Email from The Institute for Free Speech The Latest News from the Institute for Free Speech November 27, 2024 Click here to subscribe to the Daily Media Update. This is the Daily Media Update published by the Institute for Free Speech. For press inquiries, please contact [email protected]. Ed. note: The Media Update will return Monday, December 2. Happy Thanksgiving! The Regulatory Review: Artificial Intelligence in Political Campaigns By Aadam Barclay .....The Federal Election Commission (FEC) announced that it would not revise its existing rules to regulate the use of artificial intelligence (“AI”) in political campaign communications. This announcement responded to a petition for rulemaking submitted in July 2023 by self-described consumer advocacy group Public Citizen. Public Citizen requested that the FEC issue a rule clarifying that deepfakes—realistic, AI-generated visual or audio content—constitute “fraudulent misrepresentation” when used maliciously to depict a candidate saying or doing something they did not… The Institute for Free Speech, a nonprofit advocacy organization, commented that requiring the FEC to determine whether free speech is intentionally damaging would establish an unworkable regulatory standard if the material does not explicitly attack or promote a candidate. For example, the Institute contended that finding the deepfake depicting President Trump hugging Dr. Fauci intentionally damaging required too much context and individual understanding to survive judicial scrutiny. The Institute also argued that the difficulty of distinguishing misrepresentation and parody could chill protected speech. OutKick: New Hampshire Judge Criticizes Parents For Stance On Transgender Athletes By Ian Miller .....The lawyer for the two men said that the school district's punishment was "discrimination," something that administrators seemed "proud of." "This is viewpoint discrimination, and it’s very clear they’re proud of it," plaintiff lawyer Endel Del Kolde said. Del Kolde is a senior attorney at the Institute for Free Speech, who's representing the two men in their fight for their First Amendment rights. Fellers told the judge he wanted to support female athletes, and did so after being kicked out by holding up a sign that said exactly that. He also said that allowing a male to compete against females was a "travesty." "I wanted to support women’s sports and I believed what was going on was a travesty," he continued. The Courts Reason (Volokh Conspircy): NRA v. Vullo Update: Second Circuit Weighs Reviving $100M+ Damages Claim By Eugene Volokh .....Readers of the blog may I recall that I was counsel of record for the NRA in the Supreme Court stage of NRA v. Vullo, and that the ACLU's David Cole presented oral argument before the Court. The Court unanimously held that the NRA stated a claim, and remanded the case to the Second Circuit as to qualified immunity; the Second Circuit held oral argument two weeks ago, and I thought some of you folks might be interested in what happened there. Bill Brewer (the NRA's lead lawyer on this) and his team and I therefore put together this quick post; I should note that my role here is an advocate and not as an impartial academic, but my sense was that our readers might still find this analysis interesting: Courthouse News: Free speech advocates blast California ban on news reporting of sealed arrest records By Michael Gennaro .....The First Amendment Coalition sued California Attorney General Rob Bonta and San Francisco City Attorney David Chiu in San Francisco federal court Friday, claiming they chill free speech by using a section of the California penal code to punish journalists who publish information related to sealed arrest records. In its complaint, the First Amendment Coalition claims Bonta and Chiu recently used California Penal Code § 851.92(c), known as the anti-dissemination statute, to threaten and prevent a journalist from publishing information about a former tech CEO’s 2021 arrest on suspicion of domestic violence. That section of the California Penal Code prohibits almost any person — whether journalist, advocate, activist, lawyer, victim, or witness — from disseminating any information “relating to” a sealed arrest record, with a punishment of up to $2,500 for each mention of the sealed arrest. The penalty is enforced by the city attorney or state attorney general. “By itself, the anti-dissemination statute threatens a host of protected speech on important public issues,” the First Amendment Coalition says in its complaint. Bloomberg Law: Wyoming Official Seeks to End Medical Board Member's Speech Suit By Mary Anne Pazanowski .....A former Wyoming medical board member shouldn’t be allowed to proceed with claims that the governor retaliated against him for criticizing doctors who opposed a gender-affirming care ban for minors, the executive officer said. Governor Mark Gordon (R) asked the US District Court for the District of Wyoming on Monday to dismiss Frederick Cubin’s suit alleging violations of the US and Wyoming Constitutions’ free speech and petition clauses. Gordon denied retaliating against Cubin, and he said that the doctor had only limited rights as a government employee. Election Law Blog: Election Law Scholars and Brennan Center File Amicus Brief in En Banc DC Circuit Case on the Power of FEC Commissioners to Use “Prosecutorial Discretion” to Prevent Judicial Review of Their Decisions By Rick Hasen .....Important brief in a key case. FEC Washington Examiner: FEC opens case sparked by fraud claims against ActBlue By Paul Bedard .....The Federal Election Commission has taken a step called for by Texas Attorney General Ken Paxton to crack down on possibly fraudulent contributions to donor groups such as ActBlue, the massive Democratic fundraising operation. In a notice, the FEC said it would take public comments on Paxton’s request to create new rules that tighten the use of credit, gift, and prepaid cards to fundraising groups such as ActBlue. Paxton, who has investigated donations to the group, claims that “fraudsters” and foreign contributors can use gift and prepaid cards to make illegal donations… In his petition, he said the potential for fraud is also with Republican sites, such as WinRed. The problem is proving that the donor using credit, gift, and prepaid cards is the person who paid for it. Paxton’s investigation suggested that it is easy for fraudsters to make “straw donations” via the cards. The FEC cited Paxton’s petition for legal changes in its notice in the Federal Register. Online Speech Platforms Washington Post (Tech Brief): Musk admits X throttles links as ‘news influencers’ take over By Will Oremus .....X owner Elon Musk seemed on Monday to confirm what sharp-eyed users have suspected for months: that putting a link in your post on his social network is a good way to ensure it won’t go viral… For social media platforms, suppressing links is seen as good business. Links are lifeblood for web publishers, and they can be handy for users who want to point each other to original sources, in-depth reporting or delightful content. Adding a link to a post also can be an indicator of credibility on social media – a sign that you aren’t just spouting off but have outside evidence to support your claims and are happy for your audience to check it out for themselves. But tech giants have come to see links as a drain on the bottom line, because they pull users’ valuable eyeballs away from the platform. There’s also the reality that some links lead to malware, scams or misinformation, though Musk didn’t cite that as a reason for suppressing them. X didn’t respond to a request for comment. Candidates and Campaigns Washington Examiner: Alexandria Ocasio-Cortez says she doesn’t take lobbyist cash. Records tell a different story By Robert Schmad .....Rep. Alexandria Ocasio-Cortez (D-NY) has repeatedly claimed that she won’t accept funds from lobbyists. Campaign finance records, however, show she has received nearly 100 separate donations from registered lobbyists since taking office. The States Colorado Politics: Colorado Supreme Court to hear appeals on campaign disclosures, right to jury trial in child neglect cases By Michael Karlik .....The Colorado Supreme Court announced on Monday it will consider when groups that advocate on ballot initiatives were required to register and disclose their election spending under a pre-2022 version of state law... Unite for Colorado formed in late 2019 and spent roughly $17 million during the 2020 election. Among other things, the group funded signature gathering and advertising for three ballot measures advancing conservative causes. However, Unite for Colorado attracted a campaign finance complaint, alleging it failed to register as an "issue committee." Issue committees must register with the state if they spend over $200 on any ballot initiative and if their "major purpose" is ballot issue advocacy. Spending and donor disclosure requirements apply for committees that spend in excess of $5,000. Willamette Week: The City’s Public Campaign Financing Program Allowed Candidates With Little Support to Snag Taxpayer Dollars By Sophie Peel .....Two candidates for the Portland City Council this November achieved something unusual—and, at first glance, illogical. Chris Henry and Moses Ross each received more individual campaign contributions than they did votes on Election Day. Ross received 987 donations, most of them $5. Henry received 591 donations, also mostly Abe Lincolns. And thanks to Portland’s public campaign financing program, Small Donor Elections, which matches donations by up to a 9-to-1 ratio, those contributions allowed Ross and Henry to unlock a lot more money: $80,000 in taxpayer funds for Ross, and $38,709 for Henry. The idea was that the public money would level the playing field for candidates who had lots of supporters but not deep-pocketed donors. But that support was a mirage. On election night, only 668 Portlanders cast votes for Ross. Only 335 Portlanders voted for Henry… The case of Henry and Ross, coupled with two other examples of candidates mining taxpayer dollars by boasting grassroots support that wasn’t there, shows that the city’s well-intentioned public finance system buckled under the weight of 75 candidates attempting to tap in. An examination by WW, which also exposed abuses of the system in stories published over the past two months, raises questions whether Portland’s campaign financing is functioning as intended—and if it adequately safeguards taxpayer dollars from candidates with little public support but a creative approach to math. Read an article you think we would be interested in? Send it to Tiffany Donnelly at [email protected]. For email filters, the subject of this email will always begin with "Institute for Free Speech Media Update." 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