Daily Media Links 2/7

February 7, 2020   •  By Tiffany Donnelly   •  
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In the News

National Review: The IRS Should Go Ahead with Privacy Reform

By Luke Wachob

The IRS wants to end its requirement that some nonprofits report the names and addresses of their donors on tax forms. The new rule would require only charities whose donors receive a tax deduction, and electioneering groups, to provide this information.

The proposal has received a flood of positive comments this winter from individuals and nonprofits alike, and supporting comments outweighed critical ones nearly two to one, despite an organized effort to heap negativity at the proposal during the final days of the comment period…

Americans are less likely to support social causes when the government is looking over their shoulder. Indeed, the Supreme Court long has recognized that compelled disclosure “chills” freedom of speech and association. This is true even when the government promises to keep personal information confidential…

When donor identities are publicly revealed, intentionally or otherwise, it can lead to harassment and intimidation of supporters of unpopular causes…

Some critics of the reform evidently are confused about the law. A group of 16 Democratic senators wrote that “Americans have a right to know who is paying to influence our democracy.” Yet the donor information collected by the IRS was never allowed to be public. It isn’t even shared with the Federal Election Commission or any other federal agency.

Do these senators want IRS bureaucrats to violate federal law and release confidential donor records? If not, what are they talking about?

Conservative HQ: Trump Administration Moves To Protect Donor Privacy

By CHQ Staff

Our friends at the Institute for Free Speech will be before the IRS this morning fighting for donor privacy and to help ensure that venal Democrats, such as former California Attorney General Kamal Harris, cannot weaponize nonprofit donor disclosures against political opponents.

IFS Attorney Ryan Morrison will testify before the IRS this morning concerning proposed rulemaking to protect the personal information of nonprofit donors…

The hearing will take place on Friday, February 7 at 10 AM in the IRS Auditorium.

Roll Call: House Judiciary Democrats eye campaign finance measures

By Kate Ackley

House members and political money experts debated comprehensive new campaign finance overhaul measures on Thursday…

Even as the FEC remains partially dysfunctional, Democratic lawmakers made their case for a much more difficult measure: a constitutional amendment that would essentially undo the 2010 Citizens United v. FEC decision…

Although Democrats argue that super PACs and other outside groups have muffled the voices of ordinary citizens in elections, Republicans argued that liberals overstate the influence of the Citizens United decision.

Bradley Smith, a former FEC commissioner, said corporate spending in elections amounts to typically less than 5 percent, with most political money still coming from individual donors.

“That’s hardly drowning anybody out,” he said.

Smith acknowledged that many groups do not disclose who their donors are, but he said many are known to the public, such as the U.S. Chamber of Commerce and the National Association of Realtors.

Fulcrum: Amendment to nullify Citizens United finally gets air time in the House

By Sara Swann

It’s been a decade since the Supreme Court’s Citizens United ruling, paving the way for an ocean of unregulated and secretive campaign spending. Proponents of tighter restrictions had their first chance on Thursday to tell the House why amending the Constitution is the best way to reverse the multibillion-dollar trend…

During the hearing, Democrats mostly asked questions about post-Citizens United political spending and what provisions could correct the campaign finance system. Unsurprisingly, the GOP members took a different approach and focused more on the ruling’s positive impacts on free speech.

Witnesses included Federal Election Commission member Ellen Weintraub, Rob Weissman of Public Citizen, Bradley Smith of the Institute for Free Speech and Ciara Torres-Spelliscy of Stetson University.

The Courts

Techdirt: Federal Court Ignores Journalist Privilege For Reporting On Court Documents; Allows Bullshit Defamation Suit To Proceed

By Tim Cushing

An unbelievably bad decision has been handed down by a federal court in Texas that blows past everything we know (and have long known) about the First Amendment to allow a very questionable defamation lawsuit to proceed…

Conspiracy theorist/Fox News commentator Ed Butowsky — represented by Devin Nunes’ lawyer Steven Biss — claimed he was defamed by an NPR article discussing a lawsuit filed by former Fox commentator Rod Wheeler, which alleged the broadcaster and Butowsky worked together to whip up some alternative facts about the death of Democratic Party staffer Seth Rich…

The NPR article mentions (several times!) that everything it’s reporting on was drawn from Wheeler’s lawsuit. It made no difference to Butowsky and Biss, who proceeded to sue the public broadcaster for defamation. It should have made a difference to the federal judge. But it didn’t.

Despite years of precedent affirming journalists’ right to report on allegations made in lawsuits — whose underlying documents can (for the most part) be viewed by anyone — the Texas court decided decades of precedent mean nothing…

Judge Mazzant has created a chilling effect by suggesting news outlets should wait until lawsuits are completely resolved before reporting on them.

DOJ

Politico: Wray talks 2020 interference, encryption

By Tim Starks

FBI Director Christopher Wray said Wednesday [before the House Judiciary Committee]… that tackling disinformation is, in many ways, harder than battling hackers. “Unlike a cyberattack on an election infrastructure, that kind of effort – disinformation, in a world where we have a First Amendment and believe strongly in freedom of expression – the FBI is not going to be in the business of being the truth police and monitoring disinformation online,” he said.

Wray demurred when asked if the FBI has seen Moscow amplifying content – positively or negatively – of certain campaigns in the 2020 election. “I’d have to think about whether or not I can say anything in an open setting on that,” he said, before adding Russian efforts to “sow divisiveness and discord on both sides of an issue and to generate controversy and to generate distrust in our democratic and our electoral process – that’s very much ongoing.”

Citizens United

The Nation: Time to Reverse Citizens United and Corporate Constitutional Rights

By Rep. Pramila Jayapal

It is important to note that Citizens United was not the first time political money in elections has been equated with “free speech” and corporations have been equated with people with constitutionally protected rights. The claim that corporate entities are legal persons with constitutional “rights” has been around for over a century.

Political money as free speech originated in the 1976 Buckley v. Valeo decision, while corporate political free speech rights began with the 1978 First National Bank v. Bellotti ruling.

But corporate constitutional rights extend beyond First Amendment free speech rights. Corporate constitutional rights began in the 1880s when Supreme Court Justices hijacked the Bill of Rights and the 14th Amendment-intended to guarantee equal protections for black Americans-claiming the rights of people also applied to corporate entities. Courts also interpreted sections of the original Constitution to protect corporate “rights” over those of people and communities, even though corporate entities are not mentioned anywhere in our Constitution.

Free Expression

The Dispatch: A Year of Discontent on Campus

By Christian Schneider

In some ways, Bias Response Teams are more stifling than the pernicious campus speech codes of the 1980s-they turn classrooms, dorms, and student unions into surveillance states, where thoughts expressed in private conversations can make their way into the hands of a university diversity administrator. The university is effectively imposing a nebulous speech code, then crowdsourcing its enforcement. In fact, at the UW-Madison, the campus Bias Response Advisory Board includes two members of the UW Police Department -making the board a literal “speech police.” …

At some universities, professors who are on the receiving end of these complaints are never notified there has been a report filed against them. Sometimes when a complaint is lodged, a public record is created of their transgression, which can lead to a letter being added to their file… Often, there is no appeal process, with the professors unable to tell their side of the story… 

[I]n many cases, bias teams investigate alleged “hate” speech. A controversial statement at dinner with a fellow student can earn an undergraduate a visit from a diversity counselor. Students have been called to testify in front of panels or have been forced to attend diversity workshops for things they’ve said on campus. Complaints are recorded in public files that can be permanent.

All of this has the effect of chilling speech on campus, as students who are anti-abortion, support traditional marriage, or argue in favor of stricter immigration policy can find themselves reported to the administration for making campus “unsafe.” 

Media 

RealClearPolitics: WashPost Tries to Stop Fake News, Becomes Part of the Problem

By Mark Hemingway

On Monday evening, just as the Iowa caucuses were heating up, the Washington Post published a story with this unambiguous headline: “Conservatives spread false claims on Twitter about electoral fraud as Iowans prepare to caucus.” The story was damning in tone and unequivocal in its assertions…

While concern about “fake news” influencing elections is a legitimate concern, in its rush to debunk a false claim going viral, the Post itself may be spreading fake news. Even more worrisome, the Post’s bad reporting was used to scrub information from social media.

What happened was this: On Monday, the conservative group Judicial Watch put out a press release  headlined,”Eight Iowa Counties Have Total Registration Rates Larger than Eligible Voter Population – at Least 18,658 Extra Names on Iowa Voting Rolls.” …

[T]he Post’s reporting betrays an obvious political slant…

It simply hasn’t been definitively established that the claim is misleading. And since when is it sinister for activists to draw attention to evidence that supports their side of a political argument? …

Additionally, the Post mischaracterized Judicial Watch’s claims…

The effects of the Post’s reporting were not negligible. As a result of its story, Judicial Watch’s posts on Facebook and Instagram were taken down, raising questions about the power of the media and partisan officials to stop certain stories from being circulated – regardless of whether they are accurate or fair — in their attempts to police facts.

[Fitton] said, “It’s a terrible example of the government pressuring private so-called independent media to suppress something a government official doesn’t like.”

Online Speech Platforms 

Vox (Recode): Twitter is finally fighting back against deepfakes and other deceptive media

By Shirin Ghaffary

On Tuesday, Twitter announced changes to its policy around posts that are deceptively manipulated – including “deepfakes,” or AI-altered videos that distort reality – ahead of the 2020 elections.

In a blog post, Twitter announced changes to the company’s synthetic and manipulated media policy, which it defines as any photo, audio, or video that’s been “significantly altered or fabricated” to mislead people or change the original meaning of the content. Under the new rules, Twitter will remove this kind of media if the company finds it likely to cause serious harm – such as content that threatens people’s physical safety or could cause “widespread civil unrest.” If Twitter doesn’t think manipulated media posts are likely to cause harm, it may still label the tweets as containing manipulated media, warn users who try to share them, and deprioritize the content in users’ feeds…

[P]olitical deepfakes have become a concern for US lawmakers and other government officials, who warn that they could be used by malicious actors to undermine US democracy and influence elections. Twitter and other companies’ increasingly tougher rules on the topic are in part a response to these fears.

The Post Millenial: MEME POLICE: Twitter announces crackdown on memes

By Ian Miles Cheong

As images and videos depicting President Trump and his political rivals in Congress come under increasing scrutiny by the likes of BuzzFeed and CNN, Twitter has announced its latest effort: cracking down on “manipulated photos or videos that can cause people harm.” In other words, the platform will be tackling political memes it determines to be harmful.

Do memes poking fun at Joe Biden’s bleeding eyes, his confused demeanour, and concerning predilection towards non-consensual touching constitute as harm-particularly if they only affect his reputation as a serious Democratic candidate for President? Perhaps so. To limit this so-called “harm,” Twitter revealed today that it is introducing a new rule and a label to address and “give people more context” around tweets the platform determines requires a closer look. According to Twitter, which released a video on the matter, altered videos will be labelled as “manipulated media.” Users are encouraged to tap the label, which will be present beneath an edited video or image, “to view info from reputable sources.” One can assume that Fox News, the Daily Caller and other conservative and independent outlets will not be given the privilege of being “reputable,” which is code for the progressive media…

It brings to mind CNN’s investigation into a meme produced by a Reddit user that depicted CNN as Vince McMahon being beaten down by President Trump in a wrestling match. The video, which was shared by the President himself, prompted the cable news organization to dig into the user’s private identity-and even threatened to expose him unless he apologized for producing the meme…

For no other discernible reason than to silence him, the news organization doxed the meme maker for his efforts-to no avail. 

Candidates and Campaigns

Politico: Buttigieg camp invites more super PAC help

By Elena Schneider

A senior adviser for Pete Buttigieg’s campaign tweeted what appeared to be a signal for help to super PAC supporters on Wednesday, a notable injection of big-money politicking into a Democratic presidential race that has been defined in large part by opposition to super PACs and their influence…

“Pete’s military experience and closing message from Iowa work everywhere especially in Nevada where it’s critical they see this on the air through the caucus,” [Buttigieg senior adviser Micheal] Halle tweeted Wednesday afternoon.

Campaign finance law prohibits direct communication about spending between a campaign and supportive super PACs, but campaigns and political committees now try to send signals about spending through different channels. And the specific language that Halle used (“it’s critical they see this on the air”) has become more commonplace among political strategists seeking to stretch the limits on coordination without breaking the law…

“Was this meant to be a [direct message] or did you mean to tweet out this instruction to your super PAC?” tweeted Roger Lau, [Elizabeth] Warren’s campaign manager, quoting Halle’s own post. “Fun fact about how some campaigns exploit our broken campaign finance laws: if it was a DM it would be illegal.” 

ABC News: Warren campaign official accuses Buttigieg campaign of skirting finance laws by tweeting ad strategy

By Cheyenne Haslett, Soo Rin Kim, and Justin Gomez

Wednesday afternoon, Roger Lau, the campaign manager for [Sen.] Warren, called out Buttigieg adviser Michael Halle for a tweet that seemed aimed at pro-veteran super PAC VoteVets, which endorsed Buttigieg in December…

Paul Ryan, vice president of policy and litigation at Washington-based watchdog group Common Cause, said if Halle’s tweet was instead a private message to an outside group, and the outside group made an ad buy based on the information in the private message, then the Buttigieg campaign and the outside spender’s activities would “arguably meet” the [FEC] “material involvement” standard… 

Because Halle had tweeted the message publicly instead of sending it as a private message to a super PAC, it’s not necessarily covered by the FEC rules…

But even if the information is from a publicly available source, super PAC ads that run “at the request or suggestion” of a campaign still could be considered coordinated expenditures, said Adav Noti, Campaign Legal Center’s senior director and former associate general counsel at the FEC.

“And the fact that it’s on Twitter suggests it’s a calculated attempt to take advantage of the ‘publicly available’ exception — which savvy operatives know about and exploit – while failing to realize it doesn’t apply to this particular type of coordination,” Noti said.

Campaign Legal Center’s federal reform director Brendan Fischer agrees. And because the FEC has not enforced its coordination rules after super PACs came into U.S. elections, the lines are not really clear.

“Buttigieg’s campaign is pushing the envelope by making such an obvious and detailed request,” Fischer said. “At a minimum, this thinly-veiled message suggests that the Buttigieg campaign is inviting the support of big money outside groups like super PACs.”

Washington Examiner: Psst, Democrats – your authoritarianism is showing

By Editorial Board

[Sen. Elizabeth] Warren wants the government (at her discretion of course – she doesn’t stop to consider what, say, President Trump would do with this power) to become the final arbiter of truth in political speech. Her plan would “create civil and criminal penalties for knowingly disseminating false information about when and how to vote in U.S. elections.”

On its face, this seems straightforward enough – the old joke about how the other party has to wait to vote until Wednesday would now become a criminal offense. (It’s not like you can just Google the election day.) And as Timothy P. Carney has pointed out, an ambitious executive or judge could construe Warren’s wording as barring certain legitimate political speech. Imagine an online advertisement or even a post by an individual encouraging people not to vote because neither candidate has their interests at heart. This is something many people of goodwill did in 2016. Were they criminals who belong in jail?

Warren has already repeatedly demonstrated a complete disregard for the First Amendment with various other unconstitutional proposals, such as a tax on lobbying and the weakening of the First Amendment in the name of overturning Citizens United. 

The States

Pittsburgh Post-Gazette: Champion of Pa. lobbying disclosure law was fined $19,900 for breaking it

By Daniel Simmons-Ritchie

The Pennsylvania chapter of a national advocacy group known for its long-running campaign to improve lobbying transparency and government accountability has been fined for failing to disclose its lobbying expenses.

The state Ethics Commission imposed a $19,900 fine on Common Cause Pennsylvania in January after the group filed a quarterly lobbying report 112 days past the deadline. The group has also been late in filing four other reports since the beginning of 2018, state officials said.

Lobbying reports are one of the only ways the public can see how advocacy groups, special interests, and big businesses are attempting to influence lawmakers. In Pennsylvania, groups are required to disclose the names of any lobbyists they employ, the subject matter they lobbied on, and the total amount of money they spent on it.

Though Common Cause Pennsylvania reports spending only a few thousand dollars each year on lobbying, the Ethics Commission nonetheless expressed its disappointment about the group’s failures, especially since it had helped champion the current law.

“It’s such a shame,” Chairman Nicholas Colafella said after the Jan. 23 vote to impose the fine.

Los Angeles Times: Californians who register to vote would be required to cast ballots under new bill

By John Myers

[A] California lawmaker is pushing to require voters to cast a ballot in future elections.

The proposal, introduced in the state Assembly on Tuesday, would be unprecedented and probably challenged in court should it ultimately become law. It would place the burden for determining the civil penalty and the ultimate punishment on the secretary of state, California’s chief elections officer.

“Democracy is not a spectator sport – it requires the active participation of all its citizens,” the bill’s author, Assemblyman Marc Levine (D-San Rafael), said…

The most recent statewide report tallied more than 20.3 million voters and almost 2 million more citizens who are eligible but are not registered…

Assembly Bill 2070 would require every Californian who registers to vote to “cast a ballot, marked or unmarked in whole or in part, at every election held within the territory within which the person resides.” AB 2070 has yet to be referred to a policy committee and is unlikely to be considered until the spring…

Various academic studies through the years have sought to determine whether one political party would benefit more than others should voting be mandatory. Supporters of such efforts have argued it could inspire elected officials to better represent the interests of a broader spectrum of citizens. Opponents, on the other hand, have said that mandatory voting could be in conflict with the right to free speech guaranteed under the U.S. Constitution.

National Review: Defending Free Speech on Campus Means Defending Student Journalists, Too

By Casey Mattox

The debate about how free the student press should be is an extension of the broader campus free-speech debate with the same First Amendment rights and competing demands for institutional censorship…

Bills being considered by lawmakers in Richmond and Lincoln, based on a model from the Student Press Law Center, would limit administrative censorship of student media in public secondary schools, and colleges. The Nebraska bill cleared its first legislative hurdle by an overwhelming 27-5 vote, indicating there’s more agreement on campus speech than you may think. This continues a trend from just last year when bipartisan coalitions of state lawmakers passed positive campus expression policies in more states than ever before.

The goal of the Virginia and Nebraska measures is to guarantee that student journalists enjoy the full protection of the First Amendment – which should help to ensure that all students on those campuses graduate with awareness of what it means to be part of a free and independent press.

Tiffany Donnelly

Tiffany Donnelly