Daily Media Links 3/12: A Political Speech Crackdown, The feds have acknowledged they can’t ban books – and it only took 43 years, and more…

In the News

Raleigh News & Observer: From Rielle to Stormy, a tale of two scandals

By Anne Blythe and Brian Murphy

The allegations from both cases raise questions about campaign finance law, and whether payments made by wealthy supporters to hide a candidate’s extramarital affair should be considered campaign contributions that not only went unreported but exceeded the maximum dollar amount allowed…

Brad Smith, the chairman and founder of the Institute For Free Speech who served on the Federal Elections Commission, said at the time of the Edwards trial that he did not think the payments made by the wealthy donors should be viewed as campaign funds, and had similar views about the Trump case from what details he knew.

“What we said then,” Smith said referring to the Edwards case, “was that generally speaking, not everything that benefits a a candidate is a campaign expense.”

Smith, a Republican, said one has to weigh whether the expense would have been made outside the realm of the campaign such as a “$400 haircut.”

“One of the things with the Trump campaign is I think you have to say that certainly it might have been done anyway,” Smith said. “I think it really can’t be viewed as a campaign finance.”

Internet Speech Regulation

Wall Street Journal: A Political Speech Crackdown

By Editorial Board

Investigators have found that the amount of Russian spending and posts was very small compared to overall campaign spending. But never underestimate the liberal quest for new campaign-finance laws.

In October Democratic Senators Mark Warner and Amy Klobuchar -joined by Republican speech regulator Sen. John McCain -introduced the Honest Ads Act. The bill would impose new disclaimer and reporting requirements on internet platforms that run paid advertising, from Facebook and Twitter to the online news sites of major newspapers and magazines or the Drudge Report. The disclosure requirements would essentially require digital platforms to publish the name of any American seeking to discuss political subjects through paid ads, a chilling standard.

The bill would also impose legal liabilities on sites if advertising from prohibited actors slip through. Media outlets and digital platforms could be held civilly or criminally responsible for content on their sites that doesn’t comply with Federal Election Commission legal requirements.

This is a breathtaking new standard and potentially unconstitutional under the Supreme Court’s 1964 decision in New York Times Co. v. Sullivan, which held that the Times was not liable for an advertisement it ran that a politician claimed was libelous. Online platforms would likely respond by restricting the types of political ads they run, diluting their First Amendment rights.

Reason: Don’t Blame Tech Companies for Russian Election Trolls

By Declan McCullagh

News reports nearly five years ago revealed that outfits linked to the Kremlin were inserting themselves into American public affairs, and the Washington establishment did little about it.

Russian skullduggery became public in 2013 when Novaya Gazeta revealed that “specially equipped offices” in St. Petersburg and Moscow were operated by Internet trolls employed to “scold” America. A year later, Buzzfeed warned that the Russian government had launched “a million-dollar army of trolls to mold American public opinion” and “encourage dissent.” 

If Moscow can create cover identities for actual spies living in the United States, it can surely devise an identity for an would-be advertiser or simply impersonate an American citizen online. Identity fraud is no obstacle for a government willing to violate U.S. criminal laws. Silicon Valley companies shouldn’t be expected to conduct counterespionage operations of their own.

Meanwhile, it’s worth questioning whether Russian propaganda substantially influenced voters in the first place. The Facebook ads were risible and written in a language enjoying only a tenuous relationship with English. Engagement was poor. Kremlin-linked ad spending represented less than 1 percent of the $1.4 billion spent on online ads in the last election. Even the Justice Department acknowledges there is no evidence that Russians “altered the outcome of the 2016 election.”

First Amendment

Washington Post: Has Metro’s ad policy gone too far? Rejection of ‘Embrace humanity & inclusion’ raises questions.

By Faiz Siddiqui

A disability rights nonprofit group was flummoxed when Metro denied a promotional campaign for its new brand, including an ad with the message “Embrace humanity & inclusion.”

The agency cited its prohibition on issue-oriented advertising. The group, Humanity & Inclusion, asked questions: Could Metro specify the issue on which there were “varying opinions” disqualifying its ads? And what was the policy its ads purportedly sought to influence?

This was the latest challenge to an advertising policy that a wide spectrum of groups, from the American Civil Liberties Union to the Archdiocese of Washington, have decried as unfair and overly broad since it was adopted in 2015.


The Hill: The feds have acknowledged they can’t ban books – and it only took 43 years

By Lee Goodman

For the first time in its history, the Federal Election Commission has officially recognized that books and book publishers are exempt from agency regulation. Although that conclusion was obvious to defenders of a free press, it has taken the FEC 43 years to acknowledge it cannot ban political books.

The case file made public this week involved Penguin Random House’s publication of “A More Perfect Union” by Dr. Ben Carson and its marketing of the book in the summer of 2015. Someone thought Penguin’s expenses on Dr. Carson’s promotional book tour constituted an illegal corporate contribution to Carson’s presidential campaign and filed a complaint with the FEC. The FEC, by a vote of four to one, concluded that Penguin and the book are exempt from regulation under the campaign finance law’s longstanding Press Exemption…

This is a profoundly important legal development and marks an important milestone in the commission’s history. Finally, Mr. Chief Justice, the FEC’s answer is definitively “No,” the government cannot ban books.

Washington Times: FEC punts on ad-transparency rules for social media services: Report

By Andrew Blake

Rules requiring social media services to disclose the source of political ads purchased on their platforms likely won’t take effect before November midterms, the chair of the Federal Election Commission said Thursday.

“The commission has been reluctant to change the rules of the game in the middle of the election season, so that would be something we would want to seriously consider,” FEC Chairwoman Caroline Hunter told journalists, The Washington Post reported.

The FEC had been slated to vote on advancing rules that would subject social media services to new advertising transparency requirements in response to Russian operatives having allegedly purchased political ads displayed online during the 2016 presidential election, but dueling proposals offered by its Democratic and Republican members prompted the commission to delay that vote Thursday and revisit the topic next week instead, the report said.

The commission’s members plan to reconvene on Wednesday to unveil the negotiated proposal, but the process involved in adopting and implementing any new restrictions will “take a little bit of time,” Ms. Hunter acknowledged, notwithstanding ongoing concerns raised by the prospect of foreign actors meddling in the 2016 midterms.

Detroit Free Press: Michigan Democratic party fined for campaign finance violations

By Kathleen Gray

The Michigan Democratic Party was fined $8,600 by the Federal Election Commission last month as a result of excessive contributions and sloppy record keeping during the 2015-16 election cycle.

“The Committee’s reporting errors included, among other items: excessive, prohibited and other impermissible contributions or transfers; mathematical discrepancies, failure to provide supporting schedules; failure to properly itemize contributions and transfers from political committees; failure to properly itemize disbursements,” the FEC wrote in a letter to the Michigan Democratic State Central Committee.

While the fine is not particularly significant, it does come on top of a hefty $500,000 fine levied against the party by the FEC last summer after an internal investigation into the party’s fund-raising bingo operations. That fine was the 11th-largest ever imposed by the FEC.

Free Speech

Slate: Minor Threat

By Jamelle Bouie

On the list of threats to freedom of expression, left-wing students shouting at prominent writers and speakers-all of whom retain their platforms in major media-seems minor.

What actually looms are more traditional threats to free speech, from the state using its power to suppress dissidents and minorities (or protect those who would), to extremist groups using the threat of violence to monopolize and control public space…

In the wake of recent civil rights and environmental protests where activists blocked roads and highways as acts of civil disobedience, Republican lawmakers in several states proposed bills that would protect drivers who caused injury or death to someone blocking a roadway, as long as they exercised “due care.”…

One of the many troubling facts of the “Unite the Right” gathering in Charlottesville, Virginia, last summer was how a number of white supremacists armed themselves with the intent of intimidating opposition…

In 2016, Arizona passed a statute that bars the state from “entering into government contracts with companies or persons who engage in or advocate for economic boycotts of Israel,” a policy that banned pro-boycott speakers from Arizona college campuses. The state now faces a lawsuit from a Muslim group that says it’s been unconstitutionally barred from engaging in speech.

National Review: The Sliming of Bari Weiss

By David French

Free speech works in two directions. Professors who cancel classes in support of Palestinian terrorists should expect pushback. When students come forward with evidence that professors have mocked or attacked them because of their race or national origin, those professors should expect to have to defend themselves. They should not be fired for their viewpoints, but they can and should be criticized for their intolerance, their ignorance, and their bias.

In the column that triggered the latest firestorm, Bari decried the trend of accusing “demonstrably non-fascist people” of fascism. She’s condemning the modern trend of crying wolf when no racist wolves are present. But that does not mean that racism doesn’t exist or that intolerance is a myth. In fact, intolerance is alive and well on campus. It so often springs forth from identity politics, and it can and should be opposed.

In other words, Bari is doing exactly what she did in 2004 and 2005. She perceived intolerance and called it out. She decried an unwillingness to debate and a university that seemed closed off to dissenting ideas. It is not censorship to critique censorship. It’s not bullying to criticize bullying. And it’s most definitely not “racism” to raise credible concerns about anti-Semitism.

Washington Post: It’s up to us to kill false information. Good luck.

By David Von Drehle

The miracle and the menace of the digital revolution stem from the same root: Wired communication empowers the individual.

Because the Internet and social networks give each person previously unimagined power – over communication, information, commerce and culture – this revolution is proving to be one of history’s broadest and most urgent gut checks. Can we be worthy, as individuals, of this power?

No one asked for this. We didn’t seek personal responsibility for the quality of civic discourse and the reliability of shared information.

Yet here we are. The massive computational power of our shared platforms, of Google, Facebook, Twitter, YouTube and all the others, is fine-tuned to harvest our whims almost before we’re aware of them…

Are there steps Twitter and other social media can take to improve the health of our discourse? I hope so. And perhaps there are actions the government can take without violating the First Amendment. But ultimately, this is a test of each of us, individually. Difficult though it may be, we must take responsibility for ourselves.

Supreme Court

Wall Street Journal: Compelled Political Speech Cuts Civic Friendship ‘Right in Two’

By Matthew Mehan

The U.S. Supreme Court is considering whether forcing a worker to pay union dues violates his First Amendment rights. Justice Samuel Alito observed during arguments that “throughout history, many people have drawn a line between a restriction on their speech and compelled speech.” The latter is worse, but why? Because it is a violation of conscience-a deep concern in arts and letters throughout history…

Medieval writers agree that silence is often better. In “The Canterbury Tales,” Chaucer writes voluminously on holding one’s tongue: “Acting out of endless goodness, / God has walled your tongue with teeth and lips, / To help you keep close watch on what you speak.” “The very first virtue . . . is hold back your tongue, and learn the value of silence.” “A tongue can cut a friendship right in two.”

Compelled political speech similarly cuts civic friendship “right in two.” If the compulsion is resisted with persistent silence, it pits government and the individual against each other in a fog of fear and force. If the compulsory speech is spoken, then the community is left to suspect the speech is a lie. Deep and disorienting distrust reigns over civic life where good faith and clean conscience ought to rule.

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