Daily Media Links 1/8

January 8, 2020   •  By Tiffany Donnelly   •  
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Supreme Court

Daily Caller: First Amendment Challenge To Mandatory Membership, Bar Fees Reaches Supreme Court

By Kevin Daley

Some 30 states require attorneys to join a bar association and pay membership fees as a condition of practicing law. Two lawyers have asked the Supreme Court to declare that practice, called the “integrated bar,” unconstitutional on First Amendment grounds.

The lawyers, Adam Jarchow and Michael Dean, are members of the state bar of Wisconsin. They object to positions the bar has taken on a number of subjects, including felon voting rights, the death penalty, and criminal-justice issues.

“It should go without saying that Wisconsin attorneys do not all share the same vision for the law and the administration of justice and so may disagree with the State Bar’s positions on any number of important public policies, as the Petitioners do,” their petition reads. “Nonetheless, they are all compelled by State law to subsidize its advocacy in support of those positions and other speech by the Bar with which they disagree.”

Though the Supreme Court expressly sanctioned the integrated bar in past decisions, Jarchow and Dean say the model is untenable following the court’s 2018 decision in Janus v. AFSCME. In Janus, a five-justice majority said public-sector unions cannot force government workers to pay mandatory “agency fees” to cover the cost of collective bargaining.

The Courts

New York Times: Donor to Trump Inauguration Charged With Obstructing Investigation

By Kenneth P. Vogel and William K. Rashbaum

A California venture capitalist who was a major donor mostly to Democrats before abruptly shifting the bulk of his giving to Republicans after the 2016 election was charged on Tuesday by prosecutors in New York with obstructing a federal investigation into donations to President Trump’s inaugural committee.

The donor, Imaad Zuberi, had pleaded guilty last year to separate charges brought by federal prosecutors in Los Angeles related to earlier campaign donations, as well as lobbying and tax violations.

He is expected to plead guilty to the obstruction charge as well, according to two people familiar with the situation. They said prosecutors had moved to consolidate the two cases, for which he was expected to be sentenced in California.

The obstruction charge stemmed from a federal investigation into the source of the $900,000 Mr. Zuberi donated through his company, Avenue Ventures, to Mr. Trump’s inaugural committee in late December 2016, in what he has acknowledged was an effort to gain access to the incoming administration.

In a court filing on Tuesday, prosecutors said some of the funds Mr. Zuberi donated to the inaugural committee came from other people, including an unnamed American man who wrote a $50,000 check to Avenue Ventures to secure “exclusive access to certain inaugural events” promised by Mr. Zuberi.

Washington Post: Rep. Duncan Hunter will resign from Congress on Jan. 13

By Felicia Sonmez and Mike DeBonis

Rep. Duncan D. Hunter will resign from Congress effective Jan. 13, more than one month after the California Republican pleaded guilty in federal court to misusing campaign funds.

Hunter submitted his letter of resignation to House Speaker Nancy Pelosi (D-Calif.) Tuesday.

The six-term congressman is scheduled to be sentenced in March. He faces a maximum of five years in prison, although he is expected to serve less than one year.

Hunter and his wife, Margaret, were charged in August 2018 with using more than $250,000 in campaign funds to pay for personal expenses including family vacations, theater tickets and school tuition.

The lawmaker was stripped of his committee assignments but continued serving in Congress and won reelection in 2018 after initially pleading not guilty and denying wrongdoing.

His legal situation became more precarious, however, after his wife pleaded guilty last June to one count of conspiring with him to spend campaign funds for personal use. As part of the deal, Margaret Hunter agreed to cooperate with prosecutors and testify against her husband.

Later that month, federal prosecutors alleged that the congressman had also used campaign money to fund trips, dinners and drinks with women with whom he was romantically involved – three lobbyists, a woman who worked in his congressional office and another who worked for a member of House leadership.

Free Speech

Wonkette: Lock The Doors! Call The FBI! George Lopez Threatens Donald Trump’s Life With Instagram Joke

By Stephen Robinson

The Daily Mirror claimed that during Soleimani’s televised funeral, an $80 million bounty was placed on Donald Trump’s Tribble-infested head…

The Chicano Worldstar shared the story on Instagram, and George Lopez, a comedian who tells jokes professionally, responded cheekily, “We’ll do it for half.”

Lopez wasn’t actually entering into contract hit negotiations. His comment is a somewhat obvious reference to stereotypes about “cheap” Mexican labor. But maybe it wasn’t that obvious. Conservatives thought he was seriously threatening Trump’s life, which is absurd…

[T]raditionally questionable jokes aren’t considered “true threats” against the president. In 1966, Robert Watts stated at a protest rally, “I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is LBJ.” Watts was convicted for his words but successfully appealed to the Supreme Court, which acknowledged that “uninhibited, robust, and wide-open” political debate ain’t always tea and crumpets. Any truly free society should expect “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The Court ruled that Watts’s public comments about President Johnson were “a kind of very crude offensive method of stating a political opposition to the President” but hardly a “true threat.” 

National Legal and Policy Center: NLRB Restores Employer Right to Restrict Employee Email Organizing

By Carl Horowitz

An employer’s email system is as much private property as its computer equipment or real estate. The National Labor Relations Board once again, if belatedly, has affirmed this fact. On December 16, the board in Caesars Entertainment voted 3-1 to reestablish the right of an employer to restrict employee use of company email and other information technology during nonworking hours. The ruling overturns the board’s Obama-era ruling in Purple Communications, which had concluded employees have a statutory right to use employer email for union purposes. Employer groups see the decision as vindication of property rights, free speech rights, and especially cyber security. Union officials and supporters, understandably, are taking a different view…

Employers generally hold that their email systems ought to be used for workplace issues that advance the interests of all concerned; organizing drives and other union activity, in this view, lie outside the scope of authorization. Organized labor officials counter that workers, at least while off the clock, have the right to conduct union drives and otherwise promote union interests, a right protected by Section 7 of the National Labor Relations Act (NLRA)

FEC

Washington Post: Bipartisan group of campaign finance lawyers urge leaders to ‘immediately’ restore quorum at Federal Election Commission

By Michelle Ye Hee Lee

A bipartisan group of campaign finance lawyers on Monday urged the White House and congressional leaders to “work together and immediately” to restore a voting quorum on the Federal Election Commission, which cannot monitor compliance with election laws even as presidential primaries begin in a month…

The list of signatories include some of the most prominent legal experts working in campaign finance, representing a diverse cross-section of politically active groups and individuals from both major parties…

“The inability to know how the rules apply to particular organizations or people so they can engage in what is the core protected First Amendment activity while complying with their legal obligations – it’s very frustrating,” said Beth Kingsley, a partner at Harmon, Curren, Spielberg & Eisenbeg, LLP, one of the attorneys who led the effort to write and circulate the letter.

Candidates and organizations being cited in enforcement cases are left wondering whether and how much they need to pay in civil penalties; politically active nonprofit groups are unclear which of their donors may now be subject to disclosure as a result of a recent court decision; and others are seeking clarity on how to comply with the law while using the newest technological tools to run political ads, they said.

Independent Groups

New York Times: Shadow Group Provides Sanders Super PAC Support He Scorns

By the Associated Press

Bernie Sanders says he doesn’t want a super PAC. Instead, he has Our Revolution, a nonprofit political organization he founded that functions much the same as one.

Like a super PAC, which is shorthand for super political action committee, Our Revolution can raise unlimited sums from wealthy patrons that dwarf the limits faced by candidates and conventional PACs. Unlike a super PAC, however, the group doesn’t have to disclose its donors – a stream of revenue commonly referred to as “dark money.”…

Our Revolution has taken in nearly $1 million from donors who gave more than the limits and whose identities it hasn’t fully disclosed, according to tax filings for 2016, 2017 and 2018. Much of it came from those who contributed six-figure[s].

It won’t have to publicly reveal its 2019 fundraising until after this year’s presidential election. And money it raises between now and then won’t have to be disclosed until the following year.

“Any entity established by a federal officeholder can only raise and spend money under federal contribution limits for any activities in connection with a federal election,” said Paul S. Ryan, a campaign finance expert and attorney with the good-government group Common Cause. “Our Revolution was undoubtedly established by Sen. Sanders, is subject to these laws – and is seemingly in violation of them.”

Online Speech Platforms

Washington Post: Don’t Tilt Scales Against Trump, Facebook Executive Warns

By Kevin Roose, Sheera Frenkel and Mike Isaac

[A]ccording to a memo obtained by The New York Times, a longtime Facebook executive told employees that the company had a moral duty not to tilt the scales against Mr. Trump as he seeks re-election.

On Dec. 30, Andrew Bosworth, the head of Facebook’s virtual and augmented reality division, wrote on his internal Facebook page that, as a liberal, he found himself wanting to use the social network’s powerful platform against Mr. Trump…

The post by Mr. Bosworth, a former head of Facebook’s advertising team, provides an unusually candid glimpse of the debates raging within Facebook about the platform’s responsibilities as it heads into the 2020 election.

The biggest of those debates is whether Facebook should change its rules governing political speech. Posts by politicians are exempt from many of Facebook’s current rules, and their ads are not submitted for fact-checking, giving them license to mislead voters with partisan misinformation…

Mr. Bosworth said that even though keeping the current policies in place “very well may lead to” Mr. Trump’s re-election, it was the right decision..

“He didn’t get elected because of Russia or misinformation or Cambridge Analytica,” Mr. Bosworth wrote. “He got elected because he ran the single best digital ad campaign I’ve ever seen from any advertiser. Period.”

The Atlantic: Bots Are Destroying Political Discourse As We Know It

By Bruce Schneier

Soon, AI-driven personas will be able to write personalized letters to newspapers and elected officials, submit individual comments to public rule-making processes, and intelligently debate political issues on social media…They will be replicated in the millions and engage on the issues around the clock, sending billions of messages, long and short. Putting all this together, they’ll be able to drown out any actual debate on the internet…

Maybe these persona bots will be controlled by foreign actors. Maybe it’ll be domestic political groups. Maybe it’ll be the candidates themselves…

Solutions are hard to imagine. We can regulate the use of bots-a proposed California law would require bots to identify themselves-but that is effective only against legitimate influence campaigns, such as advertising. Surreptitious influence operations will be much harder to detect. The most obvious defense is to develop and standardize better authentication methods. If social networks verify that an actual person is behind each account, then they can better weed out fake personas. But fake accounts are already regularly created for real people without their knowledge or consent, and anonymous speech is essential for robust political debate, especially when speakers are from disadvantaged or marginalized communities.

Media

The Hill:  CNN settles lawsuit with Covington Catholic student: report

By J. Edward Moreno

CNN on Tuesday reportedly settled its lawsuit with Nick Sandmann, the Covington Catholic High School student whose interaction early last year with Omaha Tribe elder Nathan Phillips at the Lincoln Memorial went viral…

Sandmann, who was wearing a “Make America Great Again” hat in video of the incident, sued the network for $275 million in May over its reporting, saying CNN was “vilifying and bullying him” and had twisted the story to fit an anti-Trump agenda. In total, Sandmann was seeking $800 million in damages from The Washington Post, NBC and CNN. 

The amount of the settlement with CNN was not made public at a hearing in Covington, Ky., according to a local Fox affiliate.

“CNN was probably more vicious in its direct attacks on Nicholas than The Washington Post. And CNN goes into millions of individuals’ homes,” Lin Wood, one of Sandmann’s attorneys, told Fox News’s Mark Levin last year.

The States

Seattle Times: Seattle council advances ban on most political spending by ‘foreign-influenced’ companies

By Daniel Beekman

Seattle moved closer Tuesday to banning most political spending by “foreign-influenced” corporations, as a City Council committee advanced legislation that sponsor Council President M. Lorena González said could block Amazon and similar companies from using money to shape candidate elections. The committee’s vote was unanimous, so the full council is almost certain to pass the ban into law on Monday…

Her campaign-finance reform committee voted 6-0 to recommend passage of the foreign-influence ban, which would apply to corporations with a single non-American investor holding at least 1% ownership, two or more non-American investors holding at least 5% or a non-American investor participating in decision making related to American political activities…

The legislation would prohibit foreign-influenced corporations from contributing money to Seattle candidates and from spending independently on candidate elections, though such companies could still spend on ballot-measure campaigns…

Federal Election Commission chair Ellen Weintraub has thrown her weight behind the Seattle legislation…

“We support more transparency in our electoral system, but the council must do it in a way that is legal. As the [American Civil Liberties Union] has noted, campaign-finance laws designed to target certain political voices are difficult to reconcile with the First Amendment,” said the Chamber’s chief of staff, Markham McIntyre.

Reason: City Says Man’s Giant, Semi-Ironic ‘Trump 2020’ Sign Is a Code Violation

By Christian Britschgi

West Bremerton resident Kevin Chambers says the 32-square-foot Trump 2020 campaign sign in his front yard started out as a joke, having been installed by his friend as a prank while he was out of town.

“I had originally just laughed it off and decided I’d leave it up for a week or so and then take it down,” Chambers tells Reason, who described himself as “actually pretty liberal.”…

But that was before he saw comments on a local Facebook group threatening to vandalize his sign…

Eventually, this trolling provoked a local vandal to graffiti the Trump sign. To prevent future defacement, a friend of Chambers placed the sign atop 15-foot wooden stilts…

The week of Christmas, Chambers received a letter from the city informing him that non-commercial signs can be no taller than six feet, and that he had until January 21 to lower or get rid of the sign or face possible fines.

City planners stressed to the Kitsap Sun that their sign height limit is content-neutral and based on international signage standards. They said they do not proactively enforce the code, but are required to take action when violations are reported.

Chambers says the city’s practice of relying on citizen complaints nevertheless carries its own form of bias in the largely liberal community. Kitsap County, where West Bremerton sits, voted 50-9 in favor of Hillary Clinton in 2016.

Tiffany Donnelly

Tiffany Donnelly