Daily Media Links 10/7

October 7, 2020   •  By Tiffany Donnelly   •  
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We’re Hiring!

Legal Director – Institute for Free Speech – Washington, DC or Virtual Office

The Institute for Free Speech anticipates the need for a highly experienced attorney to direct our litigation and legal advocacy. In September, President Trump nominated our longtime Legal Director to the Federal Election Commission, and it is likely he would be confirmed this fall.

This is a rare opportunity to develop and implement a long-term legal strategy directed toward the protection of Constitutional rights. You would work to create legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, that threaten citizens’ privacy if they speak or join groups, and that impose heavy burdens on organized political activity. The Legal Director will direct our litigation and legal advocacy, lead our in-house legal team, and manage and expand our network of volunteer attorneys.

A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country.

[You can learn more about this role and apply for the position here.]

Supreme Court

Bloomberg Businessweek: Liberals Weigh Jurisdiction Stripping to Rein in Supreme Court

By David Yaffe-Bellany

A handful of academics and liberal thinkers are arguing for drastic structural changes that would strip away power from the judiciary, embracing the approach that conservatives championed in the 1980s. In recent weeks professors at top-tier law schools have publishedarticles advocating for jurisdiction stripping or other reforms that would chip away at the court’s power rather than simply alter its ideological makeup…

Some liberal proponents believe jurisdiction stripping could help Democrats shield bold future legislation from damaging court battles…

Under variations of the jurisdiction-stripping proposal, Democratic lawmakers could also limit the ability of lower courts to review legislation or could confine legal challenges to geographic regions where courts are generally sympathetic…

In July, Moyn and University of Chicago law professor Ryan Doerfler published a paper arguing that liberals should explore “disempowering reforms” that dilute the power of the judicial branch, as well as more mainstream “personnel reforms” such as court expansion. They argued that taking power away from the Supreme Court would be less nakedly political than court packing and less likely to devolve into a tit-for-tat cycle of partisan fighting.

New York Magazine (Intelligencer): Trump’s New Supreme Court Is Coming for the Next Dozen Elections

By Richard L. Hasen

Of course [Supreme Court nominee, Judge Amy Coney] Barrett should recuse herself from deciding any cases involving the 2020 presidential election. Trump’s repeated inappropriate comments that he wants her confirmed for the Court in time to “decide” the 2020 election are already causing reasonable people to worry about Barrett’s impartiality in resolving such disputes. A pledge to recuse would take this issue away from those who oppose her confirmation.

Barrett so far has resisted calls for her recusal, but for better or worse her confirmation probably wouldn’t have any effect on the outcome of the 2020 election – even in the unlikely event it came down to a Supreme Court decision…

The real concern about Barrett and elections requires looking ahead to the next five to ten years…

The Court could also make things much worse when it comes to campaign financing.Senator Mitch McConnell and others have already been pushing cases that would allow individuals and corporations to make unlimited campaign contributions directly to candidates. And some justices believe that those making contributions or expenditures in campaigns have a constitutional right to total anonymity from the public. This would make our political system much more prone to corruption, deprive voters of valuable information, and let the rich have even greater influence over election officials than they do now.


Fox News: Colorado sec. of state testifies before Congress on ‘election misinformation,’ Rep. Buck calls move ‘ironic’

By Caitlin McFall

Colorado Secretary of State Jena Griswold virtually took to the Hill Tuesday, to testify in front of the House’s subcommittee on election misinformation, calling for congressional oversight.

“We need a commission to really move forward to make sure this attack on our nation’s democracy from foreign adversaries does not continually happen every election – that goes from homegrown misinformation to the scanning of election infrastructure to the misinformation we’re seeing,” Griswold told the subcommittee Tuesday.

In a hearing held by the House Administration Subcommittee on Elections, lawmakers heard from various state officials to review how election misinformation is affecting voters and being addressed.

Chairperson Marcia L. Fudge, D-Ohio, highlighted the importance of voting by mail due to the ongoing pandemic, but said that President Trump and other GOP officials were “waging an insidious campaign to sow distrust in our process by spreading false claims that vote-by-mail is rife with fraud.”

Fudge also pointed to reports by the intelligence committee that suggest Russia is again attempting to interfere in the Nov. 3 General Election…

“Congress should consider legislation like we are doing in Colorado to combat deepfakes, election misinformation and foreign coordination,” Griswold told the subcommittee.

Wall Street Journal: House Panel Says Big Tech Wields Monopoly Power

By Ryan Tracy

America’s biggest technology companies have leveraged their dominance to stamp out competition and stifle innovation, according to a Democratic-led House panel, which said Congress should consider forcing the tech giants to separate their dominant online platforms from other business lines.

The report released Tuesday from Democratic staff of the House Antitrust Subcommittee capped a 16-month inquiry into the market power of Amazon, Facebook, Google and Apple…

No legislative changes are imminent, but the report’s sweeping conclusions boost the odds for new laws in the future and publicizes evidence that will give momentum to the companies’ critics in both parties…

Republicans on the panel issued a 28-page response, detailing what they say are abuses of power by social-media companies in censoring online speech. “Big Tech is out to get conservatives,” the report concluded, criticizing Democrats for ignoring the issue. The tech companies say they don’t make content moderation decisions based on political bias.

Politico: House Democrats seek to block funds for ‘defeat despair’ Covid ads

By Dan Diamond

House Democrats overseeing the Trump administration’s coronavirus response will introduce a largely symbolic bill intended to limit the administration’s ability to spend federal funds on certain coronavirus-related advertisements before the election, according to a draft shared first with POLITICO.

The Defeat Pandemic Propaganda Act of 2020 is authored by Rep. Raja Krishnamoorthi (D-Ill.), joined by Reps. Carolyn Maloney (D-N.Y), Jim Clyburn (D-S.C.) and Rosa DeLauro (D-Conn.). The Democrats’ bill would bar HHS from using taxpayer funds on an ad campaign to “positively influence public perception regarding the Covid-19 pandemic,” specifically distort any facts or encourage risky behaviors amid the outbreak.

“[F]ederally-funded advertisements meant to cast the situation in a positive light or suggest there is no longer a need to take public health precautions would be wholly unethical, especially in the weeks before a presidential election,” Krishnamoorthi said in a statement…

Michael Caputo, the health department’s top public affairs official who is now on medical leave, last month said in a Facebook Live video that President Donald Trump personally “demanded” the campaign. Democrats have charged that the campaign is politically motivated to boost perceptions of Trump’s handling of the virus before the election.

Online Speech Platforms

Wall Street Journal: Facebook Removes Trump’s Post About Covid-19, Citing Misinformation Rules

By Jeff Horwitz

Facebook said it took down a post by President Trump playing down the deadliness Covid-19 Tuesday because it contained misinformation about the dangers of the coronavirus…

Mr. Trump’s statement Tuesday that the seasonal flu is more dangerous for most people than the coronavirus is widely considered false by medical professionals…

“We remove incorrect information about the severity of Covid-19, and have now removed this post,” said Facebook spokesman Andy Stone.
With its decision, the social network has moved to censor the president just weeks before Election Day…

Twitter also took action Tuesday in response to the president’s similar claim on its own platform. Instead of removing the post, the company appended a notice that his tweet violated its rules on spreading harmful information related to the virus but that “it may be in the public’s interest for the Tweet to remain accessible.”

The company has said it prefers that approach so Twitter users can respond publicly to their leaders and hold them accountable. Twitter said it also limited the distribution of Mr. Trump’s tweet across its platform…

In an apparent response to the two social-media companies’ treatment of his posts, Mr. Trump posted on both platforms “REPEAL SECTION 230!!!,” referring to the law that gives internet platforms the right to moderate content without taking on the legal responsibilities of publishers. A Trump campaign spokeswoman condemned the removal, saying that “attempts to silence the President will not stop him leading on this issue.”

Vanity Fair: How Small, Black-Owned Businesses Get Tangled in Instagram’s Ad Approval Algorithm

By Kenzie Bryant

Ahead of the 2018 midterms, Instagram installed more safeguard mechanisms onto the platform, including huge concessions to “transparency” in ads…

For someone like Tanisha Purnell, 27, owner and operator of Holistic Realness and maker of what she calls “conscious-friendly” candles, body scrubs, and cold-processed soaps, the ability to promote a post means the difference between 2,500 people seeing her work organically and 25,000 views. Some of her products have the words “Black Lives Matter” written on the label, and so her ads get rejected and she can’t promote them, she said. Other times, per screenshots Purnell provided to Vanity Fair, when she has written the phrase in captions, the ads were rejected. In both cases, her appeals went unanswered, she said…

“The bag doesn’t say anything [political]; it doesn’t have the word Democrat or Republican in it. It just says ‘end systemic racism.'” Blackwood said. “The fact that [Instagram] thinks that term can ‘sway an election’ already says so much. At the end of the day, I sell bags. I’m so far removed from anything going on in [the political] sense.”

If they want to, sellers can apply to be approved to use language about politics or social issues. As a Facebook spokesperson told V.F., “In response to Russian interference in the 2016 election, we instituted changes to ensure greater transparency for ads about civil and social rights. People are able to run ads on these topics, but first are required to get authorized and then provide a ‘paid for by’ disclaimer so people can see who is behind the ad. This is part of making ads transparent and elections safe.” 

NPR: Facebook Keeps Data Secret, Letting Conservative Bias Claims Persist

By Bobby Allyn

NPR called up half a dozen technology experts, including data scientists who have special access to Facebook’s internal metrics. The consensus: There is no statistical evidence to support the argument that Facebook does not give conservative views a fair shake…

Now, there are some complex layers to this, but former Facebook employees and data experts say the conservative bias argument would be easier to talk about – and easier to debunk – if Facebook was more transparent.

The social network keeps secret some of the most basic data points, like what news stories are the most viewed on Facebook on any given day, leaving data scientists, journalists and the general public in the dark about what people are actually seeing on their News Feeds.

There are other sources of data, but they offer just a tiny window into the sprawling universe of nearly 3 billion users. Facebook is quick to point out that the public metrics available are of limited use, yet it does so without offering a real solution, which would be opening up some of its more comprehensive analytics for public scrutiny.

NBC News: Facebook bans QAnon across its platforms

By Ben Collins and Brandy Zadrozny

Facebook said Tuesday that it is banning all QAnon accounts from its platforms, a significant escalation over its previous actions and one of the broadest rules the social media giant has put in place in its history.

Candidates and Campaigns

Wired: Silicon Valley Opens Its Wallet for Joe Biden

By Daniel Oberhaus

President Trump and other Republicans often complain that Silicon Valley has an anti-conservative bias. A review of campaign finance data shows that contributions by employees at some of America’s biggest tech companies are overwhelmingly going to his Democratic opponent, Joe Biden.

WIRED found that employees at Alphabet, Amazon, Apple, Facebook, Microsoft, and Oracle have contributed nearly 20 times as much money to Biden as to Trump since the beginning of 2019. According to data released by the Federal Election Commission, which requires individuals who contribute $200 or more to a presidential campaign to report their employer, employees at these six companies have contributed $4,787,752 to Biden and just $239,527 to Trump.

The States

OPB: After Wheeler’s $150,000 loan, Iannarone campaign takes city auditor to court to enforce self-funding limits

By Rebecca Ellis

Portland mayoral candidate Sarah Iannarone’s campaign has asked a court to make the city auditor enforce a strict cap on the money candidates can lend themselves to fund their election efforts.

The order, filed Tuesday by attorney Alan Kessler on behalf of Iannarone’s political committee, her campaign treasurer James Ofsink, and campaign finance reform advocate Seth Woolley, comes less than a week after Mayor Ted Wheeler loaned his own campaign $150,000.

Voters overwhelmingly approved strict campaign finance limits in 2018, including a $5,000 cap on how much candidates can loan themselves. After a series of court challenges, the city auditor announced in May she would begin enforcing most of the campaign finance changes – except for the limits on self-funding.

The city has taken the position that the self-funding portion of the charter conflicts with U.S. Supreme Court precedent and would not hold up in court.

Plaintiffs are now taking legal action against City Auditor Mary Hull Caballero, alleging that she is violating the city charter and circumventing the will of Portlanders by not finding Wheeler in violation of city rules. The order was filed in Multnomah County Circuit Court.

Baltimore Sun: Can public campaign financing improve government? Baltimore County executive, activists start campaign to convince voters.

By Alison Knezevich

Saying it’s time to reduce the influence of big money on Baltimore County politics, activists this week are kicking off an effort to convince voters to approve public financing for local campaigns.

Supporters of a charter amendment appeared outside the Towson courthouse on Tuesday with County Executive Johnny Olszewski Jr. to launch the “Yes for A!” campaign…

Leaders of Common Cause Maryland and Progressive Maryland [also attended.]

Last year, a bill to put public campaign financing on the ballot was the Democratic county executive’s first major legislative initiative. It’s now up to voters whether to approve the charter amendment in November.

If they do, the county would create a “citizen’s election fund” that candidates for the Baltimore County Council and county executive would have the option to use starting in 2026.

The details of the program, including the specific funding source, would be worked out later if voters approve the charter amendment. Such systems typically encourage small donations and give matching public funds to candidates – who in turn pledge to turn down large contributions.

County officials last year estimated the program would cost about $4.3 million per election cycle…

“Over time, we’ll begin to see more diverse candidates running more competitive races,” Joanne Antoine, executive director of Common Cause Maryland, said in an interview…

They also hope public financing would elevate the voices of people who aren’t wealthy.



Tiffany Donnelly

Tiffany Donnelly


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