Daily Media Links 10/23

October 23, 2019   •  By Alex Baiocco   •  
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In the News 

State Policy Network: Unanimous sixth circuit opinion vindicates billboard owner’s free speech in IFS case

By Matt Nese

In September, the Sixth Circuit Court of Appeals ruled unanimously in support of William Thomas’s First Amendment right to express patriotic speech on a billboard. Attorneys from the Institute for Free Speech (IFS) represented Thomas during his fight with the Tennessee Department of Transportation (TDOT). Several affiliates of the State Policy Network filed amicus briefs in the case, Thomas v. Bright

Thomas used a billboard to cheer on U.S. athletes during the 2012 Summer Olympics. TDOT sought to have this sign torn down, citing “traffic safety” and “aesthetics.” Under the Tennessee Billboard Act, any billboard within 660 feet of a public roadway was prohibited unless expressly permitted by TDOT.

The law provided an exception, however, allowing signs that advertise on-premises activity to be erected without a permit. As a result, the state looked to a sign’s message to determine how it is regulated. The Sixth Circuit agreed with IFS that this regulatory scheme is an unconstitutional “content-based regulation of (restriction on) free speech.”

“Although we discuss this at length, this is neither a close call nor a difficult question. If not for Tennessee’s proffered disputes, we would label this ‘indisputable,'” wrote Judge Alice M. Batchelder…

[The ruling] explained how the law produces disturbing outcomes harmful to public discourse. For example, the court observed that, under the law, “a notorious puppy mill” could advertise its services on its premises while a property owner across the street would be prohibited from erecting an identical sign saying, “Puppy Mills are Animal Cruelty!” …

The Buckeye Institute, the Goldwater Institute, the Cato Institute, and the Beacon Center of Tennessee, 1851 Center for Constitutional Law, and Mackinac Center Legal Foundation all filed briefs in support of Thomas.

CT Mirror: State says pols missed deadline to have their day in court

By Mark Pazniokas

Sen. Rob C. Sampson, R-Wolcott, and his predecessor, Joe Markley, were itching for a legal debate over political speech and campaign finance law…

They say the State Elections Enforcement Commission violated their First Amendment rights by imposing fines of $5,000 on Sampson and $2,000 on Markley over campaign mailers promoting them in 2014 as reliable defenders against the policies of Gov. Dannel P. Malloy, a Democrat.

At issue was the question of whether the mailers were just a benefit to Sampson and Markley, who disagreed with Malloy on everything from taxation to criminal justice? Or did they also benefit Tom Foley, the Republican nominee for governor in 2014?

“The state cannot limit a candidate’s advocacy, especially highly effective advocacy, merely because a communication might have an effect on another candidate’s election,” their lawyers argued in a brief to the court. “The First Amendment guarantees a candidate’s right ‘to speak without legislative limit on behalf of his own candidacy.’ “…

“First Amendment issues are always a paramount concern to us as regulators,” Michael J. Brandi, the executive director and general counsel of SEEC, said Tuesday. “Our job is to regulate money in elections, to administer Connecticut’s clean elections program and also to protect the public fisc. You can’t just spend a clean elections grant on whatever you want. One simple rule is that you can’t spend your campaign’s dollars to benefit another candidate. That’s always been the law.”

The intent is to bar political money laundering.

“I think money laundering is a bad thing, and I think you can have laws against it,” said Allen Dickerson, the executive director of the Institute for Free Speech, which is representing Markley and Sampson. “But the problem is that the means the state has chosen are a content-based restriction of speech. That is the original sin of First Amendment analysis. And that’s not a close question.”

Congress

Office of U.S. Senate Majority Leader Mitch McConnell: House Democrat Proposal is Designed to Reduce Free Speech in America

U.S. Senate Majority Leader Mitch McConnell (R-KY) delivered the following remarks today on the Senate floor regarding H.R. 4617: …

“The proposal would give the FEC unprecedented license to track and regulate Americans’ political speech on the Internet – and decide what speech qualifies as political in the first place. And if it were not bad enough on principle to fill more Washington D.C. filing cabinets with which citizens hold what beliefs, their bill would also deputize media companies into this effort.

“They’d force publications to keep excessive records for any advertisements they accept, not only for political campaigns, but on any issue of national importance.

“When this regulatory burden has been tried on a smaller scale, it has frightened media platforms into rejecting political ads altogether. It’s a textbook example of policy designed to reduce the amount of free speech in this country.

“Press organizations such as the Washington Post and the Baltimore Sun have already sued over similar regulations on First Amendment grounds and won in court…

“Here’s what the ACLU says: ‘The SHIELD Act…strikes the wrong balance, sweeping too broadly and encompassing more speech than necessary…the SHIELD Act goes too far…to the detriment of the public and the First Amendment.’ …

“This proposal will not do anything to stop malign foreign actors, something that every member of this body cares deeply about. As three former FEC chairmen recently pointed out, foreign adversaries like Russia are not going to stop their malign operations for fear of an FEC fine: ‘Campaign-finance law isn’t the tool to prevent foreign meddling…Adversaries won’t be scared off by civil penalties…This is a job for diplomatic, national security and counterintelligence agencies. [This legislation] is a needless sacrifice of First Amendment rights, not a serious effort to secure elections.’

“That’s three former chairmen of the Federal Elections Commission. And I agree: It was focusing on defense and counterintelligence, not attacking the First Amendment, that made the 2018 elections go more smoothly than the 2016 elections.

The Federalist: Democrats’ Election Bill Allows The Government To Define ‘Legitimate News’

By David Marcus

One of the major problems with the SHEILD Act regarding free speech is a provision that allows the federal government to determine what is and is not “legitimate journalistic activities” for the purposes of protecting them from the provisions of the act. The obvious problem with this is that should the federal government decide a journalistic activity is not legitimate, it will have broad powers to silence it.

In addition to this concern, the bill creates a wide array of hoops for United States citizens wishing to engage in political speech to jump through. By making it more difficult to purchase online ads, the bill threatens to chill speech. Regular Americans should not fear federal prosecution for engaging in the political process.

It is not only the GOP that opposes these illiberal elements of the bill, and the bill itself, but also the ACLU, which in a statement said, “The SHIELD Act, as it currently stands, strikes the wrong balance, sweeping too broadly and encompassing more speech than necessary to achieve its legitimate goals.” …

Russia spent very little money actually buying ads on social media platforms, the vast majority of its effort, which may have reached more than 100 million Americans was directed toward a social media presence that was free…

Unfortunately, unlike the GOP bill that lays out punishments for foreign governments that engage in these activities, the SHIELD Act does nothing to deter them…

The House should go back to the drawing board and pass a bill that contains measures that can actually make a difference, or simply pass the Republican bill.

As it stands, the badly flawed SHIELD Act looks to be playing politics while stripping Americans of speech rights, more than it looks to actually protect American elections.

Washington Post: The Cybersecurity 202: Some House Republicans also think the DNC server is in Ukraine

By Joseph Marks

The ”Stopping Harmful Interference in Elections for a Lasting Democracy Act,” or SHIELD Act. will also require campaigns to report offers of illegal foreign assistance to the FBI and Federal Election Commission and compel social media companies to maintain and disclose who is buying online political ads. The House Rules Committee added language yesterday making it easier to deport foreigners suspected of entering the country to interfere in U.S. elections or who were accused of doing so in the past.

The bill faces fierce opposition from House Republicans, who claim it would have a “chilling effect” on online speech. It’s unlikely to be taken up in the Senate where Majority Leader Mitch McConnell (R-Ky.) has refused to allow votes on an election security legislation.

Meanwhile, Sen. Amy Klobuchar (D-Minn.) once again tried but failed to force a Senate floor vote on The Honest Ads Act, her version of legislation that would similarly regulate online political ads.

“Just yesterday, Facebook announced that it removed a network of Russian backed accounts posing as locals weighing in on political issues in swing states.” Klobuchar said. “The next major elections are just 378 days away – so the clock is ticking.”

Sen. John Kennedy (R-La.), who argued the Honest Ads Act has “more red flags than the Chinese Embassy,” said he plans to introduce his own bill that would require state election officials to report any foreign individuals who have access to election machines to the Election Assistance Commission, Maggie Miller at The Hill reports.

The Hill: Senate GOP blocks three election security bills for second day

By Jordain Carney

Sens. Mark Warner (D-Va.), Amy Klobuchar (D-Minn.) and Ron Wyden (D-Ore.) asked for unanimous consent to pass three election-related bills.

But they were blocked by Sen. Marsha Blackburn (R-Tenn.)…

Warner, the vice chairman of the Senate Intelligence Committee, tried to pass legislation that would require campaign officials to report contacts with foreign nationals who are trying to make donations or coordinate with the campaign to the Federal Election Commission, which would notify the FBI…

Klobuchar, a 2020 White House hopeful and the top Democrat on the Rules Committee, on Wednesday tried to pass legislation requiring campaigns to report “illicit offers” of election assistance from foreign governments or individuals to both the FBI and the Federal Election Commission, and take steps to ensure that political advertisements on social media are subject to the same stricter rules as ads on television or radio.

“It’s about protecting our election hardware and infrastructure but it is also about protecting us from this disinformation campaign, all of this really bad stuff,” Klobuchar said.

The legislation, known as the SHIELD Act, is expected to get a vote in the House on Wednesday.

Americans for Tax Reform: Congress Should Reject the “SHIELD Act”

By Tom Hebert

Democrats have pushed to have government take over political speech in the past. House Democrats tried introducing a number of the SHIELD Act’s provisions earlier this year in H.R. 1, the misleadingly-named “For the People Act of 2019.”

The SHIELD Act is a wishlist of Democrat priorities that focuses on restricting the political speech of Americans instead of targeting foreign meddlers abroad.

Strangely enough, the bill does nothing to prevent troll farms, which was the primary means Russia attempted to influence the 2016 election. Additionally, nothing in the SHIELD Act would give law enforcement the resources necessary to counter foreign actors that attempt to influence our elections…

Thankfully, Republicans have an alternative. House Administration Committee Ranking Member Rodney Davis (R-Illinois) has introduced H.R. 4736, the Honest Elections Act. Instead of federalizing state and local elections, the Honest Elections Act empowers states and localities to secure their elections while upholding constitutional principles.

In reality, the SHIELD Act would do next to nothing to secure our elections while trampling all over the Constitutional guarantee of freedom of expression.

The House should reject the Democrat-led SHIELD Act and pass legislation that would actually secure our election in 2020 and beyond.

Online Speech Platforms 

USA Today: Kudos to Facebook CEO Mark Zuckerberg for defending free speech at a tough moment

By Sarah Ruger

We’ve recently seen abroad how speech restrictions can backfire. Last year, Germany introduced a new law requiring social media companies to remove posts for a wide range of possible infractions, such as posts deemed to incite hatred. But the law became a rallying cry and recruitment tool for people on the far right, who claimed they were being silenced for their ideas.

Since it’s extremely difficult to control the flow of information in the 21st century, the law didn’t stop far-right advocacy. It furthered radicalization in deeper corners of the internet. Their tactics evolved, and far-right groups have even gained ground in recent years.

If the United States pursues a similar policy, it will likely embolden people with bigoted ideas. But the risks don’t stop there. It would make it harder to reach those considering their ideologies and pull them back from the brink.

The more effective censorship is in closing off information, the more it jeopardizes the benefits of social media, which depend on being an open platform. That openness has democratized information and made it easier for people to connect with others they wouldn’t ordinarily meet – often with profound benefits.

For example, Megan Phelps-Roper grew up in the infamous Westboro Baptist Church, known for its outrageous insults against the LGBTQ community, veterans and most everyone else. As a spokesperson for the church on social media, Megan’s job was to spread these abhorrent views. But the opposite happened. She started having conversations on Twitter with critics who caused her to question lifelong beliefs. Megan ultimately left the group and became an advocate for respect and inclusion.

Corporate Speech

Reason: Corporate America Discovers the Limits of Political Posturing as a Marketing Tactic

By J.D. Tuccille

After years of companies gilding themselves with virtue by associating with causes popular among some customers (and implicitly telling folks with different politics to take a hike), Apple, Blizzard Entertainment, and the NBA find themselves torn between the values of an open society and pleasing the authoritarian Chinese government and the vast market it controls. It’s a no-win situation that was inevitable once companies took to exploiting political posturing as an opportunity to appeal to favored factions.

“Political discourse is finding its way into the brand world. Or, to be more accurate, brands are joining the political discourse,” Patricio Robles of marketing firm Econsultancy noted two years ago. But there are risks to that strategy. “It’s simply not possible for brands to craft simple messages around [political topics] that aren’t bound to offend large numbers of people who hold reasonable but opposing views,” the piece went on to warn…

How do businesses navigate a world in which people hold opposing views on many issues and different interpretations of right and wrong? There’s no clear and easy answer but submitting to the demands of an authoritarian government will always be a bad look, rendered that much worse if you’ve made a habit of cloaking yourself in assumed virtue by embracing political causes.

As an alternative, businesses could respect the free speech rights of employees and customers and keep the businesses themselves as free as possible from political entanglements that just alienate potential customers.

“Brands should also consider that there’s a huge difference between true values and political positions and consider how their statements, initiatives and decisions can unnecessarily conflate the two, dividing their customers and turning themselves into political props in the process,” Econsultancy’s Robles cautioned in 2017.

DOJ

Wall Street Journal: Major Donor to Trump, Clinton to Plead Guilty in Campaign-Finance Case

By Byron Tau

A major donor to both Donald Trump and Hillary Clinton made hundreds of thousands of dollars of illegal campaign contributions, some from foreign sources, to help cultivate influential U.S. politicians, according to charging documents filed Tuesday by federal prosecutors in California…

Mr. Zuberi will plead guilty to making illegal campaign contributions, tax evasion and falsifying lobbying records to conceal his work for foreign governments, according to charging documents filed in federal court in Los Angeles on Tuesday. He faces a maximum of 15 years in prison, though first-time offenders rarely receive the maximum sentence.

“Mr. Zuberi’s multifaceted scheme allowed him to line his pockets by concealing the fact that he was representing foreign clients, obtaining access for clients by making a long series of illegal contributions, and skimming money paid by his clients,” said Nick Hanna, the U.S. attorney in Los Angeles. “Mr. Zuberi circumvented laws designed to insulate U.S. policy and our election process from foreign intervention,” he said…

“The Zuberi prosecution is one of the largest campaign-finance prosecutions in recent memory-a sprawling indictment touching most major areas of campaign finance law-from straw donors to corporate contributions to foreign nationals,” said David Mitrani, an election law attorney at the firm Sandler Reiff. “Prosecutors and the Department of Justice are watching these issues very closely.”

NBC News:  2 Giuliani associates plead not guilty in campaign finance scheme

By Tom Winter and Rich Schapiro

Two associates of Rudy Giuliani linked to the Ukraine scandal pleaded not guilty Wednesday to charges of funneling money from foreign entities to U.S. candidates in a plot to buy political influence.

Lev Parnas and Igor Fruman were carrying one-way tickets to Vienna when they were arrested at Dulles Airport outside of Washington, D.C., on Oct. 9…

The foreign-born Florida men were charged with making $325,000 in illegal straw donations to a Trump super PAC, as well as giving $15,000 to a second committee among a flurry of political donations intended to help them advance the interests of a Ukrainian government official and a Russian national seeking to break into the cannabis industry.

Candidates and Campaigns 

The Intercept: Bernie Sanders Pledges To End Practice Of Prosecuting Whistleblowers Under The Espionage Act

By Ryan Grim

As president, Bernie Sanders would end the practice of using the controversial Espionage Act to prosecute government whistleblowers, the Vermont senator told The Intercept in an interview on Saturday ahead of a major rally in New York.

The century-old law had largely gone out of fashion until it was deployed heavily by the Obama administration, which prosecuted eight people accused of leaking to the media under the Espionage Act, more than all previous presidents combined. President Donald Trump is on pace to break Barack Obama’s record if he gets a second term: He has prosecuted eight such whistleblowers, five of them using the Espionage Act, according to the Press Freedom Tracker.

Asked if it is appropriate to prosecute whistleblowers using the Espionage Act, Sanders said, “Of course not.”

The Espionage Act, which was passed in 1917 to suppress opposition to World War I and now considers leakers to effectively be spies, makes a fair trial impossible, as relevant evidence is classified and kept from the defense, and the bar for conviction is low. The law also comes with stiffer criminal penalties and longer sentences than more obvious charges that might be leveled, such as mishandling classified intelligence…

Asked if he would give a second look at the record-setting length of the sentence doled out to National Security Agency contractor Reality Winner, Sanders demurred, saying that he was supportive of whistleblowers but unfamiliar with her case.* Rep. Alexandria Ocasio-Cortez, D-N.Y., who joined Sanders during the interview, agreed. “I don’t want to speak out of turn when it comes to Reality Winner, but I just think that the prosecution of whistleblowers is frankly against our democracy. We rely on whistleblowers, we rely on journalists, in order for us to hold our systems accountable.”

The States

New York Daily News: Connecticut vs. free speech

By Eugene Volokh

Two University of Connecticut students are being prosecuted for “ridicule on account of creed, religion, color, denomination, nationality or race,” according to the Washington Post. If convicted, they could be sentenced to up to 30 days in jail. Except what they were doing – apparently saying the n-word loudly to each other, “getting louder with each iteration and laughing as they walk by student housing” – doesn’t actually violate state law. And even if state law did cover racial insults, it would be unconstitutional under a 1992 Supreme Court decision.

First, consider the text of the racial ridicule law: “Any person who, by his advertisement, ridicules or holds up to contempt any person or class of persons, on account of the creed, religion, color, denomination, nationality or race of such person or class of persons, shall be guilty of a class D misdemeanor.” The law is limited to “advertisements,” so it doesn’t cover personal conversations or even shouts, whether or not they are racist or religiously bigoted…

But let’s for a moment assume that somehow “advertisement” could be read, contrary to its normal meaning, as “any statement.” Then the statute would be unconstitutionally overbroad, because it would cover a vast range of racial and religious ridicule – for instance, saying things that mock evangelical Christians as a group for their beliefs, or for that matter saying contemptuous things about blacks or whites or Israelis or Palestinians. Such speech, even if it is rude and offensive, is protected by the First Amendment…

[E]ven if the statute were read, again contrary to its normal meaning, as limited to “fighting words,” it would still be unconstitutional. The Supreme Court made that clear in the R.A.V. vs. City of St. Paul case in 1992, when it expressly struck down a law that singled out race-based fighting words for special punishment. Even though an evenhanded ban on fighting words is permissible, the court held, the First Amendment forbids bans that involve “viewpoint discrimination” – for instance, bans that specially target “messages of ‘bias-motivated’ hatred” and “messages ‘based on virulent notions of racial supremacy.'”

Florida Politics: Republican lawmaker wants to shine light on dark money

By Jacob Ogles

As chairman of the Republican Party of Florida and a political accountant, Joe Gruters handles tools of the political trade. But there’s one he’d like to take out of the box.

The Sarasota state Senator filed legislation (SB 516) aiming to stop dark money from impacting Florida campaigns.

“At the end of the day we should be as transparent as possible,” he said.

It’s the fourth time Gruters has pushed this bill. Last year, it died in the Ethics and Elections Committee.

But it remains a priority for Gruters nonetheless. That’s in large part to Gruters’ own political origin story.

He ran for House in 2016 a favorite, chairing the Republican Party of Sarasota and the Florida arm of Donald Trump’s presidential campaign. But a series of nasty mailers in the last week of the campaign nearly derailed his own politic ambitions. He only won a Republican primary in Florida House District 73 over Tea Party activist Steve Vernon by 385 votes.

Alex Baiocco

Alex Baiocco