Daily Media Links 2/16

February 16, 2021   •  By Tiffany Donnelly   •  
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In the News

American Viewpoints (Audio): Freedom Of Speech Online And With Your Money: It Shouldn’t Be Partisan

Hosted by Mike Ferguson

Facebook is among the “Big Tech” companies backing a proposal to regulate speech and other content online. In this conversation, the Institute For Free Speech’s Luke Wachob provides the opposing perspective on both freedom of speech and anti-monopoly grounds. He also discusses the possible unintended consequences of efforts to require nonprofit think tanks to disclose all their donors in the same way political campaigns are required to make them public.

Stanford PACS (Video): The Election Reform Agenda – Part 4: Campaign Finance

What exactly is included in H.R. 1 and what are the arguments of its supporters and detractors? Join us for a deep dive into four components of this historic legislation. Each panel brings together advocates, critics, and academics to describe the specific reforms under consideration…

Session Moderators: 

Nate Persily, Co-Director of the Program on Democracy and Internet at Stanford PACS and the Stanford-MIT Healthy Elections Project

Didi Kuo, Associate Director for Research, Center on Democracy, Development and Rule of Law at Stanford University


-Bradley Smith – Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School

-Richard Pildes – Sudler Family Professor of Constitutional Law, New York University School of Law

-Meredith McGehee – Executive Director, Issue One

-Alex Kaplan – Vice President of Policy & Campaigns, RepresentUs

-Adav Noti – Senior Director of Trial Litigation & Chief of Staff, Campaign Legal Center

New from the Institute for Free Speech

Alan Gura Joins Institute for Free Speech as Vice President for Litigation

The Institute for Free Speech is pleased to announce that attorney Alan Gura joined IFS today as Vice President for Litigation. In this role, Gura will direct the Institute’s litigation and legal advocacy, lead our in-house legal team, and manage and expand our network of volunteer attorneys.

“We are thrilled to welcome Alan Gura to the Institute for Free Speech. Alan has a well-earned reputation as one of the nation’s best appellate lawyers and is an expert on the First Amendment,” said Institute for Free Speech President David Keating. “We have greatly enjoyed our past experiences working with Alan and believe he will be an excellent addition to our team.”

Gura has extensive experience as a First Amendment and appellate litigator. He has argued and won landmark constitutional cases before the United States Supreme Court. He has also argued cases before ten federal courts of appeals and numerous federal district courts throughout the country. Gura was the founding member of Gura PLLC, where he focused on appellate litigation and constitutional law. In 2013, he was named among the 100 Most Influential Lawyers in America by The National Law Journal.

“As a passionate supporter of free speech, it is a pleasure to join one of the nation’s premier First Amendment organizations. We are at a pivotal moment for these rights, and I look forward to helping the Institute for Free Speech defend them,” said Gura.

The Courts

Reason (Volokh Conspiracy): The Eighth Circuit’s Narrow Decision About the Arkansas BDS Statute

By Eugene Volokh

An Arkansas statute generally bans the government from contracting with companies that are boycotting Israel. It defines such boycotts as

  • “engaging in refusals to deal,
  • terminating business activities,
  • or other actions that are intended to limit commercial relations

with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories, in a discriminatory manner” (bullets added).

District Court Judge Brian S. Miller refused to issue a preliminary injunction against the statute, and granted the state’s motion to dismiss the challenge. The court concluded that “other actions …” should be read as dealing with other commercial behavior, and not, say, speech urging boycotts…

And as thus limited to commercial behavior, the court held, the statute likely didn’t violate the First Amendment. (Michael Dorf, Andrew Koppelman, and I filed an amicus brief on appeal agreeing that the law is constitutional if read as limited to commercial refusals to deal.)

Friday, the Eighth Circuit (in an opinion by Judge Jane Kelly, joined by Judge Michael Melloy, with Judge Jonathan Kobes dissenting) interpreted the “or other actions” clause more broadly, to include speech promoting boycotts, and therefore held that the law was unconstitutional. The majority expressly didn’t opine on the constitutionality of the “refusals to deal[ or] terminating business activities” portion of the law…

St. Louis Post-Dispatch: Former Wildwood council candidate settles First Amendment suit against city

By Joe Holleman

A former Wildwood City Council candidate has settled his First Amendment lawsuit against the city and some of its top officials.

Attorneys for Tony Salvatore reported Monday that the city has agreed to pay $295,000 to their client, who ran unsuccessfully for a council seat in April 2018…

Salvatore’s lawyers said their client filed suit in 2019 in U.S. District Court in St. Louis, claiming that city officials interfered with his campaign – specifically by not allowing him to stand on a sidewalk while holding a “Salvatore for Wildwood” campaign sign.

Wildwood at the time had an ordinance that banned holding any signs on public property, including sidewalks…

Salvatore’s lawyers had previously said that Wildwood took steps to amend its sign ordinances to eliminate provisions that restricted free speech, and eliminated the ban on signs on public property.


Politico: Facebook, Twitter CEOs in talks to testify at House hearing as soon as March

By Cristiano Lima

The CEOs of Facebook and Twitter are in talks with House lawmakers to testify at a hearing as early as next month, according to people familiar with the plans.

Facebook has discussed making chief Mark Zuckerberg available to appear before the House Energy and Commerce Committee, according to two people, as has Twitter and its chief Jack Dorsey, one of the people said. Committee leaders are scrutinizing the platforms’ handling of coronavirus misinformation and violent content in the wake of the Capitol riot.

The exact focus of the hearing is not yet clear. House E&C Chair Frank Pallone (D-N.J.) last month announced plans to investigate what role the platforms’ played in the storming of the Capitol by former President Donald Trump’s supporters. The committee, which has broad jurisdiction over a range of technology and health issues, has separately scrutinized social media companies’ efforts to combat Covid-19 misinformation, particularly anti-vaccine content…

The line-up for the hearing may also be in flux. The panel and companies have discussed having Twitter legal chief Vijaya Gadde and YouTube CEO Susan Wojcicki testify alongside Zuckerberg, with Gadde potentially appearing in Dorsey’s stead, according to a third person familiar with the talks.

Online Speech Platforms

Protocol: Facebook’s transparency report shows what Facebook wants you to see

By Issie Lapowsky

On a call with reporters Thursday, Facebook’s vice president of integrity, Guy Rosen, said that Facebook wants to “lead the industry in transparency.” The call accompanied the release of Facebook’s fourth-quarter content moderation report, which shares in granular detail the amount of content Facebook removed for various violations of its policies and why.

But what’s become increasingly clear over the years that Facebook has published these reports is just how much the company leaves out. Also clear: Facebook hopes these reports will serve as a model for regulators to impose on the tech industry writ large.

Tech giants and the people who study them have begun to recognize that there’s more to content moderation than the decisions tech companies make around taking posts down or leaving them up. Equally if not more important is the way companies’ algorithms amplify content that violates their policies by recommending it to users or pushing it to the top of users’ feeds. 

Candidates and Campaigns

The Critic: Fundragers splash the cash

By Oliver Wiseman

What’s striking about campaign finance in 2020 isn’t just the size of the sums involved, but also how little they appear to get you in return. Michael Bloomberg was in the race for the Democratic nomination for only 100 days but nonetheless managed to burn through $1 billion. In return, the businessman and former New York mayor received just 59 delegates (Biden received 2,687) and won in just one territory, American Samoa (where 351 people voted). Later in the year, Bloomberg’s losing streak continued: he poured $100 million into Biden’s unsuccessful effort to turn Florida blue. Tom Steyer, another billionaire, also self-funded a bid for the Democratic nomination. His $350 million bought him airtime in important states – and zero delegates. 

It wasn’t just plutocrats on an ego trip. Many of those big ticket senate races ended in defeat for the better-funded candidate…

Away from these high-profile flops, things are less clear-cut. Across the Senate races as a whole, the better-funded candidate won 72 per cent of the time. But that figure isn’t as impressive as it sounds. In uncompetitive races out of the national spotlight, the heavily-favoured incumbent will generally outspend a long-shot challenger. In fact, whether a candidate raised more money than their opponent hasn’t been so weakly correlated to that candidate’s chance of winning for 20 years. 

Insider: Democrats are quietly cutting ties with megadonor Martin Elling, a fallen McKinsey & Company star embroiled in an opioid drug consulting scandal

By Dave Levinthal

Elling is the latest example of top-tier political bankrollers who suddenly became liabilities to the recipients of their patronage…

Democratic political committees that have received money from Elling have several options for the cash: issue a refund, donate it to charity, or forfeit it to the US Treasury’s general fund.

They can also do nothing and hope their political rivals don’t use Elling’s misfortunes as a bludgeon – negative advertisements, scathing press releases – against them…

A pair of nonpartisan political watchdogs advised recent recipients of Elling’s cash to divest of it immediately.

“Every candidate, party and committee should remove themselves from Elling’s influence-peddling scheme by giving Elling’s campaign contributions to those trying to heal the opioid crisis damage,” said Craig Holman, a government affairs lobbyist for Public Citizen. 

“They should be tripping over themselves to get rid of this money,” said Beth Rotman, national director of money in politics and ethics at Common Cause. She advocated for Congress passing laws that would reduce the political influence of big-dollar donors in general.

The States

Argus Leader: Gov. Noem defends ‘dark money’ push as privacy protection

By Stephen Groves

South Dakota Gov. Kristi Noem on Thursday defended her push to shield donor information of nonprofit organizations that influence public policy, including one group that was connected to her campaign.

The Republican governor said the bill was intended to protect the privacy rights of donors who wish to anonymously contribute to charities. Although she insisted it “does absolutely nothing on campaign finance,” critics said it would further the use of “dark money” – contributions raised to influence policy and elections without clearly disclosing the individual donors…

The bill from Noem, seen as a potential presidential hopeful in 2024, has sailed through the Republican-dominated Legislature so far. It would bar state officials from requiring nonprofit groups – including those that work to influence policy – to disclose information on donors. A second bill making its way through the Legislature would further protect donor privacy, allowing them to sue if their information were made public…

Supporters of Noem’s proposal have portrayed the legislation as a way to protect freedom of speech. They wanted to avoid what happened in California, where donors to conservative nonprofit groups Americans for Prosperity Foundation and Thomas More Law Center had their names revealed after the state attorney general’s office required them to file the information. A legal battle that resulted after the organizations refused to disclose their donors is slated to be decided by the U.S. Supreme Court.

KELO: Privacy bills open the door for more ‘dark money’ in state political campaigns

By Angela Kennecke

[W]atchdog groups say two privacy bills before the South Dakota state legislature will make it even easier for dark money to flow into state political campaigns.

KELOLAND Investigates has been looking into the issue of dark money, and the ties to an organization that would benefit from these proposed laws, to Governor Kristi Noem’s campaign.

Governor Kristi Noem backed House Bill 1079, which guards the privacy of non-profit organizations and charitable trusts.

It’s already passed the House. Today a companion Senate Bill, 103, passed through committee. It would keep donors to such organizations secret…

Proponents of the current state bills say they are needed to protect donors from harassment for giving to the causes they believe in. Others are worried it will open a floodgate of secret money to campaigns.

Sludge: Seattle’s Unique Campaign Finance System Is Boosting Donor Diversity

By Brian J. McCabe and Jen Heerwig

But while money in local elections has historically been raised from a small number of wealthy donors, the Democracy Voucher Program is changing the rules of the game. By giving every Seattle resident money to spend on the candidate(s) of their choice, proponents of the Democracy Voucher Program hope to increase the number of contributors, create a more representative pool of donors, and transform the way citywide elections are funded.

For the last couple years, we have been studying Seattle’s progressive experiment in local democracy.

After just two election cycles, our research shows that the Democracy Voucher Program is changing the way local campaigns are run-not just in Seattle, but across the country.

In a recent report from the McCourt School of Public Policy at Georgetown University, we identify the impact of the Democracy Voucher Program on elections in Seattle. After just two election cycles, more Seattle residents are participating in the campaign finance system and the donor pool has become increasingly diverse. 

Tiffany Donnelly

Tiffany Donnelly


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