Daily Media Links 3/27

March 27, 2020   •  By Tiffany Donnelly   •  
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The Courts

Times Leader: Ruling clears pretrial hurdle in retaliation case filed by Wilkes-Barre police officers

By Jerry Lynott

The retaliation case filed by two Wilkes-Barre police officers cleared a pretrial hurdle this week with a federal judge’s ruling they were protected by the First Amendment when speaking out about alleged misconduct by their superiors.

In a memorandum issued Monday, U.S. District Judge Jennifer P. Wilson distinguished between the official law enforcement roles of Sgt. Phil Myers and Officer Dan Duffy that did not afford them free speech protections and their roles as citizens and leaders of the union representing the city police officers that did.

Wilson relied on previous rulings in reaching her own and said, “it is equally hard to imagine a situation where a public employee’s speech in his role as either the president or vice president of a union could be considered part of his official duties.”

Courthouse News: Ninth Circuit Tightens Focus of Abortion Foe’s Look at Lab Researcher Files

By Maria Dinzeo

Anti-abortion activist David Daleiden may see some unredacted public records on a group of employees and researchers affiliated with the University of Washington’s Birth Defects Research Center but the identities of five employees are protected from disclosure, the Ninth Circuit ruled…

On Wednesday, the panel issued their unanimous decision… In a partial reversal of their earlier opinion, the judges found three of the Doe plaintiffs who advocated for reproductive rights were engaged in protected First Amendment activity, along with two other plaintiffs who performed fetal tissue research.

But the panel held fast to its earlier finding that three other employees are not entitled to the same protections as their colleagues…

The university employees’ lawyer Vanessa Power was unavailable for comment, but her co-counsel Kim Clark [viewed the ruling a victory].

Clark said the panel didn’t question whether the Doe plaintiffs might be subjected to threats or violence as a result of their information being disclosed.

“The court also agreed that those who either took part in or were associated with advocacy for reproductive rights were protected,” Clark said. 

Congress

Wall Street Journal: Nancy Pelosi’s Lobbying Ban in Stimulus Package Quickly Nixed by K Street and Senate

By Gabriel T. Rubin

Nancy Pelosi tried to ban lobbying by firms that receive funds as part of the coronavirus stimulus package, but the provision tucked into page 728 of House Democrats’ draft proposal quickly caught the eye of lobbyists who were assured by Hill contacts that the provision had no chance of being included in the final legislation hammered out by the Senate. “The corporation may not carry out any Federal lobbying activities,” the House draft said.

It was one of several conditions on federal aid to corporations in Pelosi’s bill…

Some legal experts saw the lobbying provision as a Democratic messaging effort that wouldn’t have survived legal scrutiny. “It’s highly likely to be struck down as unconstitutional under the ‘unconstitutional conditions’ doctrine,” because it violates corporations’ First Amendment rights to petition the government, said Robert Kelner, a partner at Covington & Burling who advises companies on lobbying-disclosure rules.

Military Times: Industry dodges restrictive House measures in Senate’s bailout bill

By Aaron Mehta

The $2 trillion economic stimulus package passed by the Senate late Wednesday includes provisions limiting stock dividends for companies that accept governmental loans – but avoids the [lobbying ban] that was included in the House version of the legislation…

Byron Callan, an analyst with Capital Alpha Partners, acknowledged that any company under the lobbying ban may be at a disadvantage when competing for major defense dollars…but noted that “companies are creative enough to find ways to get their messages across.”

As an example, he suggested companies could have their workforce bombard the local representatives with phone calls. That would still get messaging to those who need it, but in a more chaotic method that could make life somewhat miserable for congressional staff, Callan said.
“There is a weird efficiency,” he noted, “to having lobbyists do some of this work.”…

[O]ne senior defense industry lobbyist, speaking on condition of anonymity, called the attempted ban on lobbying “clearly unconstitutional,” adding: “It’s ironic that the very people that Congress reaches out to when they need expertise or information are the ones they want to throw overboard when it’s politically expedient.”

 First Amendment

Cato: Speech in a Time of War

By John Samples

The prominent legal scholar Geoffrey Stone reminds us that war is a perilous time for freedom of speech. The struggle with COVID-19 seems like a war. Some have evoked executive authorities created for, and justified by, wartime exigency. Unity will be needed to defeat this “invisible enemy.” How is free speech doing in this difficult time?

Speech may be restricted by public or private authorities. Public officials have strong incentives to censor or restrict speech perhaps especially during a crisis; hence, the First Amendment limits their powers over “the freedom of speech.” Content moderators also may restrict speech. Their powers in this regard are limited largely by their own commitments to free speech and consumer choices.

Some saber rattling by local police departments aside, the government has done little to limit dissent or a diversity of views. Yesterday, the Democratic leadership proposed a stimulus bill that imposed additional disclosures and banned lobbying by companies receiving aid. This proposal has little chance of becoming law, though it bears watching.

Independent Groups

The Fulcrum: New coalition will push democracy reforms targeted to center and right

Six of the most influential democracy reform groups are at the core of a new coalition, dubbed Fix the System, with the goal of putting more conservative and corporate muscle behind a cause that’s generally dominated by progressives…

Fix the System says a top priority will be recruiting business leaders and trade associations to advocate for proposals it views as capable of winning over Republicans as well as Democrats and independents: efforts to end partisan gerrymandering, improve civic education, combat foreign election interference, modernize election systems, bolster government oversight and ethics, reduce dysfunction in Congress, and increase campaign finance transparency…

These are the eight charter members of the group, which have overlapping but not entirely aligned priorities on their own: …

The Intercept: Time’s Up Said It Could Not Fund a #MeToo Allegation Against Joe Biden, Citing Its Nonprofit Status and His Presidential Run

By Ryan Grim

The Time’s Up Legal Defense Fund was the recipient of an outpouring of donations over the past two-plus years, and is set up as a 501(c)3 nonprofit housed within the National Women’s Law Center…

By February, she learned from a new conversation with Time’s Up, which also involved Director Sharyn Tejani, that no assistance could be provided because the person she was accusing, Biden, was a candidate for federal office, and assisting a case against him could jeopardize the organization’s nonprofit status…

When reached for comment by The Intercept, Driscoll referred questions to a NWLC spokesperson, Maria Patrick, who said that the organization has legal constraints. “As a nonprofit 501(c)(3) charitable organization, the National Women’s Law Center is restricted in how it can spend its funds, including restrictions that pertain to candidates running for election,” Patrick responded…

Ruling out federal candidates marks as off-limits any member of Congress running for reelection, as well as President Donald Trump. Ellen Aprill, a professor of tax law at Loyola Law School in Los Angeles, said that Time’s Up’s analysis is too conservative, and the group wouldn’t be putting its tax-exempt status at risk by taking a case involving a candidate for federal office as long as it followed its standard criteria for taking on cases. “As a legal matter, if the group is clear regarding the criteria used as to whom it is taking to court, show that these are long-established neutral criteria, and they are being applied to individuals completely independent of their running for office, it would not be a violation of tax law. Groups are allowed to continue to do what they have always done,” she said.

Online Speech Platforms

Lawfare: COVID-19 and Social Media Content Moderation

By Evelyn Douek

The coronavirus pandemic has forced people around the world to reexamine many things that are usually taken for granted. On that list is social media content moderation-the practice of social media platforms making and enforcing the rules about what content is or is not allowed on their services…

Facebook, Google, LinkedIn, Microsoft, Reddit, Twitter and YouTube also released a brief “joint industry statement” saying that they are working closely together on their response efforts and “jointly combating fraud and misinformation about the virus, elevating authoritative content on our platforms, and sharing critical updates in coordination with government healthcare agencies around the world.” They invited other companies to join them.

Misinformation will find a way, though. Even as platforms crack down, a great deal of false information remains online-and there has been a surge in false claims traveling by texts and even by the old-school telephone. But after years of disavowing their role as “arbiters of truth,” platforms are embracing it-in this limited realm, at least…

Indeed, the more common question in recent weeks has been why platforms struggle so much to take down political misinformation if they are so capable of moderating content during a pandemic. That is, the desire is for more content moderation, not less.

Candidates and Campaigns

Washington Examiner: Michael Bloomberg is breaking campaign finance law before your very eyes

By Dan Backer

Instead of running his own super PAC, [former New York city mayor Michael] Bloomberg recently decided to transfer $18 million in remaining funds from his defunct presidential campaign to the Democratic National Committee. Just one problem: This $18 million gift is illegal.

It is a bedrock principle of law that you cannot do through another what you cannot do yourself. And Bloomberg is violating that principle by seeking to take advantage of a supposed loophole in the law, which doesn’t actually exist, to blow away contribution limits.

Bloomberg contributed nearly $1 billion of his personal funds to his presidential campaign committee, without raising a single dollar from private contributors. He is entitled to waste as much of his own money on his own candidacy as he likes, as long as it’s all reported to the Federal Election Commission. However, after failing to buy the votes he needed, Bloomberg now plans to take advantage of an FEC rule that allows campaigns to contribute unlimited money to national and state parties. But every dime of it comes from Bloomberg’s personal bank account, and it is illegal for one person to contribute such large sums to a political party.

Slate: Trump Is Now Openly Trying to Censor His Critics. He May Succeed.

By Mark Joseph Stern

Over the course of his presidency, Donald Trump has made thousands of false, offensive, and damaging claims that could hurt his reelection odds. Democrats plan to use these statements as campaign fodder through the November election. On Wednesday, the Trump campaign adopted a new tactic to neutralize these attacks: It threatened to sue critics of the president in a brazen effort to censor Trump’s opponents into silence. Any real legal action is unlikely to hold up against the First Amendment. But Trump doesn’t need to succeed in court in order to win.

This threat came in the form of a cease and desist letter sent to television broadcast stations across the country. The letter orders these networks to stop airing an ad created by Priorities USA, a Democratic Super PAC…

[T]he Priorities USA ad is obviously core political speech, fully protected by the First Amendment. Trump’s campaign suggests that it may seek to punish networks that air the ad in two ways: suing for defamation and urging the Federal Communications Commission to revoke their license. Although both approaches are deeply troubling assaults on free expression, and may chill constitutionally protected expression, neither is likely to succeed.

Washington Post: Insiders recount how Sanders lost the black vote – and the nomination slipped away

By Sean Sullivan

A resurgent Joe Biden thumped Sanders by 28 points in the South Carolina primary, sending the Vermont senator into a free fall from which he has not recovered.

The loss underlined one of the fundamental failings of the Sanders campaign: He was unable to win the trust of African American voters…

In November, the [Sanders] campaign parted ways with then-state director Kwadjo Campbell…

Just before he departed, Campbell sent an explosive memo [to campaign leadership] excoriating their decisions…

He accused the campaign brass of preventing him from partnering with local African American candidates and of interfering with personnel moves.

[Nina Turner, a national co-chair of the Sanders campaign] said that some of what Campbell suggested wasn’t even legal. “Some of the partnerships that he proposed did not comport with campaign finance laws,” she said, adding that many of his other ideas were “carried forward.” Campbell initially declined to comment. After publication of this story, he said it was “not illegal to have our volunteers team up” with volunteers from local campaigns.

Washington Post: What if we had an election without a campaign?

By Paul Waldman

[W]ith the election a little over seven months away, we aren’t sure if there will be any canvassing, or rallies, or even party conventions. There may barely be a campaign at all, at least as we’ve come to understand it.

And you know what? Maybe that’s fine…

[T]here’s a truth we don’t often acknowledge: All that time and energy and money campaigns spend is only because a small number of people either aren’t smart enough or don’t care enough to distinguish between two parties and candidates with drastically different ideas about what we as a country should do next.

If you’re reading this, you’re not among them, and the campaign couldn’t possibly affect you. No ominous 30-second ad, no inspiring speech, no candidate gaffe, no clever stratagem will switch your vote from Republican to Democrat or vice versa. You already know who you’re going to vote for in November, and your mind isn’t going to be changed.

The States

Reason (Volokh Conspiracy): N.H. Court Rejects Challenge to Ban on Gatherings of 50 or More People

By Eugene Volokh

This came in yesterday’s Binford v. Sununu, written by state court Judge John C. Kissinger. First, the court concluded (correctly, I think) that the Governor had the statutory authority to impose the restriction [on gatherings of 50 or more people].

It then turned to the freedom of assembly challenge, and again I agree with its analysis…

I think the order is indeed content-neutral, but I think it doesn’t leaves open “ample alternative channels” for expression (the general First Amendment requirement for upholding something as a time, place, and manner restriction). If, for instance, a total ban on large gatherings were enacted during normal times-for instance, a total ban on gatherings of more than 50 people in any park, to prevent wear and tear on parks, litter, and the like-it would be seen as not leaving open ample alternative channels: other channels would be more expensive, or wouldn’t reach the same audience, or wouldn’t convey the same message. (See City of Ladue v. Gilleo (1994).)

Rather, because the order doesn’t leave open ample alternative channels, it greatly burdens assembly and speech, and thus can’t be defended as a mere time, place, and manner restriction, even though it’s content-neutral. Rather, it must be judged under strict scrutiny-not because it’s content-based, but because it’s so broad and burdensome.

Voice of OC: Appellate Court Blocks Publishing Gag Against Fullerton Bloggers

By Spencer Custodio

The Fourth District Court of Appeal blocked a publishing gag Thursday against a Fullerton blog and two of its bloggers, for the second time since the city has been trying to silence the blog for publishing secret city hall documents.

Fullerton residents Joshua Ferguson and David Curlee were initially barred from publishing any more documents on the blog Friends for Fullerton’s Future at a March 13 OC Superior Court hearing…

The blog caught the city’s attention last June when it began posting documents from an internal police department investigation detailing how former City Manager Joe Felz got a ride home from Fullerton police officers after drinking and wrecking his car election night 2016. 

Asbury Park Press: Belmar mayor, three council members repay questioned campaign gifts after dispute

By Ken Serrano

The mayor and three council members have returned campaign contributions after a resident questioned whether the gifts violated the borough’s “pay-to-play” ordinance that seeks to limit the role of money in politics.

Borough attorney Jerry Dasti said it was debatable whether the officials violated the pay-to-play ordinance, but they returned the money anyway. An expert on pay-to-play laws said the elected officials’ actions were a clear breach of the ordinance.

Tiffany Donnelly

Tiffany Donnelly