Daily Media Links 3/23

March 23, 2020   •  By Tiffany Donnelly   •  
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In the News

Wall Street Journal (LTE): Charlottesville’s Violence a Failure of Its Government

By David Keating

Former Charlottesville, Va., Mayor Michael Signer’s essay “How Free Speech Dogma Failed Us in Charlottesville” (Review, March 14) pins the blame in the wrong place. The violence wasn’t a failure of the First Amendment; it was a failure of government.

An independent report on the 2017 protests, which ended in tragedy, used the word “failure” many times. Each instance cited a way government bungled how it handled its planning or response. Some of the sharpest criticisms in the report aimed at the city council, which interfered in key operational decisions. It tried to move the rally, despite correct warnings a move “was likely to be struck down by courts.” Planning by police “was inadequate and disconnected.” One thing the report didn’t blame was the First Amendment.

Most local governments prevent violence at protests and protect free speech. As the report concluded, “in addressing large political protests City officials . . . must both protect public safety and facilitate free expression.”

Politico: As Campaigns Move Online, America’s Chief Watchdog Isn’t Following

By Nancy Scola

The last time the [Federal Election Commission]  updated its rules to address online advertising was in 2006, before Facebook had opened to the general public. More recently it has been paralyzed by an internal argument about whether its mandate should, or shouldn’t, extend further into online campaigning…

Critics increasingly worry about a political world far outpacing its legal watchdog – a problem only growing more acute as a huge slice of American politics quickly shifts digital…

Not everyone agrees that the FEC should be taking on a major overhaul of its approach to the Internet. Bradley Smith, a former Republican chairman of the FEC, serving on the commission from 2000 to 2005, says the calls to apply campaign-finance rules to the Internet often start from a place of “hysteria.” He points to the so-called microtargeting of online ads, a practice that [FEC Commissioner Ellen] Weintraub has argued highlights how dangerous the medium can be.

There’s always been microtargeting, says Smith. “If you wanted to reach a certain type of Republican voter, you could advertise in ‘WaterSki Magazine,'” he says, adding, “If you see somebody waterskiing, you can almost bet your house that person is a Republican.” And so, argues Smith, while it might make sense for the FEC to offer some clarity about how its old rules apply online, it shouldn’t invent a new field of rules for the Internet.

The Courts

Reason (Volokh Conspiracy): Short Circuit: A Roundup of Recent Federal Court Decisions

By John Ross

Citizens United v. FEC held that corporations could spend unlimited amounts on independent political ads. SpeechNow.org v. FEC (an IJ case) held that groups that make only independent political expenditures may accept unlimited contributions. Combine the two and you get super PACs. Allegation: Super PACs are breaking disclosure laws by accepting contributions from closely held corporations; the real donors are the corporations’ owners. D.C. Circuit: Maybe, but it was reasonable for the FEC to decline to pursue the matter given how confusing the law is.

Courthouse News: Political T-Shirt

A student who claims he was required to wear a T-shirt with a state representative’s name on it while on a field trip to the Tennessee State Capitol in violation of his constitutional right not to engage in political speech may pursue his claims against the Wayne County School System, his high school principal and the representative, a federal court in the state ruled.

FEC

STATEMENT OF CHAIR CAROLINE C. HUNTER

Boiled down to its essence, the complaint in this matter claimed that Russian sleeper agents used the National Rifle Association (“NRA”) to help Donald Trump win the 2016 presidential election. Such an explosive claim should only have been made – let alone filed with the federal government – if there were credible evidence to back it up. That is not what happened here. Instead, the complaint capitalized on fears of foreign influence in U.S. elections to conjure inferences of illegal conduct, and relied on statements from anonymous sources in a single article written by reporters whose dependability in this area is in doubt. I agreed with the recommendation of the Commission’s Office of General Counsel (“OGC”) to dismiss the complaint. But my colleague, Commissioner Weintraub, strongly disagreed; she has argued that the only acceptable Commission response would have been to launch an immediate investigation. Given the law’s protections against partisan prosecutions, her approach is not just wrong, it is dangerous. This statement explains why.

STATEMENT OF CHAIR CAROLINE C. HUNTER ON CREW’S MOTION FOR ENTRY OF DEFAULT JUDGEMENT IN CREW V. FEC

I regret to have to issue this statement when our most pressing concern is, and rightfully should be, the health and safety of all Americans. The appalling conduct of a group calling itself Citizens for Responsibility and Ethics in Washington (“CREW”), however, leaves me little choice. Earlier this week, while the government wrestled with vital issues presented by the coronavirus crisis and in the absence of a quorum at the Federal Election Commission, CREW filed a motion in federal court asking for default judgement to be entered against the Commission in CREW v. FEC, Civil Action No. 19-2753. CREW’s lawsuit claims the Commission failed to act in a timely manner on an administrative complaint alleging violations of the Federal Election Campaign Act. CREW’s recent motion is outrageous.

Free Speech

Electronic Frontier Foundation: Face Surveillance Is Not the Solution to the COVID-19 Crisis

By Matthew Guariglia

Public health crises, especially a global pandemic, may require extraordinary measures in favor of the public good-but invasive face surveillance is not in the public’s interest…

Companies like Clearview AI, which uses over two billion face images scraped from social media to track individuals and identify them with real-time face surveillance, are already in talks with agencies to provide assistance…

The massive infrastructure required to run face recognition (such as cameras, software, and open-ended contracts with vendors) cannot be easily dismantled when the public health crisis is over. We cannot allow law enforcement and other government officials to normalize this invasive tactic. We know the truth about this spy tech: face recognition may seem convenient and useful, but is actually a deeply flawed technology that exposes people to constant scrutiny by the government, and has the potential to chill free speech and movement by identifying and tracking people as they visit their doctors, lawyers, houses of worship, or political demonstrations… Face recognition software that is able to identify people even when they’re wearing surgical masks, as the company Hanwang has developed, could also be used to identify people who obscure their face at political protests out of fear of retribution from the government. 

Online Speech Platforms

Wall Street Journal: Controlling the Virus Narrative

By The Editorial Board

The coronavirus threat creates new challenges for social-media companies already grappling with the limits of free speech online. China is waging an information war to whitewash its handling of the virus and impugn the U.S. Meanwhile, charlatans hawking bogus science or false cures could endanger the public.

Yet some of the web’s gatekeepers are tempted to go further and stamp out the free debate that helped alert Americans to the threat of the virus in the first place. They want to require conformity with the judgment of expert institutions, even as many of those institutions themselves woefully misjudged the situation months or weeks ago.

The Hill: Pompeo says China, Russia, Iran are spreading disinformation about coronavirus

By Olivia Beavers

Secretary of State Mike Pompeo on Friday accused China, Russia and Iran of carrying out disinformation campaigns related to the coronavirus pandemic, in what is an apparent effort to sow fear and confusion.

Speaking at the White House, Pompeo described the disinformation campaigns as being “pretty diffused,” saying that the government has seen individuals, as well as the three foreign adversaries, spread false information online…

To address the disinformation threat, Pompeo said the U.S. is doing “lots of things” to fight back.

“We want to make sure the American people go to trusted sources for their information. But we’ve made clear – we’ve spoken to these countries directly that they need to knock it off, we don’t approve of it. And then there are a handful of other things we are engaged in to make sure the right information is out there,” Pompeo said, emphasizing that transparency and accurate information protects Americans going forward.

Wall Street Journal: Members of Sanders’s Online Army Ready to Fight On

By Betsy Morris

Facebook’s groups have shifted the online political battleground on the platform since the 2016 election, according to Jonathan Albright, director of the digital forensics initiative at Columbia Journalism’s Tow Center for Digital Journalism. Instead of public postings, those groups are often private, making it harder to detect the source of misinformation, hyperpartisan news and conspiracy theories, he found in an analysis two years ago…

Companies such as Facebook and Twitter Inc. have announced measures to battle manipulation and coordinated inauthentic behavior as they crack down on people artificially gaming their systems to win a broader audience. Facebook, for instance, has rules that prohibit posting and sharing at high volumes and frequency, without detailing where it draws the line.

Fundraising

Politico: ‘It can be catastrophic’: Coronavirus tanks campaign fundraising

By Maggie Severns and James Arkin

Coronavirus is starting to drain money from the expensive world of political campaigning.

Campaigns across the country have canceled face-to-face fundraisers for the foreseeable future and are scrambling to figure out how to raise enough money to stay solvent. Big donors’ stock portfolios are tanking. And small-dollar, online contributors – who have never been more important to campaigns – are facing sudden financial uncertainty and the real possibility of unemployment…

Major donors from both parties already are beginning to scale back after years of riding high off of a booming stock market…

It won’t take long until campaigns feel the sting, said Amanda Litman, co-founder of Run for Something, which supports down-ballot candidates.

“I think the thing people don’t realize is that campaigns and organizations – both political and nonprofits – don’t keep that much cash on hand,” Litman said. “You’re running month to month. One bad month, you can make it through. Two or three, and it can be catastrophic.”

Donor Privacy

Wall Street Journal (Letter): George Mason Will Keep Its Donor Agreement

By Tom Davis

Regarding your March 14 editorial “Justice vs. Conformity at Scalia Law“: You are misinformed about George Mason University and its commitment to protect donor anonymity. The university has been clear since the announcement of the renaming of the Antonin Scalia Law School that it will respect the donor’s right to anonymity. The university has not shared the identity of the donor, nor does it intend to.

Donor support is essential to universities. Their gifts create opportunities for students, allow us to attract talented faculty and help us deliver on our mission of access to excellence. We have a responsibility to ensure that any gift provides protection against undue influence, that we uphold our commitment to academic freedom and that we remain as transparent as we can be while not compromising our donors’ legal rights to privacy.

We accomplish this through policies that are clear, publicly available, reflect best practices, and serve as a model for other universities. These policies allow us to rely on donors for support, while protecting their rights to anonymity. Despite repeated requests by individuals, using Virginia’s Freedom of Information Act, to reveal the identity of the donor, we are committed to preserving that anonymity, consistent with our legal obligations.

Candidates and Campaigns

Washington Post: The most interesting takeaways from how 2020 candidates spent their money in February

By Michelle Ye Hee Lee and Anu Narayanswamy

Here are the most interesting takeaways we found from the newest campaign finance filings made public Friday night, covering the month of February 2020.

1. Bloomberg donated nearly $1 billion to his three-month campaign…

Of that donation, his campaign spent at least $876 million, and more than half of that amount – $467 million – was spent in February alone, the filing shows…

2. One megadonor mostly funded the pro-Warren super PAC.

It turns out that one Silicon Valley megadonor plowed $14.6 million into a super PAC that boosted Sen. Elizabeth Warren (D-Mass.) as she struggled financially toward the tail end of her candidacy.

The donor was Karla Jurvetson, a physician and one of Warren’s longtime allies. Her donation made up the vast majority of the $15.1 million the Persist PAC pulled in just 11 days in February.

[3.] Sanders’s fundraising ballooned, but his voting base did not.

Sanders posted an eye-popping $48 million last month, with just over half of that coming from small-dollar donations.

But despite his sustained strength among small-dollar donors, often seen as a proxy for grass roots support, that has not translated to delegates.

It’s yet another sign that money is just one part of the equation for electoral success.

Washington Post: Mike Bloomberg transfers his campaign assets to Democratic Party to fight President Trump in swing states

By Michael Scherer and Michelle Ye Hee Lee

Former New York mayor Mike Bloomberg has decided to donate significant components of his shuttered presidential campaign to the Democratic Party, a historic bequest that includes an $18 million cash infusion to organize for the general election in swing states.

The decision, which exploits a provision in campaign finance law available only to federal candidates, amounts to a shift in strategy for the billionaire political activist, who had previously promised to personally fund ground staff and offices in six states through an independent expenditure effort.

He now hopes that much of the same operation will be run through the state and national Democratic Party, which would allow for it to directly coordinate with the Democratic nominee, whom he expects to be former vice president Joe Biden. An independent expenditure campaign is barred from such coordination…

The new shift of resources means he is able to give more than 20 times the maximum a donor can give to the national party in one year, because of provisions that allow federal candidates to donate unlimited amounts of leftover money to national and state parties as they wind down their campaigns…

“This has never, to my knowledge, been an issue before, because anybody other than somebody worth multiple billions would want their money back even if they self-funded,” said Charlie Spies, a campaign finance lawyer who served as counsel for Mitt Romney’s 2008 presidential campaign.

If someone mounted a self-funded bid solely to evade the individual contribution limit and donate leftover campaign funds to the party, that would be considered a straw donation scheme, experts said…

“I think it’d be absolutely wrong to suggest that it’s a ploy to get around the limits… But it does suggest you could do that,” said Beth Kingsley, a campaign finance lawyer at Harmon, Curran, Spielberg and Eisenberg. 

Washington Free Beacon: Bloomberg Exploits Campaign Finance Loophole to Funnel $18 Million to DNC

By David Rutz and Joe Schoffstall

Michael Bloomberg announced he will transfer $18 million from his failed presidential campaign to the Democratic National Committee-a move experts say exploits a loophole in campaign finance laws…

Experts are assailing the move, which they say allows Bloomberg to bypass individual donor limits. “Incredible. Candidates may transfer leftover campaign funds to the party, but I don’t believe that loophole has ever been exploited in this way and to this degree,” said Brendan Fischer, program director at the Campaign Legal Center…

Lee Goodman, former chairman of the Federal Election Commission, referred to the multimillion-dollar transfer as a “legal two-step.”

“Although the funds originated with Mr. Bloomberg, the contribution from the Bloomberg campaign to the party is a legal two-step,” Goodman told the Washington Free Beacon. “It helps that the funds Mr. Bloomberg contributed to his campaign were bona fide contributions given for the purpose of winning the presidential election. The law might treat this transfer of funds differently if Mr. Bloomberg had merely passed funds through his campaign committee for the purpose of evading his personal contribution limits to the party.”

Kendra Arnold, executive director of the Foundation for Accountability and Civic Trust, said Bloomberg’s transfer violates the intent of campaign finance laws.

The States

Williamsport Sun-Gazette: Distorted view of the First Amendment

By Cliff Rieders

The National Socialist Movement, the American Nazi party, does not have a First Amendment right to rally at Brandon Park (or anywhere else) because their agenda is to encourage violence. A lawsuit is underway by the City of Charlottesville based upon the efforts of the organizers of the National Socialist Movement to both plan and encourage violence at a rally held in that city.

Our mayor and City Council are wrong to believe that there is any First Amendment right. It seems quite clear that the authorities in this city have not looked even casually at the history of the National Socialist Movement or examined their postings in connection with the event to be held in Williamsport.

Williamsport will now become known as the City of Hate. It behooves our newly elected mayor, City Council and the chief of police to do some research on this organization and to deny the permit…

The question is not one of opinion, but rather a history of violence and the promoting of behaviors that are a clear and present danger to others…

I am and remain a proud civil rights lawyer. As I write this piece, I am preparing a federal complaint against a school district that denied to my client her First Amendment rights and retaliated against her for exercising those rights. The First Amendment is crucial. The document inked by our Founders was meant to be enforced.

WMUR: Judge rules Sununu can ban gatherings under emergency powers

By Tim Callery

A judge ruled in favor Friday of Gov. Chris Sununu after a lawsuit was filed against him over his ban on public gatherings of 50 or more people to help slow the spread of COVID-19.

The plaintiffs said the governor did not have the power to issue his ban, but the judge said he did…

The plaintiffs, two people from Manchester and one from Bath, told the court they had several events planned in the coming weeks, including meetings of the Grafton County Republican Committee and religious services.

By issuing the ban, they said, the governor infringed on their rights.

“In regards to limiting people’s association, I mean, that is a First Amendment issue,” said attorney Dan Hynes. “And when the governor curtails people’s religious practice, that’s also a First Amendment issue.” …

Sununu said the order was proper during a public health emergency…

Hynes said there are no plans to appeal the decision.

BizPac Review: Cops arrest man, charge him with ‘terrorizing’ for posting Brad Pitt zombie movie quote on social media

By Vivek Saxena

A 27-year-old Louisiana man faces a “terrorizing” charge over a Facebook post in which he satirically claimed local authorities had issued an order for deputies to “shoot on sight” if they “come into contact with” the so-called coronavirus “infected.”

Rapides Parish resident Waylon Allen Bailey ended the post with a tweet referencing Hollywood actor Brad Pitt, who starred in the 2013 zombie horror film “World War Z,” which recounts the tale of an investigator tasked with stopping a zombie pandemic.

The post was meant to be a joke – albeit a poorly timed one…

“On Friday, [the Rapides Parish Sheriff’s Office] was notified of a social media post that promoted false information related to the COVID-19 pandemic,” local station KALB reported.

“Waylon Allen Bailey, 27, was identified as the suspect. He was shortly after located near his residence and taken into custody without incident. Bailey was booked into the Rapides Parish Detention Center for one count of terrorism. Bond has been set at $10,000.”

His arrest prompted questions over whether the coronavirus-inspired authoritarianism being seen across the country is leading to potentially unconstitutional punishments being doled out by the authorities.

Anchorage Daily News: Letter: Money isn’t speech

By Beverly Churchill

I want to bring attention to some legislation that is under consideration right now in our Alaska Legislature. It has to do with taking back our ability to pass campaign finance laws and to assure that residents of our state have a fair voice in decisions that affect their lives by keeping the balance of power in check.

In the House it is House Joint Resolution 24, and the matching resolution in the Senate is Senate Joint Resolution 16. 

Tiffany Donnelly

Tiffany Donnelly