Daily Media Links 2/16: Citizens United loses free speech appeal over New York donor rules, Facebook, Google Could Face New Rules on Political Ads, and more…

February 16, 2018   •  By Alex Baiocco   •  
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In the News

Concord Monitor: “Fix It America” constitutional amendment is latest attempt to undo First Amendment

By Joe Albanese

Will the Twenty-Eighth Amendment be a repeal of the First? One proposed amendment might amount to that. It calls for sweeping regulations on the ability to practice free speech in politics, and even says its provisions can’t “be deemed in violation of freedom of speech rights.”

That should set off alarm bells in your head. It raises the question of why such a caveat is necessary in the first place. That exact phrase comes from the so-called “Fix It America” amendment (H.B. 1524), which was recently discussed in the New Hampshire House of Representatives, and written about in the Monitor by John Pudner of Take Back Our Republic.

The “regulations” referred to in that amendment come from a prior clause: “Congress and State Legislatures shall regulate the role of money in elections and governance…” This clause requires regulation of the spending of money on campaigns and policy advocacy (since it says the government “shall” regulate, not that it “may” regulate), which necessitates the restricting of your free speech. The reason is simple: in the modern era, you need to spend some money to spread your message to a large number of people – whether it’s placing ads or simply printing out fliers. Or for that matter, publishing a newspaper like this one.

Free Speech

Wall Street Journal: Brown Stares Down the Censors

By Editorial Board

Perhaps the most important difference was the university’s clearly outlined and enforced free-speech policy, which says “the University must be a place where ideas are exchanged freely.” The guidelines say “individuals cannot decide for the entire community which ideas will or will not receive free expression,” so “halting a lecture, debate, or any public forum is an unacceptable form of protest.” Students who ignore this face a range of penalties, including expulsion.

The university also acted to protect the rights of the student hosts and speaker. Police were on hand. The host College Republicans expected nonstudents in the audience, and the university checked bags for weapons. Mr. Benson said the university briefed him about risks, even mapping an escape route if the night turned violent. Such precautions can be costly but are often crucial in today’s campus climate. The student-run Undergraduate Finance Board paid for the security expenses.

Brown’s practices yielded impressive results. The audience was diverse-even ideologically. A handful of students staged a walkout, but their protest was peaceful and non-disruptive. Many students who disagreed with Mr. Benson stuck around to challenge his arguments during a Q&A. That group included some of the pro-censorship statement’s signatories, said College Republicans president Ethan Shire. 

The Courts

Reuters: Citizens United loses free speech appeal over New York donor rules

By Jonathan Stempel

A federal appeals court on Thursday threw out a constitutional challenge by the conservative group Citizens United to New York state’s requirement that registered charities disclose their donors annually.

The 2nd U.S. Circuit Court of Appeals in Manhattan rejected claims that the requirement violated the First Amendment because it intimidated donors from contributing, cutting off money needed to conduct free speech, and was a prior restraint on the ability to solicit donations.

Writing for a 3-0 panel, Circuit Judge Rosemary Pooler said New York has important interests in stopping fraud and abuse by charities, and requiring them to disclose names, addresses and contributions of their largest donors makes enforcement easier.

“While we think it plausible that some donors will find it intolerable for law enforcement officials to know where they have made donations, we see no reason to believe that this risk of speech chilling is more than that which comes with any disclosure regulation,” Pooler wrote

“We are extremely disappointed by today’s adverse ruling,” general counsel Michael Boos said in a statement. He said the group may ask the entire appeals court to rehear the case, or appeal to the Supreme Court.

Courthouse News: Citizens United Can’t Hide Donor Lists From NY

By Nick Rummell

Writing for a three-person panel in Manhattan, U.S. Circuit Judge Rosemary Pooler disagreed that New York could chill speech by merely requiring disclosure of donor lists from tax-exempt charities.

“A list of names in the hands of those with access to a state’s coercive resources conjures up an uneasy number of troubling precedents,” the 37-page opinion states. “But totalitarian tendencies do not lurk behind every instance of a state’s collection of information about those within its jurisdiction. Any form of disclosure-based regulation – indeed, any regulation at all – comes with some risk of abuse. This background risk does not alone present constitutional problems. And requiring disclosure is not itself an evil: anonymity can protect both those whose unpopular beliefs might subject them to retaliation and those who seek to avoid detection (and consequences) for deceptive or harmful activities that governments have legitimate interests in preventing. It follows that only where a plaintiff organization presents well pleaded facts of a ‘likelihood of a substantial restraint upon the exercise by [its] members of their right to freedom of association’ or expression should we raise the First Amendment’s shield of privacy.”


Bloomberg: Facebook, Google Could Face New Rules on Political Ads

By Bill Allison

Facebook Inc., Alphabet Inc.’s Google and other online platforms would face stricter rules for political advertising according to a proposed framework that will be considered by the Federal Election Commission.

The proposal, written by Ellen Weintraub, a Democrat and vice chair of the commission, would require online advertisements to carry the same disclaimers from their sponsors as do radio, television and print ads. The commission will consider the framework, known as a notice of proposed rule making, at its next public hearing on March 8…

Though the FEC proposal, which was shared by Weintraub, would apply to campaigns, political parties and other organizations that try to influence federal elections, tech companies could also be affected. They might have to adapt their platforms to accommodate the kind of disclaimers the FEC envisions.

Politico: American Bridge boosts pressure on FEC to investigate Stormy Daniels payment

By Maggie Severns

[A]fter Cohen acknowledged to The New York Times this week that he made the payment, American Bridge President Bradley Beychok argued in a new filing Thursday that the FEC now has more cause to investigate whether Cohen violated strict limits on contributions to presidential campaigns.

“Unless funded by Mr. Trump directly, [the payment] was a clear illegal in-kind contribution,” American Bridge wrote in the supplemental complaint filed Thursday.

“Cohen’s payment looks like an illegal contribution, and we believe the President should be held accountable,” said David Brock, founder of American Bridge…

“You would have to have all four commissioners unanimously agree to start an investigation that could result in a subpoena of the president of the United States – I don’t think that’s likely,” said campaign finance attorney Brett Kappel, who is a partner at Ackerman LLP.

The complaint filed Thursday also argues that, if Trump gave Cohen the go-ahead to make his public statement this week, “Mr. Trump waived attorney-client privilege on this subject matter for all future investigations.”


Roll Call: K Street Reinvents Itself in the Era of Trump

By Kate Ackley

“The whole last year has really changed a lot about the way you think about positioning your clients and their issues,” Melvin said. “It’s not just the change in administration, but it is the activism that is now out there.”

What’s more, she adds, “You have to look at who’s going to come out in the grass roots that have never been out there before.”

To that end, lobbyists increasingly are adapting their methods to harness the power of social media campaigns amid the president’s atypical style of governing, which often includes policy proclamations via tweet. Trump’s administration has intensified changes to the lobbying industry that were underway well before he launched his run for office…

The future of advocacy, while not necessarily bleak, is filled with angst and unpredictability.

Put bluntly, lobbying has become increasingly difficult since Trump took office, said Doug Pinkham, who runs the Public Affairs Council.

“Even before last year, political parties were splintering into factions and the fringes of the Republican and Democratic parties were becoming more anti-business,” he said. “Now we have an action-oriented White House that doesn’t understand political strategy. That’s a dangerous combination.”

The States

Casper Star Tribune: Provision that alarmed group taken out of Wyoming campaign finance reform package

By Arno Rosenfeld

A package of election law reforms meant to strengthen campaign finance reporting requirements took a significant step forward Tuesday as a House committee amended the bill to add clarity and sent it back to the full chamber…

[A]t a committee meeting in Sundance last November, members voted to accept an amendment from the Wyoming Liberty Group that some worried effectively opened the floodgates for anonymous spending by third-party groups. The organization argued that it was unconstitutional and onerous to require organizations whose main goal is not political advocacy, such as a nonprofit or think tank, to report relatively minor political spending

Rep. Dan Zwonitzer, R-Cheyenne, said following the Sundance meeting that many lawmakers on the committee may not have realized what they were voting for and that he would seek to reinstate the requirement that all groups engaged in political advocacy report such spending.

That’s what happened on Tuesday in Cheyenne when the House corporations committee voted unanimously to strike the more lenient language requested by the Liberty Group…

The bill is expected to be voted on by the full House Friday.

Austin Monitor: Austinites may soon be able to directly support candidates through voucher donations

By Jessi Devenyns

City Council charged the Charter Review Commission with determining the most equitable and effective public financing option to empower more voters to vote with their wallets as well as their voices. After a meeting with leading municipal campaign reformation expert Paul Ryan and an impassioned discussion, vouchers won.

In an effort to offer lower-income Austinites more agency in the political process, commissioners voted on Feb. 12 to move forward with the proposed voter public voucher program and ask the Campaign Finance Committee to present a detailed financial and logistical description of what the implementation of this project would look like. The commissioners requested that the report be available by their Feb. 26 meeting.

“We believe that this is the time for Austin to join Seattle,” said Frances McIntyre of the League of Women Voters. “The proof is in the pudding and Seattle has proved that it’s yummy and it works.”

The proposed voucher system is a public financing system that provides a “coupon” to individuals to donate to a candidate who can then redeem the voucher for campaign funds. 

Appleton Post Crescent: ‘No issue’ to run newspaper while running for office, Kaukauna mayoral candidate says

By Madeleine Behr

Mayoral candidate Brian Roebke says he doesn’t see any issues with running for political office while serving as the editor of Kaukauna’s official newspaper, the Times-Villager.

“I’m just doing my job,” Roebke told USA TODAY NETWORK-Wisconsin. “I don’t write editorials about city government, I’m not putting opinion pieces in, we do not allow letters to the editor that are political in nature.

“I’m fair, I’m balanced, I report what’s happening. Our paper doesn’t do investigative reporting. I don’t see an issue.” …

According to the Society of Professional Journalists’ advisory ethics code, journalists should “avoid conflicts of interest, real or perceived” and “avoid political and other outside activities that may compromise integrity or impartiality, or may damage credibility.”

“The simplest answer is ‘No,'” the SPJ ethics website says about journalists engaging in political activity. “Don’t do it. Don’t get involved. Don’t contribute money, don’t work in a campaign, don’t lobby, and especially, don’t run for office yourself.”

Alex Baiocco


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