Daily Media Links 11/8

November 8, 2019   •  By Alex Baiocco   •  
Default Article

In the News

Cato: Citizen Activism vs. Missouri Regulators (Podcast)

Featuring Zac Morgan and Caleb O. Brown

Ron Calzone wins a round in court. A federal appeals court says the independent Missouri activist doesn’t have to register as a lobbyist to talk to lawmakers. Zac Morgan of the Institute for Free Speech details the case.

Free Speech

USA Today: No, the U.S. does not need European-style hate speech laws

By Jonathan Turley

Roughly 70 years ago, Justice William O. Douglas accepted a prestigious award with a speech entitled “The One Un-American Act,” about the greatest threat to a free nation. He warned that the restriction of free speech “is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.” For decades since Douglas’ famous speech, the Democratic Party has been a champion of free speech in fighting that subversion. Yet recently, the Democratic Party seems to have abandoned its historic fealty to free speech. Democratic writers and leaders are publicly calling for everything from censorship to the criminalization of free speech…

Recently, Facebook founder Mark Zuckerberg was denounced by Democratic members like Rep. Alexandria Ocasio-Cortez (D., NY) for refusing to censor false or misleading political ads. Ocasio-Cortez dismissed the dangers of the censorship of political speech and demanded, “So you won’t take down lies or you will take down lies? I think that is just a pretty simple yes or no.” The push for corporate speech controls is particularly chilling because our first amendment protects against government regulation of speech. The Democrats are seeking to use corporations like Facebook to do what the government cannot do under our Constitution…

Yet the most chilling aspect of the recent calls for speech controls is the call for the adoption of European-style hate crime laws. . . These laws, Stengel assures readers, are intended to “curb the incitement of racial and religious hatred.”

They do so by dramatically curbing free speech. In France, 12 protesters were fined for supporting the boycott of Israel. In Denmark, a politician was convicted for burning Korans. A German politician was criminally charged for calling migrants “scum.” In England, a Baptist minister was jailed overnight for preaching against homosexuality and a man was investigated for telling a Nelson Mandela joke.

None of this, mind you, has put a dent in the ranks of actual fascists and haters.

Wall Street Journal: Targeting Mark Zuckerberg

By Editorial Board

Perhaps the most important political divide in our polarized times isn’t between those who support Donald Trump and those who oppose him. It’s between those who think American values like free expression still matter and those who think Mr. Trump’s Presidency is a license to dispense with them.

The relentless campaign demanding that CEO Mark Zuckerberg police the political ads of candidates for accuracy on Facebook shows the prevalence of the latter view. In the panic over Mr. Trump, academics and journalists have embraced censorship they’d find unconscionable in another context.

The arguments being deployed can be mind-bending. A Columbia law professor opines in the New York Times that, with its recent decision not to fact-check or censor ads by politicians, Facebook is “refusing to stay out” of politics and therefore asking to be broken up. That’s backwards. Facebook’s policy is wise precisely because it takes the company out of the political fray.

Imagine if Facebook were in the business of approving or disapproving candidate claims about the cost of Medicare for All or the efficacy of climate-change policy. The company would need to take political positions. It could put its thumb on the scale of elections far more than it can today and it would be a perpetual punching bag for candidates…

Facebook could ban political ads altogether. That’s the policy Twitter CEO Jack Dorsey announced last week in a grandstanding gesture designed to pressure Mr. Zuckerberg. The move could favor incumbent politicians with large followings. Online advertising is especially valuable for little-known challengers and causes…

Freedom House, the D.C. organization that has promoted democracy, is the latest to join the call for increased political control of the web by large corporations. In a new report it raises alarm about “elected incumbents with authoritarian ambitions” using social-media platforms as “instruments for political distortion.”

The Courts

Atlanta Journal-Constitution: Lawsuit: Cobb sheriff violates free speech with Facebook blocks

By Meris Lutz

A candidate running to unseat Cobb Sheriff Neil Warren has filed a federal lawsuit alleging the sheriff and his staff are violating the public’s right to free speech by blocking critics on Facebook.

Jimmy Herndon worked for the Sheriff’s Office, including as an investigator, for 16 years until 2017. According to an executed settlement agreement between the county and Herndon, he resigned his post.

Since then, he has become a vocal critic of the sheriff on social media, including the official Cobb County Sheriff’s Office Facebook page, which he says deleted his comments.

In February, the ACLU of Georgia sent a letter warning Sheriff Warren not to block constituents from expressing themselves on Sheriff’s Office Facebook page.

“Courts have been unanimous in ruling that targeted censorship on government social media pages otherwise open for public comment is a violation of the First Amendment,” the organization wrote at the time…

According to Herndon’s lawsuit, the sheriff and his employees have continued to block critics, including himself, and delete critical posts…

Herndon is seeking the immediate restoration of his access to the Cobb Sheriff’s Facebook page through a preliminary injunction. The lawsuit is asking a judge to instruct the sheriff to discontinue the practice of blocking critics, as well as for damages.

Congress

The Hill: Progressive freshmen jump into leadership PAC fundraising

By Alex Gangitano

A third of progressives in Congress’s freshman class have formed leadership PACs, a move that has helped lawmakers raise their profile within the party but also drawn scrutiny from outside liberal groups decrying the influence of money in politics.

Seven out of the 21 first-year lawmakers in the Congressional Progressive Caucus (CPC) have leadership PACs, compared with three at this point in the previous Congress…

“Leadership PACs have essentially become slush funds and are one of the most egregious loopholes in campaign finance laws,” Medea Benjamin, co-founder of CodePink, told The Hill. “No progressive candidates should have one. Instead, they should focus on grassroots fundraising, while simultaneously working for publicly funded elections and for overturning Citizens United.”…

The vast majority of members of Congress have leadership PACs, including three lawmakers who have introduced legislation to curtail them.

Reps. Kathleen Rice (D-N.Y.), Derek Kilmer (D-Wash.) and Mike Gallagher (R-Wis.) have introduced the Political Accountability and Transparency Act, which would impose restrictions on the use of campaign funds for personal use to leadership PACs funds…

Adam Green, co-founder of the Progressive Change Campaign Committee (PCCC), argued that the freshman CPC members with leadership PACs have strong grassroots fundraising bases. He also noted that unlike super PACs, the leadership ones have limitations on contributions.

“Big-money SuperPACs, where billionaires make unlimited donations to flood the zone, represent corruption in our democracy,” Green said. “Small-dollar political action committees like MoveOn, the PCCC, Justice Democrats, and these grassroots-funded leadership PACs by progressives like [Ocasio-Cortez] and [Rep.] Ilhan [Omar (D-Minn.)] are how workers and grandmas unite to take back our democracy together. One is the poison, the other is the antidote.”

Online Speech Platforms 

Washington Post: It’s not up to Mark Zuckerberg to decide what news is legitimate

By Fareed Zakaria

There is now a growing consensus that American democracy needs to be saved by Mark Zuckerberg. People from Sen. Elizabeth Warren to Aaron Sorkin are demanding that Facebook stop running obviously false political advertising. So, let me pose a question: Would everyone be as comfortable if the person deciding what constitutes real news vs. fake news were not Zuckerberg but Rupert Murdoch?

It’s not a fantasy. In 2005, News Corp. bought MySpace, then the leading social network on the planet. Had things worked out differently, it would be Murdoch or a band of Fox News experts who would be determining what counts as legitimate political speech. Still comfortable?

And these fact-checking decisions aren’t as simple as they sound…

Broadcast networks cannot censor political ads because doing so would be considered an infringement of free speech on their large public platforms. Cable companies such as CNN (where I work) are not regulated the same way and thus can make their own decisions. Facebook, of course, is a larger platform than all the networks combined. It now serves as a sort of global public square, and it should be open to political speech…

I don’t want Mark Zuckerberg deciding what speech is legitimate. I want the government to set parameters for him and other technology companies as to their obligations for what they increasingly are: large news platforms. There are many good ideas out there. Invoke something like the “fairness doctrine,” which for decades required broadcast networks to include a range of views in their programs. Ellen L. Weintraub, chair of the Federal Election Commission, has a simple suggestion: Do not allow microtargeting – serving ads to a very specific segment of the population – which stokes division and hostility, and is often cloaked in secrecy.

Politico: Facebook considering limits on targeted campaign ads

By Nancy Scola

Facebook is considering restricting politicians’ ability to use highly detailed demographic and personal information to narrowly target would-be voters with ads, policy chief Nick Clegg confirmed Thursday…

The possible reining in of political “microtargeting,” part of a broader reassessment of Facebook’s policies around campaign messaging, comes just weeks after CEO Mark Zuckerberg made two trips to Washington to defend the company against attacks from Democrats who say its hands-off approach hurts democracy…

“We’re working on a whole series of possible amendments and changes to our approach on political ads, so it’s not the end of the story,” the former British deputy prime minister said at the Facebook headquarters.

Asked whether adjustments to the company’s approach to microtargeting is one of the possible changes under consideration, Clegg said yes. NBC News, citing undisclosed company sources, first reported earlier this week that Facebook is considering limiting the practice.

Clegg declined to discuss any other changes, saying the company is still in the decision-making process. But he said Facebook is also looking at “whether users are sufficiently aware of when they’re being exposed to political ads as opposed to organic content,”…

Clegg reiterated that, even amid the policy tweaks Facebook is mulling, it won’t be following Twitter’s lead.

“We don’t think getting out of political ads altogether is the answer,” he said, arguing that Twitter’s approach has a “ton of downsides,” such as the difficulty of determining what counts as a political or issue ad and the disadvantage some argue such a ban places on non-incumbent politicians.

Wall Street Journal: Google Weighs Changes to Political Ad Policy

By Emily Glazer

Alphabet Inc.’s Google is in discussions about changing its political ad policy, according to people familiar with the matter, about a week after Facebook Inc. and Twitter Inc. publicly diverged on how to handle those ads amid the spread of misinformation.

Google has been holding internal meetings about changing its political ad policy and is expected to share more information with employees this week, the people said, though it is unclear what the changes will be.

Some Google employees are speculating the changes could be related to what type of audience targeting the company allows ad buyers to place.

It’s unclear when Google would implement any new policy.

All of Google’s advertising policies are uniform across search and YouTube, and any ad policy change would be reflected across all of its platforms, a Google spokesperson said…

The scrutiny around digital political speech comes as lawmakers have increasingly criticized technology companies for not being responsive enough in stopping the spread of misleading information in past U.S. elections. Some social platforms have banned ads related to candidates, political parties and legislation.

Washington Post: The Technology 202: Facebook under fire after ads identifying whistleblower spread on its platform

By Cat Zakrzewski

Facebook is confronting criticism after the spread of ads on its platform that included the alleged name of the whistleblower at the center of the House impeachment inquiry.

The company took down ads by several conservative groups who responded to President Trump’s calls to unmask the whistleblower by using Facebook’s ad tools to boost posts with the official’s alleged identity, according to The Post’s Isaac Stanley-Becker and Craig Timberg. “Any mention of the potential whistleblower’s name violates our coordinating harm policy, which prohibits content ‘outing of witness, informant or activist,'” Facebook spokesman Andy Stone told my colleagues.

But the ads, which were based off posts in Facebook groups, had already been viewed several hundred thousand times – fueling concerns about the social giant’s ability to enforce its own policies.

This is likely to amplify calls from Democrats and activists that the company isn’t doing enough to police content in ads on its site ahead of the 2020 election.

TechCrunch: Legislators from ten parliaments put the squeeze on Facebook

By Natasha Lomas

The third meeting of the International Grand Committee on Disinformation and ‘Fake News’, a multi-nation body comprised of global legislators with concerns about the societal impacts of social media giants, has been taking place in Dublin this week…

Another of those critical voices was congressman David Cicilline – a US legislator making his first appearance at the Grand Committee. He closely questioned Bickert on how a Facebook user seeing a political ad that contains false information would know they are being targeted by false information…

[Facebook’s head of global policy, Monika Bickert,] responded by claiming that political speech is “so heavily scrutinized there is a high likelihood that somebody would know if information is false” – which earned her a withering rebuke.

“Mark Zuckerberg’s theory that sunlight is the best disinfectant only works if an advertisment is actually exposed to sunlight. But as hundreds of Facebook employees made clear in an open letter last week Facebook’s advanced targeting and behavioral tracking tools – and I quote – “hard for people in the electorate to participate in the public scrutiny that we’re saying comes along with political speech” – end quote – as they know – and I quote – “these ads are often so microtargeted that the conversations on Facebook’s platforms are much more siloed than on the other platforms,” said Cicilline…

Facebook’s head of global policy management responded by claiming there’s “great transparency” around political ads on its platform – as a result of what she dubbed its “unprecedented” political ad library…

“Isn’t the problem here that Facebook has too much power – and shouldn’t we be thinking about breaking up that power rather than allowing Facebook’s decisions to continue to have such enormous consequences for our democracy?” rejoined Cicilline, not waiting for an answer and instead laying down a critical statement. “The cruel irony is that your company is invoking the protections of free speech as a cloak to defend your conduct which is in fact undermining and threatening the very institutions of democracy it’s cloaking itself in.”

Washington Post: Why did Google take action against some pro-Trump ads? It’s one of the many mysteries of its political ad rules.

By Tony Romm and Isaac Stanley-Becker

Last month, Google took action against seven ads purchased by President Trump’s 2020 campaign, claiming that they violated the company’s rules…

But Google said little else: It didn’t share a copy of the ads in question or disclose what standards they had violated. To experts, those unknowns are just two of many mysteries that demonstrate the company’s continued struggles to spot and shield users from potentially problematic political content with the 2020 presidential election a year away…

Google unveiled its political ad transparency efforts last year, responding to regulatory threats from Congress in the wake of the 2016 election…

“Google’s criteria for inclusion in their transparency archives is only content that is by or primarily about federal candidates or officeholders,” said Laura Edelson, a researcher at New York University’s Tandon School of Engineering. “Their policy was written in such a way to exclude the kind of content that has disinformation in it.”…

Since the 2016 election, Democrats including Sen. Amy Klobuchar (Minn.), who is seeking the party’s 2020 presidential nomination, has sought to subject companies including Facebook, Google and Twitter to heightened ad disclosure laws similar to those that govern broadcast TV and radio. But the ideas have gained limited traction in Congress, where a partisan dispute – and a GOP reluctance to tackle campaign finance – have kept the Honest Ads Act from even receiving a hearing. Google hasn’t endorsed the bill, either, Klobuchar said Thursday.

“Google sells the most political ads and makes the most money,” she said in a statement, “but they are often conveniently absent from the debate about how to prevent foreign interference in our elections and curtail the spread of misinformation online.”

FEC

Bloomberg: Trump Ukraine Fracas Echoes Nixon, Clinton Campaign-Law Scandals

By Kenneth P. Doyle

FEC Chairwoman Ellen Weintraub said laws barring foreign campaign contributions are broad and could cover a request for non-monetary help, such as investigating an opponent. She’s proposed an “interpretive rule” to state this, but the FEC lacks a quorum of at least four commissioners needed to approve any new rule.

The Justice Department said it reviewed the whistleblower complaint about the Trump-Zelenskiy phone call and found no violation could have occurred because the favor Trump requested had no clear value to his campaign…

Theoretically, at least, the FEC and Justice Department aren’t supposed to have different views on the law. A “memorandum of understanding” between the agencies signed in the 1970s requires them to coordinate their activities. The memo has never been updated and is no longer operative, according to the Justice Department.

Sen. Amy Klobuchar (Minn.), a candidate for the Democratic presidential nomination, said last month that the Justice Department violated procedures in handling the complaint. She pointed to the memorandum between the FEC and the Justice Department, saying it required the whistleblower’s complaint about the Ukraine call to be referred to commission.

Caroline Hunter, a Republican member of the FEC, has questioned Weintraub’s broader interpretation of what constitutes an illegal foreign contribution, saying that the chairwoman creates the “false impression that the law is always clear” on this subject.

As an example of the ambiguity of the law, Hunter cited the dismissed FEC complaint brought by the conservative group Judicial Watch involving Elton John’s concert at Radio City Music Hall benefiting Clinton in 2008. The commission voted 5-0 to rule that the law banning foreign contributions wasn’t violated even though the concert performance had raised millions of dollars for Clinton.

The States

New York Daily News: Disclose the influence buyers: Time to close a loophole in campaign-finance reporting

By Editorial Board

Not long before Election Day, flyers came in the mail touting ranked-choice voting. Ads showed up on TV, too. Both were paid for by the mysterious Committee for Ranked Choice Voting NYC.

We like ranked voting but were curious: Who were these boosters? According to the very useful city Campaign Finance Board website, they were the leaders of the good government groups Citizens Union and Common Cause New York. Fair enough.

The CFB also details how every cent of the $986,016.75 spent was used, complete with videos of the TV ads and reproductions of the mailers. Again, very useful.

But there is nary a word on where the money originated, forcing people to plumb the murkier depths of the state Board of Elections campaign finance website. That shows $1,996,948.33 in contributions, 90% of it from just four contributors: Texas hedge-fund billionaires John and Laura Arnold ($1 million), James and Kathryn Murdoch (yes, those Murdochs, plunking down $500,000), Wall Streeter William von Mueffling ($200,000) and Jonathan Soros ($100,000).

The CFB is not to blame for the blind spot, nor are good-government groups, although it’s rich that their vote-yes effort was entirely bankrolled by big money. The error goes back to the 2010 Charter Revision Commission, which mucked up the Charter language on the disclosure of independent expenditures, so the CFB is only allowed to list spending by outside groups, not where the groups get their money from.

WAMU: In Virginia Politics, ‘It Costs A Lot Of Money Now Just To Lose’

By Daniella Cheslow

While out-of-state organizations and private donors poured in millions of dollars-mostly to Democratic candidates- some hopefuls made deep investments in their own campaigns. Many of those self-funded campaigns ended in disappointment…

“It shows it costs a lot of money now just to lose,” said former U.S. Congressman Tom Davis, a Republican…

Both because of the high stakes this year and because there are no limits on campaign contributions, individual donors and outside groups spent a torrent on this election…

A number of Democrats have spoken out about reforming campaign finance rules in Virginia, but it is unclear whether they will use their new power to enact reforms. Gov. Ralph Northam, a Democrat, “has long advocated for campaign finance reform,” his spokeswoman Alena Yarmosky wrote to WAMU. “As part of his 2019 legislative agenda, he pushed to cap campaign contributions at $10K, prohibit direct contributions from corporations to candidates and ban the personal use of campaign funds.” That effort was unsuccessful.

Democrats will elect a Speaker of the House of Delegates this weekend; Del. Eileen Filler-Corn of Springfield, the current minority leader, is considered a front-runner. Asked about campaign finance reform, a spokeswoman for Filler-Corn wrote to WAMU, “This is an issue she will discuss with caucus so is not ready to outline any specifics right now.”

Del. Lashrecse Aird, who represents the suburbs of Richmond, is also a contender to be elected Speakers. She released a 14-page plan of action for the House, but it does not mention campaign finance reform.

Wired: Opinion: California’s Anti-Deepfake Law Is Far Too Feeble

By Brandie M. Nonnecke

Last month, Governor Gavin Newsom signed California’s AB 730, known as the “Anti-Deepfake Bill,” into law…

The law applies only to deepfake content distributed with “actual malice” within 60 days of an election-a forced time constraint that does not reflect the enduring nature of material posted online…

To ensure that the law does not infringe upon free speech rights, it incorporates exemptions for satire and parody. However, AB 730 is ambiguous on how to efficiently and effectively determine these criteria-ambiguity that nefarious actors are likely to game…

The law exempts platforms from the responsibility to monitor and stem the spread of deepfakes. This is due to Section 230 of the Communications Decency Act…

According to the law, any registered voter may seek a temporary restraining order and an injunction prohibiting the spread of material in violation. It is not hard to imagine this being manipulated by special interest groups to tie up contentious content in a lengthy review process for removal, as well as inviting public skepticism regarding its veracity…

Last month, senators Mark Warner, the Democrat of Virginia, and Marco Rubio, the Republican of Florida, sent identical letters to leading social media platform companies urging them to establish industry standards to deal with deepfakes. If the California legislature really wants to address the spread of malicious deepfakes, they must put pressure on platforms…

Proving actual malice will not be straightforward. Clear and convincing evidence, which is often difficult to obtain, will be necessary to determine intent. Because of the high burden of proof to determine actual malice, a lengthy review process will likely ensue and allow the deepfake to continue to spread…

California’s progressive tech legislation has a history of influencing other state and federal efforts, and the “Anti-Deepfake Law” is no exception. Language in the law restricting the spread of malicious deepfakes within 60 days of an election has made its way into an amendment to a federal bill on foreign interference in elections that is under review by the House Committee on Rules.

Portland Mercury: Mayor Wheeler Will Not Use Public Election Program to Fund Re-Election Campaign

By Alex Zielinski

Mayor Ted Wheeler will not be relying on the city’s new public campaign finance program to run his re-election campaign. In a statement sent to the Mercury, Wheeler said that while he supports the “intent” of the Open and Accountable Elections program, he doesn’t want to bankroll his campaign with public dollars that could be going to other city programs.

“What I do not want to do is to divert limited taxpayer dollars to a newly-formed program at a time when we are asking more from our public employees, non-profit partners and law enforcement in the face of so many pressing challenges,” said Wheeler, who announced his re-election campaign in mid-October…

Wheeler’s decision to opt out of the program means he’ll be able to collect up to $500 from individual donors (a new limit for candidates participating in Portland elections), far beyond the OEA matching rules. Since announcing his candidacy last month, Wheeler’s campaign hasn’t reported any contributions to the state.

Wheeler appears confident that he won’t need the OAE program to hold onto his office.

“In my last campaign, thousands of Portland residents from all walks of life stepped up to support our effort,” Wheeler said. “I am committed to a grassroots fundraising approach this time around as well. I look forward to running a transparent, accountable re-election campaign gaining support from across Portland.”

Washington Post: Metro board member Christian Dorsey to return $10,000 campaign donation from transit union

By Robert McCartney

The Metro board on Thursday forced member Christian Dorsey to return a $10,000 campaign contribution from the transit system’s largest union and give up his finance committee chairmanship as punishment for breaking ethics rules regarding the donation.

The board penalized Dorsey for waiting four months to disclose the June donation, instead of within 10 days as required by the board’s ethics code. It also punished him because he improperly participated in board discussions involving union interests when he should have recused himself.

The penalties and formal reprimand of Dorsey (D) came two days after he easily won reelection to the Arlington County Board, which he chairs. Voters did not know of his late disclosure, which The Washington Post was first to report, when they went to the polls Tuesday.

Alex Baiocco

Alex Baiocco