Daily Media Links 12/19

December 19, 2018   •  By Alex Baiocco   •  
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In the News 

National Review: Episode 104: Beauty Queens and Hush Money (“Ordered Liberty” Podcast)

Hosted By David French & Alexandra Desanctis

David and Alexandra discuss the male Miss Universe contestant, the conflict between transgenderism and feminism, and then end with a discussion of the legality of the Trump hush money payments.

Ed. Note: Beginning at 24:35, David French discusses the debate within National Review regarding the Michael Cohen plea and campaign finance law. French discusses the contributions of IFS Chairman and Founder Bradley A. Smith to this debate.

In case you missed the back and forth between Smith and French:

Smith: Michael Cohen Pled Guilty to Something That Is Not a Crime

French: Republicans, Don’t Fool Yourselves – Donald Trump Is in Serious Trouble

Smith: Donald Trump’s Hush Money Did Not Violate Campaign-Finance Law

French: Yes, Donald Trump Is in Real Legal Jeopardy for Campaign-Finance Violations

American Thinker: Why Did Michael Cohen Plead Guilty to Campaign Finance Crimes That Aren’t Campaign Finance Crimes?

By Jeremiah L. Morgan

Finally, there is also a question about whether the so-called contributions to which Cohen pleaded guilty could have been paid for by the Trump Campaign. Election law expert Mark Fitzgibbons explains that hush payments are not legitimate campaign expenditures and would have been prohibited as “personal use” – a prohibited use of campaign funds. (See “Fitzgibbons: Trump’s Alleged Payment to Stormy Daniels Was Perfectly Legal.”) Former FEC Chairman Brad Smith agrees.

New from the Institute for Free Speech

Analysis of the “DISCLOSE Act of 2018” (S. 3150): Newer Bill, Same Old Plan to Crack Down on Speech

By Eric Wang

Upon taking control of the U.S. House of Representatives in the 116th Congress, Democrats have indicated their first order of business will be to introduce a legislative package of campaign finance, ethics, lobbying, and electoral redistricting restrictions. One of the components of the bill, dubbed H.R. 1, is expected to be the “DISCLOSE Act” (“Democracy Is Strengthened by Casting Light on Spending in Elections Act”).

Ever since the Supreme Court issued its Citizens United ruling in 2010, opponents of the decision in Congress have been trying to counteract it with the DISCLOSE Act. Sen. Charles Schumer freely acknowledged the bill’s intent was to create a “deterrent effect” on political speech. Having failed to pass the bill initially in the 111th Congress, its supporters have introduced variants of the bill in each of the four successive Congresses.

In this analysis, we focus on the latest iteration of the “DISCLOSE Act,” S 3150, introduced and sponsored by Sen. Sheldon Whitehouse…

Notwithstanding its name, the 2018 DISCLOSE Act would not implement any meaningful disclosure requirements. Rather, the bill uses the language of “disclosure” to disguise its true effect of shutting down political and issue speech by for-profit and nonprofit corporations alike. The bill would do so by drastically expanding the existing time windows during which speech is regulated, and by imposing conditions for speaking that are practically impossible to comply with. While the bill purports to address foreign spending in American elections, its actual provisions are not targeted at foreign nationals, but instead would cover all domestic public corporations as well.

PDF of Legislative Brief available here

Supreme Court

Reuters: A Supreme Court case has Internet companies running scared

By Alison Frankel

Manhattan Community Access Corporation v. Halleck is a case about a public access cable television station in New York. The station, operated by the nonprofit Manhattan Neighborhood Network (MNN) via a long-running agreement with New York City, took disciplinary action against two contributors for allegedly inciting violence against station employees. The contributors sued, claiming MNN was violating their First Amendment free speech rights.

A Manhattan federal court judge dismissed the case, but, as MNN’s lawyers from Cozen O’Connor wrote in their Dec. 4 merits brief, the 2nd U.S. Circuit Court of Appeals revived the suit in a short, splintered opinion (882 F.3d 300) last February. The 2nd Circuit majority found that the public access TV station is a public forum and that MNN, because it was designated by New York City to run the station, can be deemed a state actor for First Amendment purposes, even though the nonprofit is not controlled by the city or state government. The Supreme Court agreed in October to review the case to decide whether the 2nd Circuit contravened Supreme Court precedent when it decided that a private, independent nonprofit that operates a public access cable station can be liable as a state actor under the First Amendment.

There’s no mention of the Internet in the questions MNN posed at the Supreme Court. But this week, the Internet Association, a trade group, and the nonprofit Electronic Frontier Foundation filed amicus briefs arguing that if the Supreme Court isn’t careful to confine its ruling to the facts of the MNN case, the Internet of the future could be a dark, dark place.

Election Law Blog: Interesting Petition at Supreme Court Raises Question Whether Campaign Finance Report Must List Ultimate Recipient of Campaign Money (in This Case, an Iowa State Senator Secretly Paid to Switch Endorsement to Ron Paul)

By Rick Hasen

Cert. petition in Kesari v. U.S., awaiting a response from the SG’s office.

This question of disclosing the ultimate recipient of campaign money could have relevance to the Trump hush money payments issue and other issues as well.

The Courts

ACLU: New Hampshire Police Arrested a Man for Being Mean to Them on the Internet

By Brian Hauss

Should it be a crime to call public officials corrupt? Yes, according to the police in Exeter, New Hampshire. Earlier this year, they arrested a local man for writing a comment on a news website accusing Police Chief William Shupe of covering for a corrupt officer.

Robert Frese was accused of violating New Hampshire’s criminal defamation law, which makes it a misdemeanor to intentionally and falsely disparage another person. New Hampshire’s law – and others like it in 24 other states around the country – literally make it a crime to say mean things about people.

These laws have no place in modern American democracy. That’s why we filed a lawsuit Tuesday in New Hampshire federal court arguing that criminal defamation laws violate the First Amendment…

It’s important to note that a disproportionate number of criminal defamation convictions have involved politicians and law enforcement officials. This is no coincidence. Whenever people in power are given a tool to punish critics, you can bet they’ll be sorely tempted to use it. As a result, criminal defamation laws are often used to punish political speech lying at the heart of the First Amendment, just like the old seditious libel laws.

New York Times: She Wouldn’t Promise Not to Boycott Israel, So a Texas School District Stopped Paying Her

By Jacey Fortin

The A.C.L.U. does not take a public position on the Israeli-Palestinian conflict. But it has been challenging the state laws, one by one, on the basis of free speech – and with lawsuits that are very similar to Ms. Amawi’s.

In Kansas, for example, the A.C.L.U. represented another education contractor who lost work after refusing to promise that she would not participate in a boycott of Israel. The suit led to a federal injunction in January, blocking the law’s enforcement. In June, the A.C.L.U. agreed to dismiss the suit after state legislators narrowed the scope of the legislation so that it applied only to companies, not to individuals.

In Arizona, the A.C.L.U. represented a lawyer who had a state contract to work with incarcerated people, and who did not want his purchases to support companies linked to Israel. In September, a federal court blocked the enforcement of that state’s law, too.

A parallel debate is happening at the federal level, where congressional lawmakers from both sides of the aisle are considering legislation that would keep American companies from participating in boycotts – primarily against Israel – that are being carried out by international organizations.

In the meantime, the state-level battles continue. This month, another lawsuit was filed in Arkansas, where the A.C.L.U. is representing The Arkansas Times, a newspaper that says the state’s anti-B.D.S. law is unconstitutional. And on Tuesday, the A.C.L.U. filed a lawsuit in Texas (separate from Ms. Amawi’s) on behalf of four people who were affected by the law there.

Wall Street Journal: Roger Stone Admits Spreading Lies on InfoWars

By Cezary Podkul and Shelby Holliday

As questions swirl about his credibility, former Trump campaign adviser Roger Stone settled a defamation suit seeking $100 million in damages on Monday for publishing false and misleading statements on InfoWars.com, a far-right website known for promoting conspiracy theories.

The agreement requires Mr. Stone to run ads in national newspapers, including The Wall Street Journal, apologizing for making defamatory statements about a Chinese businessman who is a vocal critic of Beijing. It also requires Mr. Stone to publish a retraction of the false statements on social media. Doing so exempts him from paying any of the damages…

Unrelated to the Russia probe, Mr. Stone’s settlement is the latest indication that his use of various media platforms to spread unfounded claims isn’t without consequences. Special counsel Robert Mueller’s office is investigating Mr. Stone’s role in orchestrating stories about key events being examined in the Russia probe, the Journal has reported…

The settlement resulted from a lawsuit filed in Florida federal court in March by exiled Chinese businessman Guo Wengui. Mr. Guo sued Mr. Stone for falsely accusing him of being a “turncoat criminal who is convicted of crimes here and in China.” Mr. Stone also accused Mr. Guo of violating U.S. election laws by making political donations to Hillary Clinton, according to the lawsuit. It is illegal for foreign nationals to donate to U.S. election campaigns.

Courthouse News Service: Berkeley, Police on Hook for Roughed-Up Protesters’ Claims

By Helen Christophi

The city of Berkeley, its police chief and several police officers must face class action claims they attacked and arrested people who were peacefully protesting the city’s continued participation in a SWAT team training and weapons expo, a federal judge ruled…

U.S. District Judge Jeffrey White in Oakland dismissed some claims against Berkeley, Chief of Police Andrew Greenwood and multiple sergeants and officers involving excessive force, unlawful arrest, false arrest and imprisonment, and violations of state civil rights laws while dispersing people protesting the City Council’s June 2017 decision to continue participating in the training and expo, called Urban Shield.

But White kept alive claims that Greenwood failed to enforce the Berkeley Police Department’s rules for policing demonstrations, adopted to address complaints about violent tactics used against Black Lives Matter demonstrators in 2014. White ruled the plaintiffs’ evidence of Greenwood’s liability, based on the fact his officers used the same prohibited tactics three years later, was “sufficient to state claims against Chief Greenwood.”

Online Speech Platforms

Reason: Yes, Russian Trolls Tried To Influence the 2016 Election. No, They Didn’t Win It for Trump.

By Nick Gillespie

The amount of impressions, likes, retweets, shares, and rubles that get thrown around in the reports sound fantastic until you zoom out to the bigger picture. As TechCrunch reported a year ago, for instance, Clinton and Trump spent a combined $81 million on Facebook ads while the IRA ponied up $46,000, or 0.05 percent as much…

Unfortunately for those of us who prefer our internet less fettered, various panics are crossing streams, all of which are pushing to freeze the status quo. In politics, the old coalitions that worked for Republicans and Democrats are falling apart, so much so that both parties are at or near recent lows in self-identification. We’re in the thick of a modern “era of no decision,” in which neither party can maintain unified control of the government for very long. Both Democrats and Republicans have spent much of the past year attacking social media platforms for mostly imaginary crimes and threatening regulation or worse. Only a week ago, representatives of both parties invoked antitrust remedies in a discussion of Google. That’s a predictable response from politicians who feel their grip starting to slip. At the same time, a trans-ideological intellectual consensus also seems to be building that social media is harmful to young people, old people, lonely people, you name it. And then there’s the hysteria, particularly strong among liberals, Democrats, and #NeverTrump Republicans, that Russia is somehow an ascendant power.

The combined result of all this, plus trepidation about the economy and the general direction of the country, is almost certain to be a spasm of regulatory gestures toward the internet, to cleanse it not just of hate speech but political trolls, fake news, and bad actors generally. Sadly, what we really need to be doing right now is formulating new forms of media literacy that fit the reality of a “post-fact” world, one in which everything we see may well be a simulation.

The States

Seattle Stranger: Facebook and Google Pay $455K to Settle Political Ad Lawsuits in Washington State

By Eli Sanders

Facing campaign finance lawsuits from Washington State Attorney General Bob Ferguson, tech giants Facebook and Google today agreed to pay a collective $455,000 to avoid upcoming trials in cases that arose from Stranger reporting…

Ferguson filed lawsuits against both companies in June, alleging that Facebook and Google had ignored state disclosure requirements while selling millions of dollars in political ads aimed at Washington voters.

According to settlement documents filed today, the companies are now paying to end the lawsuits without an admission of guilt from either Facebook, which is paying the state $238,500, or Google, which is paying the state $217,000.

The money will go into Washington’s Public Disclosure Transparency account.

In an interview, Ferguson said the payments represent “two of the largest campaign finance resolutions in state history” and reflect the seriousness of the violations…

Earlier this year, shortly after Ferguson filed his lawsuits, Google stopped accepting political ads aimed at local elections in Washington state, saying it could not comply with current transparency regulations…

Facebook, for its part, has continued to sell ads aimed at local elections in Washington. Company spokesperson Beth Gautier did not make clear whether Facebook would keep on selling political ads in Washington after today’s settlement…

“Given the recent Washington State Public Disclosure Commission ruling, we’re looking at how best to address its new disclosure requirements.” 

What Gautier appeared to be referring to is a unanimous vote by members of the Public Disclosure Commission on November 29 to ignore the pleadings of lobbyists from Facebook and Google and affirm this state’s strong political ad transparency regime.

Associated Press: Michigan GOP OKs shielding donors; ‘power grab’ bill stalls

By David Eggert

Michigan Republicans voted Tuesday to make it a crime for government agencies to require the disclosure of nonprofits’ donors and other information, a move decried by critics as shielding political “dark money” but defended by supporters as protecting people’s right to freedom of association.

The GOP-controlled House approved the bill 58-51, largely on party lines. It will go to Republican Gov. Rick Snyder following a procedural step in this final week of a frantic lame-duck session.

The vote came as another contentious measure, to strip campaign finance oversight authority from Democratic Secretary of State-elect Jocelyn Benson and shift it to a new bipartisan commission, was in serious trouble. A committee agenda that was posted late Tuesday did not include the Senate-passed legislation – considered by many to be the most egregious among several GOP “power grabs” – after it drew opposition from Democrats and many Republicans in the House.

“This proposal would have effectively ended the enforcement of Michigan’s campaign finance law,” Benson tweeted. “I am glad to see this outcome and look forward to working with legislators on both sides of the aisle to take MI from worst to first in ethics & transparency.”

Separately, GOP Sen. Mike Shirkey of Clarklake said his nonprofit bill “protects the entire breadth of nonprofits to ensure that public entities don’t with nefarious or otherwise objectives demand the disclosure” of donors…

“[S]everal states and a growing number of municipalities across the country are seeking to undermine Americans’ constitutional freedoms of speech and assembly through forced-disclosure laws and ordinances,” said David Guenthner, senior strategist for state affairs at the conservative Mackinac Center for Public Policy.

Washington Post: Trump agrees to shut down his charity amid allegations that he used it for personal and political benefit

By David A. Fahrenthold

Underwood said Tuesday that her investigation found “a shocking pattern of illegality involving the Trump Foundation – including unlawful coordination with the Trump presidential campaign, repeated and willful self-dealing, and much more.”…

The attorney general’s suit alleges that Trump used his charity’s money as his own piggy bank – including to help his presidential campaign by paying for giveaways at Iowa rallies…

At one point, Trump used the charity’s money to make a $25,000 political donation to Florida Attorney General Pamela Bondi (R). The charity didn’t tell the IRS about that, as required – and instead listed that donation as a gift to a totally unrelated charity in Kansas with a similar name. Trump’s team blamed accounting mistakes.

During the 2016 campaign, state investigators allege, Trump effectively “ceded control” of his charity’s money to his political campaign. He raised more than $2 million at a fundraiser in Iowa that flowed into the foundation. Then, the state said, Trump campaign manager Corey Lewandowski determined when and where it would be given away.

“Is there any way we can make some disbursements . . . this week while in Iowa?” Lewandowski wrote in an email cited in Underwood’s lawsuit.

Trump gave away oversized checks from the foundation at campaign events in the key early-voting states of Iowa and New Hampshire, pausing his campaign rallies to donate to local veterans’ groups.

Alex Baiocco

Alex Baiocco