Daily Media Links 4/10: SCOTUS and Donor Privacy, Why You Shouldn’t Want Congress To Regulate Facebook & Other Social Media, and more…

In the News

NewsTalk 95.5 Montana: Montana Gets “C” Grade in Free Speech Index

By Aaron Flint

The Wall Street Journal’s editorial page features a new report grading states across the nation when it comes to the First Amendment and your right to free speech.

What grade did they give Montana? Looks like Montana gets a “C,” and ranked 26th in the nation for free speech. That’s according to data compiled by The Institute for Free Speech.

The Journal’s editorial board describes the Free Speech Index as “a report card on how every state treats political contributions.”

“The bottom feeders are notable, too, and a shout out to New Jersey for finishing 34th, instead of its usual dead last on any index about freedom. The least free are another odd assembly: Maryland, Colorado, Alaska, West Virginia and Kentucky. Alaska’s limits are so stringent that they’re caught up in federal court. In Colorado, individuals can donate a mere $200 to a state legislature seat. Only Montana’s limit is lower.”

Good4Utah: Federal judge dismisses FEC case against John Swallow

There were new developments in an investigation involving former Utah Attorney General John Swalllow and businessman Jeremy Johnson.

Friday, a federal judge struck down a regulation by the Federal Election Commission, dismissing the commission’s lawsuit against the two.

At issue was the FEC’s regulation that expands liability for contributions made through straw donors. A straw donor is a person who illegally uses another person’s money to make a political contribution in their own name.

The Courts

Center for Individual Freedom: SCOTUS and Donor Privacy

Eric Wang, Special Counsel at Wiley & Rein, discusses the U.S. Court of Appeals for the Second Circuit’s recent ruling in Citizens United’s ongoing fight against the New York Attorney General’s attempts to obtain their confidential donor lists and whether this sets the stage for a potential hearing by the U.S. Supreme Court.

Internet Speech Regulation

Broadcasting and Cable: Twitter, Google Pushed to Adopt Political Ad Disclosures

By John Eggerton

Sens. Mark Warner (D-Va.) and Amy Klobuchar (D-Minn.) have called on the CEO’s of Twitter and Alphabet (Google) to follow Facebook’s lead and voluntarily institute political ad disclosures the legislators are attempting to legislate.

That came in a letter Monday (April 9).

Facebook announced those changes, along with others, in advance of CEO Mark Zuckerberg’s testimony before two powerful congressional committees this week. Twitter has also made a political ad disclosure pledge, which the legislators acknowledged.

Warner and Klobuchar are the co-sponsors of a bill, the Honest Ads Act, which would legislate such enhanced disclosures, but they want edge providers to get ahead of that curve. Zuckerberg also announced his support for the Honest Ads Act, which would mandate similar disclosures on his edge competition.

Reason: Why You Shouldn’t Want Congress To Regulate Facebook & Other Social Media

By Nick Gillespie

There appears to be little to no question that Cambridge Analytica broke Facebook’s existing privacy policies by using data it had no right to have. Facebook, too, didn’t seem particularly vigilant or interested in protecting user data, even though it promised to. These are serious terms-of-service violations and there should indeed be fallout, for Cambridge Analytica and for Facebook.

But what Cambridge Analytica did-use a social network to find and message people who might be interested in Trump-is not so different from what the Obama campaign did in 2012. Indeed, the whole point of a social network is that you can find and reach people who share particular interests and predilections with much greater ease and accuracy. You can do that to start an online group, sell soap, or push particular candidates or issues. Targeted advertising isn’t simply a boon to sellers, of course. It also means that recipients are more likely to care about what messages they’re receiving…

People are talking about “social-media marketing” as if we are automatons being brainwashed by what old-school overwrought critics of postwar abundance such as Vance Packard called The Hidden Persuaders and Wilson Bryan Key (Ph.D.!) called Subliminal Seduction. Fears that we are being secretly programmed by outside forces-ad men, communists, outer-space aliens, gods, you name it-are neither new nor particularly convincing. Those very same anxieties are always thrown at new forms of communication and expression.

McClatchy DC: Why Twitter and Google aren’t supporting the Honest Ads Act as Facebook endorses it

By Kate Irby

Facebook’s Mark Zuckerberg plans on Tuesday to endorse giving the government more power over political advertisements on internet platforms. But other leading tech companies and lawmakers suggest it won’t become law anytime soon…

Twitter and Google have withheld public support for more government involvement. Neither has condemned the legislation, meaning they’re not concerned about it passing this year. Both companies said when the bill was announced in October that they would be working with lawmakers and supported improved transparency…

If the companies do start speaking more publicly on the bill or others like it, it’s likely they see it has a chance of success and want to participate in shaping the legislation…

A spokeswoman for Twitter said Monday the company had no update to the fall statement. A spokeswoman for Google did not return a request for comment.

Facebook’s comments in October about the legislation mirrored Google and Twitter. 

Wall Street Journal: The GOP Needs a Free Facebook

By Chris Wilson

Social media was a godsend for Republican campaigns. Online networks allow conservatives to communicate to voters without the filter of liberal media…

It is much harder for congressional campaigns to generate media coverage, and harder still to persuade reporters and editors of the merits of conservative positions. But congressional Republicans are considering new regulations on the social-media sites that allow them to reach voters. They should be careful what they wish for.

If Hillary Clinton had won the election as well as the media’s coronation, would we even be debating a new regulatory scheme for social-media advertising, and would Facebook chief Mark Zuckerberg be appearing before Congress this week to be grilled about his company’s role in the 2016 election? We know the answer…

[C]onservatives and Republicans should fiercely resist any attempt to make social-media platforms arbiters of truth in digital advertising. Such a move would transform the free advertising market into a highly regulated monopoly, in which the liberal media filter would disadvantage conservative candidates online it has for decades on television and in print.


Gizmodo: Here’s Mark Zuckerberg’s Written Testimony for Congress

By Kate Conger

In written testimony submitted prior to his congressional appearances this week, the Facebook CEO issued a sweeping apology for his company’s blunders on election interference, privacy, and fake news. He called the social media platform an “idealistic and optimistic company,” noting that attitude contributed to Facebook missing the signs of abuse.

“But it’s clear now that we didn’t do enough to prevent these tools from being used for harm as well,” Zuckerberg says in his prepared testimony. “That goes for fake news, foreign interference in elections, and hate speech, as well as developers and data privacy. We didn’t take a broad enough view of our responsibility, and that was a big mistake. It was my mistake, and I’m sorry. I started Facebook, I run it, and I’m responsible for what happens here.” …

Zuckerberg is scheduled to appear before the Senate Judiciary and Senate Commerce Committees [today], and the House Energy and Commerce Committee on Wednesday.

First Amendment 

Washington Post: What counts as censorship on officials’ social media? Maryland offers a lesson.

By Editorial Board

Mr. Hogan’s office, sued last year by the American Civil Liberties Union of Maryland for its zeal in deleting critical posts and blocking some commenters altogether – in certain cases for civil and forthright criticism – has agreed to new terms governing his sites.

In settling the lawsuit with the ACLU, the governor’s office scrapped language on its Facebook page warning commenters that their posts could be removed, or access restricted, “at any time without prior notice or without providing justification.” A new, more detailed policy lays out violations that could trigger removal, including threats of violence, divulging private information and irrelevant commentary, as well as profanity, indecency and obscenity. Organized “spam” campaigns that inundate the governor’s Facebook page with identical commentary will also be blocked.

Those seem like fair rules for official social media sites, akin to what courts have called limited public forums where topics but not points of view can be restricted. They may also serve as a model for officials elsewhere coming to terms with rules for their own social media sites.

Those include President Trump, who hasn’t hesitated to ban Twitter users who annoy him from his account, @realDonaldTrump, thereby suppressing dissent.

Independent Groups

Wisconsin State Journal: ‘Unprecedented’ outside spending hits Tammy Baldwin, boosts Kevin Nicholson in US Senate race

By Mark Sommerhauser

Seven months before Election Day, outside groups have given Wisconsin’s U.S. Senate race an early barrage of big money unlike any other in the nation – and likely, any other in history…

Nearly $10 million has been spent in the race by outside groups, more than twice as much as any other current U.S. Senate race, according to one measure by the nonpartisan Center for Responsive Politics.

Outside spending in Wisconsin likely is “unprecedented” for a U.S. Senate campaign, excluding special elections, at this stage, according to Andrew Mayersohn, a researcher for the center…

“The parties are at the mercy of these organizations that are able to dump money into these races,” said Steven Billet, a professor at George Washington University’s Graduate School of Political Management.

Political Advertising

Ars Technica: Facebook: If you want to buy a political ad, you now have to be “authorized”

By Cyrus Farivar

“To get authorized by Facebook, advertisers will need to confirm their identity and location. Advertisers will be prohibited from running political ads-electoral or issue-based-until they are authorized.”

Under what criteria Facebook would “authorize” ad buyers, the company did not say directly in the post. However, Beth Gauthier, a Facebook spokeswoman, told Ars by email that there will be a three-step process for authorization.

“First, Page admins and ad account holders will have to submit their government-issued IDs and provide a physical mailing address for verification,” she wrote. “Second, we’ll confirm each address by mailing a letter with a unique access code that only their specific Facebook account can use, and, third, advertisers will also have to disclose what candidate, organization or business they represent.” …

The executives further explained, however, that these ads will be “clearly labeled” as “Political Ad” with “paid for by” information…

The company also said that people who manage Pages with “large numbers of followers” must now be “verified.” How this verification would take place, Facebook did not say.

Public Policy Legal Institute: Only “Authorized” Speakers Can Put “Issue Ads” on Facebook Now

By Barnaby Zall

It’s difficult enough for a private company to determine when an ad is “political” when it addresses an election or a candidate. Even the U.S. Supreme Court had to relax an “express advocacy” rule that defined an electoral or candidate-related advertisement by whether it used “magic words” of “vote for” or “vote against”: “a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007). The Federal Election Commission generally uses a “PASO” test as to whether the ad “promotes, attacks, supports, opposes” a specific candidate or party. The IRS uses a “3 T’s” test, looking at the Timing of an ad is close to an election, the Targeting of an ad is to those who will vote in a particular election, and the Text refers to a candidate’s character or fitness for office.

It is much, much harder to determine when an “issue ad” is “political.” …

As with the Obama-Cambridge Analytica example and the timeless examples of biased news media coverage demonstrate, very few private censorship choices would withstand even the simplest of First Amendment review if the same actions were conducted by a governmental entity. And the reason that government is simply banned from conducting such issue analyses is that nobody, even someone as big and powerful as Facebook, can do it well. So nobody – or at least nobody with power over what other people can say, see or hear – should do it at all.


New York Times: F.B.I. Raids Office of Trump’s Longtime Lawyer Michael Cohen; Trump Calls It ‘Disgraceful’

By Matt Apuzo

The F.B.I. raided the Rockefeller Center office and Park Avenue hotel room of President Trump’s longtime personal lawyer, Michael D. Cohen, on Monday morning, seizing business records, emails and documents related to several topics, including a payment to a pornographic film actress…

It is not clear how significantly prosecutors view the payment to Ms. Clifford. Mr. Trump has denied knowing about it. And Mr. Cohen has said he paid Ms. Clifford out of his own money. Asked last week why Mr. Cohen made the payment, Mr. Trump replied: “You’ll have to ask Michael Cohen. Michael is my attorney, and you’ll have to ask Michael Cohen.”

Washington Post: Trump attorney Cohen is being investigated for possible bank fraud, campaign finance violations

By Carol D. Leonnig, Tom Hamburger and Devlin Barrett

Michael Cohen, the longtime attorney of President Trump, is under federal investigation for possible bank fraud, wire fraud and campaign finance violations, according to three people with knowledge of the case.

The States

Wall Street Journal: In Connecticut, Even the Politicians Are Publicly Funded

By Stephen Eide

But there may be another reason the campaign is so crowded: Connecticut’s “Citizens’ Election Program,” which provides public funds to candidates for state office. The money won’t be disbursed until after the parties’ conventions next month, but a promise of public cash lowers the fundraising bar for potential candidates…

For this year’s gubernatorial candidates, the offer during the primary is $1.25 million each. Accessing the funds requires raising $250,000 in donations that must come mostly from Connecticut residents and cannot exceed $100. It is also necessary to win access to the primary ballot, either by gaining at least 15% of delegates’ votes at the party conventions in May or gathering almost 10,000 signatures from registered party members. Then after the primary, the major-party general-election nominees get another $6 million each…

This year’s election will be the state’s third gubernatorial contest under the public-financing program, whose cost has attracted scrutiny amid Connecticut’s apparently unending fiscal crisis. Last year, lawmakers had to close a $5.1 billion two-year shortfall; during the current legislative session the gap is around $200 million; and deficit projections for the two-year budget to be taken up in 2019 are running in the billions. The cost of the Citizens’ Election Program, counting all state races, could reach $40 million this year.

Gotham Gazette: Council Member to Propose Campaign Finance Changes

By Samar Khurshid

One of his bills would increase the small-dollar matchable amount from $175 to $250…

A second bill would also reduce the lowest qualifying contribution from $10 to $5. “It makes it easier for candidates to hit the matching threshold,” Powers said.

The third bill in the package would establish a pilot program to provide full matching funds for special elections…

Powers also hopes to ease the burden of complying with the city’s campaign finance law for candidates that tend to run campaigns with limited funds. The CFB requires that all campaigns submit detailed disclosure reports of the money they raise and spend during an election season, a requirement that has at times been criticized as overly onerous for candidates who do not have experience with the program or the help of high-priced professional consultants to help them comply. Candidates who fail to file disclosures, or improperly file them, can incur costly fines sometimes amounting to thousands of dollars from the CFB after an election.

However, “small campaigns” that do not surpass $1,000 in fundraising and expenditure do not have to file these reports under the campaign finance law. The bill Powers is proposing would raise that amount to $3,000, lifting the reporting requirements on dozens of candidates. A companion resolution would also call on the state to do the same.

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