This is the Daily Media Update published by the Institute for Free Speech. For press inquiries, please contact Luke Wachob at [email protected].
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The Courts
By Eugene Volokh
.....My quick reaction at this point:
I think the better way of reading the statute, especially in light of the canon that statutes should be interpreted to avoid constitutional problems, is to read "knowing such report to be false or in reckless disregard of its truth or falsity" as implicitly requiring that the statement be false. The "knowing such report to be false" expressly requires falsehood (if something is true, you might believe it's false, but you can't know it's false), and in context "reckless disregard" should be read as importing a falsity requirement—especially since "knowledge that it was false or with reckless disregard of whether it was false or not" (I quote New York Times v. Sullivan here) is a standard legal phrase that's used only as to falsehoods. Indeed, courts themselves at times use this phrase to implicitly require falsehood, e.g., Masson v. New Yorker Magazine, Inc. (1992) (or, similarly, Cannon v. Peck (4th Cir. 2022)):
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Biden Administration
By Maria Curi
.....Officials are recommending getting rid of a federal board created to counter false information after it drew fierce scrutiny from Republicans who said it would censor conservative speech...
The Department of Homeland Security Advisory Council on Wednesday voted to approve a council subcommittee’s recommendation to dissolve the board, which was announced in May to provide guardrails for the anti-disinformation work DHS had already been doing for years.
“We previously recommended to the full Council—and the Council has accepted our recommendation—that there is no need for a separate Disinformation Governance Board,” the HSAC Disinformation Best Practices and Safeguards Subcommittee reported. The report will now go to DHS Secretary Alejandro Mayorkas for his final say on whether to scrap the board.
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Free Expression
By Caitlin Flanagan
.....Two years ago, a friend emailed me: Some writers were composing an open letter to appear in Harper’s; it would address the growing threats to freedom of expression in this country. Did I want to read and possibly sign it? I read it and said to myself, This is going to be a shitstorm of biblical proportions, and wrote to my friend, “In.”
Of course I was in. I have shown up for free expression when it was a major cause of the left, and I show up for it now that it has become a cause of the right. Freedom doesn’t belong to a political party, and it’s not the tool of the powerful; it’s the tool of the powerless.
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Online Speech Platforms
By Kaitlyn Tiffany
.....One year ago this month, Twitter permanently suspended a 340,000-follower account for “repeated violations of our COVID-19 misinformation rules.” The owner of that account, the former New York Times reporter and vaccine skeptic Alex Berenson, responded with a lawsuit demanding reinstatement. Suffice to say that few observers thought he had any chance of coming out on top. One lawyer went through the complaint page by page on Twitter and concluded that Berenson had hired a “band of incompetent knock-off muppet lawyers” to present a doomed case.
Then, somehow, the muppet lawyers won. Earlier this summer, Twitter put Berenson’s account back online, noting that “the parties have come to a mutually acceptable resolution.” Berenson wasted little time in calling out mainstream media for failing to cover the “pathbreaking settlement” that led to his return. “I mean, imagine being @dkthomp right about now,” he wrote triumphantly, in reference to my colleague Derek Thompson, who last year dubbed Berenson “the pandemic’s wrongest man.” Now he’s bent on being acknowledged as the victim of the pandemic’s wrongest ban.
Whatever the merits of Berenson’s case, and of the specific tweet that led to his suspension, the outcome is significant. For years, people who have been booted off Twitter, Facebook, YouTube, and other platforms have tried to sue to get back on, and for years, most of their cases were dismissed. Eric Goldman, a law professor at Santa Clara University School of Law, analyzed 62 such decisions for an August 2021 paper and found that the internet companies had won “essentially all” of them. When he read about Berenson’s lawsuit, he told me, his first impression was that “it was doomed to fail just like the dozens of others that have also failed.”
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By Adi Robertson
.....“Prebunking” false information with short videos could nudge people to be more critical of it, suggests a new study from researchers at the University of Cambridge and Google’s Jigsaw division. The study is part of ongoing work in the field of mis- and disinformation, and it’s encouraging news for researchers hoping to improve the online information ecosystem — albeit with many caveats.
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The States
By Associated Press
.....A central Minnesota school district has shuttered a policy meant to prohibit staff from talking publicly about issues that might reflect negatively on the district, including a recent proposal to dictate what is taught in schools.
The so-called gag order came to light after the teachers union in Becker filed a lawsuit in order to speak freely about the school board’s plan to ban “political indoctrination or the teaching of inherently divisive concepts.” The proposal has rankled teachers and LGBTQ allies who believe it would undermine equity and inclusion.
The hastily-filed suit said the policy that prevents staff from commenting publicly violates free speech laws. The school board voted at a special meeting Tuesday to rescind the communication rules, a move that led the union to withdraw its suit.
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By Christopher Bopst
.....In addition, and most novelly, the law requires applicants submit a list of their social media accounts from the past three years “to confirm the information regarding the [applicant’s] character and conduct.” [i.e., that such applicant has not engaged in any acts, or made any statements that suggest they are likely to engage in conduct that would result in harm to themselves or others].
The social media disclosure requirement raises several constitutional questions: Does the forced disclosure of a person’s social media accounts, which may be deliberately anonymous, violate the First Amendment? Does the threat of a license denial based on a social media review chill the exercise of protected speech? Does the examination of a gun license applicant’s social media burden the right to bear arms in a manner prohibited by Bruen?
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By Alex Loroff
.....The City of La Crosse may soon have a lawsuit on its hands if it continues forward with a ban of conversion therapy.
The Wisconsin Institute for Law & Liberty has sent a letter to the City Council saying the ban “functions as little more than an official municipal prohibition on speech the City finds disagreeable”.
The letter goes on to detail how WILL believes the ordinance banning the controversial medical practice violates the First Amendment’s free speech clause, its religion clauses, and the Wisconsin Constitution’s freedom of conscience clauses.
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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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The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Please support the Institute's mission by clicking here. For further information, visit www.ifs.org.
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