Daily Media Links 1/9

January 9, 2020   •  By Tiffany Donnelly   •  
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The Courts

National Review: Progressive Governments’ Economic War on the NRA Fails in Court

By Walter Olson

Not long ago, progressive state and local officials nationwide were vowing to take down the hated National Rifle Association by targeting its pocketbook…

Now [they] are facing a reckoning in court, based not on the Second Amendment but on the First. Without needing to even consider the issue of gun rights, federal courts are recognizing that boycotts enforced by government power can menace free speech and free association.

In December, a federal court in California granted a preliminary injunction against a Los Angeles ordinance requiring city contractors to disclose any business links to, or memberships in, the gun group. It found the evidence “overwhelming” that the city’s intent in passing the law was “to suppress the message of the NRA.”…

Controversial and unpopular speech is protected speech; officials cannot yank a contract from some business, or threaten to, just because it has donated to, or partnered in some venture with, the Sierra Club, the NAACP, or the NRA.

Lawyers for Los Angeles tried to defend their ordinance by saying all it did was require disclosures from contractors, which wouldn’t necessarily amount to punishing or chilling speech. But this sort of First Amendment claim comes down to a question of intent. And the court found that the city’s lawmakers had made their intent to suppress speech and association utterly clear. They had done so in the text of the ordinance itself, in its legislative history, and in the statements made at the time by its chief sponsor, Councilmember Mitch O’Farrell.

New York Times: Court Weighs Ban on Secret Recordings of Public Officials

By The Associated Press

A Massachusetts prosecutor defended Wednesday a state ban on secret audio recordings of police and government officials, asking an appeals court to overturn a decision that found the prohibition unconstitutional.

At a hearing before the U.S. First Circuit Court of Appeals, free speech groups countered that such recordings are protected by the First Amendment and that Massachusetts’ law is out of step with national norms, especially in an era when nearly everyone has a recording device in their pocket…

A panel of three judges is expected to decide the case later…

State Attorney General Maura Healey’s office, which is representing Rollins in the appeal, cites in its legal brief a number of hypothetical scenarios where secret recordings of public officials might harm average citizens…

But the American Civil Liberties Union of Massachusetts, which is representing two Boston residents who frequently record police activity, argued the Constitution’s First Amendment “unambiguously” protects the right to peacefully record and observe police activity in a way that does not interfere…

“The government should have an interest in encouraging members of the public to create accurate records of what police officers say in public when they think no one is recording them,” the ACLU wrote in its legal brief…

[Project Veritas] argued…”Massachusetts should welcome – not imprison – citizens using technology to advance speech.”

San Diego Union-Tribune: Evans Hotels loses in high-profile court battle with labor unions

By Lori Weisberg

[A] federal court judge on Tuesday dismissed a lawsuit by San Diego-based Evans Hotels accusing local labor unions of extortion and bribery in their efforts to unionize the hospitality industry…

“We are gratified that the judge recognized Evans Hotel’s lawsuit as an attempt to stifle our union’s First Amendment speech and political participation,” said Brigette Browning, president of Unite Here Local 30, which represents local hospitality workers…

In their defense against the lawsuit, the unions had argued that what Evans Hotels alleged was extortion and racketeering was legislative lobbying protected by the First Amendment. Hayes agreed. Evans, he said, failed to make its case that the unions’ conduct fell outside the protections of the “petition clause” of the First Amendment.

“Plaintiffs’ lawsuit will burden Defendants’ petitioning activity,” wrote Hayes, who held a hearing in October on the unions’ motion to dismiss. “Plaintiffs do not allege facts from which the Court can infer that Defendants engaged in non-petitioning activity. Plaintiffs do not allege facts from which the Court can infer that Defendants’ petitioning conduct was a sham.”…

Said Hayes, “Plaintiffs’ allegations are conclusory and insufficient to state a bribery claim.” Citing a federal court case, he wrote, “Payments to public officials in the form of . . . campaign contributions, is a legal and well-accepted part of our political process.”

DOJ

Reason: Is the FBI Snooping on Political Groups and Ideological Publications?

By C.J. Ciaramella

The Cato Institute… is calling on Congress to investigate whether the FBI is spying on it and other domestic political groups after public records requests raised the possibility that the Bureau has files on Cato and others. 

Patrick Eddington, a research fellow at Cato, has submitted more than 200 [FOIA] requests for FBI files on political advocacy groups, civil liberties organizations, think tanks, and publications across the political spectrum.

For about two dozen of those requests so far, the FBI said it could neither confirm or deny whether it had collected national security or foreign intelligence records on the groups…

The FBI has a long and sordid history of spying on dissident political groups, from early 20th century socialists and labor organizers, to civil rights leaders and post-9/11 environmentalists and peace activists, to Black Lives Matter protesters…

Eddington says that any such surveillance is inimical to freedom of speech.

“Anytime [the FBI] is engaged in gathering that kind of data on news organizations or on domestic groups that are exercising their First Amendment rights, that activity should be expressly prohibited in the absence of a genuine criminal predicate,” Eddington says. “It should absolutely be prohibited.”

Independent Groups

Axios: Leonard Leo to shape new conservative network

By Jonathan Swan and Alayna Treene

Conservative powerhouse Leonard Leo tells Axios that he’ll step aside from the daily running of the Federalist Society to focus on a new venture – inspired by Arabella Advisers on the left – that will funnel big money and expertise across the conservative movement…

Leo is considered one of the most powerful conservatives in the country, playing a key role in shaping President Trump’s selections for the Supreme Court and raising hundreds of millions of dollars to fill the nation’s courts with conservative judges.

One of the first projects will be a “minimum of $10 million issue advocacy campaign focusing on judges in the 2020 cycle,” Leo told Axios.

The new venture will be called CRC Advisors. Leo will remain co-chair of the Federalist Society’s board.

Behind the scenes: Leo told Axios that he and his business partner, conservative communications executive Greg Mueller, studied tax filings that led them to Arabella, a little-known yet powerful consulting firm that advises liberal donors and nonprofits about where to spend their money…

The new venture will go beyond the anonymous money networks they’ve already built and weaponized in the conservative legal movement movement.

Online Speech Platforms

Wall Street Journal: Facebook to Keep Targeted Political Ads but Will Give Users More Control

By Emily Glazer

In a break with other tech companies, Facebook Inc. said it wouldn’t limit how political ads are targeted to potential voters, but would instead give users tools to see fewer of those ads on its platforms.

The move by Facebook, which says a private company shouldn’t decide how campaigns are able to reach potential voters, is at odds with how other tech firms are approaching political ads leading up to the 2020 election.

The social-media giant also announced changes it says will boost transparency about how political ads are shared.

The company based its policy “on the principle that people should be able to hear from those who wish to lead them, warts and all, and that what they say should be scrutinized and debated in public,” according to a memo from Rob Leathern, Facebook’s director of product management. “This does not mean that politicians can say whatever they like in advertisements on Facebook.”

The memo said all Facebook users have to follow its community standards, which ban hate speech, harmful content and content designed to intimidate voters or stop them from exercising their right to vote…

Facebook said its new control feature for political ads will roll out in the U.S. early this summer on Facebook and Instagram. It will later expand…

The company said seeing fewer political and social-issue ads was a common request from users.

New York Times: Facebook Says It Won’t Back Down From Allowing Lies in Political Ads

By Mike Isaac

Facebook said on Thursday that it would not make any major changes to its political advertising policies, which allow lies in ads, despite pressure from lawmakers who say the company is abdicating responsibility…

The company also said it would not end so-called microtargeting for political ads, which lets campaigns home in on a sliver of Facebook’s users – a tactic that critics say is ideal for spreading divisive or misleading information.

Political advertising cuts to the heart of Facebook’s outsize role in society, and the company has found itself squeezed between liberal critics who want it to do a better job of policing its various social media platforms and conservatives who say their views are being unfairly muzzled…

Facebook officials have repeatedly said significant changes to its rules for political or issue ads could harm the ability of smaller, less well-funded organizations to raise money and organize across the network.

Instead of overhauling its policies, Facebook has made small tweaks…

Facebook also will add a feature that allows users to see fewer campaign and political issue ads in their news feeds…

For now, Facebook appears willing to risk disinformation in support of unfettered speech.

New York Times: Why Politicians Get a License to Lie

By Charlie Warzel

On Monday, Facebook announced a new policy to ban artificial intelligence-generated “deepfakes” as well as videos “edited or synthesized … in ways that aren’t apparent to an average person.”…

But the new policy won’t, for example, cover subtly edited videos like last year’s slowed down viral Nancy Pelosi clip. And politicians and their ads remain off limits to Facebook’s third-party fact checkers. A company spokesman told me Tuesday that if Facebook determines a politician has shared manipulated media in an ad, Facebook will remove it. But, as far as I can tell, bogus content – even outright lies – is still allowed, as long as it isn’t manipulated by artificial intelligence.

And the company left a big loophole: Facebook will not censor political speech if it is in the public interest to see it. “If a politician posts organic content that violates our manipulated media policy, we would evaluate it by weighing the public interest value against the risk of harm. Our newsworthy policy applies to all content on Facebook, not just content posted by politicians,” the spokesman wrote in an email.

In an effort to assuage the public on political disinformation, Facebook has only muddied the waters. Would Facebook allow distribution of a deepfaked video if it were shared by the president as rationale for the bombing of Iran? Such a hypothetical post would certainly be newsworthy, though such a video would be a clear violation of Facebook’s rules. 

The Hill: Lawmakers voice skepticism over Facebook’s deepfake ban

By Chris Mills Rodrigo

Facebook’s global policy chief faced tough questions before a House panel on Wednesday as lawmakers voiced skepticism over the company’s efforts to crack down on manipulated videos known as deepfakes ahead of the 2020 elections…

Rep. Jan Schakowsky (D-Ill.) opened the hearing of the House Energy and Commerce Subcommittee on Consumer Protection and Commerce by slamming Facebook’s new policy.

“Big Tech failed to respond to the grave threats posed by deepfakes, as evidenced by Facebook scrambling to announce a new policy that strikes me as wholly inadequate,” Schakowsky, the subcommittee chairwoman, said…

The social media giant’s vice president of global policy management, Monika Bickert, stressed during Wednesday’s testimony that the new rule is an addition to a broad set of existing community standards intended to target disinformation…

Democrats on the committee suggested that more stringent regulations would be necessary to deal with deepfakes, but some of their colleagues across the aisle expressed concern about stifling innovation and expression with new regulations.

“Deepfakes and disinformation can be handled with innovation and empowering people with more information,” subcommittee ranking member Cathy McMorris Rodgers (R-Wash.) said in her opening remarks. “It makes far more productive outcomes when people can make the best decisions for themselves, rather than relying on the government to make decisions for them.”

Wall Street Journal: Clinton Backer at Facebook Debunks Clinton Claims

By James Freeman

The New York Times reports that it has obtained a recent internal memorandum from senior Facebook executive Andrew Bosworth. According to the text of the memo published by the Times, Mr. Bosworth throws cold water on a favorite conspiracy theory of the political left….

Writes Mr. Bosworth:

$100,000 in ads on Facebook can be a powerful tool but it can’t buy you an American election, especially when the candidates themselves are putting up several orders of magnitude more money on the same platform (not to mention other platforms).

Instead, the Russians worked to exploit existing divisions in the American public for example by hosting Black Lives Matter and Blue Lives Matter protest events in the same city on the same day. The people who shows (sic) up to those events were real even if the event coordinator was not. Likewise the groups of Americans being fed partisan content was real even if those feeding them were not. The organic reach they managed sounds very big in absolute terms and unfortunately humans are bad at contextualizing big numbers. Whatever reach they managed represents an infinitesimal fraction of the overall content people saw in the same period of time and certainly over the course of an election across all media.

Candidates and Campaigns

The Atlantic: The Real Power of Bloomberg’s Money

By Edward-Isaac Dovere

Part of Bloomberg’s presidential sales pitch is that his personal wealth-he’s worth an estimated $56 billion-makes him incorruptible. Not only is he unbribeable; being rich enough to never take political contributions, he can assume office unbeholden to donors. But Bloomberg is so rich that he shifts the direction of potential influence: Donors may not be able to buy influence, but he can use his wealth to push things in the directions he wants…

Bloomberg spent extensively as mayor of New York…The money he spent led to fewer protests, and deals that were easier to make.

Think of his money, one Bloomberg aide told me, as powering a skunkworks for city innovations. It allowed him to reduce political risk, because he could foot the bill for policy experimentation himself, instead of leaving it to the taxpayers…

In short, the money Bloomberg spent in office helped him to be more popular and successful as mayor than he otherwise would have been. Much of this money can’t be tracked by the usual means of measuring funds in politics: campaign-finance disclosures…

He has unapologetically hamstrung the huge news organization he owns, Bloomberg News, which has gone from publishing implicitly pro-Bloomberg 2020 editorials in the weeks before he made his run official to suspending the editorial board and having many of the same people who were writing them also move over to the campaign; the political reporters there worry about not being taken seriously anymore. Using the standards by which other candidates are judged, all this would be considered campaign expenses or hidden costs. 

The States

The Stranger: Durkan Supports Capping Super PAC Donations and Blocking Amazon from City Elections

By Lester Black

[T]he wave of Super PAC cash in Seattle elections may soon crest.

In a sign of growing momentum for reigning in PAC money, Seattle Mayor Jenny Durkan’s office tells The Stranger that she’ll be supporting a new council bill, titled the Clean Campaigns Act, that would set tight limits on the ability of Super PACs to raise cash. The legislation would also block multinational companies like Amazon from spending in city elections entirely…

The proposed law is currently working its way through council chambers and some aspects of the act could see a full council vote as early as next week…

The Super PAC donation limits would put Seattle at the forefront of campaign finance reform. According to legal experts, the only other place in the country that has set limits on Super PAC donation limits is St. Petersburg, Florida. That city’s law, passed in 2017, has not been challenged in court but Seattle would likely be sued if it passes its own Super PAC regulations.

The Seattle law could become a test case for Super PAC regulations nationwide if it makes it to the Supreme Court, and González has the support of multiple constitutional law experts who say the law could survive a court challenge.

 

Tiffany Donnelly

Tiffany Donnelly