Daily Media Links 10/7

October 7, 2019   •  By Alex Baiocco   •  
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Supreme Court

Courthouse News Service: Justices Take Up Ban on Encouraging Illegal Immigration

By Brandi Buchman

The Supreme Court will soon hear arguments on free speech and immigration after it agreed Friday to decide the constitutionality of a federal law that criminalizes encouraging undocumented immigrants to stay in the United States.

The Ninth Circuit struck down the law last year, in the case of immigrant counselor Evelyn Sineneng-Smith.

Sineneng-Smith, of San Jose, California, was convicted in 2013 on two counts of encouraging and inducing an undocumented immigrant to remain in the United States for the purposes of financial gain and two counts of mail fraud…

On appeal, the Ninth Circuit took issue with the text of the federal law she was charged under, ruling last year that the words “encourage” and “induce” were overly broad.

Among the judges’ concerns were questions over whether the lack of nuance could potentially jeopardize attorneys who advise clients that have lived in the U.S. for an extended period of time to stay because their removal is highly unlikely.

And if an illegal immigrant even so much as approaches a U.S. citizen to discuss their status and the citizen freely states, “You should stay,” the judges noted that response could be considered a criminal violation.

“The statute potentially criminalizes the simple words – spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client – ‘I encourage you to stay here,'” Senior U.S. Circuit Judge A. Wallace Tashima, a Bill Clinton appointee, wrote for the panel in a 42-page opinion. “The statute thus criminalizes a substantial amount of constitutionally-protected expression.”

Sineneng-Smith had argued the law she was charged under chills First Amendment expression, but the Justice Department saw it differently and appealed the Ninth Circuit’s decision to the Supreme Court.

Free Speech

New York Times: Free Speech Is Killing Us

By Andrew Marantz

Free speech is a bedrock value in this country. But it isn’t the only one. Like all values, it must be held in tension with others, such as equality, safety and robust democratic participation…

I am not calling for repealing the First Amendment, or even for banning speech I find offensive on private platforms. What I’m arguing against is paralysis. We can protect unpopular speech from government interference while also admitting that unchecked speech can expose us to real risks. And we can take steps to mitigate those risks.

The Constitution prevents the government from using sticks, but it says nothing about carrots.

Congress could fund, for example, a national campaign to promote news literacy, or it could invest heavily in library programming. It could build a robust public media in the mold of the BBC. It could rethink Section 230 of the Communications Decency Act – the rule that essentially allows Facebook and YouTube to get away with (glorification of) murder. If Congress wanted to get really ambitious, it could fund a rival to compete with Facebook or Google, the way the Postal Service competes with FedEx and U.P.S.

Or the private sector could pitch in on its own. Tomorrow, by fiat, Mark Zuckerberg could make Facebook slightly less profitable and enormously less immoral: He could hire thousands more content moderators and pay them fairly. Or he could replace Sheryl Sandberg with Susan Benesch, a human rights lawyer and an expert on how speech can lead to violence.

Hollywood Reporter: ‘South Park’ Scrubbed From Chinese Internet After Critical Episode

By Patrick Brzeski

After the “Band in China” episode mocked Hollywood for shaping its content to please the Chinese government, Beijing has responded by deleting all clips, episodes and discussions of the Comedy Central show.

South Park creators Trey Parker and Matt Stone probably saw this coming, and to their credit, simply didn’t care.

The most recent episode of South Park, “Band in China,” has been generating loads of media attention for its sharp critique of the way Hollywood tends to shape its content to avoid offending Chinese government censors in any way whatsoever.

Now, those very same government censors, in the real world, have lashed back at South Park by deleting virtually every clip, episode and online discussion of the show from Chinese streaming services, social media and even fan pages…

The episode’s critique has proved especially timely, in light of the controversy now swirling around the NBA. On Sunday, Houston Rockets general manager Daryl Morey issued a tweet expressing his solidarity with Hong Kong’s pro-democracy protestors.

Although just a single tweet, from just one among thousands of NBA figures, the message sparked a deluge of criticism in China, where the Hong Kong protests have become a hot button political issue, with Beijing’s propaganda apparatus going into overdrive to shape local opinion of the movement as anarchistic and untethered to legitimate political grievances. Chinese broadcasters announced they would stop airing Rockets games, and local sponsors pulled their funds from the team.

Fearing financial implications, the Rockets and the NBA have since retreated and disavowed Morey’s comments – in precisely the same way South Park satirized.

The Courts

Citizens’ Voice: Ruling allowing arena protesters to use amplification, vulgarity upheld

By Steve Mocarsky

A federal appeals court has overturned a ruling that protesters at Mohegan Sun Arena cannot be confined to fenced-in areas, but upheld two other First Amendment rulings from the lower court.

The U.S. Court of Appeals for the Third Circuit entered a judgment [September 23] in a free-speech case that animal rights activists filed in April 2016 against the Luzerne County Convention Center Authority and SMG, management company for the arena in Wilkes-Barre Twp.

Read the U.S. District Court opinon here.

Read the Third Circuit Court of Appeals ruling here.

While the Third Circuit ruled that the arena management had the right to limit protesters’ access to certain areas, it upheld the lower court rulings that management could not prohibit protesters from using vulgarity or from using voice amplification such as bullhorns.

Silvie Pomicter, of South Abington Twp., and the Los Angeles-based Last Chance for Animals group filed suit against the authority days before the now-defunct Ringling Bros. and Barnum & Bailey circus came to the arena in 2016 for its final shows involving elephants, arguing a policy to keep protesters behind barricades and away from circus-goers violated their freedom of speech…

Pomicter had testified that she wanted “free range” protesting allowed because volunteers can’t hand out as much literature when confined to a “protest pen.”…

The day before the circus opened, District Judge Robert D. Mariani issued a temporary order allowing 20 leafletters to hand out literature at a time, but set restrictions on where protesters could approach guests…

But the Third Circuit panel opined that because the arena is a nonpublic forum, defendants are “not required to narrowly tailor speech restrictions,” as long as the restrictions are reasonable…

Previously, [Mary Catherine Roper, deputy legal director for the American Civil Liberties Union of Pennsylvania, which represented Pomicter,] had said protesting is “not just about holding a sign.” The plaintiffs’ goal, she had said, was to educate people about the treatment of animals. “And to educate people, you need to be able to speak with them. That is what this case is about.”

Courthouse News Service: California Vows Appeal of Trump Tax-Return Ruling

By Nick Cahill

Trump’s boast came a day after U.S. District Judge Morrison England Jr. temporarily barred California from enforcing a law enacted to force the president to release his tax returns in order to appear on the state’s March primary ballot.

In a 24-page ruling, England cast Senate Bill 27 as a “trampling” of the standards for running for president laid out in the Constitution. He warned that the bill could “open the floodgates” and allow other states to enact “nakedly political” ballot access laws.

“The dangerous precedent set by this act, allowing the controlling party in any state’s legislature to add substantive requirements as a precondition to qualifying for the state’s presidential primary ballot, should concern all candidates alike, Republican, Democrat or otherwise. It certainly concerns the court,” England said in his order.

But California officials called the president’s victory claim premature and promised Wednesday to appeal England’s decision.

“States have a legal and moral duty to restore public confidence in government and ensure leaders seeking the highest offices meet minimal standards,” said Jesse Melgar, spokesperson for Gov. Newsom. “The disclosure required by SB 27 will shed light on conflicts of interest, self-dealing, or influence from domestic and foreign business interests.”…

State Democrats and elected officials insist that the bill is necessary to create a more informed electorate and doesn’t infringe on candidates’ First Amendment rights.

California Secretary of State Alex Padilla, a defendant in the cases, said the state would fight the unfavorable ruling.

“Our elected leaders have a legal and moral obligation to be transparent with voters about potential conflicts of interest. This law is fundamental to preserving and protecting American democracy,” Padilla said in a statement.

FEC

NPR: Trump’s Ukraine Call Might Violate Election Laws, But No One’s Enforcing Them

By Brian Naylor

Brendan Fischer, an attorney with the Campaign Legal Center, believes there was a violation of the law. He says that “there is a long list” of examples of the Federal Election Commission finding that “intangible items like opposition research can constitute a thing of value for purposes of campaign finance law.”…

Former FEC senior counsel Dan Weiner says the question of whether intangibles such as opposition research is a thing of value is “fairly well-settled.” He says because the FEC is the agency charged with interpreting and administering federal campaign finance law, getting the agency involved in this question “is crucial.”

There’s only one problem: The FEC currently lacks a quorum and cannot take up any new investigations until additional commissioners are nominated and confirmed by the U.S. Senate.

Fischer at the Campaign Legal Center isn’t sure that even if there were a quorum, the FEC would act. The alleged violation, he says, “arose in the course of the president carrying out his foreign policy responsibilities and the president has wide latitude to conduct diplomacy. I would be very surprised if the FEC were to issue civil penalties against the president or his campaign.”

Candidates and Campaigns 

Washington Examiner: Sanders targets DNC with major new campaign finance reform plan

By Nihal Krishan

Bernie Sanders’ presidential campaign released a new campaign finance plan Monday to “get corporate money out of politics.”

The proposal calls for amending the Constitution to declare that campaign contributions are not speech, calls for removing big-dollar fundraising for all federal elections, and specifically targets the practices of the Democratic National Convention…

Regarding the DNC, Sanders’ new plan would ban the convention from taking donations from lobbyists or corporations and would prevent national party heads from lobbying in the future…

“This type of corporate sponsorship is a corrupting influence and must end if politicians are going to represent the American people,” Sanders wrote. “Their lobbyists were everywhere and filled the VIP suites.”

Sanders has also promised to push for legislation that would create a compulsory public funding system for federal elections by creating “Universal Small Dollar Vouchers” that would allow all Americans above 18 the ability to donate to federal candidates. His plan does not include further details on how exactly these vouchers would be funded.

The States

Orange County Register: No wonder good people don’t run for office in California

By Susan Shelley

Patty Lopez was a grassroots Democratic candidate who shocked the political establishment in 2014 by defeating an incumbent Democratic assemblyman. Her campaign raised and spent next to nothing and Lopez, whose first language is not English, filed some campaign finance reports late or incorrectly. In addition, the campaign accepted cash contributions of about $800 from the sale of tamales and pupusas. The FPPC charged the campaign with multiple counts of violating the Political Reform Act. Lopez signed a stipulated agreement that required her to “voluntarily waive any and all procedural rights” including the right “to have the matter judicially reviewed,” and she paid a penalty of $7,500…

Dan Schnur ran for secretary of state in 2014 as a no-party-preference candidate. After the primary election, he donated $125,000 of his own money to his committee to cover debts. The FPPC charged him with failing to file a “$5,000 report” disclosing the contribution, which is sometimes required in addition to semi-annual reports. They also charged him for paying some travel expenses with personal funds. Schnur agreed to pay a $4,500 penalty and waive all his rights to a hearing or judicial review…

Unlike Patty Lopez, however, Dan Schnur was not unfamiliar with campaign finance law. He happens to be a former chairman of the FPPC. If he’s confused by the filing requirements, the problem isn’t with the candidates, it’s with the law…

At my hearing in June, an expert witness testified that only a professional political campaign treasurer can competently handle the complex compliance and reporting requirements for political activity, and that some professional treasurers won’t take on clients unless they also hire a specialized political attorney, because of the liability imposed on treasurers by the Political Reform Act.

That’s a significant barrier to participation in politics: Raise enough money to hire a campaign lawyer, or risk legal jeopardy and massive fines. Can this be constitutional?

“The First Amendment does not permit laws that force speakers to retain a campaign finance attorney,” the Supreme Court said in its 2010 ruling Citizens United v. Federal Election Commission.

U.S. News & World Report: Public Campaign Finance Task Force Faces Call for Update

By Marina Villeneuve

A task force setting rules for New York state’s new $100 million public campaign finance system faced calls Monday to give the public another chance to weigh in before a looming December deadline.

The League of Women Voters and other advocacy groups sent a letter Monday asking the Public Campaign Financing Commission to release interim recommendations to the public by the first week of November.

“It would help avoid a rush at the end to meet the December 1 deadline – and would increase public trust in this process and final result,” reads the group’s letter…

The commission has until Dec. 1 to announce rules that will become law unless lawmakers hold a rare end-of-year special session to reject them.

It’s a looming timeline for such a weighty subject, according to the letter from advocacy groups, which also include Reinvent Albany, Common Cause New York and the Brennan Center for Justice.

“You have a challenging task crafting a public financing system, made even more challenging by your lack of staff support and getting it completed in the 37 working days left,” reads the letter.

The groups say there’s some agreement among legislative officials and the governor on some basics, such as making the system permanent, covering primary and general elections, and including at least a 6-to-1 match on small donations for in-state contributions.

Such supporters, who want the state to follow New York City’s own public matching funds program, are also calling for an independent enforcement unit and reduced contribution limits for candidates who participate, as well as for those who decline.

San Francisco Chronicle: No on SF Prop. F, a suspiciously lopsided campaign finance reform

By Editorial Board

Descended from a more ambitious but abortive city Ethics Commission crackdown, Proposition F aims to limit pay-to-play campaign contributions and expose the sources of independent campaign expenditures, both worthy goals. The trouble is that its limit on donations from those with land-use matters before the city singles out developers – one special interest that doesn’t seem to be having its way with anti-development San Francisco – and ignores the influence of organized labor and others who consistently get what they want.

Making opaque fundraising committees more transparent is a fair and worthwhile endeavor, but the Board of Supervisors could – and should – impose those requirements without going to the ballot.

Alex Baiocco

Alex Baiocco