Daily Media Links 10/4: Democrats preparing bill to regulate political ads on Facebook, History proves how dangerous it is to have the government regulate fake news, and more…

Free Speech

New Yorker: Flip-Flopping on Free Speech

By Jill Lepore

In the half century between the elections of Governor Reagan and President Trump, the left and the right would appear to have switched sides, the left fighting against free speech and the right fighting for it. This formulation isn’t entirely wrong. An unwillingness to engage with conservative thought, an aversion to debate, and a weakened commitment to free speech are among the failures of the left. Campus protesters have tried to silence not only alt-right gadflies but also serious if controversial scholars and policymakers. Last month, James B. Comey, the former F.B.I. director, was shouted down by students at Howard University. When he spoke about the importance of conversation, one protester called out, “White supremacy is not a debate!” Still, the idea that the left and the right have switched sides isn’t entirely correct, either. Comey was heckled, but, when he finished, the crowd gave him a standing ovation. The same day, Trump called for the firing of N.F.L. players who protest racial injustice by kneeling during the national anthem. And Yiannopoulos’s guide in matters of freedom of expression isn’t the First Amendment; it’s the hunger of the troll, eager to feast on the remains of liberalism…

Free speech is not a week or a place. It is a long and strenuous argument, as maddening as the past and as painful as the truth.

The Courts

Electronic Frontier Foundation: EFF Asks Court to Undo Damage Done to First Amendment in Flawed National Security Letter Ruling

By Andrew Crocker

EFF has petitioned a federal appeals court to reconsider its flawed ruling in our national security letter case on behalf of CREDO Mobile and Cloudflare. In July, the Ninth Circuit in San Francisco upheld the NSL statute against our First Amendment challenge. The court ruled that the FBI is entitled to significant deference in its decision to issue NSLs and gag electronic service providers like our clients from telling anyone about these requests for customer records. Now we’re asking the larger en banc Ninth Circuit to rehear the case.

Notably, the court’s opinion made little effort to fit the NSL statute into the body of First Amendment law regarding prior restraints-government gag orders that prevent speech in advance. As our petition explains, the decision “departs from previously undisputed Ninth Circuit and Supreme Court precedent on a doctrine of fundamental constitutional importance: the First Amendment’s near-total prohibition on prior restraints.”


Washington Post: How to stop Russian robots from attacking the next election

By Senator Amy Klobuchar

It is illegal for foreign entities to buy political ads in the United States. But that didn’t stop the purchase of thousands of political ads on Facebook, paid for – in rubles – by foreigners.

The reason is simple and scary: Our campaign finance laws have left open an enormous loophole for foreign actors to secretly violate our campaign finance laws and possibly influence our elections. It’s time we update the laws so that online platforms are held to the same transparency standards as other companies that sell political advertisements…

Russian robots have shown us that we need to hold online platforms such as Facebook, Google and Twitter to the same transparency requirements as traditional broadcasters, radio and satellite providers. That’s why I am introducing legislation with Sen. Mark R. Warner (D-Va.) that would require major online platforms to keep a public file of the political ads they sell and to ensure that ads are not illegally purchased by foreign nationals. While voluntary efforts are always welcome, we need to put this in law so it applies to all.

Vice News: Democrats preparing bill to regulate political ads on Facebook

By Noah Kulwin

The legislation will likely take on a new importance for Democrats in Congress, as investigators have reportedly now learned that undisclosed Facebook ads linked to Russian accounts during the election were targeting voters in swing states Wisconsin and Michigan, which were both won in 2016 by small margins by President Trump.

The bill is the product of a month of behind-the-scenes work that began when Facebook first disclosed that it had found ads linked to Russian accounts on its network. Congressional Democratic aide familiar with the bill told VICE News that while it was initially planned to be made public on Thursday, it will probably arrive after next week’s Congressional recess. In the unlikely event that it gets through a Republican-controlled Congress, it would be the most significant new regulation of online political since 2006, when the FEC issued disclaimer requirements for online political ads…

Lawmakers’ next scheduled update is a Wednesday noon press conference, at which Sen. Warner and his Republican counterpart on the Senate Intel Committee, Richard Burr, will provide an “update” on their Russia investigation and Silicon Valley’s testimony.

Facebook Newsroom: Hard Questions: Russian Ads Delivered to Congress

By Elliot Schrage

As an increasingly important and widespread platform for political and social expression, we at Facebook – and all of us – must also take seriously the crucial place that free political speech occupies around the world in protecting democracy and the rights of those who are in the minority, who are oppressed or who have views that are not held by the majority or those in power. Even when we have taken all steps to control abuse, there will be political and social content that will appear on our platform that people will find objectionable, and that we will find objectionable. We permit these messages because we share the values of free speech – that when the right to speech is censored or restricted for any of us, it diminishes the rights to speech for all of us, and that when people have the right and opportunity to engage in free and full political expression, over time, they will move forward, not backwards, in promoting democracy and the rights of all…

We strongly believe in free and fair elections. We strongly believe in free speech and robust public debate. We strongly believe free speech and free elections depend upon each other. We’re fast developing both standards and greater safeguards against malicious and illegal interference on our platform. We’re strengthening our advertising policies to minimize and even eliminate abuse. Why? Because we are mindful of the importance and special place political speech occupies in protecting both democracy and civil society.

The Media

Washington Post: History proves how dangerous it is to have the government regulate fake news

By Flemming Rose and Jacob Mchangama

In 1798, the U.S. Congress passed the Sedition Act in order to punish false statements about the government made with malicious intent. It was used to suppress opinion with which the Federalist administration of President John Adams disagreed. This is one of the reasons why prosecution for lies about the government are outlawed in the U.S. and why this kind of speech is protected by the First Amendment.

Interestingly, President Donald Trump has suggested that libel laws be changed to cover what he categorizes as “fake news” about himself by mainstream media outlets, such as The New York Times. Apparently, Trump has some support for this unconstitutional idea. Asked in an Economist/YouGov poll whether courts should be able to “shut down” media outlets for “publishing or broadcasting stories that are biased or inaccurate,” 45 percent of Republicans were in favor, and 55 percent of Republicans favored fining such “biased or inaccurate” media outlets. But, the First Amendment stands in the way of Trump restricting journalism that is critical of his person and policies.

Wisconsin John Doe

MacIver News Service: ‘Wisconsin’s Shame’ Remembered: The John Doe Raids Of 2013

By M.D. Kittle

For many, Oct. 3 is just another day.

But for the Wisconsin conservatives who had their homes and offices raided in a politically motivated investigation and for anyone who values the Constitution, Oct. 3, 2013 is a date which will live in infamy.

In the early morning darkness, law enforcement officers swept into sleeping middle class neighborhoods in several coordinated, multi-county raids. They forced their way in with wide-open warrants and spent the next several hours rooting through the possessions of not only the conservatives they were targeting, but those of their spouses and children. They carried out boxes of files, personal planners, and electronic devices. And they told the residents of the homes they invaded that if these conservatives, even their kids, said anything to anyone about what happened there, they could go to jail…

“My first reaction was incomprehension. We were baffled. We had no idea what this was about or that this is what they do over campaign finance issues…It wasn’t until much later that we began to understand that it was connected to the first Doe (investigation),” Johnson added, referring to another secret political probe in Milwaukee County.

Candidates and Campaigns

Springfield News-Sun: Liberals have it wrong on campaign spending

By Dan Backer

The best ideas reach critical mass not only on their merits, but because their merits are widely communicated. This costs money – lots of it. But all that money does is insert those ideas into our political discussion. It is always up to individual Americans to decide for themselves which ideas they support and which they oppose. The anti-speech movement is grounded in a simple premise: Americans are too stupid to think for themselves – money will buy their vote.

This is not only insulting, but inaccurate. In 2016, Jeb Bush and his establishment allies spent $130 million on his presidential run. Roughly $84 million went for advertising – lots and lots of Jeb! ads. Another $18.3 million paid campaign staffers and consultants. We all know what happened: Jeb! failed to win a single state in the Republican primaries, never breaking fourth place or even 4 percent…

Most recently, former Alabama Supreme Court Justice Roy Moore defeated Sen. Luther Strange (R-Ala.)-an establishment incumbent – in the state’s Republican primary runoff with 57 percent of the vote. He was outspent 5-to-1.

Money doesn’t win elections. Votes do. If you don’t want to vote for someone, there isn’t enough money in the world to convince you otherwise. 

The States

Los Angeles Times: Voters deserve to know who’s bankrolling shadowy political campaigns

By Editorial Board

Granted, California’s campaign finance filings can help voters track down the people and organizations spending on campaigns. But most voters don’t have the time or inclination to vet every political ad they see. That’s why it makes sense to update the requirements for disclosure as proposed by AB 249, which would require that the top three funders of ads supporting or opposing a ballot measure be identified transparently and prominently in the ad. The same would apply to ads about a candidate, if the ads weren’t paid for by the candidate or a political party…

The bill is now awaiting action by Gov. Jerry Brown. And although it passed with bipartisan support in the Legislature and is supported by prominent good-government groups, including the California Clean Money Campaign, California Common Cause, League of Women Voters of California and Maplight, the governor’s appointed chairwoman of the Fair Political Practices Commission, Jodi Remke, has voiced concern that the bill might make it harder to stop special interests from circumventing contribution limits. Other campaign experts disagree with her assessment, however. And in any case, the potential problem she identified is minor in comparison to California taking the lead in shining a light on dark money.

Albuquerque Journal: There’s no place for politics in state money

By Jan Goodwin, Executive Director, N.M. Educational Retirement Board

An article in the New York-based International Business Times alleging Gov. Susana Martinez influenced investment decisions at the N.M. Educational Retirement Board is simply false. The governor does not initiate, suggest or influence NMERB investment decisions…

Laws passed following New Mexico’s prior “pay-to-play” issues focus on placement agents, not campaign contributions. Not only is NMERB in compliance with state law on placement agents, but our policy exceeds the standards.

Of the hundreds of investments made by NMERB, the International Business Times found only one that may or may not be in violation of SEC rules regarding a two-year “blackout” period on contributions. NMERB has asked the manager, EnerVest, for a thorough explanation…

NMERB doesn’t police campaign finance laws as it has neither the enforcement authority nor the resources or expertise.

Our campaign contribution disclosure requirement is based on the New Mexico procurement code requirements for state contracting. Those requirements do not include what the article calls “independent expenditure” groups such as the Republican Governors Association and other third-party political action committees (PACs).

Seattle Times: Mayoral candidate Jenny Durkan refunds donation from Microsoft as Seattle tests new election laws

By Daniel Beekman

Durkan’s campaign refunded the contributions from Microsoft and Ash Grove Cement Monday after The Seattle Times asked about them, according to campaign spokeswoman Stephanie Formas, who said they had been accepted by mistake.

Formas said the contributions weren’t flagged as banned by the Seattle Ethics and Elections Commission. A complaint was filed with the commission late Monday alleging the Microsoft and Ash Grove Cement contributions and three other Durkan contributions to be violations.

The new law is one of several approved by voters in 2015 as part of Initiative 122, also known as Honest Elections Seattle…

Durkan has taken money from executives of several companies that are major city contractors, and her opponent, Cary Moon, has taken money from executives at two. Because the contributions are from individuals rather than the companies, they’re probably legal…

The elections-commission complaint filed Monday by Estevan Munoz-Howard, an author of I-122 and a Moon donor, says three contributions to Durkan from companies that employ lobbyists could be considered illegal.

MassLive: Should campaign donations from marijuana industry require different disclosures? Holyoke councilors debate

By Mike Plaisance

City councilors debated Tuesday at City Hall whether campaign donations that come from the marijuana industry should be subject to more disclosure requirements than other money…

The council by a show of hands voted in favor of sending this requested disclosure to city councilors and Mayor Alex B. Morse…

But some councilors derided the measure as redundant, given the campaign finance disclosure forms that the state requires.

They also questioned why similar disclosures wouldn’t be required of other industries.

“Where does it stop with us not being business friendly?” Councilor at Large Daniel B. Bresnahan said.

“Where are we going to draw the line? We already have state agencies” that review campaign donations, he said.

“This is not the first business that has been controversial. Why hasn’t such a disclosure been required before?” Bresnahan said.

Hartford Courant: Public Campaign Fund Takes On Big Money

By Karen Hobert Flynn

The program is a remarkably successful alternative to the corrupt system that earned our state the unfortunate moniker “Corrupticut” in 2004. It allows candidates and officeholders to look out for the interests of all their constituents rather than being consumed with the needs of their major campaign contributors…

Those who would end the Citizens’ Election Program, however, have gotten further than ever this time, passing the Republican budget that zeroed-out the program in the name of fiscal discipline. It’s a sham because the program has saved money over time. We have seen the legislature more willing to eliminate programs that provide benefits to special interests and big corporations…
The program has been hugely successful, delivering value to taxpayers that far exceeds its cost. And it allows policies previously blocked because of the power of special interest lobbyists to pass.

The Center for Competitive Politics is now the Institute for Free Speech.