Daily Media Links 1/31

January 31, 2020   •  By Tiffany Donnelly   •  
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In the News

Bleeding Heartland: Iowa GOP Senator seeks ban on political party spending in local elections

By Laura Belin

Following disappointing local election results for Republicans in many parts of Iowa, GOP State Senator Zach Nunn has introduced legislation to forbid political parties or partisan committees from spending money to influence nonpartisan elections…

Nunn introduced Senate File 2078 last week…

Can the government ban political organizations from spending money to support candidates for local office?

[According to] David Keating, president of the Washington-based Institute for Free Speech: 

It’s censorship, which is both a bad idea and unconstitutional. 

The U.S. Supreme Court has ruled many times that government can’t limit independent speech- such limits violate our rights to free speech and a free press. 

The courts have allowed limits on contributions and coordinated expenditures. But contribution bans have only been rarely permitted, such as those allowed on foreigners and government contractors. That’s not the case here- the bill would ban contributions by parties and political committees. 

If the senator doesn’t like the speech he heard at the last election, the solution is not a ban on speech or candidate contributions. The best way to counter speech you don’t like is to speak and publish your point of view. 

Capital Research Center (Podcast): Episode 107: Citizens United 10 Years Later

Featuring Michael Watson and Scott Blackburn

Ten years ago this month, the Supreme Court handed down a controversial decision with bearing on influence and politics: Citizens United v. FEC. As liberal activists push ever harder to “overturn” the decision, I’m joined this week by Scott Blackburn, Research Director of the Institute For Free Speech, who recently authored a brief “Citizens United After 10 Years: More Speech, Better Democracy” laying out the case that far from “destroying democracy,” the Supreme Court’s holding expanded political competition.

Supreme Court

Law 360: Odd Alliances Back Del.’s Bid To Restore Bench Balance Rule

By Jeff Montgomery

An eclectic alliance has sided with Delaware in its bid for a U.S. Supreme Court reversal of a ruling striking down the state’s constitutional requirement for judicial balance between the two major political parties, arguing it could permanently damage a nonpartisan system that helped make the state a beacon of legal balance.

More than a dozen amicus curiae briefs emerged by the end of Wednesday in Gov. John C. Carney v. James R. Adams, with the scale tipping heavily toward overturning the Third Circuit ruling last year that struck down Delaware’s state constitutional provision that in practice allows only Democratic or Republican candidates for the state’s Supreme, Chancery and Superior Courts…

The Third Circuit’s February 2019 finding was a win for politically independent state Justice Department attorney James R. Adams, who said the rule denied him a judgeship. But it was viewed as a major blow by the administration of Democratic Gov. John Carney, the state bar association and others who argued that, among other points, the First Amendment rights cannot fully trump a state’s interest in avoiding single-party entrenchment on its courts…

Joel E. Friedlander of Friedlander & Gorris LLP, the author of an Arizona Law Review article said to have inspired Adams to challenge Delaware’s judgeship limitation, termed the state’s party balance provision “unique in American law” in categorically disqualifying independents and members of minor parties from serving on the big three state courts…

“The major party provision is uniquely infirm under the First Amendment,” Friedlander wrote. “Petitioner does not cite an equivalent major party provision respecting any other governmental body or judiciary in the United States.”

The Courts

Reason (The Volokh Conspiracy): More Fifth Circuit Opinions in Doe v. Mckesson, the Baton Rouge Black Lives Matter Protest Case

By Eugene Volokh

Tuesday, the Fifth Circuit denied rehearing en banc in Doe v. Mckesson, the tort case stemming from a Black Lives Matter protest, but with three interesting separate opinions. (The en banc vote was as close as it could be-an 8-8 tie, which goes against the petitioner.) First, Judge James Ho’s concurrence, which I think is quite right:

[A.] …[The professional rescuer] doctrine would seem to require immediate dismissal of this suit…

None of the panel opinions in this case addressed the professional rescuer doctrine, however-presumably because Mckesson never raised it. I imagine that, if given the chance on remand, he will invoke the doctrine at last, and that the district court will terminate this suit (again) accordingly…

[B.] Because Mckesson has thus far neglected to invoke the professional rescuer doctrine, the panel confronted novel and interesting First Amendment issues that are arguably worthy of rehearing en banc…

[C.] Citizens may protest. But by protesting, the citizen does not suddenly gain immunity to violate traffic rules or other laws that the rest of us are required to follow…

Judge James Dennis, joined by Judge James Graves, dissented…

Judge Stephen Higginson, joined by Judge Dennis, also dissented…

New York Times: Facebook to Pay $550 Million to Settle Facial Recognition Suit

By Natasha Singer and Mike Isaac

Facebook said on Wednesday that it had agreed to pay $550 million to settle a class-action lawsuit over its use of facial recognition technology in Illinois, giving privacy groups a major victory that again raised questions about the social network’s data-mining practices…

Under the agreement, Facebook will pay $550 million to eligible Illinois users and for the plaintiffs’ legal fees…

Jay Edelson, a lawyer whose firm represented Facebook users in the facial recognition suit, said the settlement underscored the importance of strong privacy legislation.

“From people who are passionate about gun rights to those who care about women’s reproductive issues, the right to participate in society anonymously is something that we cannot afford to lose,” Mr. Edelson said.

New York Times: Does an Iowa Campus’s Chalk Ban Tread on Free Speech?

By Anemona Hartocollis

Iowa State instituted its anti-chalking rule in November, under pressure from student groups who complained that bigoted and hateful messages were appearing in chalk on campus, sometimes alongside political slogans.
A fledgling civil liberties group, Speech First, sued the university this month, arguing that the new policy violated the First Amendment. The federal lawsuit also challenges a policy barring students from using university email accounts for mass political mailings…

“Countering bad ideas is the best way to promote good ideas,” said Ben Whittington, 22, a political science major from Chicago who was lining up recruits for Senator Bernie Sanders one afternoon this month. “I don’t think a few bad apples can remove a tool students use to promote themselves politically.”
In a statement, Iowa State’s president, Wendy Wintersteen, said that the university had to balance its commitment to free speech with its obligation to protect students from “illegal discrimination and harassment.” 

Free Expression

Wall Street Journal: The Heckler’s Veto at Georgetown Law

By The Editorial Board

Georgetown Law students shamed the university last semester when they exercised a heckler’s veto against a Trump Administration official. Now they’re claiming that disciplining those who disrupted the event “would have a chilling effect on free speech and expression across campus.” …

[T]he law school has convened an advisory committee to consider, among other things, the “response to disruptive protests during an event, and follow-up disciplinary or other administrative actions,” the school said in a statement.

Georgetown University Law Center Dean William Treanor also asked the committee to consider whether there should be “any constraints on which outside speakers may be invited to speak on the Law Center campus” …

Georgetown Law students are now offended by even the suggestion that discipline may follow disruption. “This is our school,” says a petition circulating on campus this week. “All members of our law school community have the right to protest speakers and events on campus-including in ways that the administration does not like and in ways that the university does not pre-authorize.” The students insist that “punishments or threats of punishments for students, staff, and faculty who protest run contrary to the values of free expression, thought, and inquiry.”

George Orwell, call your office. Georgetown’s students are demanding that administrators guarantee that their heckler’s veto will be unconditionally tolerated.

PACs

McClatchy: Jason Kander’s voting rights group to merge with anti-Citizens United PAC

By Alex Roarty

Two influential Democratic-aligned outside groups will officially merge Friday, forming what will likely be one of the party’s best-funded organizations focused on campaign finance reform and voting rights.

The groups, End Citizens United and Let America Vote, have already begun to combine staff ahead of filing paperwork with the Federal Election Commission to create a joint PAC, officials with both groups told McClatchy.

As part of the merger, LVA’s founder Jason Kander, a former Missouri Secretary of State and Senate Democratic nominee, will no longer hold a formal role with the group, though he says he hopes to remain involved in some capacity later this year. ECU, led by President Tiffany Muller, will take control of Let America Vote’s operations…

The newly combined group will retain both names – “End Citizens United and Let America Vote” – and continue to work on both sets of issues…

Officials with the newly formed group say after the merger, they plan to increase operations in three states – Arizona, North Carolina, and New Hampshire – to back endorsed candidates there. Each state is expected to host competitive presidential, Senate and House races in 2020.

Section 230

Center for Democracy & Technology: Privacy, Free Expression, and Security Threatened by Graham Proposal

By Emma Llansó

There’s a proposal percolating on Capitol Hill that would radically empower the Attorney General to dictate standards for speech regulation and content moderation-and that would likely prevent online services from providing secure, end-to-end encrypted communications. This bill, the Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act, is being developed by the chairman of the Senate Judiciary Committee Senator Lindsey Graham (R-SC), reportedly with potential support from Senator Richard Blumenthal (D-CT). The bipartisan nature of the proposal and the support of the chairman make this a serious threat to free expression and privacy. (The bill has not been formally introduced, but a copy of it obtained by Bloomberg is available here.) …

Preventing the exploitation of children is an unquestionably important aim. However…Section 230 has never prevented the Attorney General from bringing any federal criminal charges against intermediaries, including those who violate the federal law prohibiting the knowing distribution of CSAM. Further, intermediaries are already required by federal law, 18 U.S.C. § 2258A, to provide reports of apparent CSAM to the National Center for Missing and Exploited Children (NCMEC) when they find it, and to preserve data to enable law enforcement investigations. If companies are not complying with their reporting obligations, the Attorney General is already empowered to hold them accountable…

Beyond undermining secure communications, the bill could also have a dramatic negative impact on constitutional rights. Section 230’s liability protections have been essential to the development of the internet as a medium for free expression and access to information. 

Online Speech Platforms

The Verge: Facebook is putting a surprising restriction on its independent oversight board

By Casey Newton

One of the year’s biggest stories at the intersection of technology and power is the Facebook Oversight Board. For the first time, a tech giant is seeking to give some of its power back to the people – in this case, in the form of an independent 40-member board that will serve as a kind of Supreme Court for content moderation. This week, Facebook announced that the board would likely begin hearing cases this summer – it also named the person who will lead the board’s staff, and released suggested bylaws…

At Wired, Steven Levy speculates that the board is likely to hear a case about Facebook’s policy against sending political ads out for fact-checking…

I’m less certain the board will have a say here. It will have the authority to remove (or leave standing) individual pieces of content, as well as issue policy advisory opinions. Key word: advisory. And while an opinion by the board that Facebook should fact-check political ads would have some weight – and could provide political cover for Facebook to reverse course, should it decide it wants to – ultimately the decision will likely still remain with Zuckerberg.

At Lawfare, Evelyn Douek zooms in on one of the more peculiar features of the board, at least at launch: it will only review cases in which an individual believes their content was removed in error. If a post was allowed to stay up in error – a piece of viral misinformation about a health crisis, for example – the board will initially have no jurisdiction. (Facebook says that it will get such jurisdiction in the future but won’t specify a time frame.) 

Fortune: Facebook and Twitter are least trusted in social media for political news

By Danielle Abril

Fifty-nine percent of adults distrust Facebook, the worst showing among major social media sites, according to the Pew Research Center. Twitter was second worst with 48% followed by Instagram at 42%. 

The report gives “a fuller picture that reinforces what we’ve seen in the past about the general trust level or lack thereof in social media as a news provider,” said Amy Mitchell, director of journalism research at Pew. Social media is ” by far the lowest when it comes to trust levels.” …

62% of Republican or Republican-leaning respondents distrusted Facebook for political news versus 59% of those who lean Democratic. When it comes to Twitter, 51% of Republicans said they distrusted those service versus 46% of Democrats…

Only 18% of adults say social media is their primary source, with the vast majority going to major news outlets for information, Pew found…

Of all the services, YouTube scored highest with only 17% of people saying they distrusted the political news posted on it. 

Candidates and Campaigns

Reason: Elizabeth Warren Wants To Make It a Crime To Give Out Fake Info About Voting

By Scott Shackford

[Sen. Elizabeth] Warren’s plan does not go so far as to suggest criminal penalties for everything the government declares to be “disinformation,” fortunately. But she does propose criminal and civil penalties for anybody who attempts to spread false information about the voting process…

That’s the only part of her plan that calls for criminal penalties for speech. It’s still bad and wrong, but not as awful as it could be. Warren links to a report from the Brennan Center about Russian-led online suppression campaigns that aren’t just about deceiving voters but also encouraging them to “boycott” elections. That’s not deception. That’s a position-an opinion attempting to persuade. Would that also be a crime? That would be a problem here at Reason, given that Katherine Mangu-Ward regularly attempts to convince Americans that voting isn’t actually all that important and our individual votes don’t matter…

It’s particularly rich coming from Warren, given that she’s currently being accused of pushing a disinformation campaign that rival candidate and Sen. Bernie Sanders (I-Vt.) privately told her that Americans wouldn’t elect a woman president. Sanders insists he said no such thing. Warren’s campaign is itself a reminder of the dangers of allowing powerful politicians to define what is and is not “disinformation” under the law.

Read Warren’s plan here.

The States 

Press Herald: Maine lawmakers take up bill to ban ‘deepfake’ political ads

By Scott Thistle

Lawmakers are considering a bill that would ban the use of “deepfake” video technology in political advertising in Maine.

Supporters say the measure is needed because the technology can be used to manipulate and mislead voters, producing what one legislator called a “disastrous effect” on U.S. society and democracy. But critics countered that the bill is a threat to free speech…

[Sen. Rebecca Millett (D- Cape Elizabeth) sponsored the bill, L.D. 1988, which] would prohibit publication and distribution of deepfake media of a candidate within 60 days of an election. The bill would allow a targeted candidate to seek a court order to block publication and to pursue civil action against whomever published or distributed the material.

The ACLU of Maine and the Maine Heritage Policy Center…submitted written testimony opposing the legislation. But the bill did gain the support of the League of Women Voters of Maine…

The Maine Association of Broadcasters offered neutral testimony, but urged the committee to retain provisions that would protect the use of deepfake material for illustrative purposes in news reporting.

Suzanne Goucher, the association’s president, said Millett’s bill would have little impact in the social media realm. She pointed out that social media platforms do not undergo the federal scrutiny that broadcasters do with political advertising…

On another election-related issue, lawmakers took testimony Wednesday on a bill that would prohibit Clean Election candidates from taking a job with any organization or business paid more than $10,000 for services to their campaigns.

Law 360: SD Gov. Revamps ‘Riot Boosting’ Law After Court Setback

By Andrew Westney

South Dakota Gov. Kristi Noem announced a bill Tuesday that would make “incitement to riot” a crime under state law, after a differently worded “riot boosting” law that passed in response to Keystone XL pipeline protests was largely struck down by a federal judge last year.

The new bill would make changes to a 2019 law that was challenged in federal court by environmental and indigenous groups, which U.S. District Judge Lawrence L. Piersol ruled in September included language that could lead to vague and improperly far-reaching enforcement.

The retooled version of the law would replace such language “with a new crime of incitement to riot within the confines of the law,” according to a statement from Noem on Tuesday…

The Sierra Club and other groups challenged the state’s riot boosting laws in March, arguing they punished legitimate protest and chilled free speech by making organizations liable for alleged violence committed by others.

Native American and environmental groups had launched protests of the Keystone XL pipeline in 2016 and 2017 that were met with police in riot gear who deployed pepper spray and water cannons, and made hundreds of arrests. The groups claimed in their suit that the law was actually an effort to stifle opposition to the project.

In his September decision, Judge Piersol said the riot boosting legislation and a pair of felony riot statutes were so broad that even a peaceful civil rights icon like Dr. Martin Luther King Jr. could have been liable for penning his “Letter from Birmingham Jail.”

Washington Times: Bill would criminalize cyberbullying of public servants

By Associated Press

A New Hampshire House bill that aims to protect public servants from internet harassment went before lawmakers this week.

The bill, backed by Democrats, went before lawmakers Wednesday. It would add cyberstalking, cyberbullying and the practice of revealing a victim’s home address and phone number – known as “doxing” – to an existing state law meant to protect public servants from retaliation and threats of violence.

Nashua Rep. Jan Schmidt told the House Criminal Justice Committee Wednesday she and her family have been bullied online, New Hampshire Public Radio reported, and that all public servants should feel protected.

The intent of the measure is to focus on sustained harassment, not one-time instances of name calling, said Schmidt, who is one of the bill’s lead sponsors.

“This is sustained abuse. If it is not written this way, it can be rewritten, and it should be,” she said, “This is about real danger.”

Republicans on the committee questioned the need for bill and some expressed concerns that it could undermine the First Amendment. Others argued that some sponsors of the bill were themselves responsible for inflammatory rhetoric, especially online.

Gazette: Iowa House proposal would protect media, protesters from lawsuit intimidation

By James Lynch

An Iowa House Judiciary subcommittee advanced legislation that could block so-called strategic lawsuits against public participation (SLAPP), such as the libel suit that led a Carroll newspaper to start a GoFundMe fundraiser to cover legal expenses it incurred defending itself against a libel lawsuit.

The lawsuits are intended to censor, intimidate and silence critics – “essentially to prevent ‘bad’ stories from being published” by burdening news media with the cost of a legal defense, Rep. Dustin Hite, R-New Sharon, said.

That was the case in Carroll when a former police officer sued the Daily Times Herald for libel in 2017 after it published the results of a two-month investigation of his relationship with a teenage girl…

[Daily Times Herald co-owner] Burns is supportive of legislation “to eliminate the chilling effect on coverage of elected officials and public officials,” he said…

If enacted, Iowa would join 29 other states with anti-SLAPP protections, Eric Tabor of the Attorney General’s Office said.

The American Civil Liberties Union Iowa is generally supportive of anti-SLAPP measures because, in addition to protecting media, they protect protesters from nuisance lawsuits, lobbyist Daniel Zeno said.

“It’s an important piece of legislation just to ensure that free speech is protected,” Hite said.

He plans to send the bill to the full Judiciary Committee.

Washington Post: After a string of federal convictions, Maryland weighs tightening state ethics laws

By Ovetta Wiggins

The Maryland state prosecutor wants to make it easier to file state charges against public officials who commit wrongdoing. The governor wants to increase the penalty for bribery. And the House speaker wants to ban political candidates from hiring their relatives to manage fundraising…

Maryland State Prosecutor Charlton T. Howard III…is pushing to lift a two-year statute of limitations on misconduct-in-office charges, increase the penalty for the offense from five years to 10 and expand the definition of public official to include influential public employees…

His proposal, which received little opposition from the committee, is likely to become part of a larger legislative package on ethics reform…

The House is also considering bills that would tighten the rules for campaign accounts, including disclosing if a campaign uses a PayPal account…

Hogan announced earlier this month that he is pushing an “Ethics and Accountability in Government Act” that would increase the financial penalty for bribery of public officials to a maximum of $100,000 and expand the authority of the state’s Ethics Commission, allowing it to impose civil penalties against state employees and public officials without having to go to court…

The ACLU of Maryland submitted written testimony saying it is opposed to getting rid of the two-year statute of limitations. Lobbyist Bruce Bereano, who was convicted of fraud in 1994, cautioned lawmakers against expanding the definition of a public official, suggesting that doing so could mean that “regular citizens” appointed to state boards would be subject to investigation.

The Hill: Tennessee state lawmaker offers resolution to ‘recognize’ CNN, Washington Post as ‘fake news’

By Marina Pitofsky

A Tennessee state lawmaker introduced a resolution that would “recognize” CNN and The Washington Post as “fake news.”

The resolution, which was introduced in the Tennessee General Assembly on Wednesday by state Rep. Micah Van Huss (R), would “condemn” the news outlets “for denigrating our citizens.”

The resolution cites one article published by an editor at the Washington Post on Oct. 3.

Van Huss in his resolution claimed that the publication “wrote that President Donald J. Trump has cast a spell on the Republican Party and suggested that Trumpism is cult-like.” 

Tiffany Donnelly

Tiffany Donnelly