The Latest News from the Institute for Free Speech December 13, 2022 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]. Congress Reason: Adam Schiff Attempts Censorship by Proxy, 'Demanding Action' To Suppress 'Hate Speech' on Twitter By Jacob Sullum .....Rep. Adam Schiff (D–Calif.) [last week] said he is "demanding action" in response to an "unacceptable" rise in bigoted slurs on Twitter since Elon Musk took over the platform in late October. Musk responded by taking issue with the evidence that Schiff cited, saying "hate speech impressions are actually down by 1/3 for Twitter now vs prior to acquisition." What he should have said is that government officials in a free society have no business demanding the suppression of speech they do not like. "We are deeply concerned about the recent rise in hate speech on Twitter," Schiff and Rep. Mark Takano (D–Calif.) write in a letter to Musk. "Analysis by independent researchers indicates Twitter has become an increasingly toxic place for our constituents, and we are reaching out to you to understand the actions Twitter is taking to combat this increase in harmful content." The Courts Reason ("Volokh Conspiracy"): Divided D.C. Circuit Reaffirms F.E.C.'s Enforcement Discretion By Jonathan H. Adler .....Today the U.S. Court of Appeals for the D.C. Circuit denied a petition for rehearing en banc in CREW v. FEC. In April 2021, a divided panel of the court rejected CREW's attempt to challenge the Commission's decision not to take enforcement action against New Models. The FEC cited legal reasons for its decision, but also invoked its "prosecutorial discretion" to not pursue enforcement actions where doing so would no be an appropriate use of agency resources. Splitting 2-1, the court concluded the FEC's reliance on prosecutorial discretion made the decision unreviewable. CREW filed a petition for en banc rehearing, supported by various political and academic amici. Today, that petition was rejected. Judge Rao, who authored the initial panel decision, wrote a brief opinion concurring in the denial, joined by Judges Henderson, Katsas and Walker. Judge Millett, who had dissented from the initial panel decision, dissented, joined by Judge Pillard. There is no indication of how Chief Judge Srinivasan or Judge Wilkins voted. Judges Childs and Pan did not participate. Here is how Judge Rao' opinion begins: Slate: I Called the Federal Judge Who Mocked Me to the Federalist Society By Mark Joseph Stern .....William Holcombe Pryor Jr. is the chief judge of the 11th U.S. Circuit Court of Appeals... Pryor delivered the opening speech at the Federalist Society’s National Lawyers Convention in November. Somewhat less expectedly, he joked with the audience that, after hearing progressive criticisms of the organization, he had embarked upon an “odyssey” to “get to the truth,” searching in “the shadows, where the real operation of the Society happens.” He went on to lob comic insults at a number of left-leaning journalists, including Elie Mystal and my colleague Dahlia Lithwick, who have written about the inner workings of the Federalist Society—a bold and unusually personal retort to criticism. He also made fun of me. “No less an authority than Mark Joseph Stern,” Pryor said. And then, responding to knowing laughs from the audience, he added: “And really, is there any less an authority?” He then quoted my February article describing “the conservative legal movement’s radicalization machine.” I’ve criticized Pryor’s rulings pretty harshly over the years, and I took his comment as a badge of honor: His quip at my expense—and the audience’s knowing laugh in response—told me that Slate’s extensive, skeptical coverage of the Federalist Society has gotten their attention. I also saw it as an opportunity. One week after his speech, I reached out for an interview...To my surprise, Pryor quickly responded to my email and suggested a call the next day to talk through my proposal. When we spoke, he told me that while he was very busy, he had time—at that very moment—to answer my questions. DOJ CNBC: FTX founder Sam Bankman-Fried charged with campaign finance violations in criminal indictment By Brian Schwartz and Dan Mangan .....Federal prosecutors on Tuesday accused FTX co-founder Sam Bankman-Fried, who made nearly $40 million in publicly disclosed political donations in the 2022 election cycle, with violating multiple campaign finance laws. A newly unsealed indictment in Manhattan federal court says Bankman-Fried and others violated numerous federal campaign finance laws, including giving contributions of at least $25,000 to campaigns and political action committees “in the names of other persons.” Online Speech Platforms Washington Post: Twitter dissolves Trust and Safety Council By Cat Zakrzewski, Joseph Menn and Naomi Nix .....Twitter on Monday night abruptly dissolved its Trust and Safety Council, the latest sign that Elon Musk is unraveling years of work and institutions created to make the social network safer and more civil. Members of Twitter’s Trust and Safety Council received an email with the subject line, “Thank You,” that informed them the council was no longer “the best structure” to bring “external insights into our product and policy development work.” The email dissolution arrived less than an hour before members of the council were expecting to meet with Twitter executives via Zoom to discuss recent developments, according to people familiar with the matter who spoke on the condition of anonymity to discuss the plans. Dozens of civil rights leaders, academics and advocates from around the world had volunteered their time for years to help improve safety on the platform. Wall Street Journal: Elon Musk’s Twitter Files Revelations Are Instructive but Not Surprising By Gerard Baker .....The Twitter Files have exposed how a powerful class of like-minded people control and limit the flow of information to advantage their monolithically progressive agenda. The Twitter Files tell us nothing new. There’s no shocking revelation in there about government censorship or covert manipulation by political campaigns. They merely bring to the surface the internal deliberations of a company dealing with complex issues in ways consistent with its values. If you think the first paragraph is true, you must be a tinfoil-hat wearing member of the vast right-wing conspiracy destroying our democracy. If you think the second is true, you’re a credulous apologist for the elite left-wing ideologues destroying our democracy. If you think both are true, congratulations. You’re a reader of uncommon genius and perspicacity. The Dispatch: The ‘Twitter Files’ Show It’s Time to Reimagine Free Speech Online By David French .....A few years ago I was invited to an off-the-record meeting with senior executives at a major social media company. The topic was free speech. I’d just written a piece for the New York Times called “A better way to ban Alex Jones.” My position was simple: If social media companies want to create a true marketplace of ideas, they should look to the First Amendment to guide their policies. This position wasn’t adopted on a whim, but because I’d spent decades watching powerful private institutions struggle—and fail—to create free speech regulations that purported to permit open debate at the same time that they suppressed allegedly hateful or harmful speech. As I told the tech executives, “You’re trying to recreate the college speech code, except online, and it’s not going to work.” I’ve been thinking about that conversation ever since Elon Musk took over Twitter, and particularly since Matt Taibbi and Bari Weiss last week began releasing selected internal Twitter files at Musk’s behest. The States and D.C. New Jersey Monitor: Bill to revamp campaign finance laws clears Assembly hurdle By Nikita Biryukov .....An Assembly panel on Monday approved a new version of a bill that would revamp campaign finance laws supporters say are outdated, but critics warned the changes could shield corruption and increase the influence of wealthy contributors. The measure (A4372), approved in an 8-1 vote with three abstentions, would double campaign contribution limits, bolster the state’s gubernatorial public financing program, and revise the state’s pay-to-play laws. Other portions of the bill, including a requirement to report contributions from high-dollar donors within 96 hours, were left on the cutting room floor over concerns about feasibility, a major blow for good-government advocates who supported them. The bill’s sponsor, Assembly Majority Leader Lou Greenwald (D-Camden), said lawmakers need to discuss the rolling reporting provisions more... The revised bill advanced Monday would also lower the threshold at which 501(c)4 nonprofits and PACs must report independent expenditures from $10,000 to $7,500. Washington Post: D.C. elections board: Silverman’s poll did not break campaign finance law By Michael Brice-Saddler .....The D.C. Board of Elections on Monday sided with council member Elissa Silverman (I-At Large) in her appeal of a decision from the campaign finance office, ruling that she did not misuse campaign funds while polling the Ward 3 Democratic primary election. Cowboy State Daily: University of Wyoming Violated Church Elder’s First Amendment Right, Law Experts Say By Clair McFarland .....The University of Wyoming appears to have violated the free speech right of a church elder who used a sign to call out a transgender student by name this month, according to a nationally recognized First Amendment expert. Todd Schmidt, of Laramie, displayed a sign from his table in the UW student union Dec. 2 that read, “God created male and female and (student’s name) is a male.” A UW official asked Schmidt to change the part of the sign displaying the student’s name. Schmidt complied. Days later, UW suspended Schmidt’s tabling privileges at the union for one year, saying his actions constituted discrimination and harassment against a student in a protected class... The policy UW used to justify its action may not be enough from a First Amendment standpoint, Eugene Volokh, First Amendment professor at the University of California, Los Angeles, told Cowboy State Daily... Government entities like the university are not constitutionally obligated to allow various kinds of speech within their buildings, Volokh said. However, once the entity decides to hold a public forum, the First Amendment right to free speech then extends to people inside the building, though it may be limited by the entity’s existing policies. Those policies must be specific and viewpoint neutral, said Volokh, adding that the tabling policy UW referenced in Schmidt’s suspension letter appears too vague to justify suspending his tabling privileges. 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." 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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