Daily Media Links 3/24

March 24, 2020   •  By Tiffany Donnelly   •  
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New from the Institute for Free Speech

Draft House Relief Bill Threatens First Amendment Rights

A draft House response to the coronavirus pandemic would order American businesses to sacrifice First Amendment rights in exchange for emergency relief. Businesses cannot be forced to give up their rights, the Institute for Free Speech said today.

“The Government cannot say, ‘your rights or your economic life,'” said Institute for Free Speech Chairman Bradley A. Smith. “Just as the Bush administration could not have conditioned Hurricane Katrina relief on a requirement that recipients cease criticizing the federal government, Congress cannot ask Americans to choose between their constitutional liberties and indispensable relief funds.”

The draft bill, known as the “Take Responsibility for Workers and Families Act,” specifies that “[a]ny corporation that receives Federal aid related to COVID-19 shall…not carry out any Federal lobbying activities.” Yet lobbying is protected by the First Amendment, which guarantees “the right … to petition the Government for a redress of grievances.” Congress cannot condition emergency relief on the surrender of a civil right.

The bill also mandates that publicly-traded businesses that accept relief must permanently report to the Securities and Exchange Commission (SEC) their dues and contributions to trade associations and certain kinds of nonprofit organizations. As with the ban on lobbying, this policy has no relation to the present crisis, but is instead a longstanding goal of some in Congress who wish to “chill” support for and the speech of disfavored trade associations and nonprofits. Virtually the same reporting requirements were included in H.R. 5929, a bill introduced in February with no relation to COVID-19.

House Draft COVID-19 Emergency Bill Contains Hidden Threats to First Amendment Rights

By Zac Morgan

Yesterday, Democratic leadership in the House of Representatives unveiled a draft bill: the “Take Responsibility for Workers and Families Act.” Ostensibly, this legislation is intended to address the economic damage caused by the COVID-19 pandemic.But buried amid its more than 1,400 pages are two provisions that would require American corporations to surrender vital constitutional rights before receiving economic aid.

The first condition states that “[a]ny corporation that receives Federal aid related to COVID-19 shall, until the date on which all such Federal aid is repaid by the corporation to the Federal Government… not carry out any Federal lobbying activities.” As the D.C. Circuit once pointedly observed, “lobbying is of course a pejorative term, but another name for it is petitioning for the redress of grievances” – a liberty expressly protected by the First Amendment.

The second condition is that an “accelerated filer” – SEC speak for large corporation – must file certain “political spending disclosures” with the Securities and Exchange Commission “on a quarterly basis (and make such disclosures available to shareholders of the corporation and the public).” Some of these political spending disclosures are duplicative of filings that would already be made to the Federal Election Commission (and are therefore useless). 

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Supreme Court

Bloomberg Government: Supreme Court Rejects Keeping Republican Super PAC Donor Secret

By Kenneth P. Doyle

The Supreme Court rejected a bid to keep secret a “John Doe” donor who gave $1.7 million to a Republican super PAC in a move that could make it harder for political “dark money” groups to shield the identities of their biggest contributors in the 2020 elections and beyond.

The court let stand a lower court decision allowing a trust fund used by the donor to be named by the Federal Election Commission. The trust and a trustee sued to keep their identities secret, and were identified in court papers as John Doe.

Once the lower court follows up on the Supreme Court’s order, FEC commissioner Ellen Weintraub said she would release a statement with the names of the trust and trustee used to funnel money to the super PAC…

This case, known as John Doe v. FEC, involved transfers totaling $1.7 million from the trust to pay for campaign ads. The commissioners unanimously agreed to levy a $350,000 fine against the nonprofit American Conservative Union for its part in funneling money to the Republican super PAC, called Now or Never PAC…

Disclosure supporters also got a boost earlier this month from a U.S. Court of Appeals for the D.C. Circuit ruling in a separate case.

The court indicated FEC commissioners seeking to block enforcement can’t assert unlimited “prosecutorial discretion” to simply drop cases, without further explanation. The court upheld dismissal of enforcement action against several limited liability companies used to funnel money to super PACs involved in the 2012 presidential election, but did so only because the Republican commissioners voting to drop the matter provided an explanation.

The Courts

Associated Press: Supreme Court last chance for Trump to block Twitter critics

By Larry Neumeister

President Donald Trump will have to go to the U.S. Supreme Court if he wants to block critics from his personal Twitter account.

The 2nd U.S. Circuit Court of Appeals on Monday rejected by a 7-2 vote his lawyers’ request for all of the court’s active judges to conduct a rare hearing to reconsider a 2nd Circuit panel’s finding that Trump cannot block critics.

The three-judge panel had concluded in July that the president’s daily pronouncements and observations were overwhelmingly official in nature. It said Trump violated the First Amendment whenever he blocked a critic to silence a viewpoint…

The legal case was brought by the Knight First Amendment Institute at Columbia University. It had sued on behalf of seven individuals blocked by Trump after criticizing his policies.

Jameel Jaffer, the Knight Institute’s executive director, said in a statement that the “ruling is an important affirmation of core First Amendment principles as applied to new communications technology.”

Washington Post: White House suspension of reporter’s press credential at issue in First Amendment lawsuit

By Ann E. Marimow

Federal judges seemed skeptical Monday that President Trump’s press secretary can suspend a reporter’s special-access White House credential without clear notice and advance warning.

The U.S. Court of Appeals for the District of Columbia Circuit was considering a First Amendment lawsuit from journalist Brian Karem, a White House correspondent for Playboy magazine and CNN contributor. Karem sued the president and White House press secretary Stephanie Grisham after his credential was pulled for 30 days following a verbal confrontation in the Rose Garden last summer.

Karem’s lawyer Theodore Boutrous Jr. told the court Monday that “ensuring that the press can vigorously cover this president and the White House is more important than ever” as the nation now confronts the deadly coronavirus.

Justice Department lawyer James Burnham countered that the suspension was justified. Trump administration officials, he said, must have the power to take action if reporters act unprofessionally on the White House grounds.

New York Times: Ex-Field Organizers Sue Bloomberg Campaign, Claiming They Were Misled

By Rebecca R. Ruiz

Former field organizers for Michael R. Bloomberg filed two proposed class-action lawsuits against his presidential campaign Monday, arguing that they and thousands of others laid off this month had been tricked into taking jobs they were told would last until November.

The lawsuits, both filed in federal court in New York City, argued that the campaign had recruited staff members to work on Mr. Bloomberg’s bid under false pretenses, preventing them from pursuing other opportunities. One of the suits, brought by a former field organizer in Florida, also alleged the campaign had breached its contract with its organizers and failed to pay them necessary overtime.

In dismissing the workers eight months earlier than promised, that complaint said, the campaign had “deprived them of promised income and health care benefits, leaving them and their families potentially uninsured in the face of a global pandemic.” (Despite the campaign’s promises of continued employment, the field organizers had signed at-will contracts, indicating they could be terminated at any point.) …

A spokeswoman for the campaign initially declined to comment on Monday, later issuing a statement announcing that “a fund is being created to ensure that all staff receive health care through April, something no other campaign has done.”

“Staff worked 39 days on average, but they were also given several weeks of severance and health care through March, something no other campaign did this year,” the statement said.

Within hours of Ms. Wood’s complaint, a second proposed class-action suit was filed in the same court, the United States District Court for the Southern District of New York, by former campaign workers in Georgia, Utah and Washington State.

Congress

Politico: Pelosi proposal would ban corporations receiving coronavirus aid from lobbying

By Theodoric Meyer

Corporations that receive coronavirus relief loans would be banned from lobbying the federal government under a new proposal backed by House Speaker Nancy Pelosi.

House Democrats drafted the bill, the text of which is circulating on K Street and was obtained by POLITICO, even as Pelosi also negotiated with Senate Majority Leader Mitch McConnell and Senate Minority Leader Chuck Schumer this weekend on a separate package that McConnell is trying to pass through the upper chamber. A procedural vote to advance the Senate bill on Monday afternoon failed…

The lobbying provision in House Democrats’ bill could also face questions about whether it violates corporations’ First Amendment right to petition the government for a redress of grievances.

“Lobbying is, to some extent, considered First Amendment activity, and there are limits on the ability of government to condition the receipt of money on a relinquishment of First Amendment rights,” Rick Pildes, a New York University law professor who specializes in constitutional law, wrote in an email to POLITICO. “Since the businesses are under the gun and might have little choice in reality but to accept the money, the unconstitutional conditions issue would arise in a particularly sharp form.”

Robert Kelner, a Washington lawyer who’s advised clients on lobbying law, said corporations wishing to challenge the provision would have a strong case if it became law.

“I think this would almost certainly be challenged in court, and there’s a very good likelihood the Supreme Court would strike it down,” Kelner said.

FEC

Government Executive: Election Agency Works to Accommodate Coronavirus During 2020 Campaign Season

By Courtney Bublé

As the COVID-19 pandemic collides with election season, the agency responsible for enforcing the nation’s campaign finance laws is altering the way it does business to heed public health guidance.

The Federal Election Commission released a report last week detailing the status of its operations during coronavirus. The agency has lacked quorum since September and, thus, the ability to perform the majority of its enforcement functions, but staff can still maintain the campaign finance database, answer campaigns’ questions and provide technology support on the online filing system, and analysts can review reports.

“While most agency operations are unaffected, the agency will be receiving, but not processing mail due to the implementation of maximum telework flexibilities. This disruption will affect all documents submitted on paper, including non-electronically filed reports, advisory opinion requests, enforcement complaints, and court-case documents,” said the report. “FEC staff have access to phone and email. The FEC’s website, web-based programs, and electronic filing systems are all still online.”

First Amendment

Harvard Law Today: Restricting civil liberties amid the COVID-19 pandemic

By Brett Milano

By Friday, one in five Americans had been asked by state and local officials in places like California, New York and Illinois to stay home. Under most circumstances, this might be seen as an attack on civil liberties.

Yet there are moments in history when the normal rules don’t apply, and two of Harvard’s legal experts suggest that we are now living in such a time. While Harvard Law School faculty members Charles Fried and Nancy Gertner agree that the coronavirus situation is distressing on numerous levels, both say that the restriction on individual freedom is largely appropriate for the circumstance.

Beneficial Professor of Law Charles Fried characterizes this as a “black swan event,” one without modern precedent. “Most people are worrying about restrictions on meetings-that’s freedom of association. And about being made to stay in one place, which I suppose is a restriction on liberty. But none of these liberties is absolute, they can all be abrogated for compelling grounds. And in this case the compelling ground is the public health emergency.” …

A murkier issue, Fried says, is the place of free speech at a time when false information-such as the incorrect self-test guides being shared on social media-can be especially harmful. 

Salon: An America Trump might have loved: Remembering when “fake news” was banned

By Adam Hochschild

The story begins in the spring of 1917, when the United States entered the First World War. Despite his reputation as a liberal internationalist, the president at that moment, Woodrow Wilson, cared little for civil liberties. After calling for war, he quickly pushed Congress to pass what became known as the Espionage Act, which, in amended form, is still in effect. Nearly a century later, National Security Agency whistleblower Edward Snowden would be charged under it and in these years he would hardly be alone.

Despite its name, the act was not really motivated by fears of wartime espionage…

Rather, the new law allowed the government to define any opposition to the war as criminal…

Subject to punishment under the Espionage Act of 1917, among others, would be anyone who “shall willfully utter, print, write or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States.” …

Could it all happen again?

In some ways, we seem better off today…

In other ways, however, things are more dangerous today. 

Free Speech

Washington Times: Russia invokes ‘fake news’ law to order removal of coronavirus reports from web

By Andrew Blake

Russian media outlets faced penalties Friday after federal regulators invoked the nation’s newly enacted law against “fake news” to censor reports about the coronavirus pandemic.

Roskomnadzor, the Russian government’s communications watchdog, said it asked a number of media outlets to remove “inaccurate, socially significant information” about the outbreak.

Both the Echo of Moscow radio station and the Govorit Magadan news website were asked to remove content about the novel coronavirus that had been “disseminated under the guise of reliable information, creating a threat of massive disruption of public order and (or) public safety,” Roskomnadzor said in a statement.

Online Speech Platforms

Wired: Why Don’t We Just Ban Targeted Advertising?

By Gilad Edelman

Google and Facebook, including their subsidiaries like Instagram and YouTube, make about 83 percent and 99 percent of their respective revenue from one thing: selling ads. It’s the same story with Twitter and other free sites and apps… It follows that most of the unsavory things the platforms do-boost inflammatory content, track our whereabouts, enable election manipulation, crush the news industry-stem from the goal of boosting ad revenues. Instead of trying to clean up all these messes one by one, the logic goes, why not just remove the underlying financial incentive?… What if companies simply weren’t allowed to do it anymore?

Daily Beast: Twitter Says Beijing’s Coronavirus Lies Are Just Fine

By Lachlan Markay

Coronavirus disinformation spread by senior Chinese government officials does not violate Twitter’s terms of service, a spokesperson for the company told The Daily Beast on Monday.

The spokesperson pointed to language on its website that gives wide latitude to statements from government officials. “Presently,” the company says, “direct interactions with fellow public figures, comments on political issues of the day, or foreign policy saber-rattling on economic or military issues are generally not in violation of the Twitter Rules.”

According to Twitter, that language applies to recent falsehoods related to the novel coronavirus shared widely by senior Chinese officials, including the top spokesman for the country’s ministry of foreign affairs and a number of Beijing’s ambassadors around the world.

Those officials and other Chinese propagandists have sought to spread false rumors that COVID-19, a virus that originated in the Chinese city of Wuhan, may have actually started spreading in the United States-and may even have been created by the United States government.

Washington Post: Why the coronavirus could mean more bogus cures, fake government crackdowns and misinformation on Facebook

By Elizabeth Dwoskin and Nitasha Tiku

Facebook’s decision to place their army of moderators on paid leave [in response to the coronavirus outbreak] paves the way for another challenge, forcing the company to police disinformation, medical hoaxes, Russian trolls and the general ugliness of the Internet without them.

While Facebook, YouTube, Twitter and other companies have long touted artificial intelligence and algorithms as the future of policing problematic content, they’ve more recently acknowledged that humans are the most important line of defense. Those contractors, who are paid a fraction of what full time workers earn, spend hours a day reviewing material flagged as illegal or disturbing, removing posts that cross the line and often suffering psychological harm from the exposure.

Still, chief executive Mark Zuckerberg said on a media call Wednesday that Facebook will be forced during the pandemic to rely more heavily on artificial intelligence software to make those judgment calls…

Zuckerberg acknowledged the decision could result in “false positives,” including removal of content that should not be taken down.

It will “create a trade-off against some other types of content that may not have as imminent physical risks for people.

AdExchanger: Facebook Is Removing Coronavirus Misinformation. It Needs To Do The Same For Politics.

By Alison Weissbrot

[I]f Facebook can remove misinformation related to coronavirus, why isn’t it using its technology and capabilities to remove all misinformation – especially the political kind that flourishes on its platform under the veneer of free speech?

Removing coronavirus misinformation is the right thing to do – but it’s also an easy win. Unlike the political realm, where Facebook must walk a fine line between appearing neutral while maintaining its good graces with powerful figures and the government, no one is going to fault Facebook for stepping up during a crisis…

[P]oliticians can still lie on Facebook – not directly about information related to coronavirus, but about their own political motives in a time of crisis – without being flagged for it…

While it’s extremely difficult to remove billions of pieces of content every millisecond from a platform used by billions of people daily, if Facebook can fight back against false content related to COVID-19, it seems like it could also implement a simple fact-checking flag on political speech, or at least step up its efforts to control how powerful people manipulate the platform – and its users – for their own political gain.

The States

Courthouse News: Roughed-Up Trump Supporters Settle With San Jose

By Matthew Renda

Immediately after a Trump rally in San Jose held during the feverish pitch of the 2016 campaign for president pitting Donald Trump against Hillary Clinton, several attendees found themselves under attack as they left a downtown convention center…

On Monday, Harmeet Dhillon, the attorney for the Trump rally attendees who were roughed up, said the plaintiffs have reached a settlement with the city of San Jose…

Along with additional training, Dhillon noted the city of San Jose expressed regret for its role in the violent attacks.

“We regret that, despite the San Jose Police Department’s efforts at the rally, we were unable to fully prevent the assaults that did happen and that some people who were lawfully exercising their lawful First Amendment right were injured as a result,” San Jose Mayor Sam Liccardo said in a statement.

Liccardo further pledged both the city and the police department would do more to address the concerns of those “who may fear the prospect of violent reprisal for their political participation in public events.” 

Tiffany Donnelly

Tiffany Donnelly