Daily Media Links 11/13

November 13, 2019   •  By Alex Baiocco   •  
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First Amendment 

Vox: If you are a unionized journalist, this labor ruling should worry you

By Ian Millhiser

Two letters released by the National Labor Relations Board (NLRB) earlier this month suggest that requiring many employers to comply with federal labor law violates the First Amendment…

The two letters concern labor law charges filed against the presidential campaigns of Sens. Elizabeth Warren (D-MA) and Bernie Sanders (I-VT). The charge against the Sanders campaign was filed by a former Sanders campaign staffer in Iowa while the charge against the Warren campaign was filed by a Sanders supporter. (Federal law permits third parties to file labor law charges against an employer other than their own.)

Rather than investigating these accusations against the two campaigns, however, the NLRB’s enforcement arm decided to dismiss the charges outright. Among other things, the letters explain that the board’s general counsel “asserts that the prosecution of a presidential election committee, which is so entwined with political speech protected by the Constitution, could raise serious First Amendment considerations.”

The implication, in other words, is that the board’s general counsel – Peter Robb, a Trump appointee – will not enforce federal labor law against employers who engage in large amounts of “political speech protected by the Constitution.”

That has some pretty serious implications that stretch far beyond political campaigns.

One company whose business is “entwined with political speech protected by the Constitution” is Vox Media, the parent company of the website you are reading right now. Indeed, the words you are reading right now are an example of political speech protected by the Constitution.

Although the general counsel was writing about political campaigns, one implication of his apparent position is that federal labor law cannot be enforced against any media company that engages in unfair labor practices against its workers or their union – or, at least, any media company that produces content related to policy or politics.

The Courts

Reuters: Case to Watch: 1st Circuit asked to uphold NLRB ruling limiting union spending on lobbying

By Daniel Wiessner

The National Labor Relations Board and a Rhode Island nurse have urged a U.S. appeals court to reject a union’s challenge to the board’s recent ruling that unions cannot spend dues collected from non-members on lobbying.

The board in a brief filed with the 1st U.S. Circuit Court of Appeals on Friday said the National Labor Relations Act (NLRA) limits unions to spending non-members’ dues on negotiating and administering bargaining agreements and pursuing worker grievances, and does not permit them to use these funds for lobbying even when it involves legislation that could affect working conditions.

Online Speech Platforms 

Lawfare: No, Facebook and Google Are Not State Actors

By Alan Z. Rozenshtein

In a provocative recent piece, Jed Rubenfeld argues that Section 230 of the Communications Decency Act of 1996 transforms technology companies into state actors for purposes of the First Amendment…

Rubenfeld’s argument focuses entirely on Section 230(c)(2), commonly referred to as the “Good Samaritan” provision, which immunizes platforms from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”…

Rubenfeld’s argument is that Section 230(c)(2) therefore violates a key constitutional law “principle”: “Some kind of constitutional scrutiny,” he argues, “has to be triggered if legislators, through an immunity statute, deliberately seek to induce private conduct that would violate constitutional rights if state actors engaged in that conduct themselves.”

But no such principle exists. Rubenfeld relies mostly on the Supreme Court’s decision in Skinner v. Railway Labor Executives’ Association, but he omits an earlier, and far more relevant decision, Flagg Brothers, Inc. v. Brooks. In Flagg Brothers, the Supreme Court refused to find state action when a New York law authorized a private party to sell the furniture of a woman evicted from her residence who failed to pay storage fees. The court refused to hold that the government’s “mere acquiescence in a private action converts that action into that of the State.”…

Section 230(c)(2) presents the same situation. It does not require internet platforms to censor user content. It simply prevents the government from interfering with such private censorship.

Reason: Joe Biden Has Officially Joined the Misguided Crusade Against Online Free Speech

By Eric Boehm

On Monday night, the former vice president told a CNN town hall that he’d be willing to rewrite the rules for all online platforms in order to force social media companies to “be more socially conscious.”

“I just think it’s a little out of hand,” Biden continued. “And I, for one, think we should be considering taking away the exception that they cannot be sued for knowingly engaged on (sic), in promoting something that’s not true.”

The exemption that Biden is talking about is Section 230 of the Communications Decency Act…

Biden knows all about Section 230, or at least he should. He voted for it in 1995.

But this is more than just a flip-flop on a decades-old vote. In calling for Section 230 to be rewritten or abandoned, Biden is giving cover to illiberal politicians who want to undermine the promise of digital free speech-and, in the process, give significant power to government to police speech online…

“Holding Facebook liable for a user’s false statement is like holding CNN liable if candidate Biden made a false statement on their Town Hall last night,” says Carl Szabo, vice president and general counsel for NetChoice, a nonprofit that favors digital free speech.

Candidates and Campaigns 

Wall Street Journal: Bloomberg Is Biden’s Best Friend

By Holman W. Jenkins, Jr.

So what’s really going on? If Mayor Mike runs, here’s betting it will be to create a motif. After all, the cleanest legal way to dump his big wallet into the race to beat Mr. Trump is by spending it on his own candidacy. The experiment would not be without risk. Like Tom Steyer, who has spent millions of his hedge-fund fortune on politics to no particular avail, he might make a lot of consultants and media ad buyers rich with little else to show for it. Even less appetizing, he might confirm for a certain electorate how much the establishment feels threatened by Mr. Trump, the president’s redeeming quality in the eyes of many otherwise skeptical voters.

Here’s the sad thing. In another era, rich people with a passion to make a difference in the travails of their time were free to write seven-figure checks to a Gene McCarthy or George McGovern, politicians with an authentic ability to stir enthusiasm in parts of the electorate. Neither man won but both had giant influence on the country’s debate, and neither had to waste his time glad-handing for small checks.

Mr. Bloomberg can’t do the same now by putting his millions behind, say, an Amy Klobuchar, buying her the hearing she can’t get under a setup that overly favors the Democratic Party’s ultraliberal fringe. Laws aimed at honoring the false god of ridding politics of money make it impossible. So here’s a chance to ask ourselves if such restrictions really improve the quality of our political debate and outcomes. The answer is obviously no.

The States

Santa Fe New Mexican: In Santa Fe races, public funds spent on elections – and a party

By Daniel J. Chacón

What would you do with free money?

What would anybody do?

Throw a party, of course.

At least that’s what happened when incumbent Santa Fe City Councilor Renee Villarreal spent $501 – or a third of the $1,500 she received from the city in public campaign financing – to put on an election night par … er … “celebration.”

“It wasn’t an election night party,” Villarreal said Monday in a text message. “It was a volunteer/supporter celebration to thank those who made my reelection possible.”

Her reelection was essentially guaranteed; Villarreal ran for a second term unopposed. But the money she forked over for 50 mini tacos, guacamole, agua fresca and other “catering” costs at Tres Colores, a restaurant across the street from City Hall, is only one example of how candidates who received public financing spent taxpayer money leading up to last week’s sleepy election.

Asked whether a victory celebration was a good use of taxpayer resources, Villarreal said, “Building community is a big piece of my platform. So coming together for a public event to celebrate community is important.” …

Villarreal received $1,500 in public financing since she didn’t have any opposition. But candidates in contested races qualified for $15,000 in public financing, plus matching funds…

Public funds not spent by candidates must be returned to city coffers.

Baltimore Sun: Baltimore’s restrictions on campaign signs are illegal. They’ve been around for decades. That may soon change.

By Talia Richman

A City Council committee took a step Tuesday toward eliminating an unconstitutional regulation that dictates when people in Baltimore can start displaying campaign materials outside their homes and on their lawns…

After a brief hearing, the Housing and Urban Affairs Committee voted Tuesday in favor of repealing the prohibition. It will go before the rest of the council at its next meeting.

In response to the bill, the city’s Law Department said the rule was “not legally enforceable because it is an unconstitutional regulation of speech.” The city hasn’t issued any citations or notices about this code violation since at least 2007.

That was the year a federal judge struck down Baltimore County’s regulations on political campaign signs in yards, saying the rule violated residents’ right to freedom of speech. Before the court’s decision, the county prohibited residents from exhibiting campaign signs on private property earlier than 45 days before a primary election…

For years, there weren’t any issues. Recently, though, the city Department of Housing and Community Development got five complaints about campaign signs that were posted too early…

It troubled Seema Shah-Nelson when a city official knocked on her door in July in Mount Washington and said she had to remove the campaign sign she was displaying in support of Democrat Christopher Ervin, who is seeking election in Baltimore’s 5th council district.

Shah-Nelson researched Baltimore code and reached out to her various agencies, who assured her that the city will not cite residents over campaign signs and that she would not have to pay any fee…

The housing department reached out to Shah-Nelson to clear up the confusion after she posted about her experience on a community Facebook page.

Shortly after, Democratic Councilman Isaac “Yitzy” Schleifer introduced the bill.

The Advocate: Attack ad in governor’s race must be temporarily pulled from airwaves after new lawsuit, judge rules

By Sam Karlin

An attack ad blasting a military buddy of Gov. John Bel Edwards over his bidding on state coastal work must be temporarily taken off the airwaves while a new lawsuit plays out, a judge ruled Wednesday, as the dispute heats up in the waning days of the governor’s race.

A voter named Linda Kocher filed the lawsuit in Orleans Parish district court court against Truth in Politics, a political organization founded by Lane Grigsby, and Causeway Connection PAC, a group that Republican state Sen. Conrad Appel started shortly after the primary election for governor.

Truth in Politics launched the attack ad last week, accusing Edwards’ West Point friend Murray Starkel of landing a $65 million contract for coastal work. But the ad was pulled and replaced with a new version after the state Coastal Protection and Restoration Authority pointed out neither Starkel, nor any other bidder, was awarded the contract in question. Appel’s PAC also began running the new version of the ad this week.

Judge Nakisha Ervin-Knott granted a temporary restraining order Wednesday requiring the ads to be taken down while the suit plays out. Appel, who was one of the few state lawmakers to endorse Edwards’ Republican challenger Eddie Rispone early on in the race, said the groups will swiftly appeal the decision.

Albany Times Union: Under proposal, taxpayer funds could match big campaign donations

By Chris Bragg

At a meeting in Westchester, the nine-member Public Campaign Finance Commission voted to preliminarily adopt new donation limits for elections for the state Assembly and Senate…

The state commission preliminarily adopted new campaign donation limits for the state Assembly that would be almost as high – $5,000 per donor – and much higher for state Senate, at $10,000 per donor…

The commission voted down a proposal that would have limited statewide candidates to a maximum of $15,000 per donor…

Instead, the state Democratic Party chairman Jay Jacobs, a Cuomo appointee, pushed for the limit of $25,000 that was previously in a bill pushed by Cuomo and passed by the state Assembly but not by the Senate.

That issue of statewide donation limits remained unresolved at the end of Wednesday’s meeting.

One of the most vexing aspects of the proposed system, according to [Alex Camarda, senior policy advisor at Reinvent Albany,] is that candidates who accept these large dollar donations – enabled by the still-high contribution limits – would have between $1,500 and $2,300 of those donations matched by public funds. So a candidate for Assembly, Senate or governor could still rely on big-dollar donations to fund their campaigns, as well as having those sums multiplied by taxpayer funds…

The commission’s current plan is for taxpayers to only match donations given by donors within a lawmaker’s district. But all donations to statewide candidates would qualify, since they represent the whole state…

The commission also voted that candidates who do not participate in the publicly funded campaign system would have the same donation limit as those who opt in…

The commission is also strongly considering a proposal that would make it easier for lawmakers representing poorer districts to qualify for the public matching funds program.

Techdirt: Wisconsin County Briefly Considers (Then Drops) Resolution To Threaten Journalists With Prosecution For Not Reprinting Entirety Of Gov’t Report

By Mike Masnick

Last week it was reported that the Lafayette County’s board would be considering a hilariously overbroad resolution that threatened to prosecute journalists if they did not report on the local “Review Board of the Water Quality Study.” The proposed resolution did not mince words, noting that it was put in place because of worries about “slander”:

WHEREAS, in the past, Southwest Wisconsin has been falsely slandered by the press due to a county board leak of confidential information of the collaborative three county water study the following protocols must be followed:

So, right from the start this is problematic. Claiming that the press “slandered” you already suggests a bad outlook. Second, any demand for “protocols” that “must be followed” for journalists is inherently a violation of the 1st Amendment that anyone — even a lowly county board member — should recognize. Among the protocols are the insane requirement that any reporting on the report must simply repost the entire press release crafted by the Review Board, and they are not allowed to even quote it.

An appropriate statement will be crafted by the Review Board. It will be crafted in a press release and shared with the press with this specific statement included at the top: “Please do not alter, edit, cut or adjust this press release in anyway. Please print the content provided in full.” Under no circumstances is the media allowed to glean information and selectively report it in order to interpret the results for their own means.

Yeah, so beyond the mixing up of “any way” and “anyway”, telling journalists that they’re not allowed to “glean information” or report on it how they want is kind of insane. It also undermines the “Please” at the beginning of the “specific statement included at the top” which makes it sound like a request. Oh, also undermining the “please” is the sentence after the part quoted above:

Violators will be prosecuted.

Alex Baiocco

Alex Baiocco