Daily Media Links 9/12: The Slippery Slope of Regulating Social Media, A Fairness Doctrine for the Internet?, and more…

In the News

Washington Post: Koch-backed charity must reveal donor list to California officials, appeals panel rules

By Michelle Ye Hee Lee

The panel of the U.S. Court of Appeals for the 9th Circuit reversed a district judge’s ruling that the group, Americans for Prosperity Foundation, does not need to submit a list of its donors to a state registry…

“We are disappointed by the Ninth Circuit’s latest decision and believe it imperils people’s First Amendment right to freedom of speech and of association,” AFP Foundation spokesman Bill Riggs said in a statement…

“I think the decision is appallingly wrong,” said David Keating, president of the nonprofit Institute for Free Speech, which opposes limits on political speech. “Basically, the panel is saying there’s no right to privacy in California if you speak on anything. The implications of that are pretty chilling and pretty stunning.” …

In 2016, a district court judge sided with the Koch group, saying the disclosure requirement created a chilling effect for donors and infringed on their First Amendment rights, and that there was ample evidence that state officials have made “careless mistakes” handling confidential donor information.

In Tuesday’s ruling, Judge Raymond C. Fisher disagreed…

Fisher ruled that collecting the donor information is in the state’s interest and does not create a burden on donors’ First Amendment rights because it is “collected solely for nonpublic use, and the risk of inadvertent public disclosure is slight.”

Fisher acknowledged that some donors may be deterred from contributing to the charity as a result of the requirement, but said it would result in a “modest impact on contributions.”

Supreme Court

National Review: The Caste System

By Kevin D. Williamson

During Brett Kavanaugh’s confirmation hearings, [Senator Kamala Harris] demanded to know whether the judge thought the president could legally politicize the Justice Department, for example by prosecuting his political enemies while going easy on his friends. Senator Harris would know more than a little about that: She wasted a great deal of time and a fair sum of Californians’ tax dollars illegally using her position as attorney general of California to attempt to bully nonprofits into giving up their donors lists. It was a transparent effort to target them for harassment and retaliation. That little jihad ultimately was ruled an unconstitutional violation of the First Amendment by the federal courts. Harris and her opposite number in New York State, Eric Schneiderman, did nothing but misuse their offices to harass their political rivals. (Well, in fairness, Schneiderman did take some time to beat women, if The New Yorker is to be believed, and resigned his office after three women accused him of abuse.) She misused her job like that was her job.

You know how this works: Liars think everybody is lying, cheaters think everybody else is a cheat, and self-serving political hacks who misuse their offices think that that’s just how the game is played, that everybody does it…

What would it mean to “politicize” the Justice Department? We’ve seen politicized federal departments before, for example the IRS during the Obama administration, when it improperly targeted groups perceived as hostile to Barack Obama for investigation and harassment. That was clearly improper.

The Courts

Reuters: Trump wins dismissal of ‘inciting to riot’ lawsuit over 2016 rally

By Jonathan Stempel

U.S. President Donald Trump on Tuesday won dismissal of a lawsuit in which three protesters accused him of “inciting to riot,” after they were roughed up at a March 2016 campaign rally in Louisville, Kentucky during Trump’s White House run.

By a 3-0 vote, the 6th U.S. Circuit Court of Appeals said the protesters did not state a valid claim under Kentucky law against Trump or his campaign, and Trump’s speech was protected by the First Amendment because he did not specifically advocate violence.

Henry Brousseau, Kashiya Nwanguma and Molly Shah said they had planned a peaceful protest at the March 1, 2016 rally, in which Trump gave a roughly 35-minute speech that was interrupted several times.

They claimed they were assaulted, pushed and shoved, with Brousseau punched in the stomach, and unceremoniously removed after Trump repeatedly exhorted supporters to “get ’em out of here.”

But in ordering the dismissal of the incitement-to-riot claim, a misdemeanor, Circuit Judge David McKeague noted that Trump said “don’t hurt ’em.”

McKeague said this amounted to an “express disavowal and discouragement” of violence, even if Trump wanted to quell disturbances by having protesters removed. “The notion that Trump’s direction to remove a handful of disruptive protesters from among hundreds or thousands in attendance could be deemed to implicitly incite a riot is simply not plausible,” McKeague wrote.

Courthouse News Service: Judge: California Ban on Gun Store Handgun Ads Violates Free Speech

By Nick Cahill

“California may not accomplish its goals by violating the First Amendment,” U.S. District Judge Troy Nunley ruled in a 150-page order.

Nunley’s ruling is the latest in a four-year lawsuit brought by California gun dealers who were fined by the state for violating the handgun advertising ban.

The plaintiffs, led by Tracy Rifle and Pistol LLC, accused the California Department of Justice of infringing their free-speech rights. Under the law, the retailers could use huge neon storefront ads that said “GUNS GUNS GUNS” but not depictions of handguns.

Nunley, appointed by President Barack Obama in 2013, trashed the state’s argument that the advertising ban prevents suicides and minimizes gun violence. He said its expert witnesses couldn’t show that “impulsive handgun purchases result in impulsive handgun suicides” and noted that the state already has other firearm safeguards, such as a 10-day waiting period.

“The [state] has restricted disfavored speech without acknowledging the efficacy of policy choices that do not burden speech,” Nunley said. “The state has an array of policies at its disposal to combat handgun suicide and crime.” …

The plaintiffs’ attorneys included UCLA distinguished professor of Law Eugene Volokh…

“Under the First Amendment, the government may not restrict speech on the theory that it will supposedly lead a few listeners to do bad things, or even to commit crimes,” Volokh said in a statement. “It’s good to see the district court recognizing that the First Amendment has no gun advertising exception.”

Baltimore Sun: Baltimore to pay $1.1 million after losing First Amendment case involving pregnancy clinic signs

By Talia Richman

Baltimore’s spending board voted Wednesday to pay $1.1 million to cover a Christian pregnancy center’s legal fees after a federal court ruled a city law violated the center’s First Amendment rights.

The Greater Baltimore Center for Pregnancy Concerns sued the city and the case wound its way through the legal system for nearly a decade before the 4th U.S. Circuit Court of Appeals ruled in January.

The organization challenged the city after it passed a law in 2009 designed to require pregnancy clinics that don’t provide abortions to post signs in their waiting rooms to disclose that information. It was aimed at protecting women from what the city considered deceptive advertising.

The Center for Pregnancy Concerns argued the law violated its right to freedom of speech. The center, which calls itself a Christian ministry, helps pregnant women with counseling and support services but does not perform abortions or provide referrals to clinics that do.

The federal appeals court – one rung below the U.S. Supreme Court – sided with the pregnancy center.

“The city has considerable latitude in regulating public health and deceptive advertising,” Judge J. Harvie Wilkinson III wrote in the opinion. “But Baltimore’s chosen means here are too loose a fit with those ends, and in this case compel a politically and religiously motivated group to convey a message fundamentally at odds with its core beliefs and mission.”

Internet Speech Regulation

National Review: A Fairness Doctrine for the Internet?

By Kevin D. Williamson

Attorney General Jeff Sessions is convening a meeting of state attorneys general to consider whether Facebook, Google, Twitter, and other social-media companies are “intentionally stifling the free exchange of ideas.” The honorable gentleman from Alabama should stick to his brief.

Two quick questions asked and answered. One: Do these companies treat conservatives unfairly? Yes, they do. Two: Is that any business of the attorney general of the United States of America? No, it isn’t…

Republicans here are coming dangerously close to the Democrats’ game: abusing prosecutorial powers to bully their political opponents on issues such as climate change, under the transparent and risible pretense that they are investigating securities fraud or consumer-safety laws.

Earlier this year, I sat on a panel with Pete Wilson and a few other conservative activists. Wilson was part of Prager’s legal team. With me as the sole exception, the panel was unanimously in favor of regulating social-media companies in such a way as to keep them from disadvantaging conservative-leaning content. On what constitutional grounds? Somebody will think of one, I am sure. It was quite something to hear Republicans sounding like Elizabeth Warren on a trust-busting bender, but it is difficult to take seriously the proposition that what’s at work here is concern about monopoly power, Supreme Court precedents, or anything of the sort: This is about friends and enemies, and Republicans have decided that Silicon Valley is the enemy…

In the Prager suit, the “defendants are private entities who created their own video-sharing social media website and make decisions about whether and how to regulate content that has been uploaded on that website,” the judge wrote. “Numerous other courts have declined to treat similar private social media corporations, as well as online service providers, as state actors.”

New York Times: The Slippery Slope of Regulating Social Media

By Peter Suderman

“People do see us as a digital public square,” Jack Dorsey, Twitter’s chief executive, recently told members of Congress, “and that comes with certain expectations.” Speaking to senators on the same day, Facebook’s chief operating officer, Sheryl Sandberg, seemed to accept that some form of federal oversight was inevitable, saying, “We don’t think it’s a question of whether regulation, we think it’s a question of the right regulation.”

The embrace of regulation is no doubt strategic – an effort to ensure that Facebook can weather any new rules better than potential competitors. Yet even these social media behemoths now appear to view themselves as something like public utilities. The Trump administration, in turn, seems to share that view: Last week, the Justice Department proposed talks with state attorneys general about the practices of large tech platforms.

Given the unanticipated reach and influence of these companies, this view is perhaps understandable. But it is mistaken and even dangerous, because at its core it is a view that speech – the primary use for these platforms – is not an individual right, but a collective good that should be subject to political control.

Congress

Washington Post: Activists raised $1 million to defeat Susan Collins if she votes for Kavanaugh. She says it’s bribery.

By Eli Rosenberg

The unusual fundraising effort by Maine People’s Alliance, Mainers for Accountable Leadership and activist Ady Barkan on the platform Crowdpac had raised more than $1 million from 37,000 pledges as of Tuesday- a not insignificant amount for a political race in the small state. But amidst the attention it was receiving were signs that its efforts could be backfiring…

Adav Noti, a senior director at the nonpartisan Campaign Legal Center, which works on rules of ethics and finance in government, told The Post that he thought the listing was illegal, noting that bribery is a federal crime.

“I think they’re playing a game to avoid the literal application of the bribery statute,” he said. “They have structured the campaign in a way that the action they will do if she does what she wants is that they will refund the money but that seems to be a fictional distinction. It still seems like they’re saying if you don’t do what we want we will spend $1 million and that strikes me as just as much as an inducement as saying we’ll give you $1 million if you do what we want.”

Other organizations that work at the intersection of money politics disagreed.

“It seems kind of icky but it doesn’t rise to the level of bribery because there’s no agreement,” Jordan Libowitz, a spokesman for the Citizens for Ethics and Responsibilities. “It’s just the way money and politics tend to work these days.” …

Barkan questioned the way that elected officials fundraise and the effect it had on their votes.

“That’s corruption. That’s what’s wrong with American politics,” he said. “This crowd-sourcing campaign is about 35,000 Americans speaking up to demand a government that serves the public interest.”

Wall Street Journal: You Can’t Bribe Susan Collins

By Editorial Board

A crowdfunding website is trying to strong-arm Senator Susan Collins, the Republican from Maine, by giving more than $1 million to her 2020 opponent-unless she opposes Judge Kavanaugh. Donors are asked to make a financial pledge and then enter their credit-card information…

The fine print makes clear the quid pro quo: “Your card will only be charged if Senator Susan Collins votes for Kavanaugh’s confirmation to the Supreme Court.” To avoid the money bomb, all Ms. Collins must do is vote “no.”

It isn’t clear this is even legal. We’re all for citizens exercising their free-speech rights, including campaign donations, for or against political candidates. But federal law defines the crime of bribery as “corruptly” offering “anything of value” to a public official, including a Member of Congress, with the intent to “influence any official act.” The crowdfunders in this case are offering something of value-withholding funds from her opponent-in return for a Supreme Court confirmation vote.

“I have had three attorneys tell me that they think it is a clear violation of the federal law on bribery,” Ms. Collins says. “Actually, two told me that; one told me it’s extortion.” …

Another pressure tactic, one Ms. Collins says she finds “incredibly offensive,” is “the out-of-state voicemails being left on the answering machines of my state offices.” Many of the messages are profane. “In one case-and we are going to turn this over to the police, but unfortunately, of course, the person didn’t leave a name or number-but they actually threatened to rape one of my young female staffers.”

Trump Administration

New York Times: U.S. Is Said to Allow Sanctions on Foreigners Accused of Interfering in Elections

By Julian E. Barnes and Katie Benner

The Trump administration is preparing a new executive order to allow sanctions of foreign citizens suspected of interference in the American elections, officials who have reviewed the order said.

The new order is aimed broadly at any potential outside interference in American elections, but is meant to give the government an additional tool to punish, and deter, Russian entities suspected of trying to spread disinformation or otherwise influence the midterm and subsequent balloting…

The order could be signed as soon as Wednesday, although officials cautioned that the timing could shift because of the threat of Hurricane Florence or because of further White House review.

The order, a concise document of less than two full pages, would give the director of national intelligence, working with other agencies, the power to identify when foreign interference in an election had taken place, the officials said. The Treasury Department would be responsible for administering the sanctions against individuals and foreign entities. The Justice Department, the F.B.I. and intelligence agencies would be involved in investigating allegations of interference.

The Media

ThinkProgress: Facebook’s idea of ‘fact-checking’: Censoring ThinkProgress because conservative site told them to

By Ian Millhiser

There are serious consequences for publishing an article that one of Facebook’s third-party fact checkers decrees to be false.

As Facebook CEO Mark Zuckerberg recently wrote in the Washington Post, “we demote posts rated as false, which means they lose 80 percent of future traffic.”

When an article is labeled false under Facebook’s third-party fact-checking system, groups that share that article on Facebook receives a notification informing them that the article received a “False Rating” and that “pages and websites” that share that piece “will see their overall distribution and their ability to monetize and advertise removed.”

Facebook’s notification regarding our piece on Kavanaugh and Roe v. Wade effectively warned outlets not to share ThinkProgress content or risk censorship themselves. One group emailed ThinkProgress after receiving this notification to say they found it “threatening.” …

If Facebook continues its partnership with The Weekly Standard, the consequences could be quite severe for left-leaning outlets generally – or potentially for any other outlet which publishes a news article that The Weekly Standard disagrees with…

As a legal matter, Facebook is treading on very dangerous ground by providing no oversight of its own “fact checking” operation.

In its landmark decision in New York Times v. Sullivan, the Supreme Court held that an outlet can be liable for defamation if it publishes false information “with knowledge that it was false or with reckless disregard of whether it was false or not.”

By deferring to The Weekly Standard’s “expertise and process,” Facebook acted with reckless disregard of whether The Weekly Standard’s article was false or not.

Reason: ThinkProgress Accuses Facebook of Censorship After Conservative Factchecker Correctly Points Out an Error

By Robby Soave

Ian Millhiser, justice editor at ThinkProgress, is upset that The Weekly Standard-a right-of-center magazine whose editors have been granted the power to formally factcheck articles for Facebook-recently labelled one of his articles “false.”

But the claim made by the article’s headline-“Brett Kavanaugh said he would kill Roe v. Wade last week and almost no one noticed”-is at the very least quite misleading.

ThinkProgress is a left-of-center news site published by the Center for American Progress. Its writers have previously expressed concerns that Facebook would award an explicitly conservative media outlet factchecker status, a privilege enjoyed by just four other organizations: the Associated Press, Factcheck.org, Politifact, and Snopes.com. Articles tagged as false will lose “80 percent of future traffic,” according to Facebook CEO Mark Zuckerberg, and thus the stakes are indeed quite high for media organizations…

Millhiser appears to believe that (1) The Weekly Standard erred in labelling the article false, (2) Facebook erred in giving The Weekly Standard this power in the first place, and (3) by refusing to correct these errors, Facebook may have exposed itself to liability for defamation.

Claim #2 is a judgement call, and I can’t say whether it’s correct. Maybe giving ideological groups factchecking powers was not a good move for Facebook. I won’t tackle that topic here.

But claims 1 and 3 collapse if The Weekly Standard’s fact-checkers made the right call regarding the “false” article. (Actually, 3 strikes me as dubious, regardless. Defamation is a high bar to clear.) 

The States

ACLU: A Louisiana Mayor’s Ban of Nike Products Violates the First Amendment

By Alanah Odoms Hebert and Brian Hauss

On Sept. 5, Kenner Mayor E. “Ben” Zahn III issued a memorandum prohibiting private booster clubs operating at Kenner recreation facilities from buying or accepting delivery of any product with the company’s famous swoosh symbol. “Under no circumstances,” the memo reads, “will any Nike product or any product with the Nike logo be purchased for use or delivery at any City of Kenner Recreation Facility.” Under the new policy, the city’s director of parks and recreational must approve any athletic product or apparel before a booster club can purchase them.

On Wednesday, the ACLU and the ACLU of Louisiana sent a letter to Mayor Zahn informing him that his actions violate the First Amendment and advising him to rescind his policy immediately. We have taken this action because Zahn’s policy violates the First Amendment’s prohibition on content and viewpoint discrimination. It prevents booster clubs from purchasing Nike’s products based solely on the mayor’s opposition to Nike’s political expression.

How do we know this? Because Zahn said so himself.

After his policy caused a furor both locally and nationally, the mayor issued a follow-up statement on Sept. 11. According to Zahn, he implemented his Nike ban because the company, “in its zeal to sell shoes, chose to promote and sell a political message.” The mayor couldn’t be any clearer. His policy is directed at the political message communicated by Nike and those who wear Nike apparel.

Speak Your Mind

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