Daily Media Links 10/6: IRS Scrutiny Akin to Tea-Party Controversy Also Ensnared Some Left-Leaning Groups, Inspector General Says, Lawmakers weigh pushing Facebook, Twitter to share who buys political ads, and more…

October 6, 2017   •  By Alex Baiocco   •  
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Free Speech

Washington Post: Emory University Open Expression Committee opinion on limited public forums

By Eugene Volokh

The opinion has no formal precedential value, as I understand it, but I suspect that in practice it will be quite influential. An excerpt:

As we have explained in past opinions, Emory University is a private institution; therefore, the First Amendment of the U.S. Constitution does not bind the University of its own force. However, the University has chosen to adopt the Open Expression Policy, which affirms that “Emory University respects the Constitutional rights of free speech and assembly.”

We have recognized on several occasions that the Policy “incorporates at least the same substantive standards that the First Amendment imposes on public universities.” As a result, the Emory Community – a category that includes faculty, students, staff, and others – has at least the same rights as the communities of the University of Georgia or Georgia State University.”

New York Times: The Worst Time for the Left to Give Up on Free Speech

By Michelle Goldberg

It can be hard to know what to make of reports of a free speech crisis on college campuses. Some progressives claim that concerns about left-wing student authoritarianism are overblown, and occasionally I’m tempted to believe them…

Still, if the average college campus is not quite the Maoist re-education camp of right-wing fantasy, there are enough embarrassing incidents like the one at William and Mary to suggest that parts of the left disdain the First Amendment…

Student activists are naturally going to test boundaries and make maximalist demands. Yet while I’m under no illusion that they’re interested in the opinions of Gen X liberals like myself, someone should tell them that if the principle of free speech is curtailed, those with the least power are most likely to feel the chill…

It’s certainly true that it’s easier to enjoy free speech when you’re privileged. It doesn’t follow from that, however, that eroding free speech protections helps the vulnerable. When disputes about free speech are adjudicated not according to broad principles but according to who has power, the left will mostly lose. If the students at William and Mary aren’t frightened off activism by their experience with national notoriety, they’ll probably learn that soon enough. Luckily, if they ever do come face to face with forces determined to shut them up, the A.C.L.U. will be there.

Washington Post: Bikini-clad baristas serve up a lesson in free speech

By George F. Will

In recent lectures at Georgetown and American universities in Washington, Greg Weiner, an Assumption College political philosopher and frequent contributor to the Library of Law and Liberty website, urged participants in the campus arguments to reason as Aristotle did. That is, to be less deontological (rights-based in their advocacy) and more teleological (ends-based)…

The Supreme Court’s First Amendment jurisprudence, Weiner notes, has generally accorded the most robust protection to speech , and speech that is political, broadly defined – concerned with securing the goods of self-government. The fundamental purpose (telos), although not the only purpose, of the right to free speech is to protect a panoply of other rights.

So, the First Amendment rightly protects not just speech but also “expression,” and a free society should give generous protection even to expressions that serve no public purpose but just make the expressing people happy. But speech about the pursuit of truth, justice and other important public matters – the sort of speech central to academic institutions – merits more rigorous protection than the baristas’ right to display, among much else, their tattoos, piercings and scars…

Universities should protect almost absolute freedom for arguments about politics, classically and properly defined broadly as the subject of how we should live.


Wall Street Journal: IRS Scrutiny Akin to Tea-Party Controversy Also Ensnared Some Left-Leaning Groups, Inspector General Says

By Richard Rubin

Some nonprofit groups received scrutiny from the Internal Revenue Service through the use of screening terms that would single out left-leaning groups, according to an inspector general’s report released Thursday.

What happened to those groups from 2004 to 2013 was similar to the treatment that tea-party groups received from 2010 to 2012…

Thursday’s report focused on the use of 17 screening terms, including “occupy” and “progressive.” Lack of records and the length of time that has passed made it hard for the inspector general to determine exactly how they were used in some cases.

“While the number of organizations impacted is significantly less than the number detailed in the 2013 report, some organizations in the current report also experienced significant delays and received requests for unnecessary information,” the inspector general’s office said in a statement.

Unlike the 2013 report, the study doesn’t conclude that those criteria were inappropriate. It also doesn’t include any recommendations to the IRS, noting that the agency revamped its process for considering nonprofits after the 2013 report and controversy.

Politico: Audit indicates liberal nonprofits also got extra IRS scrutiny

By Toby Eckert and Bernie Becker

“Due to the unique nature of the 17 criteria, it is difficult to compare the criteria to each other, or to compare in aggregate to the criteria reviewed in the 2013 audit,” the inspector general pointed out in a statement.

Around 70 percent of the groups from the 2013 audit tagged for extra scrutiny were seeking 501(c)(4) status, which currently allows organizations to weigh in on political matters as long as that’s not the majority of their work. Most of the 146 groups discussed in the new report were applying for 501(c)(3) status, which does not allow for intervention in political campaigns…

And while some of the groups discussed in the new report faced extensive delays on their applications, most of the organizations had their applications processed in less than a year. Groups cited under the “progressive” criteria were even more likely to see their application move quickly, with 53 of 61 getting processed in under a year.

By contrast, Kutz said about five out of six groups discussed in the 2013 report saw delays lasting longer than a year.

New York Times: In Targeting Political Groups, I.R.S. Crossed Party Lines

By Alan Rappeport

A federal watchdog investigating whether the Internal Revenue Service unfairly targeted conservative political groups seeking tax-exempt status said that the agency also scrutinized organizations associated with liberal causes from 2004 to 2013.

The findings by the Treasury Department’s inspector general mark the end of a political firestorm that embroiled the I.R.S. in controversy, led to the ouster of its commissioner and prompted accusations the tax collection agency was being used as a political weapon by the Obama administration.

The exhaustive report, which examined nine years worth of applications for tax-exempt status, comes after a similar audit in 2013 found that groups with conservative names like “Tea Party,” “patriot” or “9/12” were unfairly targeted for further review.

The new report found that the I.R.S. was also inappropriately targeting progressive-leaning groups. While the investigation does not specify the political affiliations of the groups, names that were flagged included the words “Progressive,” “Occupy,” “Green Energy,” and Acorn – the acronym for the now defunct Association of Community Organizations for Reform Now.

Washington Times: Audit reveals IRS targeting of liberal groups, tough scrutiny of tea party and other conservatives

By Stephen Dinan

Tea party and conservative groups still faced the brunt of targeting, with the liberal and issues groups significantly less affected, investigators said. There also is no evidence that the liberal groups faced the sensitive case treatment en masse, the way tea party groups did under former IRS senior executive Lois G. Lerner.

Still, other groups did encounter long delays in getting approvals, and some faced the same kinds of intrusive questions about donors, personal beliefs and even their activities at their unrelated jobs.

Democrats said the report contradicted the long-standing narrative about tea party targeting by proving the Obama administration didn’t single out conservatives…

Republicans said the report shows an agency bungling its core duty of treating groups without bias no matter what their political views.

“This report reinforces what government watchdogs and congressional investigators have confirmed time and time again: Bureaucrats at the IRS, such as Lois Lerner, arbitrarily and haphazardly administered the tax code and targeted taxpayers based on political ideology,” said House Ways and Means Committee Chairman Kevin Brady, Texas Republican.


Politico: Lawmakers weigh pushing Facebook, Twitter to share who buys political ads

By Elana Schor, Kyle Cheney, and Ashley Gold

[T]hough Republicans have historically opposed regulating political speech, some now appear open to new rules amid pressure to act against Russian influence before the 2018 midterms. Sens. Susan Collins (R-Maine) and James Lankford (R-Okla.), who both sit on the intelligence committee where Warner is the top Democrat, said in interviews this week that they’re looking at the proposal he and Klobuchar have crafted…

Sen. John McCain (R-Ariz.), an ex-officio intelligence committee member through his Armed Services Committee chairmanship, said that while he hasn’t looked closely at the Democratic bill, he’s open to the concept.

“We need full disclosure,” McCain said…

Klobuchar and Warner had initially planned to release their online political ad legislation this week but have delayed the roll-out as they continue searching for a GOP cosponsor…

Senate Intelligence Chairman Richard Burr (R-N.C.), who has worked closely with Warner on their Russia investigation, said his panel’s work isn’t far along enough to talk legislation.

“It’s extremely odd to me that you could have a legislative remedy before you knew what the problem was,” Burr said in a recent interview.

Minnesota Public Radio: The slippery slope of regulating the internet

By Bob Collins

“Of course we are not regulating news postings,” the senator said. “We are not regulating when you post your kids birthday party, or you decide you’re mad about the energy policy in this administration and you do a video yourself…” …

It’s a fair point that ignores the history of broadcast regulation in the United States…

“To serve in the public interest” eventually became the reason by which regulation expanded into content…

[F]orcing broadcasters to provide equal time on issues was [content regulation], or banning public radio stations from issuing “calls to action”, and all of it was initially made possible by the declaration at some point in the past that the government could regulate a medium and deny, essentially, full First Amendment protection to it.

Klobuchar also justified government regulation by noting that online companies made over $1.4 billion in the last campaign, which is a poor reason for the government to be involved.

All of these questions are going to require a more thoughtful discussion of the future than “don’t worry your cat videos won’t be regulated” because the history of media regulation suggests that once a medium is regulated in the name of preserving democracy, a little of it is lost.


Facebook Newsroom: Improving Enforcement and Transparency of Ads on Facebook

By Joel Kaplan, VP Global Public Policy

We believe that when you see an ad, you should know who ran it and what other ads they’re running – which is why we show you the Page name for any ads that run in your feed. To provide even greater transparency for people and accountability for advertisers, we’re now building new tools that will allow you to see the other ads a Page is running as well – including ads that aren’t targeted to you directly…

We use both automated and manual review, and we’re taking aggressive steps to strengthen both. Reviewing ads means assessing not just the content of an ad, but the context in which it was bought and the intended audience – so we’re changing our ads review system to pay more attention to these signals. We’re also adding more than 1,000 people to our global ads review teams over the next year and investing more in machine learning to better understand when to flag and take down ads…

We’re updating our policies to require more thorough documentation from advertisers who want to run US federal election-related ads. Potential advertisers will have to confirm the business or organization they represent before they can buy ads.

The States

Saint Peters Blog: Leading nation, St. Pete Council is 1st to ban corporate campaign cash

By Mitch Perry

The board’s vote would limit contributions from political action committees to $5,000 and ban donations from multinational corporations. Violators would be fined $500. City Attorney Joe Patner has consistently warned the council in previous meetings that if they passed the proposal, they would face immediate court action…

The U.S. Supreme Court’s 2010 Citizens United decision was often referenced in council discussions leading up to Thursday’s vote, but Bonifaz said there’s also been work over the past year among campaign finance critics trying to overturn the case of SpeechNow.org v. FEC.

That decision permitted a conservative group to raise money beyond the contribution limits placed on traditional PACs because it planned to spend its funds independently of a candidate or party. While some federal appellate circuits have followed that ruling, the  U.S. Court of Appeals for the Eleventh Circuit, which has jurisdiction over federal cases Florida, has yet to rule on this question, nor has the U.S. Supreme Court or the Florida Supreme Court.

Kennedy asked Bonifaz why shouldn’t everyone just sit back and see what the courts decide on SpeechNow.org v. FEC,  vs. exposing the city to litigation?

PBS: This New York bill would ban anonymous political ads on Facebook

By Associated Press

New York would require political ads on Facebook or other social media platforms to contain the names of the people or groups paying for them under legislation proposed Tuesday amid growing scrutiny of the influence such ads had on the 2016 presidential election.

Democratic state Sen. Todd Kaminsky, of Long Island, said his proposal would discourage false or misleading ads while informing citizens about those trying to influence their votes…

The proposed disclosure rules also would apply to mailed campaign advertisements.

Alex Baiocco

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