Daily Media Links 11/30

November 30, 2020   •  By Tiffany Donnelly   •  
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Supreme Court

PPLI: In First Amendment Cases, Timing and Precision Matter, Even During A Pandemic

By Barnaby Zall

Shortly before midnight on November 25, a fractured Supreme Court of the United States in Roman Catholic Diocese of Brooklyn v. Cuomo temporarily blocked New York state pandemic rules on attendance at churches and synagogues. New York Governor Andrew Cuomo scoffed at the ruling: “It doesn’t have any practical effects.”

Contrary to Gov. Cuomo’s shrug, the Diocese of Brooklyn decision does have practical effects on government officials who draft pandemic rules and litigants who challenge them. Simply put, both rules and challenges must be as “precise and as narrow as possible.” Because the Supreme Court has just reminded courts to look for that narrow precision.

The First Amendment balances societal needs against free expression rights, even during an emergency. In a crisis, governments want to act quickly and broadly, but the courts are not going to ignore the First Amendment when governments say “trust us.” Timing and precision matter both in drafting the government’s rules and in challenging them.

South Florida Sun Sentinel: Supreme Court should hear Florida environmentalist’s appeal

By Editorial Board

The constitutional right of Americans to sound off to their governments is a fundamental issue that ought to unite everyone in its defense, and often does.

So it does again in an appeal that deserves to be heard by the U.S. Supreme Court, given the Florida Supreme Court’s deplorable decision to duck the case.

The issue is whether a citizen can speak her mind without being SLAPPed with a ruinous lawsuit.

That’s what happened to Maggie Hurchalla, a Martin County environmentalist, for trying to oppose a billionaire’s deal to store water in his rock mine and sell it to Martin County. He sued her and won a $4.4 million judgment she is unable to pay…

One of the friend-of-the-court briefs supporting her appeal represents the Cato Institute, the Institute for Justice and the “Protect the Protest” Task Force…

Another brief has been filed on behalf of six environmental organizations, including the Florida Wildlife Federation, Friends of the Everglades, and Bullsugar, as well as a Colorado kayaking company and a Massachusetts nonprofit devoted to animal welfare. 

The Courts

Reason: Offensive License Plates Are Free Speech, Court Tells California

By Elizabeth Nolan Brown

Thanks to the First Amendment, the state of California can’t ban residents from vanity license plate messages that it deems “offensive to good taste and decency.” A federal court ruled Tuesday that the state rule was an unconstitutional restriction on free expression.

The case against the California Department of Motor Vehicles-heard by the U.S. District Court for the Northern District of California- was brought by five people who were told their choices of vanity plate messages were off-limits. The five plaintiffs were represented by the libertarian law firm Pacific Legal Foundation (PLF).

“Vague bans on offensive speech allow bureaucrats to inject their subjective preferences and undermine the rule of law,” said PLF’s Wen Fa in a statement.

[Ed. note: PLF’s Wen Fa wrote about the case in a guest post on the IFS blog, which you can read here.]

Associated Press: Ex-Trump campaign aide sues over Russia probe surveillance

By Eric Tucker

A former Trump campaign associate who was the target of a secret surveillance warrant during the FBI’s Russia investigation says in a federal lawsuit that he was the victim of “unlawful spying.”
The suit from Carter Page alleges a series of omissions and errors made by FBI and Justice Department officials in applications they submitted in 2016 and 2017 to the Foreign Intelligence Surveillance Court to eavesdrop on Page on suspicion that he was an agent of Russia.

“Since not a single proven fact ever established complicity with Russia involving Dr. Page, there never was probable cause to seek or obtain the FISA Warrants targeting him on this basis,” the lawsuit says…

Online Speech Platforms

Wall Street Journal: The Social Media Fact-Check Farce

By The Editorial Board

In recent years liberals have successfully lobbied social-media companies to police conservative content more and more aggressively. But there’s little evidence that this political interference has reduced the prevalence of misinformation online-and a new study shows how it could make the problem worse.

Glenn Greenwald: VIDEO: Interview with Edward Snowden on Silicon Valley Censorship, Biden, and Lurking Press Freedom Dangers

In one of the earliest interviews we conducted with Snowden in Hong Kong, he explained that he was driven in large part by the central, vital role which the early version of the internet played in his life…

It was that Wild West vision of the internet that led so many to herald it at its inception as one of the greatest and most potent innovations in modern history for fostering individual freedom, human liberation, empowerment of ordinary citizens, and the ability of people to organize and communicate without having to depend on corporate giants and the governments they fund and control. In many ways, that vision is a feint memory…

It does not have to be this way. A free internet is still worth fighting for and is still salvageable. But it faces growing threats: from corporate media outlets eager to suffocate anything that threatens their discourse-monopoly by ginning up pressure on Silicon Valley to censor various dissidents and independent voices even more so than they are now; from political parties and politicians who wield great influence with tech giants and know they can exploit that influence to silence their critics and adversaries; and the increasing concentration of power over the internet in the hand of a few monopolies whose power and wealth makes it irresistible for power centers to try to harness to suffocate dissent.

On Monday I spoke with Snowden for a special episode of SYSTEM UPDATE, for roughly 40 minutes about the growing dangers of Silicon Valley censorship, why a tech industry that never wanted the power or responsibility to regulate discourse has had that obligation foisted upon them by politicians and journalists, the lurking dangers to press freedoms, and how a Biden/Harris administration may make all of this worse.

Bloomberg: Facebook’s AI Mistakenly Bans Ads for Struggling Businesses

By Sarah Frier

Facebook’s human moderators have focused on election and Covid-19 misinformation this year, so the company has leaned more on artificial intelligence algorithms to monitor other areas of the platform. That’s left many small businesses caught in Facebook’s automated filters, unable to advertise through the service and frustrated because they don’t know why…

[W]hile business owners agree that Facebook is a lifeline during the pandemic, they say it’s also an unreliable partner. Facebook’s ban on political ads around the U.S. election, for instance, affected companies that have no connection to politics, like a business selling bracelets to benefit refugees. A seed company was also blocked for sharing a picture of Walla Walla onions — which were “overtly sexual,” according to Facebook’s AI…

GFP Delivered, a Chicago-based produce company advertising a way for people to avoid the grocery store during Covid-19, had its Facebook ads shut down for two months without clear explanation, according to owner George Fourkas. He said he was able to fix the problem only after reaching out to old college friends who work at Facebook…

The over-reaction by Facebook’s AI is a side effect of the company taking more responsibility for the content on its platform, according to Guy Rosen, Facebook’s vice president of integrity. “As we take more action, we remove more content, there’s more opportunities also for those to be in error,” he said during a recent press call.

TK News by Matt Taibbi: Meet the Censored: Andre Damon

Like many alternative news sites, World Socialist Web Site noticed a steep decline in traffic in 2016-2017, after Donald Trump was elected and we began to hear calls for more regulation of “fake news.” Determined to search out the reason, the site conducted a series of analyses that proved crucial in helping convince outlets like the New York Times to cover the issue. In its open letter to Google, the WSWS described inexplicable changes to search results in their political bailiwick:

Google searches for “Leon Trotsky” yielded 5,893 impressions (appearances of the WSWS in search results) in May of this year. In July, the same search yielded exactly zero impressions for the WSWS, which is the Internet publication of the international movement founded by Leon Trotsky in 1938.

The WSWS connected the change to Project Owl, a plan announced by Google in April of 2017 designed to “surface more authoritative content.” When I called Google about a year later for a story on a related subject, they explained the concept of “authority” as an exercise in weighting some credentials over others…

The rub was that Google was now pushing viewers away from alternative sources, such that an article in the New York Times about Trotskyism might be ranked ahead of the world’s leading Trotskyite media organ. Queries had to be right on the nose to call up a whole host of alternative sites, all of which had seen sharp drops in their Google search results.

Candidates and Campaigns

CNN: Democrats deride ‘dark’ money, but a new analysis shows it helped boost Joe Biden

By Fredreka Schouten

Democrats have denounced anonymous money in politics for years, but 2020 brought a tidal wave of it into the election to benefit their party.

More than $320 million of so-called “dark money” helped boost Democrats in the White House and congressional races — more than double the anonymous dollars that aided Republicans in this year’s federal elections, a new analysis shows.

A top beneficiary: President-elect Joe Biden. Nearly $132 million in anonymous money backed his White House bid, compared to nearly $22 million to aid President Donald Trump, according to an analysis by the Center for Responsive Politics for CNN…

The trend toward Democrats is a stark reversal from previous presidential election cycles in which dark money overwhelmingly boosted Republicans…

“This is a rotten system, but as long as it exists, both parties are going to use it,” said Fred Wertheimer, who runs the watchdog group Democracy 21 and is part of a coalition of more than 170 groups, urging the incoming president to tackle issues ranging from voting rights to greater transparency in campaign finance.

“The test for us is: What are you prepared to do about the system?” Wertheimer said…

[Biden’s aides] note that the former vice president, a longtime proponent of public financing for federal candidates, has proposed sweeping changes to address the role of money in politics. Those proposals include enacting legislation that would bar dark money nonprofits from spending in elections and establish matching public funds for candidates seeking small-dollar contributions to spur more grassroots giving.

Washington Post: The WNBA influenced the Georgia Senate race, new research finds

By Angele Delevoye

On June 24, Kelly Loeffler, an incumbent Republican senator and WNBA team owner, criticized the Black Lives Matter movement for being a “very divisive organization” promoting “violence and destruction across the country.” In doing so, she kicked off a summer-long standoff with the WNBA and its players…

In August, most of the league wore “Vote Warnock” T-shirts on national television and discussed their reasons for supporting [Loeffler’s opponent, Rev. Raphael Warnock,] in many interviews from August to Election Day. Warnock’s polling and donation numbers started rising over the summer. In November, he forced Loeffler into a runoff election, to be held in January. Warnock recently said that the WNBA’s decision to support him was a “turning point” in his campaign.

Was that really because of the WNBA? Many things started going right for Warnock during the summer aside from the players’ support. My research suggests that Warnock is right: WNBA support made the difference…

Overall, the WNBA’s effect was small. Other campaign events boosted donations much more. For instance, after Barack Obama endorsed Warnock on Sept. 25 and new polls showed him leading the race for the first time, his campaign received a $250,000 surge over 48 hours, for a 40 percent increase at the time.

But the WBNA’s support boosted the campaign at a crucial moment.

The States

Oregonian: Portland man files lawsuit to enforce Oregon’s 2006 political donation limits

By Hillary Borrud

The fight over Oregon’s lack of state-level campaign contribution limits is headed to court, after a Portland campaign finance advocate filed a lawsuit Tuesday seeking to force Secretary of State Bev Clarno to enforce strict limits voters passed in 2006.

In the Multnomah County Circuit Court filing, Ron Buel argues that the contribution caps in Measure 47 went into effect earlier this year when the state Supreme Court ruled such limits were constitutional, reversing decades of legal precedent.

Measure 47 capped donations from any one individual at $100 for most races and on Oct. 29, Buel filed a complaint with the Secretary of State’s Elections Division alleging that May 2020 Portland City Council candidate Seth Woolley violated the law by contributing $150 to Woolley’s own political action committee.

The next day, an elections worker wrote in a letter to Buel that the state would not pursue the complaint “because the Oregon secretary of state and Oregon attorney general concluded that (Measure 47) was not made operative by the Oregon Supreme Court’s ruling.”

Albuquerque Journal: Legislature should close dark-money loophole

By Kathleen A. Sabo

In 2019 the Legislature enacted new safeguards within New Mexico’s Campaign Reporting Act (CRA) to protect New Mexico elections from the influx of dark money, i.e. political spending by nonprofit organizations not required to disclose their donors.

The new provisions in the CRA require those making specified independent expenditures – defined by New Mexico as advertisements that are “susceptible to no other reasonable interpretation than as an appeal to vote for or against a clearly identified candidate or ballot question” – to disclose the names and addresses of their donors. All good, right? 

Fast forward to 2020, and we see what happens when smart Washington lawyers seek to protect their clients from disclosing donors to super PACs. 

In what the N.M. State Ethics Commission (NMSEC) came to call a “loophole,” the Campaign Reporting Act also provides that, “a contribution is exempt from reporting … if the contributor requested in writing that the contribution not be used to fund independent or coordinated expenditures or to make contributions to a candidate, campaign committee or political committee.” 

New Times: SLO County’s new $25,000 campaign donation limit among highest in state

By Peter Johnson

Despite a torrent of public opposition decrying money’s influence in politics, the San Luis Obispo County Board of Supervisors pushed ahead on Nov. 20 to adopt a new $25,000 per donor cap on campaign contributions to county candidates-one of the highest among California counties.

Rushed to pass before a new state law-AB 571-takes effect next year and defaults counties without local limits to the state’s Fair Political Practices Commission’s (FPPC) per donor cap, the board led by 1st District Supervisor John Peschong sidestepped an outpouring of criticism and argued that a $25,000 limit preserved local control and also gave candidates the tools to win elections. The FPPC is planning to increase the current $4,700 cap to $4,900 in January…

Peschong argued that a higher limit gives candidates a chance to compete in fundraising against independent expenditures-or third-party committees, where donations are unlimited under Citizens United v. Federal Elections Commission.

A longtime Republican strategist who’s run presidential, state, and local candidate campaigns, Peschong said that if candidates are tied down by a lower donation limit they would be “overwhelmed” by independent expenditures.

“That’s what I truly believe,” Peschong said. “And I’ve seen that in other counties.”

Bayou Brief: In Baton Rouge, Steve Carter’s Wife Bankrolls the “Independent” PAC Supporting His Campaign for Mayor-President

By Lamar White, Jr.

As it turns out, Red Stick Forward, [a new political action committee opposing the reelection of Baton Rouge Mayor-President Sharon Weston Broome] is primarily funded by the spouse of Weston Broome’s Republican challenger, according to documents filed with the Louisiana Ethics Administration, the Louisiana Secretary of State, and the Texas Secretary of State.

Gloria Solomon Carter and at least two limited liability companies associated with her have donated a total of $105,000 to Red Stick Forward, including a $30,000 donation that seeded the PAC on Oct. 8. Her husband, former state Rep. Steve Carter, will square off against Weston Broome in the Dec. 5 runoff…

All told, Gloria Solomon Carter and family-held LLCs have provided Red Stick Forward with more than 60% of its total funding…

Officially, Red Stick Forward says it was established to support multiple candidates, but on the PAC’s website, it also makes clear that it is exclusively targeting the race for East Baton Rouge Mayor-President.



Tiffany Donnelly

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