Daily Media Links 1/6

January 6, 2020   •  By Tiffany Donnelly   •  
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Supreme Court

Bloomberg Law: ‘Friends’ of Koch-Backed Group Descend on Supreme Court

By Kimberly Strawbridge Robinson

Twenty-two amicus briefs urge the court to take up the Americans for Prosperity Foundation’s First Amendment challenge of the requirement that non-profit charities disclose their largest donors to state officials to assist them in investigating fraud. The foundation and its supporters for high court review claim the law infringes on the right to freely associate with groups and organizations, and could put donors at risk if sensitive information ever became public.

It’s an unusually large number of friend-of-the-court filings at such an early stage in the litigation. Such a robust showing is a “strong signal about the case’s national importance,” said Paul Sherman, of the libertarian law firm Institute for Justice, which is one of the groups who filed a brief.

There’s “a much higher than average chance” of the Supreme Court agreeing to take up the challenge, Sherman said.

The justices are scheduled to consider whether to take up the case at their private conference Jan. 10. A decision not to hear the appeal would leave in place the law, which was  upheld by the San Francisco-based U.S. Court of Appeals for the Ninth Circuit in 2019.

The Roberts Court has upheld disclosure laws in the campaign finance sphere, but hasn’t addressed them as they relate to charities.

New Republic: John Roberts: Bemused Spectator of American Democracy

By Matt Ford

Democracy is more than just electoral mechanisms, of course. It’s also built on the public’s trust that elected leaders will work for the common good, and not merely for their own self-interest or the interests of those who can afford it. The Roberts Court has made it harder than ever to justify that trust. A series of rulings on campaign-finance laws, including Citizens United v. Federal Election Commission and McCutcheon v. FEC, allowed wealthy Americans to pour hundreds of millions of dollars into the nation’s electoral system. In return, they’ve received access, favors, and even ambassadorships. What’s more, the justices unanimously ruled in McDonnell v. United States that elected officials could set up meetings for donors who give them Rolexes and loans without running afoul of federal bribery statutes. The result is a slushy interchange of money and influence that favors the rich and well-connected while freezing out everyone else.

Free Speech

Fortune: Amazon Is on a Collision Course With Employee Activists Outraged by the Climate Crisis

By Alyssa Newcomb

A group of Amazon employees said Thursday that they had been questioned by Amazon’s human resources and legal representatives for speaking out last year about the company’s role in the climate crisis

Some states offer more protection than others for employee political speech. California, Colorado, and Louisiana are among the states that have laws that protect an employee’s right to participate in the political arena outside of work. New York also has a similar law, says Merkelson, with an exception for activities that could create a conflict of interest to the business, like if an employee of a pharmaceutical manufacturer that conducts lab tests on animals criticized the company’s practices on social media.

Employees are also allowed to speak out about their employers without fear of retaliation in calling out discrimination in the workplace, discussing their wages, organizing a union, and speaking about unfair labor practices, rights which are detailed in the National Labor Relations Act.


Campaigns & Elections: What Campaign Finance Enforcement Could Look Like In 2020

By Sean J. Miller

[T]he FEC lost its quorum, which raises questions for what enforcement could look like in 2020.  

“The takeaway that I’ll always give to clients is that even before the FEC lost a quorum, the Department of Justice has really been watching this space more closely than they have in a very long time,” said David Mitrani, a senior associate at Sandler Reiff Lamb Rosenstein & Birkenstock, P.C.

As a result, campaign finance attorneys like Mitrani are working to guard clients against violations at a more granular level. “Things that might not have entered into our heads to flag for clients are right at the forefront,” he said. “The well-prepared candidate has not only counsel but also a compliance firm…”.

Michael Toner, a former chairman of the FEC, agrees that the Justice Department and the rank-and-file U.S. attorney offices are much more focused on public corruption.

The tools they’re using, he noted, are the mail and wire fraud statutes. Moreover, prosecutors are also targeting practitioners more for coordination between campaigns and PACs.

“We’re seeing cases being brought in this area that we didn’t see five or 10 years ago,” said Toner, a partner at Wiley Rein LLP.

Online Speech Platforms

Washington Post: Facebook is starting to fight misinformation, but inconsistently

By Editorial Board

Facebook recently announced it will bar misrepresentations about the decennial survey from its site, whether they appear in everyday posts from ordinary users or in paid advertisements from politicians usually exempt from fact-checking. The policy is stricter than the platform is usually willing to be with falsehoods, and, paired with action on medical misinformation, it may be a sign that companies are increasingly grappling with how what happens in their online worlds affects what happens in what we used to call the real world.

Facebook’s census strategy is similar to its rules against voter suppression. The aim is to protect a system essential to democracy from malicious actors both here and abroad. If someone sees on Facebook a false deadline for filling out a census form, they may fail to fill out that form on time – and then go uncounted. Facebook has heard from civil rights advocates worried about that scenario playing out against minorities, and it is properly taking unilateral action…

Facebook is muddling through the challenges of moderating a platform where 2 billion people speak about countless controversial subjects. When does it make sense to impose a bright-line policy prohibiting a category of content, as Facebook has done for census misinformation? When is it preferable to address dangerous posts ad hoc, as it has done for most medical misinformation?

Wall Street Journal: TikTok Wants to Stay Politics-Free. That Could Be Tough in 2020.

By Georgia Wells and Emily Glazer

[TikTok] last year banned political ads, and it says it remains committed to its mission to “bring joy” to users rather than serve as a forum for charged debate on social issues…

The company says it doesn’t encourage political speech but doesn’t forbid it…

“Ultimately, TikTok is a platform for our users, and they can post videos on whatever is interesting and expressive to them, aside from things like hate speech,” a spokeswoman for TikTok said in a statement.

Yet there is growing awareness across the political spectrum that TikTok could be a powerful tool for connecting with Gen Z…

Some political campaigns are grappling with the use of TikTok, whose massive popularity is at odds with concerns raised by U.S. agencies that the platform could pose a national security threat because it is owned by Chinese conglomerate Bytedance Inc…

TikTok in recent months hired people with experience working on content moderation and safety issues at other major tech companies,  including Alphabet Inc. ‘s Google and Twitter.

Those companies, along with Facebook, are under heightened pressure ahead of the 2020 election to minimize nefarious attempts to manipulate discussions and sow divisions, as bad actors were able to do in the 2016 campaign.

Adweek: We Don’t Need a Ban on Political Ads-We Need a Foundation of Real News

By Mark Barker

[A]s many marketers have experienced, Facebook’s ad filters can be dangerously imprecise when labeling content “political.” A political ad ban would threaten to take away a powerful tool in the toolbox of not just campaigns, but advocacy organizations, nonprofits and purpose-driven marketers from across the spectrum.

Ultimately, here’s the thing: Facebook hasn’t altered the content of political advertising. Political ads have always been full of misleading claims, character smears and alternate partisan realities. They were just as toxic when they existed primarily on TV and in the mail.

What has changed is what surrounds political ads. Before social algorithms and cable news enabled us to create our own information echo chambers, political ads competed not just against one another but also shared space with largely unbiased, truth-based journalism in the form of the nightly news and strong, local newspapers.

In other words, fact-based journalism permeated our collective consciousness, whether we liked it or not. It was a shared lens through which our electorate was able to weigh and evaluate partisan claims. So, as social feeds have become as central to our lives as the evening news once was, what’s needed is not the removal of political ads, but rather a foundation of real news.

Daily Beast: Sacha Baron Cohen Calls Out ‘Naive, Misguided Child’ Mark Zuckerberg at the Golden Globes

By Matt Wilstein

Sacha Baron Cohen brought his war with Facebook’s founder to the Golden Globe Awards Sunday night.

“The hero of this next movie is a naive, misguided child who spreads Nazi propaganda and only has imaginary friends,” the comedian said midway through the ceremony. “His name is Mark Zuckerberg.”

As the audience awkwardly laughed, he added, “Sorry, sorry. This is an old intro for The Social Network. I’m actually talking about Jojo Rabbit. It’s nominated for two Golden Globes and it’s directed by its star, the brilliant and groundbreaking Taika Waititi.” 

Baron Cohen’s comments follow a powerful speech he delivered at the Anti-Defamation League’s Never is Now summit in November during which he singled out Zuckerberg for facilitating the spread of hate around the world. 

“This is not about limiting anyone’s free speech,” Baron Cohen said at the time. “This is about giving people, including some of the most reprehensible people on earth, the biggest platform in history to reach a third of the planet.”

“Sadly, there will always be racists, misogynists, anti-Semites and child abusers,” he added. “But I think we could all agree that we should not be giving bigots and pedophiles a free platform to amplify their views and target their victims.”


Wall Street Journal: Tech Veteran’s Fundraising Team Rakes In Cash for Pete Buttigieg Campaign

By Julie Bykowicz

Ms. Mylavarapu, who started her career at Google and worked at venture-capital firm Kleiner Perkins, brought a Silicon Valley mentality to the [Buttigieg] campaign, insisting that all donors and those who raise money be called “investors” rather than “bundlers.” (“We’re asking them to get out there and evangelize why they believe and to raise new dollars by sharing that story,” she said. “And what is that if it’s not investment?”)…

But her fundraising operation has made some missteps.

The campaign initially accepted donations and fundraising help from lobbyists, but Mr. Buttigieg then pledged not to raise money from them and returned those checks…

The campaign also was slow to keep its promise to make public the names of its top fundraisers. When it released an updated list, the campaign left off-inadvertently, it says-more than a dozen people until Politico reported the omissions.

The States

Pittsburgh Post-Gazette: Pittsburgh campaign rules curb contributions, but punish some candidates

By Rich Lord

Pittsburgh’s decade-long effort to limit the influence of money in city politics now faces both a court challenge and complaints from some candidates that it threatens to stifle democracy.

The city first put limits on contributions to campaigns for mayor, controller and council in 2009, and revised the rules in 2015.

Now outgoing Councilwoman Darlene Harris is challenging the constitutionality of the limits in a lawsuit in which initial briefs are due Feb. 28. And as the city’s Ethics Hearing Board pursues enforcement actions, candidates facing fines are speaking out…

One political watchdog, though, defends Pittsburgh’s and Philadelphia’s local campaign finance regulations – the only ones in a state that otherwise does not cap political donations from people, partnerships and political action committees.

“Pittsburgh and other cities, and counties, need to be more forward and be more aggressive at setting up their own campaign finance laws,” said Micah Sims, executive director of Common Cause Pennsylvania, a nonpartisan government accountability group. Only with contribution limits, he said, will it be “the people and the ideas and the candidates that are controlling elections,” rather than the donors.




Tiffany Donnelly

Tiffany Donnelly


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