“It Depends Who’s Doing the Jawboning”

I’ve got a new post up at Lawfare about a crucial piece missing from the discussion around Murthy v. Missouri, the SCOTUS case about jawboning the social media platforms. Plenty of the Justices had welcome real-world executive experience that came through in last Monday’s argument — but they didn’t recognize that their experiences were also different in ways that should matter. The governing philosophy and structure of different Administrations are distinct, and that context is really important in assessing the potential for coercion.

Or, if you prefer:

Happy Administrations are all alike; unhappy Administrations are each unhappy with social media platforms in their own way.

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“Judge kills NJ’s controversial ballot design for Senate primary”

Politico:

New Jersey’s controversial ballot design that gives party-backed candidates an advantage will be scrapped in the June primary, a federal judge ruled on Friday.

U.S. District Judge Zahid Quraishi granted the preliminary injunction sought by Rep. Andy Kim and two Congressional candidates to eliminate the so-called county line, a feature unique to New Jersey elections that’s given local party bosses inordinate influence over elections. In 19 of 21 counties in the state, candidates backed by county political parties appear in a single column or row, placing them more prominently on the ballot and giving them a nearly insurmountable edge.

The judge ordered the use of office block ballots for the June primary, where candidates are placed together by the office they are seeking. His ruling applies to all offices on the ballot.

The decision is likely to be appealed, but until then it takes away a key tool wielded by political bosses in the state. …

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“The fight to flip the House just got harder for Dems. And they have New York to blame.”

Zach Montellaro for Politico:

Republicans eked out a narrow win in the 2024 redistricting wars, gaining a single seat before the general election.

While there’s an outside chance of another last-minute redistricting before November, after two significant court rulings this week the House landscape is largely locked in place — and the GOP is breathing a sigh of relief that this mid-decade round of redistricting went its way.

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My New Paper: “From Bloggers in Pajamas to The Gateway Pundit: How Government Entities Do and Should Identify Professional Journalists for Access and Protection”

I have posted this draft on SSRN. I will be presenting it at a May 3 Knight Columbia conference, and it is forthcoming as a book chapter in THE FUTURE OF PRESS FREEDOM: DEMOCRACY, LAW & THE NEWS IN CHANGING TIMES (Cambridge U. Press, RonNell Andersen Jones and Sonja R. West eds. forthcoming 2025). Here is the abstract:

This paper examines how government entities determine who is a journalist to allocate resources under conditions of scarcity and to assure that the press can conduct their functions without undue government regulation and interference. Using a new dataset of 172 laws, rules, and procedures that different government entities have used to define the press, it describes the most common tests government entities use for identifying journalists and compares them to each other. Most of the definitions appear aimed at identifying the class of professionals who regularly gather, report, and disseminate news. The paper then describes the relatively rare, reported litigation around these journalist-defining rules, teasing out the potential dangers of relying on particular definitions of journalists. Much of the litigation easily distinguishes between professional and non-professional journalists, and a few have dealt with the exclusion of journalists for permissible reasons, such as disruptive behavior. But not every issue is easy. Using the example of litigation over Maricopa County, Arizona’s decision to exclude a faux journalist for The Gateway Pundit from an area where ballots were being tabulated following the 2022 elections, It focuses particularly on the line between unconstitutional viewpoint discrimination and permissible extension of the press exemption only to those who engage in legitimate professional journalism. The paper then makes four normative recommendations about the tests government entities should use to define journalists. First, government entities should have explicit and meaningful standards for press exceptionalism. Second, most press exceptionalism should be limited to professional journalists who regularly produce news stories or commentary. Third, press exceptionalism should not turn on the type of technology used to communicate. Fourth, government entities should continue to have the power to grant press exceptionalism to “bona fide correspondents of repute in their profession” so long as they do not engage in viewpoint discrimination.

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“Georgia lawmakers pass new election rules that could impact 2024 presidential contest” (UPDATED)

AP:

Georgia lawmakers on Thursday approved new rules for challenging voters and qualifying for the state’s presidential ballot that could impact the 2024 presidential race in the battleground state.

Senate Bill 189 passed the House by a vote of 101 to 73 and the Senate by a vote of 33-22, sending it to Gov. Brian Kemp for his signature or veto.

Republicans in Georgia have repeatedly floated election changes in the wake of false claims by former President Donald Trump and other Republicans that he lost Georgia’s 16 electoral votes in 2020 because of fraud.

The bill would grant access to Georgia’s ballot to any political party that has qualified for the presidential ballot in at least 20 states or territories. The change could be a boost to independent candidates such as Robert F. Kennedy Jr., whose campaign has spooked Democrats worried it could draw support away from President Joe Biden.

Update: Richard Winger says the AP got this detail about RFK Jr. wrong:

The provision says if a political party or political body is on the ballot for president in at least 20 other states, then it is automatically on for president in Georgia.  However, it does not cover independent presidential candidates.  Assuming it is signed into law, it will help the No Labels, Green, and Constitution Parties.  It won’t help Robert F. Kennedy, Jr., because he expects to be an independent candidate in almost all states, not a minor party nominee.  At the most his “We the People Party” will only be on in six states.

The Libertarian Party is already on the ballot for president and other statewide offices.  It is not clear if the 2012 court order requiring the state to let presidential candidates on the ballot with at least 7,500 signatures is still in effect.  Logically, because the legislature didn’t change the law regarding independent candidates, it should still be in effect for independent presidential candidates.

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