Daily Media Links 12/5

December 5, 2018   •  By Alex Baiocco   •  
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Free Speech

Columbia Law School: The Free Speech Century: How the First Amendment Came to Life

The words drafted in 1789 seem plain enough: “Congress shall make no law…abridging the freedom of speech, or of the press.” Yet it was not until 1919, in response to the government’s harsh repression of World War I critics, including a candidate for President, that the U.S. Supreme Court began to give practical meaning to the First Amendment.

Progress was halting and the boundaries of legal expression remain contested, yet over the decades that followed the United States became “the most speech protective of any nation on Earth, now or throughout history,” writes Columbia University President Lee C. Bollinger ’71, the Seth Low Professor of the University and longtime member of the Law School faculty, in a new book, The Free Speech Century (Oxford University Press).

The book appears on the 100th anniversary of Schenck v. United States and two other criminal cases under the Espionage Act-seminal free speech cases in an era characterized by fear of immigrants, growth in white nationalism and a popular push for limits on political dissent. Co-edited by Bollinger and a fellow First Amendment scholar, University of Chicago law professor Geoffrey R. Stone, the book’s themes resonate in our current moment. Bollinger, who continues to teach a popular law course for Columbia undergraduates each year, previously collaborated with Stone on Eternally Vigilant: Free Speech in the Modern Era (University of Chicago Press).

Supreme Court

Salt Lake Tribune: U.S. Supreme Court orders state of Utah to respond to GOP lawsuit challenging election law

By Lee Davidson

The U.S. Supreme Court on Tuesday asked the state of Utah to respond to an appeal by the Utah Republican Party that seeks to overturn a law allowing candidates to qualify for the ballot by collecting signatures and/or by using the caucus-convention system.

The party says the court’s request shows it is taking serious interest in the case and in the argument that the state should not be able to tell the private organization how to select its nominees.

The state last month filed a waiver saying it did not plan to respond to the GOP’s petition asking the high court to hear the case unless requested to do so by justices. On Tuesday, the court did just that…

The party argues in its appeal that the 2014 law, called SB54, interferes with its constitutional right of association to select nominees as it chooses – and it prefers to use only the traditional caucus-convention system…

The Denver-based 10th U.S. Circuit Court of Appeals upheld SB54 earlier this year in a 2-1 decision by saying “states must have flexibility to enact reasonable, common-sense regulations designed to provide order and legitimacy to the electoral process.”

The Courts

Courthouse News Service: Encouraging Undocumented Immigrants to Stay Isn’t a Crime, Ninth Circuit Says

By Helen Christophi

The Ninth Circuit on Tuesday struck down part of a federal law that criminalizes encouraging undocumented immigrants to stay in the United States, finding it violates free speech rights.

The law makes it a felony to “encourage” or “induce” someone from another country to enter or stay in the United States if the encourager knew or recklessly disregarded the fact that it would be illegal.

But the court’s three-judge panel said statements by family members “surely” constitute the bulk of statements under the law’s purview, thus “criminaliz[ing] a substantial amount of constitutionally-protected expression” under the First Amendment.

“[T]he statute potentially criminalizes the simple words – spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client – ‘I encourage you to stay here,'” Senior U.S. Circuit Judge A. Wallace Tashima, a Clinton appointee, wrote for the panel in a 42-page opinion.

Wichita Eagle: Lawsuit: Kansas “Ag-Gag” law violates free speech rights

By Roxana Hegeman, AP

A Kansas law banning secret filming at slaughterhouses and other livestock facilities unconstitutionally criminalizes free speech on matters of considerable public concern, a coalition of animal rights and consumer protection groups argued in a lawsuit filed Tuesday.

At issue in the lawsuit is the state’s “Ag-Gag” law, which was enacted in 1990. The law makes it a crime for anyone to take a picture or video at animal facilities without the owner’s consent or to enter them under false pretenses.

“The Kansas Ag-Gag law has silenced whistleblowers seeking to protect animals from cruelty for far too long,” Animal Legal Defense Fund Executive Director Stephen Wells said in a news release. “This unconstitutional law exists solely to protect the financial interests of industries that abuse animals, and it will not hold up in court.”

The litigation, filed in U.S. District Court in Kansas, was brought by the Animal Legal Defense Fund, the Center for Food Safety, Shy 38 Inc., and Hope Sanctuary…

Similar laws in Utah and Idaho were struck down within the past two years as unconstitutional violations of the First Amendment, and litigation is pending in several other states.

Idaho Statesman: Idaho owes $260,000 in legal fees to lawyers who brought ag-gag lawsuit

By Keith Ridler

An animal welfare group on Tuesday applauded a court ruling ordering the state of Idaho to pay $260,000 to attorneys for animal rights groups after federal courts said the state’s law banning spying at farms, dairies and slaughterhouses violated free speech rights.

“We hope this award sends a strong message that Ag-Gag laws, which are designed to insulate factory farms from public scrutiny, are not only bad policy but illegal as well,” said John Seber of Mercy for Animals in a statement to The Associated Press.

U.S. District Court Chief Judge B. Lynn Winmill issued the order Friday as part of a settlement between Idaho Attorney General Lawrence Wasden and the Animal Legal Defense Fund and others…

Winmill in late 2015 blocked the law as an unconstitutional infringement of the First Amendment of the U.S. Constitution safeguarding free speech, the first time such a law had been struck down.

The Ninth U.S. Circuit Court of Appeals rejected Idaho’s appeal.

U.S. Circuit Judge M. Margaret McKeown wrote that the law “criminalized innocent behavior, was staggeringly overbroad, and that the purpose of the statute was, in large part, targeted at speech and investigative journalists.” But the panel also ruled Idaho’s law correctly criminalized those who made false statements to either obtain records at an agricultural facility or to obtain employment with the intent to inflict harm.

Roll Call: Judge Sets September Trial Date for Rep. Duncan Hunter

By Katherine Tully-McManus

Rep. Duncan Hunter will face trial starting September 10, a federal judge in California said Monday.

Hunter and his wife Margaret face 60 federal charges related to spending more than $250,000 in campaign funds on personal expenses such as family vacations and golf outings.

The couple were indicted by a federal grand jury in late August for allegedly using campaign funds for personal expenses and trying to cover their tracks in campaign finance filings to the Federal Election Commission. Both pleaded not guilty to the charges at an arraignment days later.

There are several pre-trial hearings ahead of the September trial date. Hunter’s attorney, Gregory Vega, has asked repeatedly for additional time to go through FBI documents and other discovery materials before going to trial.

The congressman and his wife Margaret are not being represented by the same legal team and did not enter or exit the courthouse together.

Hunter was re-elected to represent California’s 50th congressional district in November despite the indictment. The House is in session for most of September, meaning that Hunter may continue to face conflicts between his responsibilities in the House and his court appearances.

Internet Speech Regulation 

The Guardian: Who will protect us from digital deception? Not tech companies

By Ann M Ravel and Samuel Woolley

Unregulated digital media allow misleading information to spread virally from anonymous sources, preventing accountability. Tech companies’ voluntary efforts are not sufficient to protect political integrity. In fact, recent reporting suggests that their business models disincentivize getting rid of automated profiles and polarizing political content. We are in desperate need of regulation to shine light on paid political ads, curtail microtargeting, and unmask bots and fake accounts…

Straightforward legislation based on existing legal principles, such as the Honest Ads Act or the Bot Disclosure and Accountability Act, has effectively stalled.

Government must apply the constitutional principle of transparency in four areas so that the public has the information it needs:

1. Laws and regulations must expose who is behind sponsored digital political communications. The Federal Election Commission must adapt the standards that currently apply to television and radio advertising for the internet.

2. To combat the effects of microtargeting, Congress should pass the Honest Ads Act and legislation that protects privacy and illuminates company usage of user data.

3. We must develop legal solutions to fake and automated accounts so that bots and trolls can no longer operate from the shadows. For example, platforms could be required to label all automated accounts, as required by the Bot Disclosure and Accountability Act.

4. Technology companies must be required to share data with researchers, submit their algorithms to evaluation, and be upfront about their efforts to police their platforms.

New York Times: Chatbots Are a Danger to Democracy

By Jamie Susskind

The most obvious risk is that we are crowded out of our own deliberative processes by systems that are too fast and too ubiquitous for us to keep up with. Who would bother to join a debate where every contribution is ripped to shreds within seconds by a thousand digital adversaries?

A related risk is that wealthy people will be able to afford the best chatbots. Prosperous interest groups and corporations, whose views already enjoy a dominant place in public discourse, will inevitably be in the best position to capitalize on the rhetorical advantages afforded by these new technologies…

A blunt approach – call it disqualification – would be an all-out prohibition of bots on forums where important political speech takes place, and punishment for the humans responsible. The Bot Disclosure and Accountability Bill introduced by Senator Dianne Feinstein, Democrat of California, proposes something similar. It would amend the Federal Election Campaign Act of 1971 to prohibit candidates and political parties from using any bots intended to impersonate or replicate human activity for public communication. It would also stop PACs, corporations and labor organizations from using bots to disseminate messages advocating candidates, which would be considered “electioneering communications.”

A subtler method would involve mandatory identification: requiring all chatbots to be publicly registered and to state at all times the fact that they are chatbots, and the identity of their human owners and controllers. Again, the Bot Disclosure and Accountability Bill would go some way to meeting this aim, requiring the Federal Trade Commission to force social media platforms to introduce policies requiring users to provide “clear and conspicuous notice” of bots “in plain and clear language,” and to police breaches of that rule. The main onus would be on platforms to root out transgressors.

Online Speech Platforms `

NBC News: Apple CEO Tim Cook says tech needs to take a moral stand against hate speech

By Alyssa Newcomb

Technology companies must take a moral stand against hate speech, said Apple CEO Tim Cook on Monday during a speech at the Anti-Defamation League.

“I sometimes say that I worry less about computers that think like people and more about people that think like computers, without values or compassion, without concern for consequences,” Cook said, as he accepted the Anti-Defamation League’s first-ever “Courage Against Hate” award on Monday night, an honor that will be given each year to a business leader who champions equality.

The Apple CEO had a message for anyone trying to push hate, division or violence: “You have no place on our platforms. You have no home,” he said.

Technology companies have faced increasing pressure this year to stop acting as a vehicle for hate speech, and to proactively clean up their platforms. However, action from the tech giants hasn’t always been swift or decisive – and Cook admits there is still plenty of work left to do.

Take for example the case of Alex Jones. Apple pulled the InfoWars conspiracy theorist’s podcast from its platform in August, but didn’t remove his InfoWars app until September. Facebook and YouTube suspended Jones in July, but didn’t ban him until August. Twitter didn’t ban InfoWars content until September.

“If we can’t be clear on moral questions like these then we’ve got big problems,” Cook said about tackling hate. “At Apple, we are not afraid to say that our values drive our curation decisions. And why should we be? Doing what’s right – creating experiences free from violence and hate, experiences that empower creativity and new ideas – is what our customers want us to do.”

The States

Washington Post: D.C. Council approves sweeping changes to campaign finance, bans ‘pay to play’

By Peter Jamison

Sweeping changes to the District’s campaign finance regulations could soon become law, after the D.C. Council gave final approval Tuesday to a bill aimed at curbing the influence of government contractors in local politics…

Mayor Muriel E. Bowser (D) could sign or veto the campaign finance bill or let it become law without signing it. The mayor has not taken a position on restricting political donations from government contractors…

The bill would ban campaign donations from firms and their top executives if they hold or are seeking government contracts worth at least $250,000. It would also give new authority to the city’s Office of Campaign Finance – long viewed as a weak enforcer – and require increased disclosures from independent expenditure committees.

The bill passed through an initial vote last month with the support of 11 of the council’s 13 members. On Tuesday, Allen introduced changes that would address some lawmakers’ concerns, such as allowing contractors to contribute to their own campaigns if they run for office and extending the deadline for closing campaign committees to 12 months after an election, rather than six months. The final bill passed unanimously.

Detroit News: Michigan GOP panel votes to strip power from Democratic secretary of state

By Jonathan Oosting

Senate Republicans are advancing a controversial plan that would strip incoming Democratic Secretary of State Jocelyn Benson of the power to enforce the state’s campaign finance laws.

The Senate Elections Committee on Wednesday approved legislation that would instead shift campaign finance oversight to a bipartisan committee. The six members would be picked from a list submitted by each of the two major political parties…

Supporters say the proposed “fair political practices commission” is modeled on the Federal Election Commission, but critics say that bipartisan panel has proven ineffective because of routine deadlocks…

Under the legislation, the Michigan Republican Party and the Michigan Democratic Party would each recommend three potential members for three separate commission posts. The governor would then appoint all six members, three from each party.

Selma Times-Journal: Legal action pending against political committees

By Adam Powell

Alabama Secretary of State John Merrill released a statement Tuesday stating that legal action is pending against at least 20 Political Action Committees (PACs) and Principle Campaign Committees (PCCs) that have not properly filed financial reports…

Merrill’s office reported last month that it was in process of collecting funds from organizations that failed to file their “monthly, weekly or daily campaign finance reports…in a timely manner.”

Of the more than $200,000 in fines that have been issued, just over $106,000 have been collected. The fines that have not been collected have “either been waived by the Alabama Ethics Commission” or are still be collected by the Secretary of State’s office…

Because 20 committees have “exceeded the statutorily prescribed period to pay the fines,” Merrill is allowed to “initiate legal action to recover those funds for the state of Alabama.”

According to the release, that process is currently underway.

Arizona Capitol Times: Watchdog group calls for investigation of $500,000 contribution to Ducey PAC

By Carmen Forman

A nonpartisan campaign finance watchdog group is claiming that a $500,000 contribution to Gov. Doug Ducey’s PAC is illegal and has asked Secretary of State Michele Reagan to investigate the contribution.

Citing campaign finance rules against shielding the real source of campaign contributions, the Campaign Legal Center says the Ducey Victory Fund Committee accepted a half million dollar contribution this election cycle from a shell corporation that was a front for an Arizona auto billionaire.

Alex Baiocco

Alex Baiocco