Daily Media Links 10/28

October 28, 2019   •  By Alex Baiocco   •  
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Free Speech

The Hill: Mark Zuckerberg deserves praise for his noble stand on free speech

By Jonathan Turley

With the House Financial Services Committee hearing this past week, Democrats and the media condemned Zuckerberg and his refusal to put a stop to false political ads. As unpopular as it may be, however, Zuckerberg is right that what members are demanding from Facebook is censorship and, if allowed, it would create a dangerous regulation of free speech…

Watching the cable news coverage of the hearing, you sensed the rising revulsion on some networks over his refusal to promise to review and regulate political ads for alleged lies. Representative Alexandria Ocasio Cortez of New York made regulating political speech sound noble and obvious by demanding, “So you will not take down lies or you will take down lies? I think that is just a pretty simple yes or no.” The answer, if you believe in free speech, is a simple no…

Democrats are using Russian internet trolling operations and presidential tweets to make another play for speech regulation. Would Ocasio Cortez feel the same way about Facebook banning an ad featuring her false assertion that the “vast majority” of Americans do not make a “living wage”? Or her false assertion that Walmart and Amazon do not pay minimum wages? Or how about her false assertion that most of “Medicare for All” could be paid for by simply recouping $21 trillion lost due to “Pentagon errors”? …

Trump offers troubling descriptions of undocumented persons, while Hillary Clinton has hinted at Representative Tulsi Gabbard of Hawaii being a “Russian asset.” Then there are contested descriptions of climate change on both sides. One can imagine constant demands from groups to take down ads as factually misleading…

Facebook already engages in too much content regulation of sites and postings. Yet that is still not enough for many House members, who want to decide when and how individuals and groups can speak out in the political arena.

The truly insidious aspect of this effort by those on the left is that they are dressing up censorship as the protection of democracy to try to convince citizens to give up core free speech protections.

Reason: A Survey Finds Speech Restrictions Are Pretty Popular. That’s Why We Need the First Amendment.

By Jacob Sullum

The First Amendment is unpopular…which is why we need the First Amendment. A recent survey commissioned by the Campaign for Free Speech underlines that point, finding that most Americans support viewpoint-based censorship, suppression of “hurtful or offensive” speech “in universities or on social media,” government “action against newspapers and TV stations” that print or air “biased, inflammatory, or false” content, and revising the First Amendment, which “goes too far in allowing hate speech,” to “reflect the cultural norms of today.”

That last position was endorsed by just 51 percent of respondents, compared to 42 percent who disagreed and 7 percent who had no opinion. But 57 percent favored legal penalties for wayward news organizations, 61 percent supported censorship of “hurtful or offensive” speech in certain contexts, and 63 percent said the government should restrict the speech of racists, neo-Nazis, radical Islamists, Holocaust deniers, anti-vaccine activists, and/or climate change skeptics.

On a more heartening note, the idea of tasking “a government agency” with “reviewing” the output of “alternative media sources” mustered support from just 36 percent of respondents, although the opponents still fell short of a majority. Likewise with a law against “hate speech,” which 48 percent favored and just 31 percent opposed…

On almost every question, millennials (ages 21 to 38) were more likely to support speech restrictions than older respondents were. But contrary to what you might think, people with college degrees were less inclined to favor speech restrictions than respondents who either did not attend or did not complete college.

Supreme Court

Brennan Center: The Supreme Court Considers Political Lies in the Bridgegate Case

By Ciara Torres-Spelliscy

The Supreme Court has been siding with liars in recent cases.

Kelly v. United States, better known as “the Bridgegate case,” goes before the Court this term and is another opportunity to elevate the power to lie in politics. But the Court doesn’t have to go down this path…

The question the Court is considering is “whether a public official defrauds the government of its property by advancing a public policy reason for an official decision that is not her subjective real reason for making the decision.” In other words, the Supreme Court is considering whether Kelly can get away with lying about why the bridge was really closed.

I fully expect that the Supreme Court will exonerate Kelly for her actions. It could build on United States v. Alvarez, a 2012 case in which the Court invalidated a federal law against lying about congressional and military honors. The Court ruled that the Stolen Valor Act violated the First Amendment right of Xavier Alvarez, an elected member of a water district board in California, to lie about earning the Medal of Honor. Alvarez, taken to its logical extreme, could excuse Kelly’s lying too.

Alternatively, the Supreme Court could actually hold Kelly responsible for her actions. This is a long shot. However, in Department of Commerce v. New York, a 2019 case about whether the Commerce Department could add a citizenship question to the 2020 census, the Court held that it could not because the reason the administration gave for adding the question “appear[ed] to have been contrived.”…

I, for one, hope the justices come down on the side of truth. If the government is to be accountable to the public for its actions, then citizens must be able to know what officials are doing and why they are doing it.

The Courts

Baltimore Sun: Court to hear arguments on Maryland political ads law

By Associated Press

After revelations of Russian meddling in the 2016 presidential election, Maryland legislators passed a law that many believe has a laudable purpose: preventing foreign interference in local elections.

But its sweeping scope sparked a First Amendment outcry from more than a half dozen newspapers, including The Washington Post and The Baltimore Sun.

Now, a federal appeals court is being asked to decide whether the law goes too far. The 4th U.S. Circuit Court of Appeals is set to hear arguments in the case Wednesday.

The newspapers and the Maryland-Delaware-D.C. Press Association argue in a lawsuit that the statute violates the First Amendment because it requires them to collect and self-publish information about the sponsors of online political ads. It also requires them to keep records of the ads for inspection by the state Board of Elections.

U.S. District Judge Paul Grimm ruled in January that parts of the law appear to encroach on the First Amendment and granted a preliminary injunction to prevent the state from enforcing those provisions…

“It compels newspapers to publish, regulates far more speech – and speakers – than necessary, and does nothing to combat actual foreign influence in our elections,” said Seth Berlin, an attorney representing the newspapers…

The newspapers also argue that the law would impose a financial burden. Publishers of smaller newspapers say they would be especially hard hit and could be forced to choose between buying expensive software to comply with the law or refusing all online political advertising and losing that revenue.

More than a dozen news organizations and press advocacy groups, including The Associated Press, have filed legal briefs supporting the newspapers’ challenge.

But the law has won support from a range of groups, including Common Cause Maryland and the Brennan Center for Justice at New York University’s School of Law.

Dan Weiner, senior counsel for the Brennan Center’s Democracy Program, said it is “entirely reasonable” to ask newspaper websites to comply with the same disclosure requirements as other online platforms selling political ads.

“Media organizations don’t get out of otherwise applicable laws just because they happen to be media organizations,” he said.

ACLU: South Dakota Governor Caves on Attempted Efforts to Silence Pipeline Protesters

By Vera Eidelman

In response to a lawsuit we filed alongside the ACLU of South Dakota and the Robins Kaplan law firm, the state has agreed to never enforce the unconstitutional provisions of several state laws that threatened activists who encourage or organize protests, particularly protests of the Keystone XL pipeline, with fines and criminal penalties of up to 25 years in prison.

The settlement agreement reached today and now headed to the court for approval is an important victory for the right to protest. It comes soon after a federal court temporarily blocked enforcement of the pieces of the laws that infringed on First Amendment protected speech, and makes the court’s temporary block a permanent one…

South Dakota’s unconstitutional anti-protest efforts echoed the suppression of past social movements. From the start, South Dakota Governor Kristi Noem called on “shut[ting] down” “out-of-state people” who come into South Dakota to “slow and stop construction” of the pipeline. Her harmful calls were reminiscent of government attempts throughout our history to delegitimize and minimize significant social movements as the work of “outside agitators,” including Reverend Martin Luther King Jr.

South Dakota’s quick and costly retreat (they’ll have to compensate plaintiffs for attorney’s fees under the settlement agreement) should serve as a lesson for other legislatures considering similar efforts to silence dissent.

In the last few years, we have witnessed a legislative trend of states seeking to criminalize protest, deter political participation, and curtail freedom of association. These bills appear to be a direct reaction from politicians and corporations to some of the most effective tactics of those speaking out today, including water protectors challenging pipeline construction, Black Lives Matter, and those calling for boycotts of Israel. These legislative moves are aimed at suppressing dissent and undercutting marginalized and over-policed groups voicing concerns that disrupt current power dynamics.

JD Supra: Duo of federal court rulings deal blow to dark money disclosure laws

By Benjamin Keane, Michael Pfeifer, and Robert Sills

On September 30, the US District Court for the Southern District of New York issued a ruling in Citizens Union of the City of New York v. Attorney General of the State of New York (Case 1:16-cv-09592-DLC-KHP) striking down provisions of the state’s 2016 ethics law on grounds that it violated the First Amendment. In an opinion by District Judge Denise Cote, the court ruled that the provisions of the New York 2016 ethics law that required nonprofit organizations to disclose donor information impose overly broad restrictions on the nonprofits’ First Amendment rights of free speech and burden donors’ rights to free association and privacy…

A similar ruling was handed down by the US District Court for the District of New Jersey on October 2 in Americans for Prosperity v. Gurbir Grewal (Case 3:19-cv-14228-BRM-LHG). The ruling, issued by District Judge Brian Martinotti, granted a preliminary injunction to prevent the donor-disclosure elements of New Jersey’s nonprofit disclosure law (New Jersey Senate Bill 150) from taking effect while litigation continues. Judge Martinotti’s opinion granted the injunction on the ground that the law’s provisions triggering donor disclosure requirements were overly broad by mandating reporting if an entity’s communications were determined to “influence or attempting to influence” political activity.

Congress

WLDS-WEAI News: Davis Works To Counter Democrats’ SHIELD Act For Protecting Elections

By Benjamin Cox

13th District Congressman Rodney Davis helped introduce the Honest Elections Act to the House last Friday to counter-punch the Democrat-led the Stopping Harmful Interference in Elections for a Lasting Democracy or SHIELD Act of 2019.

The bill, which passed the House [Wednesday], was pushed through by House Democrats without support. Davis says the Committee on House Administration’s Democrats pushed the bill through without holding any hearings. Davis is the ranking member of the committee and one of 3 Republicans who sit on the committee. “It was pushed through without any hearings so some of us could talk to some of the social media platforms that are going to be regulated by this bill and ask them questions. Ask them questions about why they took foreign dollars for campaign ads in 2016. The Democrats pushed this through. It was a bill that garnered zero Republican support as well as not having all of the Democrats supporting it. Our bill we think is a better alternative. It will provide some click-through disclosure for online political ads. It would also empower the Department of Justice to really go after bad actors that want to play in our elections. The DOJ should be the one to go after foreign agents and their interference in our elections. Not the Federal Election Commission or other government agencies. Our bill makes sure that happens.”…

Davis said that he’s also seen support from some surprising allies that are against the SHIELD Act’s provisions: “It’s not every day that you get Americans For Prosperity and the ACLU on the same side. This bill would have a chilling effect on the First Amendment and Free Speech…” …

Davis says that the suppression of freedom of speech also extends to the media as well. “This is one of the most Orwellian-type of issues they addressed with this legislation with the news media. Who in the federal government and why would they determine what is legitimate and not legitimate news? Are they going to determine that my conversation with the local media today is not legitimate news?…”

FEC

The Hill: Democrat asks FEC to investigate Trump campaign declining to pay police bills

By Cristina Marcos

The Trump campaign has not paid at least 10 bills totaling more than $841,000 sent by local governments to cover public safety costs, according to a June report by the Center for Public Integrity. And The Albuquerque Journal reported last week that the city had sent a bill to the Trump campaign for $211,000 in costs for a September rally, including more than $71,000 in police overtime.

Minneapolis Mayor Jacob Frey also said earlier this month that he would ask the Trump campaign to pay $530,000 for security costs associated with a campaign rally. That prompted an angry tweet from Trump, who wrote that “someone please tell the Radical Left Mayor of Minneapolis that he can’t price out Free Speech. Probably illegal!” …

Rep. Bill Pascrell (D-N.J.) called on the FEC to investigate whether the Trump campaign is violating campaign finance rules by failing to report the disputed debts on its quarterly filings.

“Donald Trump’s presidential campaign may ignore their obligation to reimburse local officials for the significant assistance provided at these political events. But FEC regulations on reporting disputed debts clearly state that these disputes must be reported until the dispute is resolved,” Pascrell wrote in a letter to FEC Chairwoman Ellen Weintraub.

“These events draw crowds far larger than the local officials are accustomed to handling. The work and assistance provided by these officers ensures these political events run smoothly and safely for all involved, including the President of the United States and candidates for our highest office. This is assuredly ‘something of value’ provided ‘by a creditor to a political committee.’ As such, these debts and disputed debts must be reported accordingly,” Pascrell wrote.

Campaigns are not necessarily required to reimburse local governments for security assistance provided at campaign events.

Forbes: At Least 20 Billionaires Behind ‘Dark Money’ Group That Opposed Obama

By Michela Tindera

“This is the first time in the Citizens United-era that a dark money group was forced to disclose their donors in a certain time period,” said Jordan Libowitz, a spokesperson for nonprofit watchdog group Citizens for Responsibility and Ethics in Washington…

Americans for Job Security had previously claimed it was not a political organization and therefore did not have to disclose its donors. But after years of litigation, CREW convinced the Federal Election Commission otherwise. AJS filed a list of its backers and beneficiaries from 2010 to 2012 on Thursday.  

Online Speech Platforms 

CNN: A false ad claiming Republicans back the Green New Deal tests Facebook’s policy on lies

By Donie O’Sullivan

A left-leaning PAC ran a Facebook ad falsely claiming that Republican Sen. Lindsey Graham endorsed the Green New Deal. The ad came after Rep. Alexandria Ocasio-Cortez grilled Facebook CEO Mark Zuckerberg earlier this week about the company’s policy of allowing politicians to run ads on the platform that are false…

On Thursday, a PAC named “The Really Online Lefty League” posted a false ad that used edited video to make it appear like Graham had endorsed the Green New Deal.

The ad spliced together different audio of Graham speaking to make it sound like he said, “Simply put, we believe in the Green New Deal.” Graham never said that.

The ad ran successfully on Facebook until Saturday after it was flagged as false by a fact-checking group hired by the social media giant. Facebook then canceled the ad but allowed the false video to stay on the platform. Users will be alerted before sharing the video that it has been flagged by fact-checkers and Facebook says it will downrank the video, meaning it will be seen in less people’s feeds…

However, Facebook confirmed to CNN on Saturday, if Ocasio-Cortez had run the same ad it would not be removed because fact-checking does not extend to politicians.

New York Times: Dissent Erupts at Facebook Over Hands-Off Stance on Political Ads

By Mike Isaac

The letter was aimed at Mark Zuckerberg, Facebook’s chief executive, and his top lieutenants. It decried the social network’s recent decision to let politicians post any claims they wanted – even false ones – in ads on the site. It asked Facebook’s leaders to rethink the stance.

The message was written by Facebook’s own employees.

Facebook’s position on political advertising is “a threat to what FB stands for,” the employees wrote in the letter, which was obtained by The New York Times. “We strongly object to this policy as it stands.”…

More than 250 employees have signed the message, according to three people who have seen it and who declined to be identified for fear of retaliation.

While the number of signatures on the letter was a fraction of Facebook’s 35,000-plus work force, it was one sign of the resistance that the company is now facing internally over how it treats political ads…

“Facebook’s culture is built on openness, so we appreciate our employees voicing their thoughts on this important topic,” Bertie Thomson, a Facebook spokeswoman, said in a statement. “We remain committed to not censoring political speech, and will continue exploring additional steps we can take to bring increased transparency to political ads.”…

In the Facebook employee letter to Mr. Zuckerberg and other executives, the workers said the policy change on political advertising “doesn’t protect voices, but instead allows politicians to weaponize our platform by targeting people who believe that content posted by political figures is trustworthy.”…

The letter then laid out product changes and other actions that Facebook could take to reduce the harm from false claims in advertising from politicians. Among the proposals: Changing the visual design treatment for political ads, restricting some of the options for targeting users with those ads, and instituting spending caps for individual politicians.

[Read the Letter Facebook Employees Sent to Mark Zuckerberg About Political Ads]

PolitiFact: No, Olive Garden is not funding President Trump’s re-election campaign

By Samantha Putterman

[O]ne viral Facebook post claims:

“Olive Garden is funding Trump’s re-election in 2020. It would be terrible if you shared this and Olive Garden lost business.”

The post was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook.)

But it isn’t true…

We went to OpenSecrets.org, a campaign finance database run by the Center for Responsive Politics research group, to examine the numbers.

The database shows that Darden Restaurants itself has not donated to Trump’s re-election campaign, nor has it made any contributions during the 2020 election cycle. (The same goes for the 2018 and 2016 election cycles.)

That’s because corporations are prohibited from making contributions to candidates and party committees, according to the Federal Election Commission. Open Secrets includes a similar disclaimer that reads: “Organizations themselves cannot contribute to candidates and party committees. Totals include subsidiaries and affiliates.”

But donations can be made from PACs affiliated with the company, from the organization’s employees, owners or those individuals’ immediate family members. All the money associated with Darden that’s been donated so far in the 2020 cycle has come from individuals, the database shows. Those donations have totaled $17,332, with $11,899 of that going to candidates, all of them Democrats, and $5,000 going to a PAC that says it supports Democratic leadership. Trump is not among the recipients so far, according to the database.

In recent election cycles, however, contributions associated with the organization went to both Republican and Democratic candidates and committees, and came from both individuals and PACs. In the 2016 election, individuals affiliated with Darden – again, not the organization itself – donated $8,407 to Hillary Clinton and $886 to Donald Trump.

Citizens United

Law & Crime: ‘We Need a Fundamental Change’: Advocates Renew Push for Overturning Citizens United Via 28th Amendment

By Colin Kalmbacher

A non-profit advocacy organization dedicated to overturning the controversial Citizens United decision launched a college-based campaign to do exactly that earlier this week.

American Promise kicked off “The Cause of Our Time” at the third annual National Citizen Leadership Conference-the largest national event dedicated to the passage of a 28th Amendment…

The advocacy group describes their campaign as an effort to “educate and engage young people on college campuses and beyond in how to become leaders calling for democracy reform through a constitutional amendment to get money out of politics.”…

“The campaign is being taken on by attendees and asks young Americans to sign on to a statement of principle demanding an amendment, to be delivered to their representatives at next year’s Citizen Lobby Day,” a press release issued by the advocacy group noted. “Campus chapters are being organized across the US with the goal of 20 by the November 2020 election.”

Fundraising 

Politico: Meet the K Street types giving to the Democratic candidates

By Theodoric Meyer

Most of the Democrats running for president have sworn off contributions from registered lobbyists. As I’ve reported before, though, they’re still taking money from those in Washington’s influence industry who aren’t registered to lobby.

The States

Seattle Times: Despite promising to stop, Facebook and Google are still selling political ads in Washington state

By David Gutman

Both companies announced they would stop selling political ads here after a lawsuit accused them of not obeying the state’s rules on political ad transparency.

But search Facebook’s ad library and you’ll find paid ads for candidates for Wenatchee School Board, Olympia mayor, Seattle School Board and against Tim Eyman’s Initiative 976, among many others…

Google and Facebook both agreed last year to stop accepting local political ads in Washington after they were sued by Attorney General Bob Ferguson for violating the state’s strict campaign-finance laws, which require ad sellers to disclose specific information on the names and addresses of people who buy ads, geographic locations ads are targeted at and the total number of views of each ad…

The PDC filed charges against Facebook three weeks ago, saying the company “repeatedly violated” state law by “failing to maintain documents” that the public can inspect regarding political ads. A PDC spokeswoman said Google remains under investigation.

Both companies have said they try to filter out political ads and remove them if they find them…

Both companies have also argued, circularly, that they’re not violating state law concerning political ads because they have said they don’t sell political ads.

In a filing with the PDC, Google called a political ad that it sold “a third party’s illicit requisition of Google’s platform” and said that it “does not constitute acceptance of that advertisement by Google.”

Facebook, in its own filing, wrote that it “prohibits Washington Political Ads and it therefore does not qualify as a ‘commercial advertiser’ subject to the disclosure requirements of Washington law.”

Pennsylvania Capital-Star: Top. Pa. Senate Democrat introduces campaign finance reform bill

By John L. Micek and Elizabeth Hardison

In the wake of published reports revealing that state lawmakers obscured millions of dollars in campaign spending, a senior state lawmaker says he wants to change that.

On Friday, Senate Minority Leader Jay Costa, D-Allegheny, floated a bill that he says would impose spending limits and require greater transparency in the way that money is spent. Right now, Pennsylvania does not impose limits on spending and it’s often difficult to tell how campaigns are spending their money.

The bill comes in response to a year-long investigation by two Harrisburg-based investigative journalism organizations, The Caucus and Spotlight PA. Costa was among the lawmakers highlighted in the story…

In a post to Twitter, Senate President Pro Tempore Joe Scarnati, R-Jefferson, who was the main target of the news organizations’ investigation, said that he “[stands] with [Costa’s goal] of strengthening the current law to improve transparency for campaign disclosure in [Pennsylvania.].”

A statement his office issued late Friday afternoon, Scarnati said he “welcome[s] the discussion to make campaign expenditures more transparent to the public.”…

But Scarnati warned that compromise can be difficult on matters related to campaign and election reform. Any debate about campaign finance reform in Pennsylvania “should also include the issue of public sector unions’ contributions and their influence in the electoral process,” he said.

“If the Governor, as well as members from both parties and chambers of the legislature collectively work together to strengthen transparency regarding campaign finance, I am willing once again to actively engage in these conversations and to advance such product,” he wrote.

New York Now: Abrupt reversal by campaign finance commission leaves supporters wondering

By Karen DeWitt

The commission formed to create a public campaign financing system for New York elections reversed course this week, during a vote on how to structure a matching donor system. Advocates of a public system say the decision makes it more likely that the ultimate plan will result in a system that no candidate will ever use, and they believe that Governor Andrew Cuomo and the Democratic-led State Assembly are behind the change.

The commission, made up of people appointed by Cuomo and legislative leaders, had been working toward a system for statewide races based on New York City’s decades-old and largely successful system. It would include a 6 to 1 matching system for donations of up to $250 dollars, with an overall limit on how much public money each candidate could receive. The commissioners had already taken preliminary votes to begin to structure that system.

But then, during a meeting on October 22, the commissioners, led by Cuomo appointee Jay Jacobs, who is also the head of the state’s Democratic Party, narrowly approved a new rule for state Senate and Assembly races. Those candidates would only be able to collect public matching funds if the donors lived in their districts. And the matching funds would be much higher, a 20 to 1 match…

4 commissioners appointed by either Cuomo or Assembly Speaker Carl Heastie voted for the 20 to 1 matching program. 4 appointees of Senate Democrats, and Senate and Assembly Republicans, voted against it.

The deciding vote was cast by Commissioner Henry Berger, who holds the seat jointly selected by the Governor, the Assembly Speaker, and the Senate Majority Leader…

Commissioner Jacobs says that all votes on the details of a public finance system are preliminary and that the positions could change before the commission is due to release its report on Thanksgiving Eve.

News 10 ABC: Law requires local board of elections to be more transparent of local campaign finance contributions

New York Governor Andrew Cuomo signed two election-related bills into law on Friday.

The bills require local boards of elections to increase the transparency of local campaign contribution limits and provide voters additional notice of special elections.

Under current law, the governor’s office says the total number of registered voters in a district determines local contribution limits, leading to varying limits from year to year. Additionally, there is currently no requirement for boards of elections to publish these limits.

Alex Baiocco

Alex Baiocco