Daily Media Links 11/4

November 4, 2019   •  By Alex Baiocco   •  
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In the News

City Journal: Free Speech Means Free Speech

By Bradley A. Smith

Days after Mark Zuckerberg planted his flag in favor of free speech by announcing that Facebook wouldn’t censor political advertising, Twitter CEO Jack Dorsey, apparently bowing to pressure from his platform’s largely liberal user base, announced a contrary policy: Twitter will no longer accept any political ads…

“This isn’t about free expression. This is about paying for reach,” explained Dorsey. But of course it’s about free expression. Speech-particularly speech about elections-is worth little without an audience. In modern society, it takes money to “reach” most audiences. That’s why businesses advertise, governments spend millions on public education programs, and people spend money to travel to mass rallies, buy bumper stickers, and engage in other forms of political communication. It’s an elementary principle of First Amendment law that you can’t limit spending in order to limit the reach of speech. You can’t prevent Planned Parenthood, for example, from speaking about abortion rights, and you can’t end-run the First Amendment by prohibiting them from spending money to advocate for that same cause…

Twitter will ban not just candidate ads, but “issue ads,” because they “present a way to circumvent.” Does this mean that an ad promoting a documentary warning about (or dismissive of) climate change should be banned? How about an ad promoting a magazine profile of a candidate? Does a Gillette commercial lecturing men on the dangers of “toxic masculinity” qualify as an issue ad?

Twitter’s new policy, and Dorsey’s explanation for it, demonstrate a muddled understanding of the purpose of speech. Dorsey worries that Twitter advertising might influence voters-but influencing people is the essence of speech in a free society, and persuading others is presumably why Dorsey sent out a tweet stream explaining himself. Removing a major source of low-cost political advertising from Twitter harms those who don’t yet have a large audience but are looking for an inexpensive way to reach voters and identify new supporters.

St. Louis Post-Dispatch: Federal appeals court says Missouri lobbying rules don’t apply to activist

By Erin Heffernan

The 8th U.S. Circuit Court of Appeals ruled that requiring Ron Calzone to sign up as a lobbyist unjustly limits his First Amendment rights because he isn’t paid to press his views with members of the state Legislature and offers them nothing of value.

The 6-5 ruling overturned a decision last November by a three-judge panel of the same court. That panel had declared that the Missouri Ethics Commission could require Calzone to register in the name of transparency and preventing corruption…

Calzone’s legal battle began in 2014 when he was the subject of a complaint to the ethics commission for failing to file the $10 registration form and follow other reporting requirements for lobbyists.

The commission decided the next year that Calzone should have been registering and would need to in the future. The commission also ordered him to pay a $1,000 fine.

Calzone sued to overturn the decision and the case eventually landed in the federal appeals court. After the three-judge panel’s ruling against Calzone last year, the full court made the unusual move this summer to review the panel’s ruling…

Lawyers from the Institute for Free Speech and the Freedom Center of Missouri represented him in the case.

Calzone attorney Allen Dickerson argued that requiring him to register as a lobbyist would set a dangerous precedent.

“The government would have treated every civically-engaged Boy Scout troop and Audubon Society chapter like a group of paid lobbyists, merely for speaking with their elected representatives,” he said in a statement.

Election Law Blog: Divided En Banc 8th Circuit Strikes Down Application of Lobbying Law to Lobbyist Who Was Uncompensated and Engaged in No Spending; But Decision Ominous for Constitutionality of Lobbying Disclosure Laws Generally

By Rick Hasen

If I had more time, I’d write this up, but for now I will leave you with just the link to Calzone v. Summers.

Cato: The SHIELD Act and Free Political Speech (Podcast)

Featuring Scott Blackburn and Caleb O. Brown

New legislation aimed at curbing foreign influence in U.S. elections also appears to be aimed at curbing Americans’ influence in U.S. elections. Scott Blackburn of the Institute for Free Speech comments.

Politico: Eyes turn to Google as political ads divide Silicon Valley

By Steven Overly

“Google has been very adroit at ducking a lot of attention, whether it’s the result of purposeful action or not,” Sen. Richard Blumenthal (D-Conn.) told POLITICO on Thursday. “But it bears equal scrutiny.”

Sens. Brian Schatz (D-Hawaii) and Mark Warner (D-Va.) told POLITICO they also want to see Google explain itself or rethink its policies.

The search giant has never spelled out whether it allows political candidates to put false messages into paid ads, but in practice, its approach appears similar to Facebook’s permissive policy…

Political ads represent a fairly minuscule portion of the billions in advertising revenue pouring into tech giants like Facebook and Google, but the debate over how to handle them could have enormous implications for the messages that voters see during the 2020 campaign, including from President Donald Trump’s big-spending reelection campaign. And that has provoked a sharp partisan divide on the policies the big platforms should pursue, with Democrats urging a hard line against fakery while many Republicans warn against censoring online speech…

Schatz suggested the company should be able to put a hard ban on misleading ads without pulling out of political advertising altogether. “I just think every platform of consequence has to determine their way forward in terms of whether or not they’re going to allow explicit lies on their platform,” he said. “It’s just not that hard to have a policy that says, we will not allow you to lie explicitly and take money for it.”

Others, though, are less convinced that’s a tenable position.

“It doesn’t hurt for people to wait and see how some of these things play out,” said Brad Smith, founder of the Institute for Free Speech and a former GOP chairman of the FEC, who sharply criticized Twitter’s political ads ban. “But I think the choice really comes down to allow it all or ban it all. Policing it is something you can never do satisfactorily.”

Bloomberg Government: Adelson, Thiel Among Givers to GOP Group Forced to Reveal Donors

By Kenneth P. Doyle

Their donations to the nonprofit, Americans for Job Security, were revealed after a long court battle and a settlement with the Federal Election Commission…

“These people tried to get around the law and keep their massive political money secret. It took a long time, but transparency and the rule of law prevailed,” said Noah Bookbinder executive director of the watchdog Citizens for Responsibility and Ethics in Washington (CREW), which spearheaded the legal battle to reveal the group’s donors…

Donors can still give to campaign spending groups that promise secrecy, but “the likelihood of remaining anonymous forever is significantly diminished” due to recent rulings favoring disclosure, said election law attorney Brett Kappel in a phone interview.

Groups wanting to maintain confidentiality must be more careful about not spending too much of their money on campaign messages, said Kappel, who is a partner at Akerman law firm…

Opponents of disclosure warn that forcing greater transparency for groups speaking out on controversial policy issues could suppress free speech across the board. Alex Baiocco of the nonprofit Institute for Free Speech, a critic of campaign finance regulation, noted that some liberal groups like the American Civil Liberties Union have lobbied against increased donor disclosure.

“Although it’s often lost in the discussion, nonprofit donor disclosure laws affect groups across the ideological spectrum,” Baiocco said in a recent blog post. Disclosure requirements undermine democratic debate by threatening free speech and privacy in association, he said.

AJS had promised its donors they would never be revealed. The group’s president, Stephen DeMaura, told the FEC in a deposition that avoiding donor disclosure was a major factor in how and where the nonprofit decided to conduct its activities, according to a report from the FEC general counsel’s office.

New from the Institute for Free Speech

Volunteers Are Not Lobbyists, Rules Eighth Circuit

Nearly five years ago, the Missouri Ethics Commission (“MEC”) ordered Ron Calzone, an unpaid grassroots activist, to pay a $1,000 fine and prohibited him from discussing policy with lawmakers until he registered and filed reports as though he was a professional “lobbyist.” Because the First Amendment guarantees the freedom to share one’s policy ideas with public officials, Calzone challenged the MEC’s order. [Friday], the Eighth Circuit Court of Appeals sitting en banc confirmed that the Constitution does not allow states to treat unpaid citizen activists like professional lobbyists…

“It has been a long time coming, but I’m pleased that the Court of Appeals got this right,” Mr. Calzone said. “Unpaid citizen activists like myself keep our elected officials informed and accountable by sharing our views about public policy. A government cannot force unpaid activists to jump through regulatory hoops in order to exercise their First Amendment rights.”

Lawyers from the Institute for Free Speech and the Freedom Center of Missouri represented Mr. Calzone.

“The State of Missouri’s dogged pursuit of Mr. Calzone completely ignored the cost its policy imposed on civil society,” said Allen Dickerson, Legal Director of the Institute for Free Speech. “The Government would have treated every civically-engaged Boy Scout troop and Audubon Society chapter like a group of paid lobbyists, merely for speaking with their elected representatives. Thankfully, the Court held that the First Amendment stands against the professionalization of our right to petition the government.”

“Our system of government depends on people like Ron actively sharing their policy ideas with those in power, but for years powerful legislators have been trying to silence him,” said David Roland, Director of Litigation for the Freedom Center of Missouri. “Today’s decision should make clear that the Constitution shields these citizen activists against these efforts to restrict their First Amendment rights.”

To read the full opinion, click here. For more information about the case, click here.

Free Speech

Washington Post: Why America needs a hate speech law

By Richard Stengel

When I was a journalist, I loved Justice Oliver Wendell Holmes Jr.’s assertion that the Constitution and the First Amendment are not just about protecting “free thought for those who agree with us but freedom for the thought that we hate.”

But as a government official traveling around the world championing the virtues of free speech, I came to see how our First Amendment standard is an outlier. Even the most sophisticated Arab diplomats that I dealt with did not understand why the First Amendment allows someone to burn a Koran. Why, they asked me, would you ever want to protect that? …

The modern standard of dangerous speech comes from Brandenburg v. Ohio (1969) and holds that speech that directly incites “imminent lawless action” or is likely to do so can be restricted. Domestic terrorists such as Dylann Roof and Omar Mateen and the El Paso shooter were consumers of hate speech. Speech doesn’t pull the trigger, but does anyone seriously doubt that such hateful speech creates a climate where such acts are more likely?

Let the debate begin. Hate speech has a less violent, but nearly as damaging, impact in another way: It diminishes tolerance. It enables discrimination. Isn’t that, by definition, speech that undermines the values that the First Amendment was designed to protect: fairness, due process, equality before the law? Why shouldn’t the states experiment with their own version of hate speech statutes to penalize speech that deliberately insults people based on religion, race, ethnicity and sexual orientation?

All speech is not equal. And where truth cannot drive out lies, we must add new guardrails. 

Reason: Former Time Editor and CEO of Constitution Center (!) Wants To Cancel First Amendment, Pass Hate Speech Laws

By Nick Gillespie

If you need more proof that free expression is under serious and sustained attack, look no further than The Washington Post, that legendary and often self-congratulatory bastion of First Amendment support, which has just published an op-ed calling for hate speech laws because “on the Internet, truth is not optimized. On the Web, it’s not enough to battle falsehood with truth; the truth doesn’t always win.”

What’s even more disheartening is that the author is Richard Stengel, a former managing editor of Time, chairman of the National Constitution Center, and Obama-era State Department official whose soul-searching apparently began when challenged by diplomats from a part of the world notorious for particularly brutal forms of censorship. As a journalist, Stengel avers, he loved, loved, loved the First Amendment and its commitment to free speech. But then he got stumped by unnamed representatives of unnamed governments who asked banal questions…

Older boomers are syncing with millennials and younger Americans, who show a strong predilection to limiting “bad” speech (a 2015 Pew survey found 40 percent of millennials supported censoring “offensive statements about minorities”). These are not good developments, and neither is an op-ed in The Washington Post calling for an effective revocation of the First Amendment. Throw in bipartisan interest in regulating social media platforms as public utilities, the president’s interest in “opening up” the libel laws so he can more easily sue his critics, the rise of “cancel culture,” and we’re one Zippo lighter short of a good, old-fashioned book burning.

The Courts

Courthouse News Service: Maryland’s Online Political Ad Law Debated in Fourth Circuit

By Brad Kutner

Maryland’s effort to regulate online political ads was met with skepticism by a Fourth Circuit judge Wednesday, as a state attorney defending against a challenge by The Washington Post and other newspapers argued the law doesn’t violate digital publishers’ right to free speech…

[A]t Wednesday’s hearing in the Richmond, Virginia-based appeals court, U.S. Circuit Judge J. Harvie Wilkinson zeroed in on who is actually burdened with generating information about the ad buyer and their political links under the law…

While Wilkinson admitted the burdens imposed by the current law might be innocuous, he was unsure what approving them now would open the door to later.

“Trying to stop [foreign influence] with regulation of political speech, the most treasured speech in a democracy….turns the First Amendment on its head,” he said…

When Seth D. Berlin, an attorney with Ballard Spahr who argued on behalf of the publishers, began his oral arguments, Wilkinson did offer some support to Maryland’s efforts.

“Dark money is concerning, disclosure is a disinfectant,” he said. “Do we not want to add to the fund of information made with disclosures?”

Berlin agreed, but argued the sections of the law that aren’t burdensome were duplicitous to campaign finance laws already on the books.

He argued political campaigns must report what they spend to the state board of elections, which in turn makes that information available online. Asking online platforms to also publish this information, he suggested, would harm smaller publishers without the means to financially support such an endeavor.

ACLU: The FBI is Tracking Our Faces in Secret. We’re Suing.

By Kade Crockford

[W]e’re asking a federal court to intervene and order the FBI and related agencies to turn over all records concerning their use of face recognition technology.

The FBI’s troubling political policing practices underscore the urgent need for transparency. Under the leadership of the agency’s patriarch – the disgraced J. Edgar Hoover – the FBI obsessively spied on left-wing, Indigenous rights, anti-war, and Black power activists across the country. Hoover infamously tried to blackmail Martin Luther King, Jr., encouraging the civil rights leader to kill himself to avoid the shame Hoover’s leaks to journalists would bring to him and his family. The FBI was also involved in the 1969 killing of Fred Hampton, a brilliant Chicago leader in the Black Panther Party who was assassinated by Chicago Police while he lay asleep in his bed next to his pregnant girlfriend.

While Hoover’s reign may be history, the FBI’s campaign against domestic dissent is not.

Since at least 2010, the FBI has monitored civil society groups, including racial justice movements, Occupy Wall Street, environmentalists, Palestinian solidarity activists, Abolish ICE protesters, and Cuba and Iran normalization proponents. In recent years, the FBI has wasted considerable resources to spy on Black activists, who the agency labeled “Black Identity Extremists” to justify even more surveillance of the Black Lives Matter movement and other fights for racial justice. The agency has also investigated climate justice activists including 350.org and the Standing Rock water protectors under the banner of protecting national security.

Congress

The Hill: Mark Zuckerberg is right, Jack Dorsey is wrong

By Sen. Ted Cruz

It should come as no surprise that leftist politicians and media influencers praised Dorsey’s announcement, urging Facebook and Google to follow suit and jump on board the censorship train by banning political ads as well.

Doing so would be profoundly harmful. Here’s why.

First, if banning political ads – from candidates, groups, or individual citizens – becomes the norm, that only stands to benefit two groups: incumbent politicians and the mainstream media.

Incumbent politicians have tons of money and a huge megaphone to spread their message. If you ban political advertising from social media, how on earth is any upstart challenger supposed to beat an incumbent? …

Twitter’s rule also bans you, the individual citizen, from speaking about politics. If you want to run an ad that says “I’m from Venezuela, and I’ve seen first-hand that socialism doesn’t work,” you can’t. If you want to run an ad that says “Ted Cruz is a nincompoop,” you can’t either.

What Jack Dorsey is proposing is to stop you, individually, or in a group – whether it be the Sierra Club, the NRA, Planned Parenthood, AIPAC, or a totally new not-for-profit group trying to advocate for a particular idea – from being able to speak actively about public policy.

And if citizens are silenced, then the media and politicians are the only ones left…

Second, Twitter’s ban only further empowers Silicon Valley billionaires, who already have a stronghold on defining what is truthful or acceptable speech, to now define what is and what is not “political.” It’s up to them to determine where to draw the line – and they won’t stop here. Banning ads is just the beginning.

FEC

Washington Post: Don’t abolish political ads on social media. Stop microtargeting.

By Ellen L. Weintraub

Here’s a move that would allow political ads while deterring disinformation campaigns, restoring transparency and protecting the robust marketplace of ideas: Sell political ads, but stop the practice of microtargeting those ads…

One of the primary ailments of the current online political advertising system is the way Internet platforms sell their ads. Microtargeting by foreign and domestic actors in 2016 proved to be a potent weapon for spreading disinformation and sowing discord. There is no reason to think it will not be wielded even more effectively going forward. The microtargeting of political ads may be undermining the united character of our United States.

Such ads also undermine the main remedy that the Supreme Court has set out for lies in politics: counterspeech. Counterspeech is most possible where a broad public can hear the speech and respond…

The remaining large sellers of Internet advertising – Google, Facebook, Amazon, Microsoft and Verizon – would do well to consider voluntarily stepping back from microtargeted political ads. This would entail foregoing “custom audiences” programs and allowing express-advocacy ads and electioneering communications (ads that mention candidate names and run right before Election Day) to be targeted only by large and fully disclosed geographic areas…

It would be unwise, unnecessary and counterproductive for political speech to be shut out of the Internet advertising market altogether. The overall advertising market has moved decisively toward the Internet. Political advertising on the Internet is an important part of our political discourse – perhaps the most important. I favor more political speech, not less.

The far less drastic step of forswearing the microtargeting of political ads would in essence turn back the clock about a dozen years.

Online Speech Platforms 

USA Today: Facebook: We shouldn’t become the gatekeeper of truth on candidate ads

By Katie Harbath and Nell McCarthy

Anyone who thinks Facebook should decide which claims by politicians are acceptable might ask themselves this question: Why do you want us to have so much power?

In our view, the only thing worse than Facebook not making these calls is for Facebook to make these calls.

Our approach is consistent with companies like YouTube and Twitter. And broadcasters are required by federal law not to censor candidate ads.

In fact, the ad that touched off this debate ran nearly 1,000 times on local TV stations in Iowa, New Hampshire, Nevada and South Carolina.

So if people have a problem with Facebook’s policy, they have a problem with the way political speech is protected in this country.

Speech from candidates and elected officials is already highly scrutinized; it’s a good thing. But for that to happen, the public and the news media have to see it. In fact, if Facebook became the gatekeeper of truth, the first people to complain would be those who are complaining now – for good reason.

Our policies don’t mean that politicians can say whatever they want. They can’t spread misinformation about where, when or how to vote, for example, or content that risks imminent harm or incites violence…

We realize not everyone agrees with our decision, and we welcome that debate. But fundamentally we believe that, in a democracy, it’s better to let voters make their own decisions, not companies like Facebook.

CNN: This man is running for governor of California so he can run false Facebook ads

By Donie O’Sullivan

Adriel Hampton, a political activist who runs his own marketing firm in San Francisco, registered at his local post office on Monday morning as a candidate for governor of California.

Hampton told CNN Business that he will use his new status as a candidate to run false ads on Facebook (FB) about President Trump, Facebook CEO Mark Zuckerberg, and other Facebook executives…

His goal is to force Facebook to stop allowing politicians to run false ads…

Hampton is the treasurer of “The Really Online Lefty League” PAC, which last Thursday began running a false ad on Facebook claiming that Senator Lindsey Graham backed the Green New Deal.

The ad spliced together different audio of Graham speaking to make it sound like he said, “Simply put, we believe in the Green New Deal.” Graham never said that.

The ad was eventually flagged by Facebook’s fact-checkers and was removed. While Facebook allows politicians to lie in ads, it does not allow PACs or other political groups to do so.

Hampton hopes that by being a candidate he will be able to run false ads without Facebook stopping him.

“The genesis of this campaign is social media regulation and to ensure there is not an exemption in fact-checking specifically for politicians like Donald Trump who like to lie online,” he told CNN Business…

Hampton said he anticipates his campaign will start accepting donations to run false ads and even suggested others could join him in his quest to call-out Facebook. “It is actually easy to file to run for office and basically 100 people could do what I just did,” he said.

While his main motivation for running for governor at the moment is to run Facebook ads, Hampton suggested his campaign could become a fully fledged gubernatorial campaign. “Don’t count me out,” he said.

Washington Post: The Technology 202: Here’s why Twitter may have trouble enforcing its own political ads ban

By Cat Zakrzewski

Twitter will likely be judged on whether it can accurately identify the ads it says will be prohibited. Major questions also remain about how Twitter plans to define third-party “issue ads.”

The company says it intends to also prohibit such ads advocating for hot-button political issues such as immigration or climate change. But many journalists and technologists have noted there aren’t clear lines when it comes to determining what an issue ad is.

My colleague Philip Bump outlined how difficult it could be to set such limits in a recent column:

“An ad from House candidate Joe Smith would be banned,” he wrote. “An ad from Citizens for Green Space that touts Smith’s record on creating Municipal Park is a bit murkier but still pretty clear. But what about an ad from the Westside Neighborhood Association inviting people to come out to an event at beautiful Municipal Park, which is a central part of Smith’s campaign pitch? The line gets quite blurry, quite fast.”

The ambiguous nature of issue ads is one of the key reasons that Zuckerberg says Facebook has not adopted a policy prohibiting political ads.

“And it’s hard to define where to draw the line,” Zuckerberg said on a recent earnings call. “Would we really block ads for important political issues like climate change or women’s empowerment?”…

Larger technology companies have struggled to enforce bans on political ads. The Verge’s Makena Kelly wrote that both Google and Facebook decided to ban political ads in the state of Washington because of the complicated campaign finance laws in place there. But those bans haven’t stopped local politicians from trying to disseminate ads on their platforms. In Seattle’s city council elections, high-profile ads covered by the media were often removed. But many smaller ads managed to pass through, Kelly writes.

“Instead, it’s resulted in a tangle of uneven enforcement and confusing rules, making it a cautionary tale for what a poorly implemented ad ban might mean for the 2020 campaigns,” she wrote.

Reason: Twitter’s Ban on Political Ads Will Help Incumbent Politicians Maintain Power

By Scott Shackford

Nobody really likes political ads. But they do serve important purposes to advance democracy, particularly for those challenging the status quo. Incumbent politicians have a massive advantage not just in money raised but the fact that they have years of “earned media” over the work they do. Incumbents are operating with a much higher level of name recognition among their constituencies. With very few exceptions (almost always very rich citizens), anybody who seeks to challenge incumbents or our more powerful political organizations starts off at a huge disadvantage.

For Dorsey to treat the reach of these politicians as something that just happened organically is to deliberately ignore that their power and control over government strongly incentivizes voters to be aware of what decisions their elected officials are making.

The ability to spend money to improve the reach of a candidate’s message is not a corrupting influence on democracy-it’s a powerful balancing tool that allows a challenger to let people know he or she exists in the first place. Democracy is improved when challengers to power have avenues to reach voters that aren’t under the control of the government…

Twitter representatives insist that this is all about the “principles,” even though the beneficiaries of this decision are incumbent and entrenched political players who have massive amounts of reach precisely because of how much power they wield.

And, of course, we cannot ignore the political context of this decision. Politicians on the left and the right want to push around social media platforms, treat them as public utilities, and either force them to ban messages the politicians disapprove of or force them to carry messages that the politicians support. While it may be Twitter’s “choice” to self-censor political advertisements, we cannot ignore the politicians who are using their power to influence this decision.

Daily Signal: Facebook Isn’t Broken. Government Shouldn’t ‘Fix’ It.

By Casey Mattox

While the concerns that motivate the two parties are different, the so-called solutions to the alleged problems posed by Facebook and other social media sites that have been proposed by Sens. Elizabeth Warren, D-Mass., and Josh Hawley, R-Mo., aren’t all that different: Regulate Facebook or break it up.

Their rhetoric is also virtually indistinguishable.

Warren argues that “today’s big tech companies have too much power-too much power over our economy, our society, and our democracy,” and the solution is to regulate them like public utilities that would be “required to meet a standard of fair, reasonable, and nondiscriminatory dealing with users.”

Who gets to determine what’s “fair, reasonable, and nondiscriminatory”? Rest assured: It won’t be you.

Hawley, who has called Facebook “an extremely creepy company,” says “the line-drawing problems are not as difficult as folks make it sound.”

But who gets to determine who draws the lines? Again, not you…

Once we breach the dam of government regulation of social media, there is no certainty that you’ll end up with Hawleybook instead of Warrenbook…

There are also the practical consequences. Some conservatives flippantly call for ending Section 230 of the Communications Decency Act, the provision that ensures that Facebook and Twitter-as well as the comments section of The New York Times, Amazon, and Yelp-are not liable for what their users post.

There are many responses to that, but the bottom line is that ending Section 230 would be the end of social media (and a lot of other user-created online content).

If every social media company is responsible for libel by every user, expect to see the following pop up on your next Facebook status: “Thank you for your status update. It will be posted once it has been reviewed by our legal team. The current wait time is 3 days, 12 hours, 16 min.”

Alex Baiocco

Alex Baiocco