Daily Media Links 12/4: This ‘Tenacious Underdog’ Won His First Supreme Court Case. Now He’s Back., Lois Lerner’s Secrets, and more…

December 4, 2017   •  By Alex Baiocco   •  
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New from the Institute for Free Speech

Let’s Talk Turkey: Comparing 2016 Election and Thanksgiving Spending

By Alex Cordell

During the time-honored tradition of contentious political discussions at the Thanksgiving dinner table, one of your relatives may have mentioned the amount of money ($6.4 Billion) spent in the 2016 election cycle, asserting that there is “too much money in politics.” Many advocates for greater government regulation of political speech would say the same. But, compared to what Americans spent over 5-days beginning on Thanksgiving, $6.4 Billion over a two-year period doesn’t seem like so much. Check out the Institute’s newest infographic on the subject here.

Supreme Court

New York Times: This ‘Tenacious Underdog’ Won His First Supreme Court Case. Now He’s Back.

By Adam Liptak

About a decade ago, the leaders of a Florida city held a closed-door meeting to discuss how to intimidate and silence a critic named Fane Lozman…

Five months later, Mr. Lozman rose to address the City Council during the part of a public session set aside for comments from residents. He had barely started talking when Ms. Wade called for a police officer…

He was charged with disorderly conduct and resisting arrest, but prosecutors dropped the charges, saying there was “no reasonable likelihood of successful prosecution.”

Mr. Lozman sued, saying he had been arrested in retaliation for exercising his First Amendment rights. The arrest was payback, he said, for his criticism of the city’s plan to redevelop the waterfront by taking private property using eminent domain…

In urging the Supreme Court to hear the case, Pamela S. Karlan, a lawyer for Mr. Lozman, wrote that conflicts between the government and its critics were on the rise.

“Recent years have seen a fresh surge of civic engagement, much of it involving criticism of the government,” she wrote. “Thus, the risk of retaliatory arrests remains a pressing concern.”


Wall Street Journal: Lois Lerner’s Secrets

By Editorial Board

When news that the IRS had targeted conservative groups led to congressional hearings, the former director of the Exempt Organizations division declared her innocence and then clammed up. Now she and her former IRS associate, Holly Paz, are asking a federal judge to seal forever their depositions in a lawsuit that the IRS settled last month for $3.5 million…

Every other party is united for disclosure: the defense (i.e., the government, which has admitted wrongdoing and apologized); the plaintiffs; and the Cincinnati Enquirer, which has filed a motion to lift the seal.

In his initial decision in May, federal Judge Michael Barrett said he could see the wisdom of confining access to the testimony to the lawyers during discovery. But he added that others could ask to lift the order later, and Ms. Lerner and Ms. Paz would then “bear the burden of overcoming the presumption of access to court documents.”

That moment is here. American taxpayers who will fork out $3.5 million for Ms. Lerner’s actions have a right to hear how she justified what she did at the IRS.

First Amendment

Washington Examiner: Google needs the First Amendment, too

By Examiner Staff

John Samples for the Cato Institute: At the Halifax International Security Forum, Eric Schmidt announced that Google will alter its search algorithm to “de-rank” results from Russia Today.

Generally, Google has broad power to police its platform. We might not like the decision, but it is not ours to make.

There is a second possibility. Government officials may have threatened Google to bring about this “de-ranking” of Russia Today. If so, the First Amendment poses questions for us. We need to answer such questions, however, only if government officials did in fact threaten Google. …

RT America, despite being recently required to register itself as a foreign agent, enjoys First Amendment speech rights in the same way that other foreign, state-funded television channels such as Al Jazeera and BBC America do. Congress does not have the power to prevent them from running advertisements or publishing news stories on their websites. …

Courts have ruled that the First Amendment protects a search engine’s ordering of results. A search algorithm may be “meta” editorial control, but it nonetheless is and should be protected from government threats. By analogy, consider the Wall Street Journal. Should we allow public officials to “persuade” editors to move a story from the front page to page 11?

Independent Groups

Washington Post: Democratic group attacks Roy Moore without disclosing donors

By Michael Scherer

The group did not accept any donations before Nov. 22, when the Federal Election Commission required all independent groups working on the race to file a pre-election report disclosing donors, according to a person familiar with the operation. 

The group’s spending on the race began weeks earlier, on Nov. 8, according to filings. The payment of bills for that spending was delayed, according to the person, allowing for the group to delay raising money and avoid the deadline.

In a report filed Thursday, the group reported owing vendors $1,154,844.31 as of Nov. 22…

The technique of delaying contributions to avoid public disclosure is not new. “In a lot of cases, payments might be made later on if it is customary for those particular vendors to extend credit,” said Eric Wang, a Republican campaign finance attorney at Wiley Rein, who previously worked at the Federal Election Commission and is not working on the Alabama race. 

Candidates and Campaigns

New Yorker: Michael Flynn’s Guilty Plea Sends Donald Trump’s Lawyers Scrambling

By Jeffrey Toobin

Federal law prohibits political candidates and their advisers from seeking or obtaining contributions from foreign individuals or entities. “Foreigners can’t contribute to federal, state, or local campaigns, and that doesn’t just cover cash contributions,” Kathleen Clark, a professor at the law school of Washington University in St. Louis, told me. “According to the statute, if a campaign solicits a foreigner to give a ‘thing of value’ to a political campaign, that would be illegal as well.”

The argument for a criminal-conspiracy charge based on these exchanges would be that Trump officials, including the candidate, solicited opposition research from Russian interests, and that such research is a “thing of value,” an in-kind contribution, under the law…

Still, a prosecution along these lines would hardly be straightforward or routine. In the past, criminal cases about solicitation have focussed on cash, so Mueller’s case would rest on a novel interpretation of the law. The status of WikiLeaks also creates a potential obstacle. Federal law contains an exemption for the press; news operations cannot be charged with making illegal campaign contributions by covering a campaign. The Trump campaign-and surely WikiLeaks itself-would likely argue that the organization is a journalistic outlet.

Daily Caller: Money Controls Politics Now More Than Ever, And That’s A Huge Problem

By Josh Wagoner

Money has taken over much of the electoral process, sharply increasing the amount of funds required to win an election.

Well-intended reforms have had unintended consequences…

Furthermore, despite the abuses of campaign finance, money in campaigns is not inherently bad. Funding large-scale outreach efforts requires sufficient financial resources.

However, when such large amounts of campaign funds are used as a reelection insurance policy for career politicians, it prevents constituents from staging a reasonable challenge to power…

We must restore America’s constitutional republic, in which we are governed by the will of the people, not the wealth of the politicians. To do this, we must work harder than ever to pay close attention to the actions of our elected officials, not just their rhetoric.

It starts with organizing and informing our communities. There is no accountability without action. And most importantly, the real fight begins with good men and women stepping forward to run for office, who will stand on principle and defend America’s greatness.

The States

Pacific Northwest Inlander: Sen. Billig’s “dark money” bill would root out secret big money donors in WA elections

By Daniel Walters

Under his proposed legislation, nonprofits and other similar organizations that spend more than $10,000 on an election would have to disclose their top 10 donors who gave them $10,000 or more, along with every donor that gives $100,000 or more.

“We have at least 25 co-sponsors, including at least two Republicans,” Billig says.

And now that Democrats control the Senate, and Billig is the deputy majority leader, he should have a much easier road in getting his campaign finance legislation off the ground than he has in the past…

Spokane City Council President Ben Stuckart has been trying to tackle the issue of dark money as well, with a slew of campaign finance reforms that the council will be considering this month.

Stuckart and Billig say they object to use of “dark money” – no matter who spends it.

“They’re all nasty,” Stuckart says in a text message today, referring to the dark donors.

Arizona Daily Star: Political donors should be known

By Editorial Board

A new initiative effort to end anonymous donations to political candidates in Arizona is intriguing – it raises the simultaneous issues of the First Amendment, privacy and the people’s right to know who is financially supports candidates running for elected office…

While we are far from weighing in on this particular proposal – it’s too early to know if it will be on the ballot – its essential questions merit conversation.

Does a person’s desire to give money to a political campaign without being publicly identified outweigh the benefit of the public knowing who is donating to specific candidates?

Gov. Doug Ducey, in a recent news story by Capitol Media Services, weighed in on the side of anonymity. “I think people have a First Amendment right as well to participate and not be bullied.”

We agree that every person should have the ability to voice their opinions without being bullied or harassed – those are matters for law enforcement. Freedom of speech does not guarantee a positive response to our expression, only our right to speak our minds.

KJZZ Phoenix: Tempe City Council Moves Ahead With Ordinance To Limit ‘Dark Money’

By Steve Goldstein

After a City Council vote Thursday night, Tempe is moving ahead with an ordinance that it hopes will limit the influence of so-called “dark money” on its municipal elections.

The proposal would require groups making independent expenditures of more than $1,000 to reveal the funding source.

Councilwoman Lauren Kuby spoke at the council meeting before the vote. She has been a driving force for the proposal.

Tempe’s move seems like a groundbreaking one, but could it signal a trend?

Alex Baiocco

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