The Latest News from the Institute for Free Speech January 2, 2023 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]. In the News Wall Street Journal: California’s Disfavored Speakers By The Editorial Board .....California’s politicians like to regulate anything that moves, and that includes political speech. Witness how a law to treat gig workers as employees has triggered a fight over the First Amendment... Under AB5, people who sell “consumer products” count as “direct sales salespersons,” while those who work on political campaigns or ballot petitions must be counted as employees. The regulation burdens grassroots political groups and campaigns that can’t afford full-time employees to go door to door. A local group called Moving Oxnard Forward wanted to hire Mobilize the Message, which supplies campaigns with independent workers to gather signatures or knock on doors. But under the new law the workers would need to be counted as employees. The group sued in federal court, and in October a split three-judge panel of the Ninth Circuit Court of Appeals ruled for the state (Mobilize the Message v. Bonta). The majority said there is no First Amendment violation because the law governs economic activity, not constitutionally protected speech. That’s a thin excuse for requiring political speakers to abide by a separate set of rules, and one the Supreme Court hasn’t tolerated. “Dig beneath the surface of these ‘occupations,’” Judge Lawrence VanDyke wrote in dissent, “and it becomes clear that these occupational labels turn predominantly, if not entirely, on the content of the workers’ speech.” ... Content-based speech regulations are subject to strict judicial scrutiny, and this one deserves a closer look. Let’s hope the full Ninth Circuit takes up the case. The Courts Reason ("Volokh Conspiracy"): Doing Pickering Balancing Right By Keith E. Whittington .....Eugene beat me to the punch in posting about the new 9th Circuit case on a teacher wearing a MAGA hat to his school's cultural sensitivity training session, so I will be brief. You can read a longer excerpt from the case in his post below. I wanted to point out a specific feature of the case, which is how it treated the concept of workplace "disruption" within a Pickering balancing analysis of how government employers can respond to government employee speech. I recently posted about a district court opinion regarding political flyers at a state university that I think did this quite badly. In that case, "the court thought the university had an overriding 'interest in fostering a collegial educational environment,'" and thus could punish professors for distributing flyers on campus criticizing the politics of another professor. I argue in a forthcoming article that the disruptive workplace component of the Pickering balancing test frequently becomes a means for imposing a heckler's veto on government employees with unpopular political views. Especially in a university context, courts should be extremely sensitive to the possibility that university officials might use the mere fact that some people disagree with a professor's speech as a good reason to suppress the speech. The government employer's legitimate interest in avoiding disruption to the workplace needs to be read much more narrowly, at least in some contexts. The 9th circuit panel in the MAGA hat case did a much better job, and that court showed itself to be quite sensitive to the dangers of a heckler's veto when a principal threatens to fire a teacher because other teachers found the presence of his hat to be "traumatizing" and "threatening." Congress Wall Street Journal: House Republicans Plan a Committee on Censors and Snoops By Kimberley A. Strassel .....Sources tell me that House Republicans plan to set up a panel under the House Judiciary Committee, tentatively called the “Select Subcommittee on the Weaponization of the Federal Government.” ... The committee’s title is a recognition that the recent revelations about government meddling in speech and politics go beyond the FBI. There’s plenty yet to discover about the bureau’s sordid Russia-collusion hoax, its duping of the Foreign Intelligence Surveillance Court, and its efforts to discredit the Hunter Biden laptop story. And a recent batch of Twitter files from journalist Matt Taibbi includes documents showing a shocking intimacy between the FBI and Twitter as they policed online speech. But files have also shown the FBI was facilitating censorship requests from other parts of government. Add to this other disturbing government moves to use its power to silence or track citizens, whether it be Attorney General Merrick Garland’s directive to the FBI and U.S. attorneys to probe parents (after the National School Board Association suggested they might be domestic terrorists) or the Department of Homeland Security’s plans to create a Disinformation Governance Board. Nonprofits Insider: Sam Bankman-Fried funded more than 90% of a leading DC ethics group's political arm in 2021 By Brent D. Griffiths and Dave Levinthal .....Embattled crypto financier Sam Bankman-Fried almost single-handedly funded a prominent Washington ethics organization's political arm in 2021. Bankman-Fried donated $760,000 to the Campaign Legal Center's action fund in 2021, according to a spokesperson for the organization. Tax filings turned over to Insider confirm that Bankman-Fried's donation amounted to more than 95% of CLC Action's revenue for that year and roughly 94% of its expenses. Insider previously reported that Bankman-Fried donated more than $2.5 million to the Campaign Legal Center and its affiliate organizations since 2021... The Campaign Legal Center initially told Insider that it could not return the money Bankman-Fried donated since it had already been spent. The organization later reversed itself when Brendan Quinn, a spokesman for the group, told The New York Times that $2.5 million had been put into a separate account "until instructions are received from bankruptcy courts." DOJ The Hill: When the FBI attacks its critics as ‘conspiracy theorists,’ it’s time to reform the bureau By Jonathan Turley .....“Conspiracy theorists … feeding the American public misinformation” is a familiar attack line for anyone raising free-speech concerns over the FBI’s role in social media censorship. What is different is that this attack came from the country’s largest law enforcement agency, the FBI — and, since the FBI has made combatting “disinformation” a major focus of its work, the labeling of its critics is particularly menacing. Online Speech Platforms The Free Press: How Twitter Rigged the Covid Debate By David Zweig ....I had always thought a primary job of the press was to be skeptical of power—especially the power of the government. But during the Covid-19 pandemic, I and so many others found that the legacy media had shown itself to largely operate as a messaging platform for our public health institutions. Those institutions operated in near total lockstep, in part by purging internal dissidents and discrediting outside experts. Twitter became an essential alternative. It was a place where those with public health expertise and perspectives at odds with official policy could air their views—and where curious citizens could find such information. This often included other countries’ responses to Covid that differed dramatically from our own. But it quickly became clear that Twitter also seemed to promote content that reinforced the establishment narrative, and to suppress views and even scientific evidence that ran to the contrary. Was I imagining things? Was the pattern I and others witnessed proof of purposeful intent? An algorithm gone rogue? Or something else? In other words: When it came to Covid, and the information shared on a service used by hundreds of millions of people, what exactly was being amplified? And what was being banned or censored? So when The Free Press asked if I would go to Twitter to peek behind the curtain, I took the first flight out of New York. Here’s what I found. The States Philadelphia Inquirer: Campaign finance rules just got a bit stricter in Philly. And they will be enforced. By Michael H. Reed and J. Shane Creamer Jr. .....As the chair and executive director of the Philadelphia Board of Ethics, which enforces campaign finance rules, we want to send a message to all candidates and political committees: We are watching... Unlike federal elections, where the rules and enforcement have struggled to keep pace with the emerging ways candidates and super PACs coordinate, Philadelphia has tracked the latest super PAC trends around the country since Citizens United and has amended and refined its campaign finance rules — as recently as this summer. Our latest update over the summer addresses the newer trend of “redboxing,” where candidates place instructions in red boxes on their campaign websites. Super PACs interpret these instructions as directions on what information the candidates want super PACs to include. The instructions are often thinly veiled – for instance, a campaign may say a message should reach voters “on the go,” which means it should be part of a mobile ad. So make no mistake: Redboxing is a means of circumventing the rules against super PACs directly coordinating with the campaigns they support. In September, Philadelphia became the only jurisdiction in the country that we know of to address redboxing, when the Board of Ethics unanimously voted to regulate the strategy. Redboxing has been used in federal campaigns around the country, but complaints to the Federal Election Commission have mostly gone unheeded. Media Nation: N.H. publisher charged with running illegal ads closes two of her three newspapers By Dan Kennedy .....There’s been a sad development in the case of a New Hampshire newspaper publisher who was criminally charged with running political ads that did not include the required disclosure. Debra Paul announced last Friday that she and her husband, Chris Paul, are closing two of their three weekly newspapers, the Nutfield News and the Tri-Town Times. They will continue to publish the Londonderry Times… The story of Paul’s arrest was reported last August by the investigative news organization InDepthNH. Paul published ads for political candidates that, in several instances, failed to include the words “Political Advertisement,” a violation of state law. No sentient being could possibly have thought the offending materials were anything other than political ads, but that didn’t stop the state attorney general’s office. At least in theory, Paul could be hit with a $2,000 fine or at least a year in prison. 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. Follow the Institute for Free Speech ‌ ‌ ‌ The Institute for Free Speech | 1150 Connecticut Ave., NW, Suite 801, Washington, DC 20036 Unsubscribe [email protected] Update Profile | Constant Contact Data Notice Sent by [email protected]