Daily Media Links 10/3

October 3, 2019   •  By Alex Baiocco   •  
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The Courts

New York Law Journal: NY Ethics Law Requiring Issue Advocacy Groups to Disclose Donors Is Struck Down as Unconstitutional

By Dan M. Clark

U.S. District Judge Denise Cote of the Southern District of New York wrote in a decision handed down late Monday that the law couldn’t survive a measure against the right to free speech.

“There is no question that public disclosure of donor identities burdens the First Amendment rights to free speech and free association,” Cote wrote.

The law was challenged in federal court three years ago by Citizens Union, a good government group based in New York City that’s regularly involved in ethics advocacy campaigns…

They were challenging two parts of a measure passed by the state Legislature, and approved by Gov. Andrew Cuomo…

The first section was written to require a 501(c)(3) to disclose all of its donors who contributed more than $2,500 when the organization makes an in-kind donation to a 501(c)(4) that engages in lobbying, either on its own behalf or through a lobbyist.

The second section was written to require a 501(c)(4) to disclose donors who contribute $1,000 or more when the organization spends more than $10,000 in a calendar year on communications made to at least 500 members of the public concerning political or legislative issues…

Good government groups, like Citizens Union, immediately took issue with the law, saying it would chill their ability to advocate because supporters would be less willing to contribute if they knew their donation would be viewable by the public.

Citizens Union, like other issue advocacy groups, exists as both a 501(c)(3) and 501(c)(4)…

“The First Amendment rights to publicly discuss and advocate on issues of public interest, and to do so anonymously, have long been recognized,” Cote wrote.

NJ Spotlight: Judge Block’s NJ’s New Dark-Money Law, Citing Concerns About Constitutionality

By Colleen O’Dea

U.S. District Judge Brian Martinotti gave a significant win to Americans for Prosperity, the prominent national conservative organization that was first to challenge the law. It also buoyed a host of more liberal-leaning groups – including the American Civil Liberties Union-NJ, which filed its own lawsuit, and the New Jersey League of Conservation Voters…

“Americans should be free to advocate for causes they believe in without retaliation by elected officials,” said AFP-NJ State Director Tony Howley in a statement. “We are proud to stand with a diverse mix of organizations who share a commitment to making it easier for people to engage on the issues they’re passionate about, and grateful to the Court for preserving all Americans’ First Amendment rights while this important issue is litigated.”

“The donor disclosure law puts core constitutional rights at stake, and the court made sure that organizations from across the ideological spectrum can make full use of our First Amendment freedoms as the case continues,” said Jeanne LoCicero, legal director of ACLU-NJ, which filed a similar suit along with the national ACLU in federal court in Newark two months ago. “The Supreme Court has said time and again that compulsory exposure of organizations’ supporters threatens free association, privacy and other key rights, and the federal district court recognized those principles again today.” …

Martinotti also found “constitutionally troubling” language in the law that would require disclosure by groups that provide political information…

In finding the law probably violates free-speech rights, Martinotti wrote that he did not need to address AFP’s second contention that the law will make potential donors fear to give money to the group. Still, he noted those concerns are real, writing that this is “a climate marked by the so-called cancel or call-out culture that has resulted in people losing employment, being ejected or driven out of restaurants while eating their meals; and where the internet removes any geographic barriers to cyber harassment of others.”

North Jersey Record: Judge puts NJ’s ‘dark money’ law on hold, keeping the names of big donors secret

By Ashley Balcerzak

Three groups sued New Jersey over a law Gov. Phil Murphy signed in June, despite calling it unconstitutional…

The groups that sued, the libertarian Americans for Prosperity, the liberal American Civil Liberties Union and the Illinois Opportunity Project, argue that the law violates the First Amendment and targets certain political groups and not others. It requires information to be published about ads that talk about regulations, legislation and ballot measures, and not just candidates and election speech, which goes further than similar laws in other states and federal law…

“The governor said months ago the bill was unconstitutional as written and fell short of the worthy goal of strengthening disclosure requirements and enhancing public trust in the political process,” said Mahen Gunaratna, Murphy’s communications director. “Today’s ruling affirms the governor’s decision to conditionally veto the bill back in May.”…

New Jersey’s attorneys said the law would apply only to speech with an opinion, and that neutral, nonpartisan political information would not count. So if the League of Women Voters sent out a mailer that described all candidates without endorsing one, it wouldn’t count, [Assistant District Attorney Stuart Feinblatt] said. But the text of the law says it covers speech that “contains facts on any such candidate or public question,” which seems to include that example, Americans for Prosperity lawyers argued.

Judge Brian Martinotti asked New Jersey’s lawyers about a specific situation during the hearing: Would a scorecard grading politicians on their tax policy count under the law? Feinblatt said he wasn’t sure.

“Doesn’t that get right to the point?” Martinotti said. “If you can’t answer it defending the law, how are they going to advise their clients that this is what’s covered and this is what’s not?”

Online Speech Platforms

Wall Street Journal: Facebook, in Fresh Blow in Europe, Must Remove More Content if Ordered

By Sam Schechner

The EU’s Court of Justice said Thursday that a judge in one of the bloc’s member states can order Facebook Inc. or other social-media companies to scan for and remove posts that are identical-or in some cases merely “equivalent”-to content that has been ruled illegal. The court also said that nothing in EU law stops judges from ordering social-media companies to apply such orders globally, provided they do so “within the framework of the relevant international law.”

The decision is a new hit to tech companies and free-speech activists in a continuing fight over how-and where-to regulate speech on the internet.

On one hand, policy makers in Europe and elsewhere have proposed new laws that make hosting companies more responsible for what their users post online, part of a growing backlash against the power and influence of tech companies such as Facebook, including complaints they don’t do enough to stop the spread disinformation.

On the other hand, tech companies and free-speech activists say they worry that a thicket of overlapping defamation and content-removal laws could lead companies to take down otherwise legitimate content, curbing free expression on the internet. They also have argued-most recently in a case that Alphabet Inc. ‘s Google won-that forcing global removals of content ruled illegal in one country could give tyrants and despots new tools for censorship.

Thursday’s decision “undermines the longstanding principle that one country does not have the right to impose its laws on speech on another country. It also opens the door to obligations being imposed on internet companies to proactively monitor content and then interpret if it is ‘equivalent’ to content that has been found to be illegal,” a Facebook representative said…

Thursday’s ruling originated from a case brought by a former head of the Green Party bloc in Austria’s Parliament who wanted Facebook to remove a defamatory comment about her, as well as reposts of it.

USA Today: ‘The words of a president matter’: Kamala Harris calls on Twitter to suspend Trump’s account

By William Cummings

Sen. Kamala Harris on Tuesday repeated her call for Twitter to suspend President Donald Trump’s account, sending a formal letter to the company’s CEO…

“I write to call your attention to activity that President Trump has been engaged in on his Twitter account, which appears to violate the terms of the user agreement that your company requires all users on the platform adhere to,”…

“Look let’s be honest, @realDonaldTrump’s Twitter account should be suspended,” reads the pinned tweet on the California Democrat’s account page.

“Hey @Jack. Time to do something about this,” Harris tweeted at Dorsey on Tuesday…

“Others have had their accounts suspended for less offensive behavior. And when this kind of abuse is being spewed from the most powerful office in the United States, the stakes are too high to do nothing,” she wrote.

“No user, regardless of their job, wealth, or stature should be exempt from abiding by Twitter’s user agreement, not even the President of the United States.”…

During an interview with CNN on Monday, host Anderson Cooper told Harris that suspending Trump’s Twitter account would likely prompt him to tell his supporters that he was the victim of rich Silicon Valley Democrats who wanted to silence him.

“I’m sure that will be said, but we have to also agree that when the president of the United States speaks her words are very powerful and should be used in a way that is not about belittling, much less harming, anyone,” Harris said…

“And if he’s not going to exercise self-restraint, then perhaps there should be other mechanisms in place to make sure that his words do not, in fact, harm anyone,”…

“I think there is plenty of evidence to suggest that he is irresponsible with his words in a way that could result in harm to other people. And so the privilege of using words in that way should probably be taken from him,” she said.

Reason: How To Fix Social Media and Democracy

By Nick Gillespie

On today’s podcast, Nick Gillespie interviews Mike Godwin, whose new book, The Splinters of our Discontent: How to Fix Social Media and Democracy Without Breaking Them, is a richly researched and remarkably panic-free discussion of how Facebook, Twitter, and other social media actually operate and influence public discourse, including elections. Currently a “distinguished senior fellow” at the think tank R Street, Godwin has a long and legendary history when it comes to cyberspace. Back in the 1990s, he was the first staff counsel for the Electronic Frontier Foundation (EFF) and helped craft the legal arguments that ultimately struck down government control of online speech in The Communications Decency Act of 1996. He also codified what’s become known as “Godwin’s law,” which holds that the longer an online discussion continues, the probability of a comparison involving Nazis, Adolph Hitler, or the Holocaust approaches 100 percent. Godwin has served as general counsel for Wikimedia Foundation, is the author of Cyber Rights: Defending Free Speech in the Digital Age, and longtime Reason contributing editor (read his Reason archive here).

Lobbying

Time: Elizabeth Warren Proposes a Big New Tax on Lobbyists. But Is It Legal?

By Charlotte Alter

“I think any plan to tax lobbying is almost certainly unconstitutional,” says Robert Kelner, a partner at Covington & Burling and an expert on federal lobbying laws. “It’s extraordinarily likely to be struck down by the Supreme Court if not by lower courts, because it would directly undermines the First Amendment right to petition our government.”

Other law experts say a lobbying tax is particularly unlikely to survive the current conservative makeup of the Supreme Court. “Given this Court’s view that money is a form of speech, it would likely view such a tax as an infringement of that right,” says Delaney Marsco, legal counsel for ethics at the Campaign Legal Center. “For the First Amendment purposes, it doesn’t matter whether or not you call it a tax. In terms of how First Amendment cases are analyzed, it has to do whether or not speech is burdened.”

Other experts argue that the First Amendment protects a petitioning system that is very different from the current lobbying system. “There is no constitutional right to an unregulated, opaque and informal access to the Congress or to any legislature,” says Maggie Blackhawk, an assistant professor at the University of Pennsylvania Law School who has researched lobbying and the petition clause. “That’s not what the petition clause was drafted to protect.” …

When asked about the constitutionality of the plan, the campaign noted that the tax code already treats lobbying differently from other businesses expenses by not allowing lobbying expenditures to be tax-deductible, pointed out that the tax doesn’t go into effect until a company has spent $500,000 on lobbying expenditures, and that the tax would apply equally to different businesses or interest groups, regardless of their advocacy (so human rights groups would pay the same taxes as large corporations.)

Roll Call: Elizabeth Warren’s lobby tax may not hold up to legal scrutiny

By Kate Ackley

“I do think this would be very hard to defend because it infringes on such a fundamental right,” said William Minor, a partner at DLA Piper, who focuses on lobbying, campaign finance and government ethics laws. “This more clearly seeks to limit what you do rather than simply shed light into it.”…

Lawyer Daniel Schuman, policy director with the liberal group Demand Progress, said he does not see a potential First Amendment problem with Warren’s idea but noted that such a proposal doesn’t necessarily fall under an existing precedent.

Lisa Gilbert of Public Citizen, another liberal advocacy group, concurred. “We certainly think you can place checks on money and engagement in politics,” she said.

Michael Sozan, a senior fellow at the liberal Center for American Progress, called Warren’s lobbying proposals “bold and innovative.”…

Daniel Ostas, a professor at the University of Oklahoma’s Price College of Business, has studied lobbying and the First Amendment, including in a paper titled “The Law and Ethics of K Street: Lobbying, the First Amendment, and the Duty to Create Just Laws.”

“Unfortunately, as much as I think it would be good to get more balance put into lobbying and have a truly pluralistic system where all voices are heard, I think this has got to be unconstitutional,” Ostas said…

[H]e did not think Warren’s outline would survive a Supreme Court challenge, no matter the makeup of the court.

It’s probably a smart political move, though, Ostas noted, given voters’ frustration with lobbyists…

“Given the obvious legal flaws with the idea that government should or can restrain speech like that, I can only assume it’s a political document,” said Republican lobbyist Alex Vogel, CEO of the Vogel Group and a former general counsel for the National Republican Senatorial Committee.

Fundraising 

Washington Post: Bullock calls to limit fundraising of lawmakers, president

By Michelle L. Price, AP

Montana Gov. Steve Bullock is pushing back against fundraising laws that have allowed federal officeholders seeking the presidency to transfer millions from their existing campaign accounts, leaving him and other current and former state officials scrambling to catch up.

Bullock on Thursday released a plan that bars members of Congress and the president from holding onto money in their campaign accounts after an election. The plan also calls for barring federal office holders from fundraising for the first half of their term in office.

The proposals are part of a broader plan to limit the influence of money in politics and expand voting access. The plan is being introduced as Bullock has struggled to break through the crowded field of 2020 Democratic presidential hopefuls as many of his rivals, including Sens. Elizabeth Warren and Bernie Sanders, have been able to transfer millions from their Senate campaign accounts to their presidential campaigns…

Under the plan, if members of Congress and the president have leftover funds in their campaign accounts after an election, they would have to refund donors, donate the money to charity, donate it to the presidential matching funds program or donate it to the U.S. government to reduce the deficit.

FEC

Philadelphia Inquirer: The agency that polices America’s elections is paralyzed. The blunt FEC chair on why that’s bad for 2020

By Julia Terruso

The chair of the Federal Elections Commission, in her signature forthright style, on Thursday morning retweeted a statement she’d made in June, adding the comment: “Is this thing on?”

Ellen Weintraub, a member of the commission since 2002, wanted to remind the Twitter-verse that foreign interference in U.S. elections is illegal.

“Let me make something 100% clear,” the statement read. “It is illegal for any person to solicit, accept or receive anything of value from a foreign national in connection with a U.S. election. This is not a novel concept. Electoral intervention from foreign governments has been considered unacceptable since the beginnings of our nation.”

The reminder came Thursday, as President Donald Trump admitted and defended pushing Ukraine for dirt on Joe Biden and his son, Hunter; Trump called on China to investigate the Bidens as well…

[Weintraub] spoke to students at Temple on Wednesday, as part of a tour of universities in the region to help educate the public on the rules regarding money in politics.

“It’s a somewhat perilous time for democracy,” Weintraub said. “…People are willing to push the envelope on the laws and I think that’s where it’s really vital to have a body that is willing to push back and to enforce the laws and right now, as you probably know, we can’t really do that.”

The States

New York Times: In a Face-off With the N.R.A., San Francisco Blinks

By Danny Hakim

A resolution the board approved on Sept. 3 called for the city’s agencies to limit their relationships with companies that do business with the N.R.A. But Mayor London Breed said in a memo on Sept. 23 that the resolution was not binding, and that it would not change the practices of city agencies…

The mayor’s move came two weeks after the N.R.A. filed suit against San Francisco, alleging that the city had violated the organization’s First Amendment right to free speech and was effectively moving to “blacklist anyone linked to the N.R.A.”

In the memo, the mayor and the city attorney, Dennis Herrera, wrote, “The city’s contracting process and policies have not changed and will not change as a result of the resolution.” The notice was circulated to the heads of all city departments…

John Coté, a spokesman for Mr. Herrera, said the Sept. 23 memo was “not a concession,” adding: “It just explains what has always been true – the resolution does not change the law. If the N.R.A. thinks this is a win, it’s only because their lawsuit completely distorts what the resolution actually does.”

William A. Brewer III, a lawyer for the N.R.A., said that city officials “wisely have attempted to pull back from what we alleged, the association alleged, was a clear violation of the association’s First Amendment rights.”

But the group is not ready to drop its litigation.

“What we hope is that the Board of Supervisors will further mitigate the damage they’ve done,” he said, adding that the organization would like to see the board rescind or repeal the resolution, “or walk away from it in some binding way.”

Alex Baiocco

Alex Baiocco