Ed. note: The Media Update will be on vacation Thursday, November 26 and Friday, November 27. Happy Thanksgiving!
The Institute for Free Speech anticipates the need for a highly experienced attorney to direct our litigation and legal advocacy. In September, President Trump announced the nomination of our longtime Legal Director to the Federal Election Commission. In late October, the President nominated two others to fill the remaining vacancies on the Commission, and a confirmation hearing was held in mid-November. After the Committee acts to approve the nominations, which may occur in early December, the Institute for Free Speech will move forward with interviewing applicants.
This is a rare opportunity to develop and implement a long-term legal strategy directed toward the protection of Constitutional rights. You would work to create legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, that threaten citizens’ privacy if they speak or join groups, and that impose heavy burdens on organized political activity.
The Legal Director will direct our litigation and legal advocacy, lead our in-house legal team, and manage and expand our network of volunteer attorneys.
A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country.
[You can learn more about this role and apply for the position here.]
By Jennifer Elias
Several Senate Democrats wrote a letter to YouTube CEO Susan Wojcicki on Monday evening, saying they were concerned about election misinformation on its platform and demanding that it be removed.
Sens. Amy Klobuchar of Minnesota, Gary Peters of Michigan, Mazie Hirono of Hawaii and Robert Menendez of New Jersey wrote the letter, asking the company if it will commit to removing content containing false or misleading information.
The letter outlines the risk of misinformation ahead of two Jan. 5 Senate runoff races in Georgia that will determine which party controls the U.S. Senate. It says YouTube must “take responsibility” and “immediately stop the spread of misinformation.”
By Rebecca Klar
Democratic senators on Tuesday pressed Facebook and Twitter over measures the social media giants are taking to combat election misinformation ahead of the Georgia Senate runoffs that will decide party control of the upper chamber.
Sen. Richard Blumenthal (D-Conn.) led four of his colleagues in a letter requesting detailed information as to how the tech giants plan to fight misinformation, especially in Spanish, on their platforms ahead of the Jan. 5 runoff.
By John Hendel
Federal Communications Commission nominee Nathan Simington reached out to Fox News this summer in an attempt at “engaging” host Laura Ingraham to support President Donald Trump’s quest to make it easier to sue social media companies like Facebook and Twitter, according to emails obtained by POLITICO.
Simington, a senior adviser in a key Commerce Department tech agency, wrote that the popular Fox News host could help sway the FCC to act on Trump’s proposal before Election Day…
“Any additional support we might be able to obtain could help to get the FCC on board more quickly and thereby ensure a freer, fairer social media landscape going into the elections this fall,” Simington wrote in a June 22 email to a Fox News staffer. “This is of concern both to the presidency and also down-ballot, and given the emerging role of social media as a replacement for mass media, our democracy will be weakened if we cannot respond to this issue quickly and effectively.”
Simington…wrote the email months before Trump nominated him…
Sen. Richard Blumenthal argued during the Commerce Committee hearing that Simington’s work at the department requires him to recuse. The senator has threatened to block Simington, although a unified Republican caucus could still force his nomination through in a floor vote.
Blumenthal said Monday that the email to Fox adds to his concerns.
“This email shows that Mr. Simington was an active and eager soldier in President Trump’s attempted assault on the First Amendment,” Blumenthal said in a statement to POLITICO.
By Alex Abdo, Jameel Jaffer, Meenakshi Krishnan, and Ramya Krishnan
U.S. intelligence agencies prohibit their former employees from writing or speaking about their government service without first obtaining government approval… Submission requirements and review standards are vague, confusing, and overbroad. In the absence of concrete deadlines, manuscript review frequently takes weeks or even months, which means that books, articles, and blog posts cleared for publication are published long after the debates they seek to engage have subsided. Agencies’ censorial decisions are often arbitrary, unexplained, unrelated to national security concerns, or influenced by authors’ viewpoints…
Most significantly, the system impoverishes public discourse about foreign policy, national security, and war. Former intelligence agency employees often have unique insight into the operations and policies of the agencies for which they worked. Because their manuscripts draw on their personal knowledge and experience of government, their voices are not fungible or replaceable. The prepublication review system, at least in its current form, deprives the public of information and insight that is important to its ability to understand government policy, advocate for change, and hold government officials accountable for their decisions…
The new administration, and the new Congress, should act more decisively to reform this broken system.
The most prolific activism demanding more Silicon Valley censorship is found in the nation’s largest news outlets: the media reporters of CNN, the “disinformation” unit of NBC News, and especially the tech reporters of The New York Times…
Due in part to a self-interested desire to re-establish their monopoly on discourse by crushing any independent or dissenting voices, and in part by a censorious and arrogant mindset which convinces them that only those of their worldview and pedigree have a right to be heard, they largely devote themselves to complaining that Facebook, Google and Twitter are not suppressing enough speech…
In Tuesday’s New York Times, three of those censorious tech reporters…published an article on Facebook’s post-election deliberations over how to alter its algorithms to prevent the spread of what they deem “misinformation” regarding the election. The most consequential change they implemented, The New York Times explained, was one in which “hyperpartisan pages” are repressed in favor of promoting “a spike in visibility for big, mainstream publishers like CNN, The New York Times and NPR” – a change the Paper of Record heralded as having fostered “a calmer, less divisive Facebook.”
More alarmingly, the NYT suggested (i.e., prayed) that these changes, designed by Facebook as an election-related emergency measure, would instead become permanent…
In the 2020 election, over 70 million Americans – close to half of the voting population – voted for Donald Trump, yet not one of them is employed by the op-ed page of the “non-partisan” New York Times and are almost never heard on NPR or CNN. That’s because those news outlets, by design, are pro-Democratic-Party organs, who speak overwhelmingly to Democratic readers and viewers.
Online Speech Platforms
By Issie Lapowsky
Facebook and Google are still banning political ads on their platforms, but that hasn’t stopped Republican super PACs from spending millions of dollars on other platforms, including Hulu, to reelect Sens. Kelly Loeffler and David Perdue. The only difference: On those platforms, there’s no way of knowing what the ads say.
After the 2016 election, Facebook and Google created imperfect but extensive databases of every political ad that runs on their sites, complete with information on who’s running them and how much they’re spending. But these measures are entirely self-imposed and haven’t been adopted by the majority of companies, including large streaming platforms. When Facebook and Google decided to prohibit all political ads after the U.S. election – and then decided to extend that ban, likely through the end of the year – they more or less pushed all digital ad spending for the Georgia runoffs onto platforms that offer no transparency at all.
“We’re not going to know what the content of these ads are,” said Brendan Fischer, director of federal reform at the Campaign Legal Center. “It’ll be much harder in the Georgia senate race to identify what digital messages these super PACs are disseminating to voters and make it harder to correct the record if misinformation is distributed.”
By Nicolas Vega
Twitter is doubling down on stopping the spread of misinformation following the US Presidential election, adding even more hurdles to stop misleading tweets from going viral.
The social network said Tuesday that it would begin taking users who attempt to hit the like button on a flagged tweet to a screen informing them that the contents of the tweet are disputed.
The expanded restrictions come after Twitter reported that its previous decision to add “friction” to the retweet process led to a 29 percent decrease in the spread of misleading information.
The change will be applied to a tweet labeled as “misleading under [Twitter’s] election, COVID-19, and synthetic and manipulated media rules.” …
The new measures arrive a week after CEO Jack Dorsey conceded that his company made “a mistake” in locking The Post’s Twitter account and restricting the spread of its reporting on Hunter Biden’s overseas business dealings.
By Bobby Allyn
Now that the coronavirus pandemic has transformed Zoom from a corporate videoconferencing app into a ubiquitous tool for governments, schools, karaoke parties and even “Zoomsgiving” celebrations, the company is having to do the dicey work of deciding what is permitted on its platform.
And not everybody is allowed on it.
Zoom’s rules say users cannot break the law, promote violence, be obscene, display nudity or support terrorism. The terms of service largely mirror those of larger tech companies like Facebook, Twitter and Google’s YouTube.
And just as social media companies draw critics’ ire when they flag a post or ban a user, Zoom is now being accused of censorship after refusing to host a speech by a controversial Palestinian activist. The episode is raising questions among technology experts about whether and how Zoom sessions should be regulated.
By Bryan Bender and Theodoric Meyer
The firm [WestExec Advisors], which now looks like a government-in-waiting for the next administration, was founded in 2017 by Tony Blinken, President-elect Joe Biden’s choice for Secretary of State, and Michèle Flournoy, a top contender for Secretary of Defense. And one of its former principals, Avril Haines, is Biden’s pick for Director of National Intelligence.
But little is known about WestExec’s client list. Because its staffers aren’t lobbyists, they are not required to disclose who they work for. They also aren’t bound by the Biden transition’s restrictions on hiring people who have lobbied in the past year.
Such high-powered Washington consulting firms are “the unintended consequence” of greater disclosure requirements for registered lobbyists, said Mandy Smithberger, director of the Center for Defense Information at the Project on Government Oversight.
By not directly advocating for federal dollars on behalf of their clients, they don’t have to publicly divulge who is paying them and for what activities, such as the connections they make with government agencies, she said. But it is also impossible to assess the influence they have on federal expenditures.
“They avoid becoming registered lobbyists or foreign agents and are instead becoming strategic consultants,” she said.
Candidates and Campaigns
Washington Post: Money didn’t buy love in the 2020 election
By Charles Lane
If money could buy public office as straightforwardly as many believe, we’d be talking about senators-elect Amy McGrath (whose campaign cost $73 million), Jaime Harrison ($104 million), Cal Cunningham ($45.9 million), Steve Bullock ($38.6 million), Sara Gideon ($47.9 million) and a reelected Doug Jones ($24 million). Each one of them lost to a Republican who spent less.
As suggested by the GOP’s retention of at least 50 votes in the Senate, despite massive Democratic spending, cash wastage this year occurred disproportionately on the blue side of the ledger. As of mid-October, Democrats and affiliated groups had spent $6.9 billion, compared with $3.8 billion for the Republican side. Democrats barely hung on to their House majority, losing at least 10 and possibly up to 13 seats to the GOP; the well-funded Democratic bid to tilt state legislatures also struck out…
[C]ampaign-finance reformers should learn from the 2020 experience: If cash is not the decisive factor in elections, then there are limits to how much it can corrupt them.
A certain amount of money assures political competitiveness; beyond that, however, funds may simply line the pockets of consultants and media companies, or even turn counterproductive.
Foreign Policy: Polling Has a 98 Percent Chance of Being Bad for You
By Alan Levinovitz
[O]n the eve of the 2017 French presidential election, French citizens had to look internationally for their fix of data. A 32-hour legally enforced blanket of silence around the election fell over the country at midnight, just as it has since 1977 when the law was first passed. No campaigning, no statements from campaigns, and, perhaps strangest of all, no polling or publication of polls, on pain of a 75,000-euro fine…
A stricter weeklong blackout was scaled back in 2002 over free speech concerns. And yet the law endures, alongside similar laws in a host of other countries, among them Italy, Spain, Portugal, Taiwan, and Peru. In Honduras the embargo on polls lasts a whopping 45 days. Common to all the laws is the original motivation for the French law: concern about the effects of exposing the electorate to polling data…
At FiveThirtyEight, the popular polling aggregator, Maggie Koerth makes the case that access to information is a crucial right, regardless of its potential influence. “Polls may well have changed the outcome of an election in France,” she concedes of the 2002 French presidential primaries, when an extreme far-right candidate shocked the nation with a surprise win. “But that was a choice the voters had the right to make.” …
Election silence legislation is not the best way [to create an environment conducive to good decision-making] in the United States. General prohibitions can easily backfire as they did in France, ceding the dynamics of political discussion to social media algorithms. Banning legitimate polls in the media will almost certainly create a vacuum filled by illegitimate polls distributed online.
Pennsylvania Capital-Star: How state political parties helped big money pay for this year’s elections
By Daniel Newhauser
State parties played an unprecedented role in financing the presidential election this year, making it possible for the national political parties to raise eye-popping sums from individual donors – and keep more money than they might otherwise be allowed.
That’s all thanks to a 2014 Supreme Court decision that eliminated the overall limit on how much money an individual can donate over a two-year period to national political parties, federal candidates and state parties’ federal accounts combined. The limit had been in place since the Watergate era…
During the 2016 presidential election, Republicans and Democrats tested this new world of campaign finance created by the Supreme Court decision in McCutcheon v. Federal Election Commission.
But in 2020, they appear to have perfected the scheme, which critics have called essentially a Supreme Court-sanctioned money laundering operation.
Michael Beckel, the research director at the nonpartisan election finance group Issue One, said the flow of money following the Supreme Court decision has been a troubling trend that begs for tighter enforcement.
He said lawyers arguing to erase the hard money limit in 2012 told the Supreme Court that doing so would empower state parties. But what’s really happened is national parties have centralized control over where that money goes.
“These systems were not designed to be a way to launder money through the state parties back to the national committee,” Beckel said. “I think a lot of questions can be raised about situations where the money appears to be going straight through the national party to the state parties, then back to the national party.”
By Ana Ceballos and Samantha J. Gross
The mysterious company behind a half-million dollar contribution backing no-party candidates in three key state Senate races has attracted legal questions about its adherence to Florida law for campaign financing.
The company, Proclivity, is registered in Delaware, a state known for its corporate laws, according to the company’s registered agent. It is registered as a 501(c)(4), a status that allows it to engage in a restricted level of political activity and does not require it to disclose donors.
Its corporate status and $550,000 contributions to two political committees raise questions as to whether it should be registered as a political committee in Florida, said Mark Herron, a Tallahassee-based attorney who specializes in ethics and election laws…
“The corporation appears it was set up to shield donors in this race. The public doesn’t know who the donor is because the donor is a corporation, and the corporation is a straw man,” said Leonard Collins, a Tallahassee-based attorney and U.S. Sen. Marco Rubio’s former general counsel.
Pittsburgh Post-Gazette: Pittsburgh looks to tighten campaign finance reports for PACs, independent expenditures
By Ashley Murray
Pittsburgh’s Ethics Hearing Board wants to track so-called “dark money” in local political campaigns.
A bill before City Council would allow the board to do that by requiring tighter reporting rules for political action committees and allowing further tracking of funds that back direct political mailers and ads.
The board is trying to get ahead of a “national trend” of money being poured into local races by organizations about which voters can find little information, according to Leann Davis, the board’s executive manager, who cited examples of misleading mailers in Montana and Ohio.
“We’re just really seeking to make sure we can obtain transparency and disclosures from all money that’s being spent in local elections for candidate campaigns as well as ballot initiatives,” Ms. Davis told council Monday.