Daily Media Links 12/3

December 3, 2019   •  By Tiffany Donnelly   •  
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Ed. Note: Good afternoon, my name is Tiffany Donnelly and I am the new Media Manager at the Institute for Free Speech. From today forward, I will be responsible for sending the Daily Media Update. Please feel free to contact me at tdonnelly@ifs.org if I can be of further assistance.

Online Speech Platforms 

Wall Street Journal: Who’s Afraid of Political Ads?

By The Editorial Board

The road to bad regulation starts when the press panics about a problem, real or imagined. Then elites stampede toward a solution without considering how well it would address the problem or the unintended consequences.

That seems to be happening with the tech companies now rushing to restrict political advertising amid a media panic over Donald Trump’s use of the platforms. The latest is Google, which has withdrawn “targeting” tools used by political campaigns. Candidates won’t be able to show ads to voters Google identifies as likely Democrats, likely Republicans, or members of other “affinity groups,” though they can still target based on age, gender, zip code and web browsing.

The first warning sign is that Google doesn’t seem to know what problem the restrictions will solve. One rationale is that showing different ads to different groups “divides our democracy,” as Democrat and Federal Election Commission Chair Ellen Weintraub wrote recently.

Yet targeted advertising may encourage more people to engage in politics on issues that matter to them, breaking the dominance of hard-core partisans. That’s how the Obama campaign’s digital effort was described in the press in 2008 and especially in 2012. A 2017 National Bureau of Economic Research study on polarization and the internet rebuts the claim that Americans who spend more time online have polarized faster…

Yet that kind of advocacy would be less effective because those voters are already set in their views. To move voters, campaigns need to reach people who are undecided, and they are usually targeted by both parties and thus subject to competing claims.

New York Times: TikTok Blocks Teen Who Posted About China’s Detention Camps

By Raymond Zhong

The teenage girl, pink eyelash curler in hand, begins her video innocently: “Hi, guys. I’m going to teach you guys how to get long lashes.”

After a few seconds, she asks viewers to put down their curlers. “Use your phone that you’re using right now to search up what’s happening in China, how they’re getting concentration camps, throwing innocent Muslims in there,” she says.

The sly bait-and-switch puts a serious topic – the mass detentions of minority Muslims in northwest China – in front of an audience that might not have known about it before. The 40-second clip has amassed more than 498,000 likes on TikTok, a social platform where the users skew young and the videos skew silly.

But the video’s creator, Feroza Aziz, said this week that TikTok had suspended her account after she posted the clip. That added to a widespread fear about the platform: that its owner, the Chinese social media giant ByteDance, censors or punishes videos that China’s government might not like.

A ByteDance spokesman, Josh Gartner, said Ms. Aziz had been blocked from her TikTok account because she used a previous account to post a video that contained an image of Osama bin Laden. This violated TikTok’s policies against terrorist content, Mr. Gartner said, which is why the platform banned both her account and the devices from which she was posting…

Ms. Aziz, a 17-year-old Muslim high school student in New Jersey, said in an email on Tuesday that her TikTok videos tried to make light of the racism and discrimination she experienced growing up in the United States. In one video, she addressed a slur that she said she and other Muslims heard regularly: that they would marry Bin Laden.

“I think that TikTok should not ban content that doesn’t harm anyone or shows anyone being harmed,” Ms. Aziz said.

Politico: Why the fight against disinformation, sham accounts and trolls won’t be any easier in 2020

By Alexandra S. Levine, Nancy Scola, Steven Overly and Cristiano Lima

U.S. law forbids foreigners from taking part in American political campaigns – a fact that made it easy for members of Congress to criticize Facebook for accepting rubles as payment for political ads in 2016.

But Americans are allowed, even encouraged, to partake in their own democracy – which makes things a lot more complicated when they use social media tools to try to skew the electoral process. For one thing, the companies face a technical challenge: Domestic meddling doesn’t leave obvious markers such as ads written in broken English and traced back to Russian internet addresses.

More fundamentally, there’s often no clear line between bad-faith meddling and dirty politics. It’s not illegal to run a mud-slinging campaign or engage in unscrupulous electioneering. And the tech companies are wary of being seen as infringing on American’s right to engage in political speech – all the more so as conservatives such as President Donald Trump accuse them of silencing their voices.

Donor Privacy

Wiley Rein LLP Newsletter: The First Amendment Right to Political Privacy, Chapter 7 – In Need of Judicial Clarity

By Lee E. Goodman

Since 1950, the First Amendment has protected the political privacy of people as diverse as free marketer Edward Rumely, Marxist economist Paul Sweezy, social activist Manuel Talley, and average citizen Margaret McIntyre. It has protected associations such as the NAACP, the Jehovah Witnesses, the Committee for Constitutional Governance, the Progressive Party of New Hampshire, and the Socialist Workers Party. The diversity of citizens and causes that have invoked the privacy afforded by the First Amendment underscores why courts should resist viewing First Amendment challenges in the light of contemporary political biases and instead approach each case with political and ideological agnosticism. Future Rumelys and Sweezys should be protected equally by the First Amendment.

Yet, lower courts today are struggling to find consistency and uniformity in the jurisprudence of First Amendment privacy and in judicial outcomes. The line between political privacy and its exceptions has become blurred. At the same time, there is a national movement seeking to expose more speakers and funders of expanding categories of speech. Lower courts have, explicitly and implicitly, shined a light on ambiguities in the jurisprudence while Supreme Court Justices Alito and Thomas have acknowledged the problem and voted to take compelled disclosure cases for the purpose of clarifying the law. This chapter identifies key issues the Supreme Court needs to clarify about the First Amendment right to political privacy, starting with first principles.

Wiley Rein LLP Newsletter: Courts Reject Overbroad Compulsory NJ/NY Disclosure Laws

By Lee E. Goodman

Two federal courts recently have restrained overbroad compulsory donor disclosure and related disclosure laws on the basis of First Amendment privacy concerns. Considered together, the court rulings re-affirm First Amendment protection for political privacy and anonymity in political speech and association. They also signal caution to legislators and regulators that the courts will impose meaningful constitutional boundaries around government efforts to compel public registration and disclosure of political activities…

The Supreme Court’s seminal decision in Buckley v. Valeo (1976) figured centrally in each decision. Specifically, the courts observed the critical line Buckley drew between election advocacy versus issue advocacy. Another common thread was application of a muscular “exacting scrutiny” standard of review that came closer to strict scrutiny than the rational basis review that other courts recently have applied. Applying these principles, the federal courts in New York and New Jersey found facial infirmities with the state laws. The New York and New Jersey rulings are likely to be appealed to the Second and Third Circuits, respectively, which have tended to be more deferential to government compelled disclosure.

Candidates and Campaigns 

MassLive: Senate candidates Joe Kennedy, Shannon Liss-Riordan take ‘People’s Pledge’ to limit outside spending as incumbent Ed Markey pitches his own proposal

By Benjamin Kail

U.S. Rep. Joe Kennedy and labor attorney Shannon Liss-Riordan signed a pledge Monday to restrict outside spending in their primary bids against incumbent Sen. Ed Markey, who instead pitched a separate pledge of his own.

Kennedy, who pushed candidates to take the “People’s Pledge” after entering the race in September, joined Liss-Riordan at her Boston campaign office on Monday afternoon for a signing ceremony.

But Markey wasn’t there. While Liss-Riordan immediately agreed after Kennedy reached out to campaigns to hammer out a pledge and joint signing, Markey’s scheduling conflicts in Washington, D.C. led the campaigns to cancel a pledge signing in November, and Kennedy and Liss-Riordan pushed ahead this week…

John Walsh, Markey’s campaign manager, said Monday morning that the senator would release a “People’s Pledge 2020” proposal of his own to “limit the influence of dark money and negative outside advertising.”…

“We say NO to all outside negative advertising in the 2020 U.S. Senate primary campaign,” according to Markey’s pledge. “But we do not want to stifle or silence the positive voices that have a right to discuss the issues that matter most to residents of Massachusetts – the reproductive health community, labor unions, environmental and climate advocates, the LGBTQI+ community, among many others.”

Washington Post: The Latest: California Rep. Hunter pleads guilty

By Associated Press

California Rep. Duncan Hunter has pleaded guilty to misusing campaign money in a dramatic reversal that paves the way for the six-term Republican to quit.

Hunter, 42, changed his not guilty plea in federal court in San Diego Tuesday.

He had denied wrong doing for more than a year. He claimed he was the victim of a political witch hunt by federal prosecutors.

Prosecutors say he and his wife misspent more than $250,000 in campaign money. Margaret Hunter pleaded guilty earlier this year and had agreed to testify against her husband.

Hunter told KUSI television in San Diego he decided to change his plea because a trial would be rough on his children.

He is the second Republican congressman to plead guilty to federal charges this year.

Wall Street Journal: Will Bloomberg Buy the Election?

By William McGurn

Instead of hailing the [Citizens United] decision as a welcome victory for the First Amendment-it overturned an FEC ban that had prohibited airing a documentary critical of Hillary Clinton right before the 2008 Democratic primaries-today’s Democratic orthodoxy holds that Citizens United has left American democracy for sale to the highest bidder.

Sen. Bernie Sanders puts it this way: “We do not believe that billionaires have the right to buy elections, and that is why we are going to overturn Citizens United, that is why multibillionaires like Mr. Bloomberg are not going to get very far in this election.”

Mr. Sanders is blurring some lines here. Mr. Bloomberg is self-funding his campaign, which he would be permitted to do even without Citizens United. Mr. Sanders lumps the two together because he sees Citizens United and the Bloomberg campaign as illuminating the same danger: With enough money, the rich can buy elections…

Which leads to the billion-dollar question: If Democrats are right about the rich having the power to buy elections, how is it that the combined RealClearPolitics polling average for [Bloomberg and Steyer] barely breaks 4%?…

For their part Messrs. Bloomberg and Steyer are learning that money is only one advantage. Perhaps they will stay in the race even if they remain at Andrew Yang levels in the polls, if only to ensure that the issues they most care about are elevated and addressed. That itself would be a welcome, if unintended tribute to the core Citizens United argument that political spending is a form of political speech. 

The Media 

Daily Caller: Trump Campaign Blacklists Bloomberg News Over ‘Unfair Reporting Practices’

By Andrew Kerr

President Donald Trump’s reelection campaign will no longer credential Bloomberg News reporters to cover rallies and other events due to the outlet’s stated policy of barring investigations into Democratic presidential candidates while continuing to allow investigations into Trump.

Bloomberg News announced the editorial policy to its reporters in November following billionaire owner Michael Bloomberg’s declaration as a Democratic presidential candidate.

“Bloomberg News has declared that they won’t investigate their boss or his Democrat competitors, many of whom are current holders of high office, but will continue critical reporting on President Trump,” Trump campaign manager Brad Parscale said in a press release Monday. “As President Trump’s campaign, we are accustomed to unfair reporting practices, but most news organizations don’t announce their biases so publicly.”…

Bloomberg News editor-in-chief John Micklethwait said Monday the Trump campaign’s new restrictions on the outlet won’t keep it from covering the president “in an unbiased way.”

The States

Law 360: ‘Why Is My City Monitoring Me?’

By Emma Cueto

Coral Gables resident Raul Mas Canosa claims the city’s use of automated license plate readers violates his right to privacy. 

“I have no criminal record,” Canosa said in a video discussing the issue. “Why is my city monitoring me?”
Canosa is currently suing Coral Gables for violating his right to privacy by using automated license plate reader, or ALPR, technology, and in October, his case survived a motion to dismiss, allowing him to move forward into the next phase of the lawsuit…

[Albert Fox Cahn, executive director of the Surveillance Technology Oversight Project]said that he is particularly concerned given the history of the NYPD targeting political activists with heavy-handed surveillance techniques.

In 1985, the city entered into a consent decree following a class action lawsuit over NYPD surveillance of political groups such as the Black Panthers, gay rights activists and anti-war protesters. The decree has been updated since, but Cahn says it has not necessarily kept up with the latest tech.
That means, he said, that the NYPD might be using ALPR technology to target people based on their political views, even though such views are protected by the First Amendment.

Cape Cod Times: Political Notes: New campaign finance law adds hundreds to depository system

By Geoff Spillane

New campaign finance legislation affecting House and Senate candidates was signed into law by Gov. Charlie Baker last week.

Massachusetts is now the first state in the nation to require independent third-party disclosure of campaign finance activity by candidates. The process, called the depository system, requires banks to file monthly disclosure reports, ensuring accuracy and frequent public disclosure of activity.

According to the Massachusetts Office of Campaign and Political Finance, in the depository system, candidates file reports that identify contributors, while banks file reports that itemize expenditures and provide a summary of receipts for the month. OCPF then reconciles the reports and posts them on its website.

The new legislation adds nearly 500 House and Senate candidates to the depository system, as well as approximately 100 mayoral candidates in the state’s smaller cities. Previously, these candidates itemized all receipts and expenditures on campaign finance reports without third-party verification, which could be subject to human error and inaccuracies.

Tiffany Donnelly

Tiffany Donnelly