Daily Media Links 9/10: States Loom as a Regulatory Threat to Tech Giants, Trump Executives Face U.S. Campaign-Finance Probe, Source Says, and more…

In the News

Washington Examiner: The New York Times wants anonymity for the powerful, but no privacy for you

By Bradley A. Smith

The president’s anger at a disloyal staffer who is vowing to frustrate his policies is understandable, and if his identity is learned, firing is an appropriate response. But the New York Times piece is not “treason,” it is not a national security issue to find this person, and the president should not be haranguing the New York Times about disclosing this author or others. It’s that pesky First Amendment thing…

No one thinks for a moment that the New York Times is going to “turn over” its anonymous diarist “to government.” But the Times is protecting its author because his or her “job would be jeopardized by its disclosure.” And the Times thought it important to publish these anonymous thoughts because it “believe[s] publishing this essay anonymously is the only way to deliver an important perspective to our readers.”

Yet the New York Times has been a big supporter of ever more disclosure of the identities of persons who finance public debate. It has supported the so-closed “DISCLOSE Act” and regularly rails against “dark money.”

Does it not occur to the Times that perhaps its anonymous writer ought also be able to contribute to candidates or organizations critical of President Trump without “jeopardizing” the anonymous writer’s job? How about other people in similar situations? What about a Trump critic who happens to work for the Trump Organization? What about a corporate officer of a company with long-standing government contracts, or one that hopes to bid fairly in the future?

Many people who will never be granted a platform as large as a New York Times op-ed face possible retaliation for their views, whether from government officials, employers, or the online mob. Yet the Times supports a crackdown on the decidedly less influential means of speaking that are available to them – contributions to like-minded candidates and causes.

New from the Institute for Free Speech

Institute for Free Speech Welcomes Senior Attorney Parker Douglas to Legal Team

The Institute for Free Speech (IFS) is pleased to welcome Parker Douglas to its legal team as a Senior Attorney. Parker’s addition to the staff will enable IFS to expand its litigation efforts to protect the political rights to free speech, press, assembly, and petition guaranteed by the First Amendment.

“We are excited to add an attorney of Parker’s stature and experience to our team. His background as a senior state official, federal public defender, and Supreme Court Fellow will add immeasurably to our capabilities,” said Institute for Free Speech Legal Director Allen Dickerson.

Prior to joining IFS, Parker was the 2017-2018 Supreme Court Fellow assigned to the Supreme Court of the United States, where he served in the Office of the Counselor to the Chief Justice. Previously, he served as Utah Federal Solicitor and Chief of Staff to Utah Attorney General Sean Reyes. Parker has also been an Assistant Federal Defender, practiced in the Supreme Court and Appellate section of Latham & Watkins’s Washington, D.C. office, and taught law at the University of Utah, S.J. Quinney School of Law.

“I’m very pleased to join the Institute for Free Speech as a Senior Attorney. I’ve admired the Institute’s work for a long time, as they have become our nation’s bellwether for political speech protection and advocacy. I am excited about the work we will do together and look forward to assisting them in their endeavors to protect our precious first freedom,” said Parker.


Cato: Can Free Speech Be Progressive?

Featuring Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center; Robert F. Bauer, Professor of Practice and Distinguished Scholar in Residence, New York University School of Law; and Ronald K. L. Collins, Harold S. Shefelman Scholar, University of Washington School of Law; moderated by John Samples, Vice President, Cato Institute.

For much of the 21st century, those who identified themselves as left of center were the strongest proponents of freedom of speech. They believed in the principle, and they thought that free speech benefited civil rights and labor activists-not to mention radicals seeking fundamental change. Conservatives, they thought, would always oppose free speech because of its threat to the status quo. Beginning in the late 1960s, some spoke of free speech as “repressive tolerance” that precluded radical changes. Later, as courts connected free speech to campaign finance, some on the left argued that the First Amendment served corporate interests, not emancipation of the oppressed. Professor Michael Seidman has renewed this debate with a provocative paper denying that free speech in the American context can be progressive. Please join us for an intriguing debate about the future of free speech, a debate that matters for everyone at all points on the political spectrum.

Date: September 11, 2018

Time: 12:00PM to 1:30PM EDT

Location: Cato Institute

Register here

Anonymous Speech

USA Today: The New York Times op-ed writer wants us to put our trust in a ‘shadow presidency’

By Karen Hobert Flynn

Americans have a right to know what is happening within our government. When a senior White House official sounds an alarm, we should listen, even if The New York Times author believes anonymity is the only option.

It highlights the importance of the First Amendment protection of the free press and shield laws that protect anonymous sources as essential tools for news outlets to pursue investigative reporting the public relies on. Until the Trump campaign began its frequent attacks on journalists, corporate consolidation was the biggest threat to the free and independent news media.

The anonymous op-ed reportedly infuriated the president, whose Cabinet and staff are now consumed by proving loyalty, denying authorship, and finding the true identity of “anonymous.” The president has even asked Attorney General Jeff Sessions and the Justice Department to uncover the author’s identity.

Those protections for anonymous sources and laws protecting whistleblowers are often the only reason the public learns about fraud or abuse, because the people with the evidence feel safe coming forward so we can all know the truth.

The Courts

Bloomberg: Trump Executives Face U.S. Campaign-Finance Probe, Source Says

By Greg Farrell and Christian Berthelsen

Federal prosecutors in Manhattan are investigating whether anyone in the Trump Organization violated campaign-finance laws, in a follow-up to their conviction last month of Michael Cohen, according to a person familiar with the matter.

The inquiry, not previously reported, shows that the Manhattan U.S. attorney’s office doesn’t intend to stand down following the guilty plea from Trump’s longtime personal lawyer…

Central to the inquiry will be longtime Chief Financial Officer Allen Weisselberg, who has already provided narrow cooperation with authorities over Cohen’s activities and hush agreements, according to the person…

Last month, prosecutors said in indicting Cohen that two Trump company executives — one of whom is believed to be Weisselberg — approved the improper payments to Cohen in violation of campaign-finance laws. Investigators are looking at those people and others who may have been aware of the activities, according to the person…

In January 2017, Cohen sought reimbursement for $130,000 that he had paid Clifford. He submitted an invoice from his consulting firm to Trump’s company for that amount and $50,000 for “tech services” related to the campaign.

The $50,000 payment for campaign-related services appears to violate campaign finance rules, though Cohen’s guilty plea was limited to the two women’s payments. Prosecutors and FBI agents need to determine if the Trump real estate companies or his trust made campaign-related payments without disclosing them properly to election officials.

In announcing Cohen’s guilty plea last month outside of federal court in Manhattan, Deputy U.S. Attorney Robert Khuzami said ”we will not fear prosecuting additional campaign finance cases.”

Los Angeles Times: Trump waives millions in claims against Stormy Daniels in new fallout from illegal payoff

By Michael Finnegan

President Trump has agreed to give up his right to pursue millions of dollars in damages against Stormy Daniels in a move to kill litigation over an illegal payoff to the adult-film star.

The maneuver marks a sharp reversal for Trump. His legal team sought earlier to pull Daniels into an arbitration that could have forced her to pay the president more than $20 million for breaking a nondisclosure agreement over her claim of a sexual liaison with Trump in 2006. Trump has denied the affair.

The switch in tactics, disclosed late Saturday by a Trump attorney, highlights the legal trouble faced by the president and his private business, the Trump Organization, as federal prosecutors continue to investigate the $130,000 in hush money that Daniels received 12 days before the November 2016 election.

Michael Cohen, who was executive vice president of the Trump Organization when he orchestrated the deal, told a federal judge last month that Trump directed him to make the payoff in an attempt to influence the election. Cohen also agreed Friday to give up any right to damages against Daniels under the nondisclosure agreement…

Lawyers for Trump, Cohen and Daniels are set to gather Sept. 24 for a hearing on the case before District Judge S. James Otero in Los Angeles federal court.

Internet Speech Regulation

Wall Street Journal: Google Case Asks: Can Europe Export Privacy Rules World-Wide?

By Sam Schechner and Jacob Gershman

Google on Tuesday will appeal an order to extend the European Union’s “right to be forgotten” to its search engines across the globe, arguing before the EU’s top court that the order encourages countries to assert sovereignty beyond their borders.

National laws used to stop at the border. In cyberspace, they increasingly stretch around the world, as regulators in Europe, the U.S. and Canada have started asserting legal authority over the internet across country lines.

That is thrusting global tech firms like Google, Facebook Inc. and Microsoft Corp. into a potentially costly legal morass, and setting the stage for conflict over who will-or should-regulate everything from free speech and privacy to cybercrime and taxes.

Candidates and Campaigns

Texas Tribune: Ted Cruz campaign criticizes Beto O’Rourke for co-hosting fundraiser with PAC

By Abby Livingston and Patrick Svitek

The campaign of U.S. Sen. Ted Cruz tore into U.S. Rep. Beto O’Rourke on Friday afternoon, accusing his Democratic challenger of “hypocrisy” for “accepting support from a political action committee at a Washington, D.C. fundraiser, even though he campaigns in Texas against taking any support from political action committees,” per a Cruz news release.

At issue is a fundraiser Thursday in Washington, D.C. that was co-hosted by both the O’Rourke campaign and a political action committee… The PAC in question is End Citizens United…

O’Rourke spokesman Chris Evans defended the event as in keeping with the candidate’s principles in a statement earlier this week to the Tribune.

“Thursday’s grassroots event is entirely our event — we are hosting it just like we have done with Beers With Beto events across Texas,” Evans wrote. “We pay all the bills and each attendee has gotten a ticket through our campaign as an individual contribution.” …

Over the summer, the Cruz campaign hammered O’Rourke for accepting bundled contributions from J-Street, a PAC that supports a two-state solution to the conflict in Israel. J-Street has also hosted O’Rourke at fundraising events…

“There’s no legal standard for what constitutes accepting help from a PAC … so we’re automatically in the realm of opinion,” said Paul S. Ryan, vice president of policy and litigation at Common Cause. “On the one hand, you have a guy who is holding up his promise [to not accept PAC money], but I certainly consider the receipt of contributions bundled by a PAC to be accepting help from a PAC. It’s not the same thing as accepting PAC money, but yeah, it’s accepting help from a PAC.”

“Cruz’s criticism is technically correct in that the PAC gave some help to O’Rourke, but all they did was pass along contributions,” added Brett Kappel, a campaign finance lawyer at Akerman LLP. “They didn’t give PAC money.”

Washington Examiner: When a foreign adversary meddled in a presidential election

By Byron York

In the 1990s, a hostile foreign power meddled in our presidential election. There were serious questions about whether one party’s candidate — the beneficiary — was complicit in the meddling, or at least looked the other way while it was going on. The candidate fiercely resisted the appointment of a special prosecutor, then known as an independent counsel, to investigate. Finally, amid only moderate media interest and public concern, it all faded away.

The country doing the meddling, of course, was China, and the presidential candidate was Bill Clinton, who was already in the White House and seeking re-election in 1996.

Looking back on press accounts from the era, it’s striking how brazen a number of the players were as they went about the task of funneling illegal foreign donations to the Clinton campaign and the Democratic National Committee…

The scandal was news at the time; indeed, some print outlets, like the Los Angeles Times, led the way in uncovering it. The story received far less coverage on television, where several news outlets appeared distinctly uninterested. Overall, it would probably be fair to call the coverage moderate-to-restrained.

The rhetoric was restrained, too. To use one measure, it did not lead to widespread use of the word “treason” in the public discussion of President Clinton.

There is simply no comparison between the political conversation about the Clinton foreign influence scandal in the 1990s and today’s conversation about the Trump-Russia affair. Of course, the circumstances and facts are different, but it seems reasonable to say that for whatever reason, Washington is far more upset about Russia’s attempt to influence the election in 2016 than it was about China’s attempt to do the same 20 years earlier.


New York Times: Thoughts for Very Wealthy Political Donors

By Bret Stephens

So why is party-line voting on the rise? One big reason is misguided campaign-finance “reform” that steers political money away from parties – whose aims are to find and finance candidates who can win office, irrespective of ideology – and toward issue-advocacy groups and Super PACs that demand ideological purity in exchange for support.

But another big reason is, well, you. The interesting finding from the Sunlight Foundation analysis is that big-money donors are hyper-partisans in their giving, even if they are more moderate in their general political outlook. Only a small fraction of you ever split your money between the parties; mostly, your contributions are either all-red or all-blue…

There’s an alternative. Split more of your money between the parties. Fund candidates with proven or potential cross-party appeal. Help out politicians with scores below 100 percent from the N.R.A. or the Sierra Club. Set up a PAC – call it SanePAC or NotNutsPAC – to help candidates facing primary challenges from the further-right or further-left. Expand the reach of purple America at the expense of deep red or deep blue.

The States

Wall Street Journal: States Loom as a Regulatory Threat to Tech Giants

By John D. McKinnon and Douglas MacMillan

State officials are raising risks for companies such as Facebook Inc., Twitter Inc. and Alphabet Inc.’s Google as the states begin piecing together a coordinated legal strategy for confronting the firms over alleged antitrust violations and data-privacy abuses, and over what some Republicans say is a suppression of conservative speech.

Tensions have been simmering for months, but they surfaced publicly last week when the Justice Department said U.S. Attorney General Jeff Sessions would meet with several state attorneys general later this month to discuss a “growing concern” that the companies are hurting competition and “stifling the free exchange of ideas” on their platforms

The tech companies adamantly deny they have sought to suppress conservative content on the internet. And even some big tech critics say they hope the legal concerns about the social-media platforms aren’t being weaponized for political gain.

“We obviously think there are competition problems,” said Matt Stoller, a fellow at the Open Markets Institute, a think tank that has criticized the internet platforms. But the current focus on the treatment of conservative viewpoints could suggest “an attempt to use legitimate concerns to organize legal power for one party and point of view, and that’s dangerous,” he added.

Experts have raised a range of doubts over whether an antitrust probe into the platforms could fly. Those include the federal immunity law that has frustrated many state investigations into the internet platforms’ practices. Some believe, however, the allegations of free-speech suppression could help undermine the platforms’ immunity claims.

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