Daily Media Links 4/12: How to evaluate the legality of a Trump-related hush payment, Facebook: What is the Honest Ads Act?, and more…

In the News

Reason (Volokh Conspiracy): Judicial Candidates’ Free Speech Rights

By Eugene Volokh

Montana, like many states, elects judges. Montana also doesn’t list party affiliations for judges on its ballots (a position Montana is free to take). But Montana adds to that by restricting the speech of judicial candidates — barring them from soliciting party endorsements, and informing the public of any party endorsements that they get.

The Ninth Circuit upheld that restriction last year, relying on the Supreme Court’s 5-4 decision in Williams-Yulee v. Florida Bar (2015). That decision upheld a much narrower speech restriction: a ban on judicial candidates directly soliciting funds. But the Ninth Circuit concluded that Williams-Yulee authorized a much broader range of restrictions on judicial candidate speech as well.

The petition for review in that case (French v. Jones) is now before the Supreme Court, and last week my students Nicole Karatzas, Christina Kroll, and Eric Lamm and I filed an amicus brief supporting the petition, on behalf of the Institute for Free Speech. Here’s the text of the brief, in case some of you are interested; recall that the brief is aimed at persuading the Court to devote time to hearing the case — because it involves an important issue that arises often, and that has divided lower courts — and not just at persuading the Court that the result below is wrong.

SCOTUSblog: Wednesday round-up

By Edith Roberts

In an op-ed for The Hill, David Keating and Thomas Wheatley urge the justices to review the appeal of Rod Blagojevich, the former governor of Illinois, arguing that “[t]he disputed jury instructions [given in Blagojevich’s criminal trial] pose risks to honest politicians and ordinary people who get active in election campaigns.” 

Internet Speech Regulation

CBS News: Facebook: What is the Honest Ads Act?

By Aimee Picchi

Facebook’s Mark Zuckerberg has expressed support for one specific piece of legislation: The Honest Ads Act.

The bipartisan bill is fast gaining traction — Twitter said Tuesday that it supports it too.

So what would the Honest Ads Act do?

The goal is to provide more transparency for online political advertisements, sparked by the revelations that Russian nationals bought political ads on social networks including Facebook.

It was introduced last October by Senators Mark Warner (D-Virginia), Amy Klobuchar (D-Minnesota) and John McCain (R-Arizona), and here’s how the bill proposes to fix the problem…

Vox: Don’t ask whether Facebook can be regulated. Ask which Facebook to regulate.

By Aja Romano

There’s one major problem with the Honest Ads Act. If Facebook were officially held liable for how third-party ads are disclosed on its platform, the regulation would directly contravene what is basically the internet’s version of Biblical law: Section 230 of the 1996 Communications Decency Act.

This rule says publishers and ISPs aren’t liable for what users do on their websites. While controversial recent legal challenges have threatened to undermine its protections, it’s still the internet’s primary governing principle.

Section 230 has traditionally been upheld in the court system when it comes to holding companies like Google and Facebook responsible for the content of ads on their platforms. So to get around it, the Honest Ads Act would have to create an exemption to Section 230.

Exceptions to Section 230 do exist, and it is possible for a website to lose its protection under the law. But for the most part, it has remained dominant for two decades, and many internet freedom advocates have argued that allowing any exemptions to Section 230, no matter how well-intentioned, is a dangerous precedent to set…

[I]t is important for lawmakers to develop a deep understanding of the issues tech culture faces before it passes reform that could be detrimental to online freedom. For example, as Congress recently demonstrated with the passing of the highly controversial FOSTA/SESTA bill package, it has a tendency to opt for sweeping, high-level reform with the potential to damage to internet freedom and infrastructure.

Wall Street Journal: The Zuckerberg Collusion

By Daniel Henninger

During his pre-Congress apology tour, Mr. Zuckerberg elaborated on this subject to Vox:

“Over the long term, what I’d really like to get to is an independent appeal. So maybe folks at Facebook make the first decision based on the community standards that are outlined, and then people can get a second opinion.

“You can imagine some sort of structure, almost like a Supreme Court, that is made up of independent folks who don’t work for Facebook, who ultimately make the final judgment call on what should be acceptable speech in a community that reflects the social norms and values of people all around the world.”

Up to now, there has been no such thing in the United States as “acceptable speech” defined by the norms and values of people all around the world. Because of his status, Mr. Zuckerberg is a thought leader, and so this idea is not far-fetched.

The bedrock idea of free speech is under pressure in the U.S. now. But if I had to guess which will arrive first-federal regulation of individual privacy or a speech panel of “independent folks” defining what is acceptable-on current course, I think I know which one it will be.

Bloomberg: Here’s How Washington Could Really Unfriend Facebook

By Ben Brody, Gerrit De Vynck and Todd Shields

Facebook and Twitter have come out in support of the Honest Ads Act, a transparency measure co-sponsored by two Democratic senators, Amy Klobuchar and Mark Warner, and Republican John McCain…

Separately, the Federal Election Commission is moving toward requiring online political ads to show details of sponsorship — a proposal that even commission members characterize as a narrow reform.

Meanwhile, Maryland is poised to be the first state in the country to regulate political ads on Facebook and other social media sites with a law that would require them to quickly post public information about who bought the advertisements, whom they benefit and how much was spent…

Trump on April 11 signed a bill to combat online sex trafficking that opens websites to liability if they knowingly facilitate such crimes. The bill is supported by Facebook and the Internet Association, a trade group that counts Facebook, Alphabet Inc.’s Google and Twitter Inc. as members. But several tech companies and trade groups are concerned that the law would harm innovation by opening large websites to legal sanctions caused by bad actors. 

Wall Street Journal: Democrats Unfriend Facebook

By Editorial Board

Only the Justice Department can see across media channels and has the power to investigate election fraud, as special counsel Robert Mueller’s indictment of 13 Russians in February showed.

The Russians began organizing in 2013 and stole American identities. “Beginning in or around June 2014, and continuing into June 2015, public reporting began to identify operations conducted by the [IRA] in the United States,” the indictment says. The Russian operatives also created fake accounts on Twitter and YouTube. Yet the Obama Administration waited until December 2016 to slap sanctions on Russians for hacking Democratic National Committee emails. It doesn’t appear that social- media interference was ever a priority.

While Facebook has endorsed legislation that would require more disclosure for buyers of political ads, the regulatory burden could make it harder for small companies and blogs to sell ads. This could drive more political advertising to Facebook. And it’s unclear how the legislation would prevent identity fraud.

Recode: Congress doesn’t know how Facebook works and other things we learned from Mark Zuckerberg’s testimony

By Kurt Wagner

One thing that became clear over the past two days is that almost every politician in Washington sounds like they want to regulate Facebook…

“Here’s what’s going to happen – there are going to be a whole bunch of bills introduced to regulate Facebook,” Sen. John Kennedy, R-La., told Zuckerberg on Tuesday. “It’s up to you whether they pass or not. You can go back home [and] spend $10 million on lobbyists and fight us, or you can go back home and help us solve this problem.” …

“I agree that we’re responsible for the content.” That was Zuckerberg on Tuesday confirming that, yes, Facebook is responsible for the stuff people post to the service. It’s a bold admission, even if everyone already knew that to be the case. Of course Facebook is responsible for what people post. That’s why they take down certain posts that are too violet or racist or graphic.

But there is a parallel thinking that Facebook is also just a platform – a place where anyone can post pretty much anything. All ideas are welcome. Being responsible for everything people say while also trying not to infringe on what they are saying is an impossible balance to strike. It’s why Zuckerberg said recently that he is “fundamentally uncomfortable” making content decisions for Facebook.

FEC

Washington Post: How to evaluate the legality of a Trump-related hush payment

By Philip Bump

[W]e’ve put together a guide for determining how such payments might violate campaign finance laws with a great deal of assistance from Lawrence Noble, senior director at the Campaign Legal Center…

Let’s say that you love Trump and also you have more money than you know what to do with. You hear from a friend in October 2016 that some guy is going around telling people that he knows a dirty secret about Trump. You reach out to the guy and make an agreement: In exchange for $20,000, he’s not allowed to mention that secret until after Election Day. He agrees; a deal is signed.

That’s perfectly legal.

But wait, you say, it’s clearly meant to influence the election! And that’s true. But people can spend money on independent political activity if they wish. There’s a process by which direct advocacy for a candidate – “vote for Smith” – is regulated, but this isn’t that sort of direct advocacy. So: kosher – with an important caveat that’s relevant to the two AMI cases above.

If you talk to anyone at the Trump campaign about your payment, the picture changes. At that point, you’re probably making a contribution to the campaign – and at $20,000, it’s illegally high. Noble notes that the FEC has debated for years over how much encouragement from the campaign is needed for this to constitute an illegal contribution, but generally anything short of silence or discouragement from the campaign makes the payment coordinated activity with it.

The Courts

The Legal Intelligencer: Judge Denies Ex-Brady Aide’s Request to Block Evidence From FBI Raid

By P.J. D’Annunzio

Kenneth Smukler, a Philadelphia political consultant and former aide to U.S. Congressman Bob Brady, failed to convince the federal judge overseeing his criminal case to throw out evidence obtained from a March 2017 FBI raid of Smukler’s home.

U.S. District Judge Jan E. DuBois of the Eastern District of Pennsylvania denied Smukler’s motion to suppress evidence gathered by federal agents. Smukler was indicted in October 2017 for allegedly paying off one of Brady’s rivals in the 2012 Democratic primary to drop out of the race. He was charged last month in a superseding indictment with allegedly making hundreds of thousands of dollars in illegal donations to former Congresswoman Marjorie Margolies’ campaign in her failed 2014 bid to reclaim the seat, while obstructing the corresponding federal investigation.

Smukler argued that the FBI’s search warrant was faulty because a federal agent intentionally omitted the fact that the Federal Election Commission had previously investigated and dismissed one of the claims against the Margolies campaign alleged in the search warrant affidavit.

However, DuBois said that the allegations in the affidavit went beyond the scope of the FEC’s inquiry into Margolies’ 2014 campaign finances.

Campaigns

Slate: Are Algorithms the New Campaign Donation?

By Jacob Metcalf

A conservative billionaire sunk a lot of his own money to build a wonkish tool to help Republican candidates find voters more effectively-that doesn’t seem particularly odd.

Yet this development heralds a new and dangerous age of algorithmic electioneering, one that warrants significant legal scrutiny. Such behavioral models move far more freely and easily between political entities than voter data itself does, enabling organizations that are separated by law to coordinate on core campaign decisions, particularly if they are licensed at prices far below their hard-to-determine fair market value…

Leaving aside concerns about the content and efficacy of the psychologically targeted ads, the transfer of behavioral models between political organizations in this manner marks a new age of campaign financing. Algorithmic models integrate new data and “learn” from quantitative feedback. They do not care whether they are learning from a PAC’s data or an electoral campaign’s data, despite U.S. election law requiring that such entities not coordinate on decisions, staffing, or messaging. Indeed, given skepticism about whether psychographic profiling is nearly as effective as Cambridge Analytica claimed, the safest assumption is that personality scores were neither magic nor snake oil. Instead, it seems they were simply one more feature among many by which the profiled voters could be sorted and their responses to ads tested. In other words, the one thing we can be sure of psychographic profiling is that it provided one more way to transfer knowledge and economic value between campaigns and organizations.

The States

CT Post: Gov. candidates hit sweet spot – the $250,000 minimum needed get $1.25 million in public funding

By Kaitlyn Krasselt

In a wide open race for the state’s top seat, more candidates than ever are poised to qualify for public financing.

The deadline to file first-quarter campaign-finance reports was early Wednesday, and several candidates appear to have passed the $250,000 minimum needed to obtain the $1.25 million public funding grant to wage a primary for governor.

They still have to make it past the auditors at the State Elections Enforcement Commission, as well as the delegates at the May conventions, or earn enough signatures to make it to the August primary ballot and qualify for the grant.

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