This is the Daily Media Update published by the Institute for Free Speech. For press inquiries, please contact [email protected].
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The Courts
By Cat Zakrzewski
.....The U.S. Court of Appeals for the 5th Circuit on Friday upheld a controversial Texas social media law that bars companies from removing posts based on a person’s political ideology, overturning a lower court’s decision to block the law and likely setting up a Supreme Court showdown over the future of online speech.
The ruling could have wide-ranging effects on the future of tech regulation, giving fresh ammunition to conservative politicians who have alleged that major tech companies are silencing their political speech.
But the decision diverges from precedent and recent rulings from the 11th Circuit and lower courts, and tech industry groups are likely to appeal.
Friday’s opinion was written by Judge Andrew Stephen Oldham, who was nominated to the 5th Circuit by President Donald Trump. He was joined by Judge Edith Jones, a Reagan appointee. Judge Leslie H. Southwick, a George W. Bush appointee, concurred in part and dissented in part.
In the opinion, Oldham wrote that while the First Amendment guarantees every person’s right to free speech, it doesn’t guarantee corporations the right to “muzzle speech.” The Texas law, he wrote, “does not chill speech; if anything, it chills censorship.”
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Congress
By Ramsey Touchberry
.....With just weeks until the midterms, Senate Democrats are preparing to vote on legislation that would offer voters a look under the hood of shadowy nonprofits and other political groups by no longer allowing anonymous contributions of more than $10,000. It would force campaigns to disclose the identities of their donors.
It’s a recurring proposition over the past decade by Democrats in Washington, who have benefited in recent years more than Republicans from dark money groups...
Conservatives oppose changing the rules that exempt nonprofit groups from disclosing donors. They say it would be an invasion of privacy and an attempt to shame the political beliefs of individuals and corporations, strengthening the left’s cancel culture.
“The goal here is to silence speech or make donors not want to support nonprofit groups,” said Matt Nese, vice president of the People United for Privacy Foundation, the leading opposition to requiring donor disclosures. “They like to position this as a campaign finance bill, but it is very much the exact opposite. It’s an attack on issue advocacy and nonprofits of all vocations to pursue their missions.”
Senate Majority Leader Charles E. Schumer, New York Democrat, said Monday that he will put the bill, known as the DISCLOSE Act, up for a vote this week. The measure will face certain defeat in the chamber, which is split 50-50 between the parties.
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By Joe Mullin
.....Our country’s fair and independent courts exist to resolve serious disputes. Unfortunately, some parties abuse the civil litigation process to silence others’ speech, rather than resolve legitimate claims. These types of censorious lawsuits have been dubbed Strategic Lawsuits Against Public Participation, or SLAPPs, and they have been on the rise over the past few decades.
Plaintiffs who bring SLAPPs intend to use the high cost of litigation to harass, intimidate, and silence critics who are speaking out against them. A deep-pocketed plaintiff who files a SLAPP doesn’t need to win the case on the merits—by putting financial pressure on a defendant, along with the stress and time it takes to defend a case, they can take away a person’s free speech rights.
Fortunately, a bill introduced in Congress today, the SLAPP Protection Act of 2022 (H.R. 8864), aims to deter vexatious plaintiffs from filing these types of lawsuits in federal court.
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Online Speech Platforms
By Ashley Gold
.....Google is launching a pilot program to keep emails from political campaigns from going to users' spam folders this week, the company told Axios.
Gmail users may start seeing a lot more political emails in their inboxes, partly a result of Google bowing to pressure from conservatives who claimed the company marked Republican emails as spam more often than others.
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By Natasha Singer
.....Political consultants say the ability to tailor streaming video ads to small swaths of viewers could be crucial this November for candidates like Mr. Camilleri who are facing tight races. In 2016, Mr. Camilleri won his first state election by just several hundred votes.
“Very few voters wind up determining the outcomes of close elections,” said Ryan Irvin, the co-founder of Change Media Group, the agency behind Mr. Camilleri’s ad campaign. “Very early in an election cycle, we can pull from the voter database a list of those 10,000 voters, match them on various platforms and run streaming TV ads to just those 10,000 people.” ...
The quick proliferation of the streaming political messages has prompted some lawmakers and researchers to warn that the ads are outstripping federal regulation and oversight.
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By Joan Donovan, Emily Dreyfuss, and Brian Friedberg
.....In the politics of the 21st century, political memes are some of the most powerful tools a person or group can use to spread their message…
On January 6, pundits and people across America and the globe were shocked by what they saw. How could this be happening? How had we gotten to this point? What the hell was going on in American society? As researchers studying media manipulation at Harvard University’s Shorenstein Center on Media, Politics, and Public Policy, we were not surprised. We’d spent all of 2020 tracking memes like the anti-Asian dog whistle #ChinaVirus, which Trump championed as a way to deflect criticism about his handling of COVID and to position the pandemic as a sort of war against a geopolitical rival. We are far from alone; there is a wide community of internet researchers, journalists, and civil-society organizations who watch memes and online fringe communities closely. For us, the events of that day were entirely foreseeable. They were tragic. But they were not unexpected.
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The States
By David Ardia
....I want to thank Eugene for inviting me to write about an article Evan Ringel and I recently published titled First Amendment Limits on State Laws Targeting Election Misinformation, 20 First Amend. L. Rev. 291 (2022). The article expands on a whitepaper we wrote in 2021 that cataloged state efforts to regulate election-related speech (available on SSRN).
In today's post and over the remainder of this week, we plan to: (1) provide a summary of our project to study state efforts to regulate election-related speech; (2) present an overview of state laws that target election-related speech; (3) explore potential First Amendment frameworks for assessing the constitutionality of government restrictions on election speech; (4) assess whether existing state laws restricting election-related speech are likely to pass First Amendment scrutiny; and (3) discuss how these state approaches intersect with broader societal efforts to reduce the frequency and impact of election misinformation.
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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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