Monthly Archives: September 2023

“5th Circuit May Have Sidelined Supreme Court In Social Media Case”

Not even the federal government is exactly sure what is going on.

On Wednesday evening, the U.S. Supreme Court was expected to announce its decision on whether top Biden administration officials could continue reaching out to social media platforms like Facebook, X and YouTube to take down “misinformation.”

It’s a case that can affect potentially thousands of federal employees at the White House, FBI and other agencies, which is why the Department of Justice had gone to the Supreme Court for emergency relief this month.

Yet Thursday morning came and went with nary a word from the nation’s highest court. The court’s inaction is the result of curious developments in the U.S. Court of Appeals for the Fifth Circuit that have sidelined the justices and confused the parties to the case.

“Those (Fifth Circuit) orders have injected uncertainty into the proceedings during this Court’s active consideration of the case,” U.S. Solicitor General Elizabeth Prelogar wrote in a filing with the justices.

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Wisconsin: “Secret impeachment advisory panel isn’t subject to open meetings law, former justice says”

Wisconsin State Journal:

One of the three former Wisconsin Supreme Court justices whom Assembly Speaker Robin Vos asked to explore the prospect of impeaching newly minted liberal Justice Janet Protasiewicz argued in court Friday the group is not subject to the state’s open meetings law.

Former Wisconsin Supreme Court Justice David Prosser, a conservative and the only former justice to confirm being on the three-person panel, said the group “is not a governmental body by any stretch of the imagination” and is no different from a legislator meeting with a private citizen….

Both Prosser and Vos’ attorney Matthew Fernholz refused to name the other two members of the panel when asked by Dane County Circuit Judge Frank Remington. Prosser confirmed that the group has met at least once.

“Three people had lunch together,” Prosser said. “We had lunch together because we didn’t know what we were really supposed to do.”


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“Poll: Majority of voters would support disqualifying Trump under 14th Amendment”


A majority of voters are willing to support an effort to disqualify former President Donald Trump from the 2024 ballot, according to a new POLITICO | Morning Consult poll.

After a series of questions about the Constitution and Trump’s conduct after the 2020 presidential election, 51 percent said the 14th Amendment prohibits Trump from running again because he engaged in insurrection, compared with 34 percent who said the opposite…

The first question asks if Americans “support or oppose” that section of the amendment. Broadly, voters agree with it — 63 percent said they either strongly or somewhat support it, which includes a majority of Democrats, Republicans and independents. Just 16 percent said they somewhat or strongly oppose it.

But as Trump is introduced in the following questions, respondents separate into their partisan camps. When asked if they believed Trump “engaged in insurrection or rebellion,” 51 percent said either definitely or probably yes, and 35 percent said definitely or probably no.

That number is divided sharply on party lines: 79 percent of Democrats — and 49 percent of independents — say that he did, while just under a quarter of Republicans agree. The margins are similar for an additional question that asked if Trump gave “aid and/or comfort” to those engaged in insurrection and rebellion.

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“Whom will Newsom appoint to fill Dianne Feinstein’s Senate seat? What we know”

LA Times:

With the death Friday morning of Sen. Dianne Feinstein, Gov. Gavin Newsom now must decide who will fill her U.S. Senate seat until the next election.

Who will it be? Here is a breakdown of what we know from the pages of The Times…

Earlier this year, the governor appeared on MSNBC and was asked by host Joy Reid if he’d “restore” Harris’ seat by appointing a Black woman. Newsom leaped at the question.

“We have multiple names in mind,” he said, “and the answer is yes.”

Feinstein announced last year she would not run for another term.

The leading candidates to replace her are Reps. Barbara Lee (D-Oakland) , Adam B. Schiff of Burbank and Katie Porter of Irvine.

Lee has criticized Newsom, saying he should not limit his choice to a caretaker.

Although not mentioned in the article, my money is on California Secretary of State Shirley Weber, if she wants it.

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Breaking: Supreme Court to Hear Major Pair of Cases Involving Regulation of Social Media Platforms’ Curation or Exclusion of Politician Speech

From today’s order list:

The petitions for writs of certiorari are granted limited to Questions 1 and 2 presented by the Solicitor General in her brief for the United States as amicus curiae.

From the SG brief:

These cases concern laws enacted by Florida and Texas to regulate major social media platforms like Facebook, YouTube, and X (formerly known as Twitter). The two laws differ in some respects, but both restrict platforms’ ability to engage in content moderation by removing, editing, or arranging user-generated content; require platforms to provide individualized explanations for certain forms of content moderation; and require general disclosures about platforms’ content-moderation practices. The questions presented are:

  1. Whether the laws’ content-moderation restrictions comply with the First Amendment.
  2. Whether the laws’ individualized-explanation requirements comply with the First Amendment.
  3. Whether the laws’ general-disclosure provisions comply with the First Amendment.
  4. Whether the laws violate the First Amendment because they were motivated by viewpoint discrimination.

Again, only 1 and 2 are being heard by the Court.

This is going to be a major test of whether social media companies may have their content regulated as though they were government actors or have first amendment rights to include or exclude content of politicians as they see fit, much like newspapers, news websites, and cable and television stations.

It has major implications for efforts to limit election subversion, as I will write about later on.

More from SCOTUSBlog.

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“Biden Issues a Blistering Attack on Trump”


President Biden issued a broad and blistering attack against former President Donald J. Trump on Thursday, accusing his predecessor and would-be successor of inciting violence, seeking unfettered power and plotting to undermine the Constitution if he returns to office in next year’s elections.

In his most direct condemnation of his leading Republican challenger in many months, Mr. Biden portrayed Mr. Trump as a budding autocrat with no fidelity to the tenets of American democracy and who is motivated by hatred and a desire for retribution. While he usually avoids referring to Mr. Trump by name, Mr. Biden this time held nothing back as he offered a dire warning about the consequences of a new Trump term.

“This is a dangerous notion, this president is above the law, no limits on power,” Mr. Biden said in a speech in Tempe, Ariz. “Trump says the Constitution gave him, quote, the right to do whatever he wants as president, end of quote. I never heard a president say that in jest. Not guided by the Constitution or by common service and decency toward our fellow Americans but by vengeance and vindictiveness.”

Mr. Biden cited recent comments by Mr. Trump vowing “retribution” against his foes, accusing NBC News of “treason” and suggesting that the outgoing chairman of the Joint Chiefs of Staff, Gen. Mark A. Milley, might deserve to be put to death. The president also decried plans being developed by Mr. Trump’s allies to erode the independence of major agencies, wipe out much of the top ranks of civil service and make senior government officials personally loyal to him.

“Seizing power, concentrating power, attempting to abuse power, purging and packing key institutions, spewing conspiracy theories, spreading lies for profit and power to divide America in every way, inciting violence against those who risk their lives to keep Americans safe, weaponizing against the very soul of who we are as Americans,” Mr. Biden said. “This MAGA threat is a threat to the brick and mortar of our democratic institutions. It’s also a threat to the character of our nation.”

The gloves-off assault on Mr. Trump represented a marked shift for Mr. Biden, who has spent months mostly talking up the benefits of his policies while ignoring the race to choose a Republican nominee to challenge him. But repeated speeches claiming credit for “Bidenomics” have not moved his anemic approval ratings, as many voters tell pollsters they worry about the 80-year-old president’s age.

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“Republican Group Running Anti-Trump Ads Finds Little Is Working”


A well-funded group of anti-Trump conservatives has sent its donors a remarkably candid memo that reveals how resilient former President Donald J. Trump has been against millions of dollars of negative ads the group deployed against him in two early-voting states.

The political action committee, called Win It Back, has close ties to the influential fiscally conservative group Club for Growth. It has already spent more than $4 million trying to lower Mr. Trump’s support among Republican voters in Iowa and nearly $2 million more trying to damage him in South Carolina.

But in the memo — dated Thursday and obtained by The New York Times — the head of Win It Back PAC, David McIntosh, acknowledges to donors that after extensive testing of more than 40 anti-Trump television ads, “all attempts to undermine his conservative credentials on specific issues were ineffective.”…

Win It Back did not bother running ads focused on Mr. Trump as an instigator of political violence or as a threat to democracy. The group tested in a focus group and online panel an ad called “Risk,” narrated by former Representative Liz Cheney, that focused on Mr. Trump’s actions on Jan. 6, 2021. But the group found that the Cheney ad helped Mr. Trump with the Republican voters, according to Mr. McIntosh.

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“After two rejections, is Ohio attorney general slow-walking anti-gerrymandering amendment?”

Ohio Capital Journal:

One might think that a movement associated with a former state Supreme Court chief justice could draft a petition summary that passes legal muster. But twice already, Ohio Attorney General Dave Yost has rejected summaries of a petition to put an anti-gerrymandering amendment on Ohio’s November 2024 ballot.

So far, nobody’s explicitly accusing Yost of deliberately slow-walking approval of the anti-gerrymandering amendment, but frustration is growing — and one advocate of redistricting reform pointed out that further delays can become critical quickly.  

“The slower this goes, there are increasingly serious consequences,” said Catherine Turcer, executive director of Common Cause Ohio, which supports the amendment.

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“Judge Denies Trump’s Request That She Recuse Herself in Election Case”


The judge overseeing former President Donald J. Trump’s trial on charges of seeking to overturn the 2020 election denied on Wednesday his attempt to disqualify her from the case for supposedly being biased against him.

In a strongly worded order, the judge, Tanya S. Chutkan of Federal District Court in Washington, rejected claims by Mr. Trump’s lawyers that she had shown bias against the former president in statements she made from the bench in two cases related to the attack on the Capitol by a pro-Trump mob on Jan. 6, 2021.

In the order, Judge Chutkan not only chided Mr. Trump’s lawyers for putting words in her mouth, but she also asserted that the remarks did not betray any animus or unfairness toward Mr. Trump that would warrant the extraordinary step of removing her from the election interference case.

“The statements certainly do not manifest a deep-seated prejudice that would make fair judgment impossible,” she wrote.

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“Media network paid by GOP groups is behind deluge of election records requests”


In North Carolina, Local Labs wanted obscure voter records that would take weeks, or even months, to prepare. In Georgia, the company requested a copy of every envelope voters used to mail in their ballots. And in dozens of counties across the U.S., Local Labs asked for the address of every midterm voter.

Local election offices across the country are struggling to manage a sharp rise in the number of public records requests, and extensive requests coming from Local Labs in at least five states have stymied election officials, according to a Votebeat review of hundreds of records requests, as well as interviews. The requests are broad and unclear, and the purpose for obtaining the records is often not fully explained, leaving officials wondering in some cases whether they can legally release the records.

Local Labs is known for a massive network of websites that rely mainly on aggregation and automation, blasting out conservative-leaning hyper-local news under names such as the Old North News, in North Carolina, and Peach Tree Times, in Georgia.

Local Labs CEO Brian Timpone told Votebeat the company is using records requests in an attempt to expose election fraud that he is sure exists. The company is sometimes getting paid by GOP-backed clients to do so, Timpone acknowledged, characterizing the work simultaneously as both political research and journalism. 

“We’re just trying to push for more free speech and more transparency,” Timpone said. “And no one else is doing it.”

Veteran journalists and those who study journalism ethics say he’s wrong. Arizona State University journalism professor Julia Wallace — previously the editor of the Atlanta Journal-Constitution — said doing reporting and paid-for work at the same time is not ethical. “That’s not independent, so that’s not journalism,” she said.

Timpone is no stranger to journalism controversies: Among his previous companies was one that sold cheap content to local news organizations and was ultimately closed after a series of ethics scandals, including plagiarism

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“Twitter Fires Election Integrity Team Ahead of 2024 Elections”

Rolling Stone:

NEXT YEAR WILL see dozens of elections around the globe, but X (formerly Twitter) has seemingly abdicated responsibility for protecting users from misinformation during these democratic processes.

Several European staffers working on a threat disruption team for the social platform, including senior manager Aaron Rodericks, have been fired this week, according to a report in the tech publication The Information that cited anonymous sources familiar with the matter. Site owner Elon Musk confirmed the termination of the team members on Wednesday.

Last month, Rodericks, a Canadian senior manager based in Ireland, posted on LinkedIn that he was looking to hire eight staffers ahead of more than 70 elections worldwide in 2024, to work on combating material that could undermine democracy. “If you have a passion for protecting the integrity of elections and civic events, X is certainly at the centre of the conversation!” he wrote. The new employees would work at one of several U.S. offices, or in Toronto, Dublin, or Singapore. X’s Safety team likewise announced that they were “expanding our safety and elections teams to focus on combating manipulation, surfacing inauthentic accounts and closely monitoring the platform for emerging threats.”

But Rodericks — whose law firm did not respond to multiple requests for comment on his apparent termination by X — never got the chance to build his team. The hiring notice attracted the notice of right-wing influencers including Chaya Raichik (a.k.a. Libs of TikTok) and Mike Benz, a former State Department official who at one point was angling for access to the so-called “Twitter Files,” internal communications that conservatives believe demonstrated collusion between the company and the U.S. government to censor conservative views and media.

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