“Meta Faces E.U. Investigation Over Election Disinformation”

cheap speech

NYT:

Meta, the American tech giant, is being investigated by European Union regulators for the spread of disinformation on its platforms Facebook and Instagram, poor oversight of deceptive advertisements and potential failure to protect the integrity of elections.

On Tuesday, European Union officials said Meta does not appear to have sufficient safeguards in place to combat misleading advertisements, deepfakes and other deceptive information that is being maliciously spread online to amplify political divisions and influence elections.

The announcement appears intended to pressure Meta to do more ahead of elections across all 27 E.U. countries this summer to elect new members of the European Parliament. The vote, taking place from June 6-9, is being closely watched for signs of foreign interference, particularly from Russia, which has sought to weaken European support for the war in Ukraine.

The Meta investigation shows how European regulators are taking a more aggressive approach to regulate online content than authorities in the United States, where free speech and other legal protections limit the role the government can play in policing online discourse. A new E.U. law, called the Digital Services Act, took effect last year and gives regulators broad authority to rein in Meta and other large online platforms over the content shared through their services.

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Trump in TIME Interview: “I Think a Lot of People Like” Talk of Dictatorship

election subversion risk

TIME Magazine interview:

Toward the end of our conversation at Mar-a-Lago, I ask Trump to explain another troubling comment he made: that he wants to be dictator for a day. It came during a Fox News town hall with Sean Hannity, who gave Trump an opportunity to allay concerns that he would abuse power in office or seek retribution against political opponents. Trump said he would not be a dictator—“except for day one,” he added. “I want to close the border, and I want to drill, drill, drill.”

Trump says that the remark “was said in fun, in jest, sarcastically.” He compares it to an infamous moment from the 2016 campaign, when he encouraged the Russians to hack and leak Hillary Clinton’s emails. In Trump’s mind, the media sensationalized those remarks too. But the Russians weren’t joking: among many other efforts to influence the core exercise of American democracy that year, they hacked the Democratic National Committee’s servers and disseminated its emails through WikiLeaks.

Whether or not he was kidding about bringing a tyrannical end to our 248-year experiment in democracy, I ask him, Don’t you see why many Americans see such talk of dictatorship as contrary to our most cherished principles? Trump says no. Quite the opposite, he insists. “I think a lot of people like it.”

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“Why an Immunity Ruling in Trump’s Favor Might Not Alter the Shape of His Trial”

election subversion risk, Supreme Court

Charlie Savage in the NYT:

If the Supreme Court rules that Donald J. Trump is immune from being charged with crimes over official actions he took as president, it would be a momentous decision for the future of executive power and American-style democracy.

But it is far from certain that such a ruling would derail the election subversion case against him. In fact, there is a scenario in which the court could render such a ruling without altering the charges or the array of evidence that the special counsel, Jack Smith, wants to present to a jury.

Mr. Trump faces four criminal counts over his efforts to overturn his loss of the 2020 election, but none are exclusively centered on conduct Mr. Trump undertook in his capacity as president. Rather, the indictment tells a story that mixes both official acts with private ones, meaning actions Mr. Trump took in his role as a candidate for office. It then declares that each charge arises from the entire picture.

Among the accusations: Mr. Trump spread false claims of voter fraud, plotted to recruit false slates of electors from swing states, pressured Vice President Mike Pence to use their existence to block Congress’s certification of Joseph R. Biden Jr.’s Electoral College victory, and urged lawmakers to use the attack on the Capitol by his supporters to delay any vote.

As of yet, no court has decided which of Mr. Trump’s actions are considered official presidential conduct, versus private, unofficial campaign activity. But during oral arguments before the Supreme Court on Thursday, Justice Amy Coney Barrett floated the possibility that Mr. Smith could “just proceed based on the private conduct and drop the official conduct.”

Crucially, however, a lawyer for Mr. Smith, Michael R. Dreeben, said that even if the court ruled out basing charges on Mr. Trump’s official actions, prosecutors believed that they could still lawfully present evidence about the official conduct as relevant context that would help jurors understand Mr. Trump’s private acts.

“There’s really an integrated conspiracy here that had different components,” Mr. Dreeben said. Mr. Trump, he added, used his official powers to try to ensure his private efforts to overturn the election were more likely to succeed, and the jury will need to see the entire picture to understand the sequence, why each step occurred and the gravity of the conduct.

Mr. Dreeben added that the facts of Mr. Trump’s official acts are relevant for interpreting his “knowledge and intent” about his private conduct.

A lawyer for Mr. Trump, D. John Sauer, urged the court to adopt a very different remedy. Not only should it find that Mr. Trump had immunity for his official actions, he said, but it should omit them from the case. Still, he acknowledged that Mr. Trump could be charged over private actions while he was president.

“The official stuff has to be expunged completely from the indictment before the case can go forward,” Mr. Sauer maintained.

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“How do you fix Congress?” (The missing answer.)

Uncategorized

Twelve departing members of Congress offer their thoughts in a N.Y. Times opinion video. The responses focused on attempting to fix the culture of Congress–how members from opposite parties used to get along but now don’t. To the extent, they mentioned structural or institutional changes, these too were devoted to improving congressional culture–like the idea that orientation for new members be bipartisan. None mentioned the possibility of changing the way members of Congress are elected, not even a mention of the need to curtail aggressive partisan gerrymandering, or making districts more competitive so that there aren’t so many safe seats. Perhaps it’s not surprising that elected officeholders would not think to change the means by which they themselves were elected, but now that they are exiting the institution, perhaps they can give more thought to that component of the problem–as all of us who care about the future of American democracy should. As I wrote in my recent Virtues and Institutions essay, we must pursue electoral reforms that are centripetal in nature, to counteract the current extent of partisan polarization. If members of Congress were elected by means of voting procedures that were more centripetal than those currently in place, it would be much, much easier to foster the kind of consensus-seeking congressional culture that these exiting members of Congress so regret is lacking.

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Federal courts toss challenges by state legislators in Pennsylvania, Michigan over lack of standing

Elections Clause

The most recent edition of our federal courts casebook (with co-authors Arthur Hellman, David Stras, Ryan Scott, and Andy Hessick), I took some time reshape some of the focus of the chapter on “standing” to expound upon some increasing recurring themes. One of those themes was legislator and legislative standing. Legislators generally lack standing in federal court beyond what ordinary citizens or voters have, except in some rare (and perhaps isolated and unique) cases. In the elections context, these claims keep returning, with fairly predictable results.

In Keefer v. Biden (Pennsylvania) and Lindsey v. Whitmer (Michigan), federal courts in recent weeks have tossed challenges filed by state legislators under the Elections Clause. Both cases argued that some non-institutional legislature action, such as executive action (from President Biden) or ballot initiative (in Michigan), ran afoul of the Elections Clause. Both were thrown out for lack of standing. Despite the fact that the legislators wanted to challenge the action, their real concern was that the institutional legislature had been harmed.

Elections Clause challenges do not always fail for procedural reasons in federal court–see the recent New Jersey litigation citing Cook v. Gralike. But to the extent they attempt to assert something resembling the kinds of claims in Moore v. Harper, the paths forward remain quite limited.

But the cases are a constant reminder of the terrific number of election litigation challenges we continue to see, and how many fail to get to the merits for issues at the outset of the litigation.

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