New from the Institute for Free Speech
By Zac Morgan
Last week, the United States District Court for the Southern District of New York handed down a significant victory for First Amendment rights. In Citizens Union v. Attorney General of the State of New York, the court struck down, in its entirety, New York’s so-called “Ethics Law.” This law was one of the most far-reaching efforts by a government to violate privacy in association for civil society groups, and its fall should be celebrated.
The Ethics Law had two interlocking provisions, both of which were rushed through the New York State Legislature in the wee hours of the morning after 25 total minutes of debate on the final day of the 2016 legislative session.
One section (§ 172-f) forces the online publication of all donors giving $1,000 or more to a 501(c)(4) nonprofit organization if the group spends $10,000 making statements about legislative or administrative acts – including “potential” legislation. As the court characterized it, “§ 172-f requires disclosure whenever a 501(c)(4) engages in pure issue advocacy before the public.” In the Institute’s amicus brief before the court, we noted how easily a 501(c)(4) could fall into this trap…
Once that tweet is sent, the full force of § 172-f could come into effect.
The law specifically targeted 501(c)(3) charities as well. While 501(c)(4)s (such as the American Civil Liberties Union or the Sierra Club) are, under federal law, given more latitude to electioneer, the same is not true for 501(c)(3)s (charities such as the American Cancer Society), which are prohibited from engaging in any electoral intervention. Nonetheless, § 172-e of New York’s Ethics Law demanded the donor lists of such organizations if the charity provides “staff, staff time, personnel, offices, office supplies, financial support of any kind or any other resources” to a 501(c)(4) that engages in lobbying. As the court noted, “[s]uch disclosures are required whether or not the 501(c)(3) donor intended to support a 501(c)(4) or exercised any control over the 501(c)(3)’s donation to the 501(c)(4).”
By Craig Timberg and Tony Romm
A bipartisan panel of U.S. senators Tuesday called for sweeping action by Congress, the White House and Silicon Valley to ensure social media sites aren’t used to interfere in the coming presidential election, delivering a sobering assessment about the weaknesses that Russian operatives exploited in the 2016 campaign.
The Senate Intelligence Committee, a Republican-led panel that has been investigating foreign electoral interference for more than two and a half years, said in blunt language that Russians worked to damage Democrat Hillary Clinton while bolstering Republican Donald Trump – and made clear that fresh rounds of interference are likely ahead of the 2020 vote.
“Russia is waging an information warfare campaign against the U.S. that didn’t start and didn’t end with the 2016 election,” said Sen. Richard Burr (R-N.C.), the committee’s chairman. “Their goal is broader: to sow societal discord and erode public confidence in the machinery of government. By flooding social media with false reports, conspiracy theories, and trolls, and by exploiting existing divisions, Russia is trying to breed distrust of our democratic institutions and our fellow Americans.”
Though the 85-page report itself had extensive redactions, in the visible sections lawmakers urged their peers in Congress to act, including through the potential adoption of new regulations that would make who bought an ad more transparent…
The report also noted that the paid advertisements on Facebook, Instagram and other platforms were much less important than the free, viral context created by teams of Russian disinformation operatives working across multiple platforms.
Associated Press: Democrats push election security bill amid impeachment
By Mary Clare Jalonick and Christina A. Cassidy
House Democrats unveiled broad legislation Tuesday to protect the country’s elections as they investigate whether President Donald Trump inappropriately solicited foreign election help from Ukraine ahead of the 2020 vote.
A House committee could advance the election security bill as soon as next week. It would tighten the laws around the exchange of campaign information between candidates and foreign governments, require that campaigns report illicit offers of foreign help to the FBI and limit some campaign spending by foreign nationals. The bill would also require more transparency in online political ads…
“Most Americans know that foreign governments have no business interfering in our elections,” said House Administration Committee Chairwoman Zoe Lofgren, D-Calif., who introduced the bill Tuesday. She said it would ensure “that individuals engaging in conduct with foreign actors intending to influence the outcome of our elections will be held accountable by law.” …
The House bill would require TV stations, cable and satellite providers and social media companies such as Facebook to make “reasonable efforts” to ensure political advertising is not purchased by people outside of the U.S., either directly or indirectly, in part by requiring that the customer provide a valid U.S. address…
The legislation would also expand authorities’ ability to prosecute those who knowingly spread false information about voting processes such as polling locations and voting days and times along with public endorsements. The bill specifically prohibits the sharing of such false statements within 60 days of a federal election and provides a maximum penalty of $100,000 and five years in prison. It also requires the U.S. Attorney General to correct any “credible report of materially false information regarding elections” if state and local election officials have not already done so.
Wall Street Journal: King Warren of the Roundtable
By Editorial Board
In August the knights of the Business Roundtable announced that they are putting “stakeholders” ahead of shareholders as their primary business purpose. Now Senator Elizabeth Warren, who is rising in the presidential polls, is demanding that these CEOs prove they mean it by endorsing her grand design to remake American capitalism.
“I write for information about the tangible actions you intend to take to implement the principles” in the Roundtable’s Statement on the Purpose of a Corporation, Sen. Warren wrote to JPMorgan CEO Jamie Dimon and other CEOs late last week…
“If you, and the other 181 corporate executives who signed the BRT’s new Statement on the Purpose of a Corporation, plan to live up to the promises you made, I expect that you will endorse and wholeheartedly support the reforms laid out in the Accountable Capitalism Act to meet the principles you endorse. I have attached a copy of the bill.”
Nonprofit Quarterly: Can a 501c3 Advocate for Impeachment of a Federal Office Holder?
By Tim Mooney
On September 24, 2019, US Speaker of the House Nancy Pelosi announced a formal impeachment inquiry into President Donald Trump, prompting a national debate some 501c3s may wish to join. While the IRS gives no direct guidance on what 501c3 public charities can do or say to support or oppose impeachment, there are related laws that speak to possible risks.
501c3 public charities are able to engage in a limited amount of lobbying but are strictly prohibited from engaging in any activity that suggests support or opposition for a candidate for public office. Although there is no direct IRS precedent on this, calling for the impeachment or resignation of an elected public official is probably permissible for 501c3 public charities as long as they do not comment on who should be elected to succeed the ousted official. Since a vote of a legislative body is required, the activity would likely be treated as lobbying, counting toward the 501c3’s lobbying limits.
But-and this is a big but-if the impeached official is running for elected office during the impeachment inquiry or trial, as is the case with President Donald Trump, the 501c3 should consider all of the facts and circumstances to avoid looking like it is supporting or opposing a candidate for public office…
To be clear, the IRS has not released bright line rules on impeachment advocacy. Absent guidance, 501c3s would be best served to proceed cautiously and seek legal advice when considering whether to publicly weigh in on the impeachment of an officeholder who is running for reelection.
Online Speech Platforms
National Review: Hey Democrats, ‘Disinformation’ Can Sort Itself Out
By John York & Hans A. Von Spakovsky
Facebook recently stated that it will neither censor nor “fact-check” statements by politicians on their site. This is great for political speech but – apparently – unwelcome news to the leadership of at least one of the major political parties.
The Democratic National Committee slammed Facebook’s decision, arguing that “Trump has an utter disregard for the truth” and that “social media platforms have a responsibility to protect our democracy and counter disinformation online.”
This is only the most recent effort by leftist politicians to goad social-media companies into silencing conservative politicians and anyone else they disagree with.
Several weeks ago, we warned that Federal Election Commission chairwoman Ellen Weintraub (D) was convening representatives from Facebook, Twitter, and Google to pressure them into “fighting the disinformation that risks further corroding our democracy.” In other words, to appoint themselves as Big Brother – with her approval – to censor political speech and reporting on elections and hot-button issues.
It’s a heartening sign that at least one of those social-media platforms has wisely decided that less is more when it comes to policing and censoring political speech and the global Internet arena where so many Americans today gather information and news and debate, discuss, argue, and vigorously contest the public issues of the day. To its credit, Facebook seems to appreciate, much more than some progressive politicians, the value of robust political discourse and the danger of vague limitations on political speech.
By Lauren Feiner
In Monday’s tweets, Warren drew a line from Zuckerberg’s meeting with President Donald Trump in Washington, D.C., last week to Facebook’s policy change regarding political ads. On Sept. 24, Facebook announced it would not fact check or remove content by politicians even if it violates the company’s rules. Facebook’s vice president of global affairs and communications Nick Clegg wrote, “it is not our role to intervene when politicians speak,” in a blog post announcing the new policy. Clegg said they would make exceptions only if a politician’s speech endangers people or is a paid ad that violates its rules.
“The public deserves to know how Facebook intends to use their influence in this election,” Warren wrote in the first of a string of tweets Monday. “For instance, Trump and Zuckerberg met at the White House two weeks ago. What did they talk about?” she wrote in a later tweet.
Warren said that following the meeting, “Facebook quietly changed its policies on ‘misinformation’ in ads, allowing politicians to run ads that have already been debunked by independent, non-partisan fact-checkers. Put another way, Facebook is now okay with running political ads with known lies.”
Warren accused Facebook of letting Trump spend $1 million in a week on political ads amid a House impeachment inquiry, some with “the same lies TV stations won’t [accept].”
By Mike DeBonis
A Democratic group with close ties to House Speaker Nancy Pelosi is set to spend more than $1 million on ads set to begin airing this week aimed at bolstering a handful of vulnerable House Democrats as the impeachment probe unfolds.
The ads from House Majority Forward, examples of which were reviewed by The Washington Post, do not mention the word “impeachment.” Instead, they focus solely on the accomplishments of the 11 individual lawmakers targeted in the campaign…
The campaign represents the first tranche of television ads to be aired by a group with close ties to the party establishment. House Majority Forward is an affiliate of House Majority PAC, the largest Democratic super PAC focused solely on House races…
As a 501 (c) (4) nonprofit, House Majority Forward can raise unlimited money and is not required to disclose its donors, but it cannot directly advocate voting for or against a particular candidate. It can, however, conduct informational campaigns that highlight candidates’ records to voters…
A super PAC funded mainly by billionaire presidential candidate Tom Steyer separately announced a $3.1 million ad campaign last week targeting vulnerable Senate Republicans.
By Eli Sanders
Investigators with the state’s Public Disclosure Commission brought the charges, accusing Facebook of “failing to maintain documents and books of account” that, under long-standing Washington law, must be “open for public inspection” and must provide clarity on the financing and reach of all ads that Facebook sells to influence local elections in this state…
A few recent efforts have been made to regulate online political ads at the state level, but Washington state is alone in having a strong law, on the books for decades, that requires Facebook and other commercial advertisers to disclose detailed information about the money behind every local political ad they sell, as well as the manner in which those ads are targeted…
Friday’s charges stem from a complaint The Stranger filed with the PDC in February, after Facebook failed to respond to a request for information on 25 local political ads the company had sold since January 1, 2019…
The group of 25 Facebook ads cited in The Stranger’s February complaint, as well as the hundreds of Facebook ads sold since, were distributed by the company despite a ban on Washington election ads announced by Facebook last year in the wake of a lawsuit brought by Washington State Attorney General Bob Ferguson…
In July, election regulators in Seattle and the state capital of Olympia described Facebook’s continued sales of local political ads-despite its supposed ban on such ads-as a “huge problem” that is creating “a lot of confusion.”…
In late July, after Facebook allegedly failed to provide Tallman Trask, a local digital communications strategist, with information about political ads targeting Seattle’s city council elections, he filed his own complaint with the PDC. That complaint is in the “assessment of facts” stage, according to the agency…
Facebook to this day has not provided any information directly to The Stranger, even though state law says such information must be provided to those who ask, “without reference to, or permission from, the PDC.”
By Colin Lecher
California has passed a law meant to prevent altered “deepfake” videos from influencing elections, in a plan that has raised free speech concerns.
Last week, Gov. Gavin Newsom signed into law AB 730, which makes it a crime to distribute audio or video that gives a false, damaging impression of a politician’s words or actions. The law applies to any candidate within 60 days of an election, but includes some exceptions. News media will be exempt from the requirement, as will videos made for satire or parody. Potentially deceptive video or audio will also be allowed if it includes a disclaimer noting that it’s fake. The law will sunset in 2023…
The election law has also raised concerns about free speech, and groups like the American Civil Liberties Union of California have questioned the legislation’s value. “Despite the author’s good intentions, this bill will not solve the problem of deceptive political videos,” the group said in a statement noted by the Associated Press, “it will only result in voter confusion, malicious litigation, and repression of free speech.”