- “New Puerto Rico law threatens jail time for spreading ‘false information’ about COVID-19” [Committee to Protect Journalists, earlier] Freedom for publishers and platforms to associate with whomever they want permits them to exclude quackery and health misinformation, and that’s a feature not a bug [Matthew Feeney]
- It takes the FCC all of one day to reject petition from absurdly named pressure group Free Press demanding broadcast limits on statements by Trump and his allies about the novel coronavirus [Robby Soave, Eugene Volokh] Obscure West Coast group sues Fox over its coronavirus coverage [Volokh] Meanwhile, Trump camp is at it again: “Trump Campaign Sues TV Station for Running ‘Defamatory’ Coronavirus Attack Ad” [C.J. Ciaramella, earlier]
- “A Teenager Posted About Her COVID-19 Infection on Instagram. A Deputy Threatened To Arrest Her If She Didn’t Delete It.” [Scott Shackford; Oxford, Wis.]
- Technical countermeasures, as opposed to calling in the cops, most practical way to fend off that new form of anti-social activity, “Zoom-bombing” [Eugene Volokh]
- “How the Telephone Consumer Protection Act Unconstitutionally Privileges Government Speech” [Trevor Burrus on Cato amicus brief in Supreme Court case of Barr v. American Association of Political Consultants]
- From before the crisis, hate speech mini-roundup: Connecticut state agency sees it as part of its mission to defend an unconstitutional “racial ridicule” law enacted in 1917 [Volokh] “Hundreds of Scots who tell ‘offensive jokes’ on social media are being secretly logged on police database” [Ruth Warrander, Scottish Sun] Bad proposal in U.K. to give communications regulator authority to address material that “is not illegal but has the potential to cause harm.” [Matt Kilcoyne] Social media regulation: “No one is saying freedom of speech must be limited,“ says New York lawmaker filing bill to limit the freedom of speech [Sen. David Carlucci]
As demand for videoconferencing and other online services soars in the pandemic emergency, European policymakers “are now eating crow and entreating video platforms to downgrade the quality of their streams, an about face from the regulatory dogma that ‘all data is equal'” You mean net neutrality wasn’t all it was cracked up to be? On dubious European concepts of data privacy, meanwhile: “The GDPR’s forced data minimization has dulled the effectiveness and granularity of data from mobile apps, devices, and networks which can help manage quarantine efforts and ideally lessen restrictions in uninfected zones.” [Roslyn Layton, AEI; Stewart Baker on the phone location app used in Singapore’s contact tracing efforts] Related: Alec Stapp thread (greater U.S. investment in broadband). More: Thomas Firey, Cato.
This is just absurd: to comply with federal regulations barring owners of daily newspapers from also owning local broadcast stations, the owner of the venerable Dayton Daily News in Ohio may knock it down to three-times-a-week publication so that it won’t count as a daily anymore. Keith J. Kelly of the New York Post spotted the story, Cox Media Group outlined the plan in a press release a few weeks ago, and Joshua Benton at Nieman Lab has more:
To increase the quality of local journalism in Ohio, the Federal Communications Commission is requiring three newspapers to stop printing daily….
Did you get that? To strengthen the local news ecosystem in Dayton, the government is making its biggest newspaper publish less.
The rules date back to 1975 when the Federal Communications Commission (FCC) adopted regulations barring cross-ownership of local broadcast and newspaper properties while grandfathering in existing arrangements. It was never a good rule, but progressive social critics then as now traced countless social ills to media concentration and for-profit ownership of the press (what’s new these days is that populist conservatives crusade against the corporate media too).
Don’t blame today’s FCC. Two years ago the agency voted to scrap the decades-old newspaper/broadcast cross-ownership rules, recognizing that the local news market had gone through convulsive changes in the meantime, with new media sources cutting deeply into ad revenues and the economics of newspaper publishing taking one deep hit after another. (Local broadcasting economics has suffered too, even if not as badly.) But opponents sued, and in September a Third Circuit panel struck down the deregulatory effort, a move that immediately called into question the terms of a pending deal transferring partial control of the large Cox Media Group, which got its start long ago with the venerable Dayton paper.
Others, such as Jonathan Rauch, have pointed out that antitrust laws may need easing anyway if newspapers are to organize successful ways to finance journalism in the online economy. And as we’ve warned before, there are special dangers in unleashing antitrust law on the media sector, where it can leave government with a corrupting influence over whether opposition papers are profitable and who gets to own them. But does anyone really think Dayton residents are better off if their local newspaper stops publishing every day?
[cross-posted from Cato at Liberty]
- Full Fifth Circuit agrees to rehear challenge to constitutionality of Indian Child Welfare Act; a three-judge panel, reversing district court, had upheld the law [Timothy Sandefur, my post with Nathan Harvey from earlier this year]
- On basis of lack of complainant standing, but without reaching First Amendment issue, Kentucky high court rules in favor of Lexington t-shirt maker who had been ordered by the city’s Human Rights Commission to print shirts with messages he disagreed with and attend diversity training [ABA Journal, earlier on Hands-On Originals case]
- “Never-ending net neutrality litigation means lawyers always win” [Roslyn Layton, AEI]
- Online political ads and the First Amendment, Frosh and Bloomberg, red flag laws, Orioles as lobbying tool, and more in my latest Maryland roundup at Free State Notes;
- Are hate crimes up or down in number? The government has no idea [Jeff Jacoby, Boston Globe, I’m quoted; earlier]
- New York City Council adopts foie gras ban to take effect in 2022 [Baylen Linnekin] If you’ve assumed that production of this delicacy is unethical, this article might change your mind [J. Kenji López-Alt, Serious Eats]
Sinclair Broadcasting, currently under fire for having local news talent read a canned script, is itself the product of earlier rounds of anti-media-consolidation rules, and tales of “70 percent market share” tales are sheerest bunk, reports Matt Welch [Reason] On local use of canned scripts, see also the regular Conan feature “Newscasters Agree.”
- “I believe in the First Amendment” and FCC has no authority to revoke licenses over newscast content, says commission chairman Ajit Pai [Jacob Sullum/Reason, earlier]
- She stoops to censor: British Crown and her Wiltshire police are not amused by your tweets [Andrew Stuttaford, BBC via Helen Pluckrose on Twitter; earlier here, here, here, here, here, here, etc.] Hate speech laws will in practice be used by the politically powerful against dissenters and radicals, part 761 [Guardian on case of woman questioned by detectives over banner denouncing conservative ruling party in Northern Ireland]
- “Congress members threaten Twitter with regulation if it doesn’t suppress ‘racially divisive communications’ and ‘anti-American sentiments” [Eugene Volokh on bill introduced by Reps. Bonnie Watson Coleman (D-N.J.) and Emanuel Cleaver (D-Mo.)]
- On the old “shouting fire in a crowded theater” trope, read this whole thread and then you won’t have to catch up later [Popehat on Twitter] Neither “extremist” speech nor “fake news” can be defined and identified closely enough for regulation to work [Cato Daily Podcast with Flemming Rose and Caleb Brown]
- Encyclopedia of Libertarianism article on freedom of speech is by Alan Charles Kors;
- “Screen Actors Guild Tells Court There’s Nothing Unconstitutional About Curbing IMDB’s Publication Of Facts” [Tim Cushing, TechDirt; earlier here and here]
“With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!” — @realdonaldtrump Wednesday morning. Later that day he tweeted, “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!”
As was quickly pointed out [AP], the chances are extremely remote that presidential wrath is actually going to cost any broadcasters their licenses (networks as such are not licensed, but their local affiliates are, including network-owned local stations). First Amendment attorney Floyd Abrams said that the threats could nonetheless have a chilling effect on coverage: “The threat, however unlikely, is one that broadcasters will have to take seriously.”
Note that the threat is utterly inconsistent with Trump’s having recently reappointed Ajit Pai to head the FCC. Had the chief executive seriously contemplated a drive against the broadcast licenses of his foes, as a 1960s-era president might have done, Washington is full of aspiring agency heads who would have served his ends better than free-marketeer Pai. Not for the first time, it would seem we have a President whose Twitter hand knows not what his signing hand is doing.
Pai said that he also sees “worrying signs” at the FCC, pointing to Twitter messages in which “people regularly demand that the FCC yank licenses from cable news channels like Fox News, MSNBC, or CNN because they disagree with the opinions expressed on those networks.”
“Setting aside the fact that the FCC doesn’t license cable channels, these demands are fundamentally at odds with our legal and cultural traditions,” Pai said.
John Samples reminds us of the bad bipartisan history of power plays aimed at broadcast speech, which didn’t work for Richard Nixon. David Harsanyi writes that “even if you’re not idealistic about free expression, it might be worth remembering that any laws or regulations you embrace to inhibit the speech of others, even fake-news anchors, can one day be turned on you.”
Of course, another theory one hears is that Trump doesn’t really mean it with his loose talk about curbing press freedom but is just, as it were, vice signaling.
- Until late night talker Stephen Colbert became a target, many people didn’t realize the FCC looks into every complaint of on-air obscenity. Time to revisit that practice? [Amy B. Wang and Callum Borchers, Washington Post; Volokh]
- First Amendment lawyer Floyd Abrams on his new book, The Soul of the First Amendment [Cato podcast, panel discussion with Abrams, Ronald Collins, and Ilya Shapiro, Roger Pilon moderating]
- Worth a read: promote legal liability for speech and watch it come back to bite you, time and again [Jason Harrow, Take Care Blog on purported incitement by President Trump at his rallies]
- Irish blasphemy investigation of comedian/actor Stephen Fry, though quickly dropped, prompts major political parties in New Zealand to pledge repeal of that nation’s blasphemy law [Independent, U.K.]
- Singing legend Joan Baez on letting the other side have its say [Facebook post]
- On the Macron email dump shortly before the French election, Will Saletan: “All advocates of limits on campaign speech should think about this: Law-abiders can’t respond, so lawbreakers have the field to themselves.”
- Good news for Donald Trump! Sticking with speech-protective opinion rule, New York judge dismisses libel suit by PR consultant against him based on his derogatory tweets [ABA Journal]
- “Jawboning” at FCC, under which media companies bend to commissioners’ wishes on content and hiring rather than risk their disapproval, should be recognized as danger to both First Amendment and rule of law [Brent Skorup and Christopher Koopman, Regulation via Cato Institute Tumblr summary]
- The family of Ahmed Mohamed, of schoolboy clock fame, may have to pay $200,000 or more to targets of frivolous libel suits [Popehat]
- Harsh epithets, calls for investigation and accusations of whitewashing, rhetorical comparisons to infamous persons could all lead to media liability if D.C. Court of Appeals reasoning in Michael Mann case isn’t overturned [Ilya Shapiro and Thomas Berry, Cato, earlier]
- NYC, San Francisco criminalize listing property on AirBnB except on authorized conditions. A question of commercial speech [Glenn Lammi, WLF]
- Can Colorado regulate groups that run ads with the message “call your lawmaker to support this bill”? [Ilya Shapiro and Thomas Berry]
- Makes perfect sense: to make transportation more accessible to its residents, Montgomery County, Maryland orders 20 taxi companies to close down [Washington Post]
- “New ‘Gainful Employment’ Rule Spells Trouble For For-Profit Law Schools (And Would For 50 Non-Profit Law Schools)” [Caron, TaxProf]
- “To comply with a twisted interpretation of TCPA, Twitter would have to stop providing certain services altogether.” [Harold Furchtgott-Roth] “New FCC Rules Could Make Polling More Expensive, Less Accurate” [HuffPost Pollster]
- To draft the unpassable bill: Scott Shackford on the politics and bad policy behind the omnibus LGBT Equality Act [Reason] “So How Can Anyone Be Opposed to Non-Discrimination Laws?” [Coyote] More: Establishment liberalism reluctant to admit it’s changed its thinking on religious accommodation, but that’s what’s happened [Ramesh Ponnuru/Bloomberg View]
- Update: “Court rejects claim over goat goring in Olympic National Park” [AP, earlier here and here]
- “I would receive 100 other identical stories [from asylum seekers] with only the names changed.” [The Australian, 2013]
- “Some protested that DNA testing amounted to a violation of canine privacy because dogs were not capable of consent.” [New York Times on Brooklyn condo dispute via @orinkerr]