concerns over California’s child online safety law

By Cristiano Lima-Strong

.....A federal appeals court on Wednesday seemed deeply skeptical of the constitutionality of a watershed California law that aims to expand safeguards for children online, probably foreshadowing another major defeat for state efforts to tackle the issue.

The U.S. Court of Appeals for the 9th Circuit in San Francisco heard arguments over a tech industry challenge to the California Age-Appropriate Design Code (AADC), a bipartisan law passed in 2022...

Judge Milan D. Smith Jr., one of the judges presiding over the appeal, said he was “troubled” that the law requires companies to “make a determination” about what constitutes content that could be harmful to children.

“It seems to me that when you are asking them to make that [call] it’s compelled speech and you do bring in the First Amendment and probably at a strict scrutiny level,” he said.

FEC

Washington Examiner: FEC moves to let candidates pay for increased security

By Paul Bedard

.....The chairman of the Federal Election Commission is hopeful of speeding up approval of a new rule to let candidates use campaign cash to increase security, the first major political move following the attempted assassination of former President Donald Trump.

“Candidate security has been one of my top priorities as chairman of the Federal Election Commission,” Sean Cooksey told Secrets.

“In light of the ongoing threats to public officials and candidates, I expect the commission to expedite its pending rulemaking to allow campaigns greater latitude to spend on security. I hope we will vote on a final rule later this year,” the Republican chairman added.

Fellow Commissioner Trey Trainor told Secrets that he hopes to move a vote on the plan at next week’s commission meeting.

“I’ve asked my fellow commissioners to make this a public agenda item on July 25 so the new rule can go into effect ASAP,” Trainor said.

FEC Press Release Considering Rulemaking

FCC

Nextgov: FCC to consider new protections against AI-generated robocalls next month

By David DiMolfetta

.....The Federal Communications Commission will soon consider a measure that would allow the agency to craft first-of-its-kind rules for AI-generated robocalls.

The agency next month will decide whether to pursue efforts to formally define AI-generated calls and adopt new rules that would direct callers to disclose to consumers if they are using AI in such conversations. It would also seek to maintain “positive” use cases where an AI-powered voice can help people with disabilities use their phones.

The agency already declared voice cloning technology in scam calls illegal, following the deployment of an AI-generated voice of President Joe Biden in this year’s New Hampshire primary that urged voters to not go to the polls. But not all AI-generated phone messages are necessarily used for scamming. The rule would aim to help clarify this dynamic while still keeping consumers shielded from misinformed messaging.

Free Expression

Reason: Getting a Home Depot Employee Fired for Calling for Trump's Assassination Is Still Cancel Culture

By Billy Binion

.....Whatever your feelings on the former president, cheering on his assassination attempt is, in fact, wrong. It is also wrong to weaponize your millions of followers to turn a random woman into a national pariah, siccing a mob on her and rendering her unable to support herself—and possibly her family—because she made a tasteless comment on social media. These two things are true at the same time.

Cancel culture comes in different forms. But this is arguably its purest. We're not talking about someone who wielded considerable influence over society, whether in Hollywood or on Capitol Hill in Washington, D.C. We aren't even talking about a public school teacher who said this to a classroom full of students. We are talking about a woman who worked at a big box retail store, whose ability to pay for housing and food is potentially now up in the air for saying something gross on the internet.

Independent Groups

OPB: Conservative group made last-ditch play to influence Democratic primary in high-profile Oregon congressional race

By Bryce Dole

.....A group dedicated to electing conservative women to Congress paid for advertisements supporting an Oregon Democratic candidate before she was defeated in the May primary.

The Winning For Women Action Fund, which has previously endorsed and raised money supporting U.S. Rep. Lori Chavez-DeRemer’s Congressional bid, paid $550,000 for advertisements in May supporting the congresswoman’s would-be opponent, Jamie McLeod-Skinner, who lost to Oregon Rep. Janelle Bynum.

Candidates and Campaigns

New York Times: Megadonors Are Plotting to Change Biden’s Mind With Money. Will It Work?

By Theodore Schleifer

.....Some of the wealthiest people in the world have been locked in a perpetual, almost academic examination of how much leverage they truly have to change Mr. Biden’s mind.

Would it be best to funnel money toward a super PAC, which has raised $2 million so far, that plans to back vulnerable Democratic members of Congress who are calling for Mr. Biden’s removal? Or maybe the savvier move would be to raise money loudly for Vice President Kamala Harris, his heir apparent, as an affirmative sign that the president need not worry about passing the reins? What about setting aside some money in an escrow account that would be spent only on a Democratic presidential campaign led by someone other than Mr. Biden?

The States

Inside Higher Ed: UNC Police Seek Access to Pro-Palestinian Group’s Instagram

By Johanna Alonso

.....As part of its investigation into vandalism that occurred on campus in May, the police department at the University of North Carolina at Chapel Hill is searching for clues in the Instagram account of UNC Students for Justice in Palestine.

The department obtained a search warrant for the account’s data, including the name and address of its owner, direct messages sent and received, location data, and more, according to the warrant. Meta, the company that owns both Instagram and Facebook, is responsible for providing the police with that information.

OPB: Oregon won’t press for criminal charges in case involving Democratic Party of Oregon

By Lauren Dake

.....The Oregon Department of Justice will not seek criminal charges into a $500,000 political contribution made to the Democratic Party of Oregon.

The state was prompted to take a closer look at the contribution after The Oregonian/OregonLive reported the contribution was not actually from Prime Trust, which is how Democratic Party officials reported it on their campaign finance filings. Instead, Prime Trust was merely a pass-through and the donation really came from Nishad Singh, a former executive at the disgraced cryptocurrency exchange FTX.

The Secretary of State’s office asked the justice department to determine whether Singh knowingly made a contribution under a false name in October of 2022, which is a crime.

The state found insufficient evidence, according to a press release from the Attorney General’s office, and would not be able to “prove beyond a reasonable doubt that Singh or any other person committed a crime.”

Tennessee Lookout: Tennessee campaign finance official questions AG’s Office investigation

By Sam Stockard

.....A Tennessee Registry of Election Finance board member is criticizing an Attorney General’s Office investigation into two Constitutional Republicans groups, challenging the veracity of its report and raising questions about possible bias.

“They did not do even a remotely close to thorough investigation. They just went through the motions,” Registry board member Tom Lawless said this week.

An appointee of the Tennessee Senate Republican Caucus, Lawless said he plans to call for leaders of the Sumner County and Tennessee Constitutional Republicans to come before the board and explain how they’re operating without registering with the state as a political action committee. The board is set to meet July 23 at the Tennessee Tower.

Alaska Public Media: Statewide initiative would restore Alaska campaign finance limits

By Robyne, KUAC - Fairbanks

.....A group of Alaskans is circulating petitions this summer to restore state campaign finance limits.

Citizens Against Money in Politics says its ballot initiative will give citizens the same power as large corporations and unions.

Alaska had set up campaign finance limits in the past, but three years ago the federal 9th Circuit Court of Appeals struck them down as unconstitutional…

The 9th Circuit’s decision in Thompson v. Hebdon struck down a $500-per-year contribution limit on Alaska legislative races, saying it restricted free speech. The court provided a road map to reconfigure campaign limits so they are adjusted for inflation, but the state Legislature didn’t do that. So, candidates today can now receive unlimited direct donations from anyone, even outside of Alaska. 

San Francisco Chronicle: Regents move to restrict personal and political speech on UC homepages

By Elizabeth Wilson and Nanette Asimov

.....A committee of the University of California Regents voted Wednesday to prohibit employees from posting personal opinions and political statements on campus homepages the public is most likely to see, while allowing such comments on secondary pages with a disclaimer saying they don’t represent UC’s official stance.

The speech policy — postponed three times this year — is expected to be approved by the full Board of Regents on Thursday, the final day of their three-day meeting at UCSF’s Mission Bay campus.

The speech proposal has been controversial largely because advocates of Palestinian rights, both students and employees, have opposed restricting where they can post their views.