Daily Media Links 12/10

December 10, 2019   •  By Tiffany Donnelly   •  
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Supreme Court

New York Times: Violent Protests and Free Speech: Who’s to Blame for an Officer’s Injuries?

By Adam Liptak

The officer, according to a lawsuit in which he was identified as John Doe, was injured in Baton Rouge by a demonstrator who threw a rock that broke the officer’s teeth and left him with injuries to his jaw and brain. The demonstrator has not been found.

The protest…concerned the fatal shooting of a black man, Alton B. Sterling, by two police officers. The demonstration started peacefully but turned violent.

The officer sued DeRay Mckesson, a Black Lives Matter activist, claiming, without providing details, that Mr. Mckesson had incited the violence that led to his injuries. Mr. Mckesson was present at the protest, which blocked the highway in front of the Police Department’s headquarters, but he did not throw the rock that hit the officer in the head.

Judge Jackson ruled for Mr. Mckesson, saying he was protected by the First Amendment. “Liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence,” he wrote, quoting a landmark 1982 Supreme Court decision, N.A.A.C.P. v. Claiborne Hardware Co…

The federal appeals court in New Orleans reversed the part of Judge Jackson’s ruling concerning Mr. Mckesson, letting the officer’s lawsuit move forward.

“Officer Doe alleges that Mckesson was negligent for organizing and leading the Baton Rouge demonstration because he ‘knew or should have known’ that the demonstration would turn violent,” Judge E. Grady Jolly wrote for a unanimous three-judge panel of the court, the United States Court of Appeals for the Fifth Circuit. That was enough to let the case proceed, Judge Jolly wrote…

On Friday, the American Civil Liberties Union asked the Supreme Court to hear Mr. Mckesson’s appeal.

The Courts

Jurist: Federal appeals court finds Maryland law regulating online political ads violates First Amendment

By Shannon Walker

The US Court of Appeals for the Fourth Circuit on Friday affirmed a lower court decision to strike down a Maryland law regulating the publication of online political ads…

The statute at issue is the Online Electioneering Transparency and Accountability Act. Pursuant to the Act, an “online platform” that hosts a political ad must publish on its site i) the identity of and contact information for the ad purchaser; ii) the identity of the person or persons exercising control over the activities of the ad purchaser; and iii) the total amount paid for the ad. The Act also requires that the ad publishers retain detailed records of each ad for possible inspection by the state board of elections. Those records must include “the candidate or ballot issue to which the [ad] relates and whether the [ad] supports or opposes that candidate or ballot issue,” “an approximate description of the geographic locations where the [ad] was disseminated” and “an approximate description of the audience that received or was targeted to receive” the ad.

In the opinion issued Friday, the Fourth Circuit declared the Act unconstitutional. Finding that it targets political speech for regulation and that it “forces news publishers to speak in a way they would not otherwise” by mandating disclosure of detailed ad information, Wilkinson voiced particular concern over the law’s “chilling effect.” 

New York Times: Cheerleader Punished for Taking a Knee Is Awarded $145,000

By Derrick Bryson Taylor

A former Kennesaw State University cheerleader was awarded a $145,000 settlement two years after she faced repercussions for taking a knee during the national anthem at a college football game, court documents show…

Ms. Dean, along with four other cheerleaders, took a knee during the national anthem at a football game on Sept. 30, 2017, the lawsuit said. According to the complaint, they were then prohibited from appearing on the field during the national anthem at two subsequent home football games.

Ms. Dean filed the lawsuit in September 2018 against Samuel S. Olens, the school’s president at the time of the protest and a former Georgia attorney general; two men in the Kennesaw State athletic department; Sheriff Neil Warren of Cobb County, Ga.; and Earl Ehrhart, a former Republican state legislator. The suit accused the defendants of violating her First Amendment rights, and accused Sheriff Warren and Mr. Ehrhart specifically of conspiring to cause the violation of her civil rights by pressuring the university’s president to take action…

Sheriff Warren and Mr. Ehrhart were dismissed from the lawsuit in February, but Mr. Brown said an appeal of the decision to dismiss the sheriff was underway.

“The appeal is important because it calls into question when private parties can be liable under the civil rights laws of causing a public official or conspiring with a public official to violate a citizen’s First Amendment rights,” Mr. Brown said.

Washington Post: He offered $500 on Twitter to anyone who killed an ICE agent. He was joking, a jury ruled.

By Antonia Noori Farzan

In July 2018, amid widespread protests over the federal government’s immigration policies, Brandon Ziobrowski turned to Twitter to vent his frustration.

“I am broke but I will scrounge and literally give $500 to anyone who kills an ice agent,” he wrote, referring to Immigration and Customs Enforcement. “@me seriously who else can pledge get in on this let’s make this work.”…

But federal agents took the tweet as a serious threat, categorizing it as a solicitation to commit “contract murder.”

On Friday, a federal jury in Boston sided with the 35-year-old, acquitting him on the charge of using interstate and foreign commerce to transmit a threat to injure another person…

Ziobrowski’s lawyer, Derege Demissie, argued in court filings that his body of tweets actually proved he had “a history of using vitriol and sarcasm to express his outrage and disgust over what he perceives as government overreach.” He had previously made over-the-top statements like “Hey I haven’t tweeted this in a while but we should still kill the rich and redistribute their wealth” and “I’m not pro death but I literally don’t care about cops,” also tweeting “kill yourself” at President Trump…

Also, Demissie argued in court filings, these deliberately exaggerated statements had been made “in a political environment where the president of the United States and his supporters repeatedly use similar language to make a political point.” 


Politico: The no bark, no bite FEC

By Zach Montellaro

The FEC last had a quorum 100 days ago, leaving the country’s top cop for campaign finance off the beat.

“The nation’s election and campaign finance watchdog lacks the ability to bark or bite,” Michael Beckel, the research director at the good governance group Issue One, told Score. “There’s more money than ever flowing in through politics, and the public needs to have faith that bad actors will be scrutinized and penalized.”

Personnel problems is not a new issue for the FEC: Commissioners have as of late stayed on well past when their terms have expired – including all three of the remaining commissioners, because no replacements have been nominated…

“Out in the political world, I think there are some campaigns that are going to push the envelope, with the lack of an FEC quorum,” former commissioner Michael Toner, a Republican, told Score. “I do think the odds are growing that there’s going to be no FEC quorum through the presidential election.”…

In an interview, FEC Chair Ellen Weintraub, a Democrat, stressed to Score that the lack of a quorum could have a ripple effect on clearing a backlog of cases, even once one is restored. “I think people certainly cannot have confidence that violations will be addressed in a timely fashion,” she said…

The FEC is not in a total stasis, however… just because there’s no quorum now, it doesn’t mean it’ll stay that way forever. “We’re not in the middle of a legal-free-zone here,” Toner said. “You might not be sanctioned by the FEC now, but you could be a year or two from now.”


National Review: Some Facts about Money and Politics

By Kevin D. Williamson

Jane Fonda (really) writes in the New York Times:

“Let’s be clear: Over decades the fossil fuel industry has hijacked our political system, and we have failed to elect enough leaders who are not beholden to the industry’s interests. The Center for Responsive Politics has documented that the oil and gas industry alone has spent some $218 million on lobbying in 2018 and 2019. In addition, oil and gas interests have contributed about $27 million to Senate and House candidates and party committees in the 2020 election cycle. Fossil fuel interests are subverting our democracy.”

About $100 million a year in lobbying is a lot of money, but it hardly puts the oil-and-gas guys at the top. There are other industries that are much bigger spenders – for example, Jane Fonda’s industry, which so far this year has spent about 40 percent more on lobbying than the entire energy sector combined and about 350 percent of what the oil-and-gas industry has spent. Does that mean that “entertainment interests are subverting our democracy?”

It is, of course, difficult to put a price on the political value of the entertainment industry’s most valuable asset: celebrity itself. Half-literate boobs who are not famous have a considerably harder time getting this kind of undigested piffle into the New York Times. It’s not like she has a Nobel Prize!

The top spenders on lobbying for 2019 can be found here. You will not see a lot of oil and gas on that list…

These are easily discoverable facts. The New York Times has done a public disservice by publishing this intellectually dishonest work.

Big money isn’t subverting our democracy. Bulls*** is.

Bloomberg Law: INSIGHT: Political Appointees Labeled ‘Lobbyists’ Face Matrix of Career Impacting Regulations

By Robert Rizzi and Josh Oppenheimer

Of these restrictions, the most potentially onerous are those in the Trump Ethics Pledge, which requires all political appointees who were registered lobbyists within two years of joining the government to promise not to participate for two years in matters in which they were registered to lobby or “participate in the specific issue area in which that particular matter falls.” It is not clear what is meant by this last clause.

The Pledge also limits post-government “lobbying activities” before an agency in which the individual served for five years after leaving that agency, and before high-level officials across the entire Executive Branch for the remainder of the Trump administration…

A lobbyist who joins the government in her area of expertise and then leaves to return to private practice would be barred for some time from engaging in attempts to influence her former agency and high-level officials across the Executive Branch.

She also would be subject to other, time-limited restrictions in the Pledge, and prohibited from ever engaging in activity requiring registration under the Foreign Agents Registration Act. This is in addition to the criminal restrictions under Section 207, and any other agency-specific limitations that could apply.

Online Speech Platforms

Ms. Magazine: #FacebookBlackout: How Activists are Defending Democracy by Logging Off

By Jonathan Chang

“We believe in free speech, as well as the value of truth in safeguarding our democracy,” the #FacebookBlackout creators explain to founder Mark Zuckerberg in the open letter on their campaign website. “We understand your reluctance to police political speech, and agree with you that our government is ultimately responsible for setting the standards for political advertising for the common good. However, we believe your position allowing amoral politicians-and the shadowy forces who support them-to lie without consequence is untenable, and frankly, un-American.”…

The #FacebookBlackout campaign is calling for a 48-hour Facebook blackout beginning on December 9, 2019-International Anti-Corruption Day. (Ms. will be participating, eschewing Facebook and all its subsidiaries in protest of the company’s actions.)

The campaign was spurred on by Facebook’s decision in October to amend its political advertising policy-exempting politicians from Facebook’s community standards and fact-checking in the name of free speech and instead agreeing to run any political ad, even ones containing blatant lies, that were paid for by politicians.

Washington Post: Facebook ads push misinformation about HIV prevention drugs, LGBT activists say, ‘harming public health’

By Tony Romm

Facebook users have been bombarded with misleading ads about medication meant to prevent the transmission of HIV, according to lesbian, gay, bisexual and transgender advocates, who say the tech giant’s refusal to remove the content has created a public-health crisis.

The ads have been viewed millions of times in recent months, Facebook’s archive reveals, and LGBT organizations argue they’ve had a dire effect: They’ve scared patients, potentially those who may be most at risk of contracting HIV, out of taking preventative drugs…

But groups led by GLAAD, which regularly advises Facebook on LGBT issues, say the ads are “false” and have urged Facebook for months to take them down…

GLAAD plans to step up its efforts on Monday, joining the Human Rights Campaign, The Trevor Project and 49 other prominent LGBT groups in publicly calling out the tech giant for a policy that puts “real people’s lives in imminent danger.”…

For paid speech that isn’t purchased by candidates, Facebook’s fact-checkers do vet some dubious claims, and the company takes action against ads that could harm users in real life. Facebook also has specific policies around ads that touch on sensitive health issues such as vaccines. The social-networking giant began clamping down on anti-vaccine groups this February after months of criticism that it had allowed malicious actors to spread falsehoods.


Washington Examiner: Buttigieg stopped disclosing wealthy bundlers and fundraiser hosts after controversy

By Nihal Krishan

Democratic presidential candidate Pete Buttigieg has stopped disclosing wealthy “bundlers” and big-ticket fundraiser event hosts, despite promising earlier in the year he would make that information public.

The South Bend, Indiana, mayor disclosed the names of hosts of his high-value fundraisers through October, but reversed himself and did not disclose the names of hosts and bundlers for campaign fundraising events in November and onward, according to documents obtained by the Washington Examiner.

Bundlers are top campaign fundraisers, who help candidates raise large amounts of by helping to persuade other wealthy donors to donate to a campaign or buy expensive tickets to campaign fundraising events.

The apparent change in policy comes after some negative press related to a former donor and fundraiser co-host, Steve Patton, who has become a controversial figure because of his efforts to block the release of a video showing Chicago police shooting Laquan McDonald, a black teenager.

His Democratic rival Elizabeth Warren scolded him on Thursday, saying Buttigieg should “be releasing who’s on his finance committee, who are the bundlers who are raising big money for him, who he’s giving titles to and made promises to.”

Candidates and Campaigns

Newsweek: Pete Buttigieg Says ‘No’ When Asked If He Thinks Getting Money Out of Politics Includes Ending Closed-Door Fundraisers With Billionaires

By Jason Lemon

Democratic presidential candidate Pete Buttigieg recently suggested that he plans to continue taking money from billionaires in closed-during fundraisers, despite scrutiny and criticism.

During a campaign event over the weekend, student activist Greg Chung asked Buttigieg, the mayor of South Bend, Indiana, directly about the concerns. “I wanted to ask if you think that taking big money out of politics includes not taking money off of billionaires and closed-door fundraisers,” Chung asked…

Answering immediately, Buttigieg responded: “No.” The candidate then walked away to talk to other attendees at the event.

Sean Savett, Buttigieg’s campaign’s rapid response communications director, told Newsweek via email that the the candidate does “not accept contributions from registered federal lobbyists, corporate PACs or the fossil fuel industry.” He added that “Pete has made enacting critical campaign finance reforms part of his campaign platform, including strengthening the FEC [Federal Election Commission] and pushing to overturn Citizens United and Buckley v. Valeo, if necessary, by a constitutional amendment.”

The States

New York Post: New York’s ethics watchdog proves itself a joke, yet again

By Post Editorial Board

After a two-year battle, the state Joint Commission on Public Ethics has finally dropped its obscene bid to hit Kat Sullivan, a child-victims-abuse advocate, with huge fines.

JCOPE long insisted that Sullivan had violated lobbying laws as she pushed for the passage of the Child Victims Act: Since she’d spent more than $5,000 on the cause, it argued, the law required her to register as a lobbyist in New York and pay a $200 fee.

Cam Macdonald of the Government Justice Center, which helped the abuse survivor fight the inquisition, notes that Sullivan’s real “crime” was “using too much of her own money to speak publicly about legislation she believed would benefit abuse survivors.”

JCOPE finally gave up last week, writing Sullivan on Wednesday that, “notwithstanding your conduct,” it wouldn’t be “taking further action.”

WYNT News: Ethics commission drops case against activist they say violated lobbying laws

By WNYT Staff

New York’s Joint Commission on Public Ethics has dropped its case against an activist it says violated lobbying laws.

JCOPE says Kat Sullivan used more than $5,000 to buy digital billboards and fly a banner over the state Capitol in support of the Child Victims Act.

The commission stands by its argument that violated state lobbying laws and should have been reported.

Sullivan said she was acting on her own behalf after getting the money in a sex abuse settlement from Emma Willard.

JCOPE sent a letter to Sullivan this week saying it would take no further action against her.

Sullivan says she still wants an apology from the state and JCOPE.

Crosscut: Amazon tried to buy our elections. A new law will stop that

By Lorena González and Cindy Black

Voters across the country have the constitutional right to fair elections, free of outsized and unfettered influence from corporations. This is especially relevant in Seattle, the nation’s largest “company town,” which in early November experienced a money bomb unlike any we’ve seen in the city’s history.   

As Seattleites were busy casting a vote for their favorite candidate, Amazon and other big business interests made a last-ditch effort to buy Seattle’s City Hall

Amazon’s cash dump was historic by all measures, but it came as no surprise. Some of us even saw it coming. In October 2018, we began working together, along with Free Speech for People, on developing the Clean Campaigns Act

The Clean Campaigns Act was designed to prevent excessive corporate money in our elections. It does this in three ways: first, by prohibiting spending from corporations influenced by foreign ownership in Seattle elections (that is, companies with non-U.S. investors); second, by capping contributions to political action committees at $5,000 per donor; and, third, by increasing transparency through better, more robust reporting requirements around how campaign dollars are spent by political action committees…

To break big money’s stranglehold on our politics, we need to publicly fund elections, limit campaign contributions and ensure complete transparency of all spending and political advertising. Without regulating financial contributions that corporations make to PACs or individual candidates, the principles on which our country was built will continue to be undermined.

Reno Gazette Journal: Taxpayers shouldn’t foot the bill for political union activity, says NPRI director

By Daniel Honchariw

Unsuspecting Nevadans may be surprised to learn their hard-earned money is being taxed to do just that – advance the interests of government unions, including the SEIU among others, who continuously lobby for more public spending, higher tax burdens and larger government.

Through so-called “union leave” policies, agreed to by government officials and enshrined in union-negotiated labor contracts, government employees are paid their typical wages while performing duties on behalf of their workplace union…

This means taxpayers across Nevada – who typically earn less than government employees – are effectively funding the efforts of labor activists whose interests diverge considerably from their own.

And it’s costing millions of public dollars…

Senate Bill 241 (2015), however, though rooted in noble intentions, accomplished very little on that front…

The problem with that approach is unions had historically treated leave time as an asset of value during negotiations. Thus, rather than implementing real, taxpayer-friendly reform, SB241 merely codified the status quo…

But there is no public-policy justification for our elected officials to bargain away public funds for the benefit of politically connected special-interest groups. Taxpayers never should be expected to subsidize the efforts of organizations that lobby against our interests.

Los Angeles Times: Taxpayers should foot the bill for ‘clean money’ campaigns, L.A. council members say

By David Zahniser and Emily Alpert Reyes

Three members of the Los Angeles City Council called Friday for full taxpayer financing of city election campaigns, resurrecting an idea that was proposed at City Hall nearly three years ago but went nowhere.

Councilmen Mike Bonin, Paul Koretz and David Ryu said they want the city’s policy analysts to determine how much a “clean money” system would cost and where the money would come from.

Under the proposal, candidates for 18 city offices would receive taxpayer funding for their campaigns as long as they collect a significant number of low-dollar donations from their constituents, refuse to collect “special interest” contributions and decline to spend a significant amount of their own funds.

The proposal was revived two days after the council voted to prohibit real estate developers who have projects pending before City Hall from giving to the campaigns of city candidates. Those limits will not apply to candidates in either the 2020 campaign or the 2022 primary election….

In a message to his constituents on Friday, Bonin announced he would push once again for full public financing.

“The influence of money in our political system casts a long, heavy shadow over our democracy,” he said.

Tiffany Donnelly

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