Daily Media Links 3/26

March 26, 2020   •  By Tiffany Donnelly   •  
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In the News

Washington Examiner: Celebrate super PACs, legalized 10 years ago today

By Alex Baiocco

What if the federal government dictated how much of your money you could give toward the advocacy efforts you care about most? Not only would this violate your personal liberty, it would also harm the organizations you choose to support. But, prior to the case SpeechNow.org v. Federal Election Commission, decided 10 years ago on March 26, our government enforced limits on what people could contribute toward advocacy at the heart of liberal democracy.

The SpeechNow ruling removed limits on giving to groups advocating for the election or defeat of candidates for federal office. This restoration of basic constitutional rights is an anniversary worth celebrating.

Pooling resources to raise awareness, change minds, or rally action has a rich tradition in our country…

The most important social and political movements in our history, from women’s suffrage to civil rights to marriage equality, all relied in part on the support of donors and foundations…

If Congress passed a law limiting what supporters could give, that law would violate the First Amendment. Placing limits on the resources necessary to speak, assemble, and publish limits the exercise of those rights…

In SpeechNow, the D.C. Circuit Court of Appeals struck down this limit on speech. Represented jointly by the Institute for Free Speech (then known as the Center for Competitive Politics) and the Institute for Justice, a group of plaintiffs successfully challenged contribution limits for independent groups. The independent expenditure-only committees legalized by the court’s unanimous decision are now commonly known as super PACs…

The primary result of SpeechNow has been more speech about candidates and elections. The decision not only restored First Amendment rights, it breathed new life into our democracy.

National Review: Super PAC Rejections Hurt Democratic Primary

By Bradley A. Smith

The 2020 Democratic presidential primary began with over 20 governors, senators, congressmen, and political outsiders vying for the nomination. The field has now winnowed to two: former vice president Joe Biden, and Senator Bernie Sanders, a 30-year member of Congress.

How did such a wide-open primary come down to the oldest, whitest, and best-known candidates? Inquiring minds may begin their investigation with the party’s turn against super PACs.

Unlike regular PACs, a “super” PAC – created ten years ago this week – can accept unlimited amounts from donors This can include contributions from unions, businesses, and nonprofit organizations, although the vast majority of super PAC money is contributed by individuals. The catch is that super PACs must spend their money on independent speech rather than contributing to candidates like traditional PACs do. Like traditional PACs and other political entities, super PACs must publicly disclose donors who give over $200.

Super PACs are the result of a unanimous ruling by the D.C. Circuit Court of Appeals, sitting en banc, ten years ago this week. Following the court’s ruling in SpeechNow.org v. Federal Election Commission, super PACs have made it easier for Americans to pool their resources to speak about candidates. This is good for democracy.

Though often derided as a nuisance, campaign advertising has been shown to make voters more informed and engaged in elections. The potential for significant independent support has also bolstered candidates who are a thorn in the side of party leaders or media elites.

The Courts

Courthouse News: Judge Denies Freelancers’ Bid to Upend California Labor Law

By Martin Macias Jr.

A federal judge has denied a bid by freelance journalists and photographers to block parts of a California labor law designed to require gig-economy companies to offer employee status and benefits to their workers.

The American Society of Journalists and Authors and National Press Photographers Association filed a federal lawsuit claiming Assembly Bill 5 unfairly caps the number of freelance submissions at 35 per year…

But U.S. District Judge Philip S. Gutierrez denied the request to block parts of AB 5 and dismissed the organizations’ lawsuit…

“There is no indication that AB 5 reflects preference for the substance or content of what certain speakers have to say, or aversion to what other speakers have to say,” he wrote. “The justification for these distinctions is proper categorization of an employment relationship, unrelated to the content of speech.” …

Plaintiffs’ counsel Caleb R. Trotter of Pacific Legal Foundation said in a statement the ruling is an example of the government limiting the free press.


National Institute for Lobbying & Ethics: NILE Responds to House Efforts to Amend the First Amendment Prohibiting All Citizens, The Right To Petition Their Government

Last night, House Democrats introduced the Take Responsibility for Workers and Families Act – their proposal for a third Coronavirus relief package. Among the many provisions, Section 407 of the bill sets certain “conditions on federal aid to corporations” – including a complete ban on federal lobbying until recipients repay the federal government. In response, the National Institute for Lobbying and Ethics (NILE) Chairman of the Board Paul Miller issued the following statement: 

“The First Amendment clearly prohibits Congress from impeding ‘the right of the people to petition the government for a redress of grievances’. With this in mind, I am troubled by language in the House bill that would set conditions on the protections guaranteed by the First Amendment…”

Mackinak Center for Public Policy: Union Handout in the Coronavirus Stimulus Act

By F. Vincent Vernuccio

What does a company surrendering their First Amendment rights have to do with the health and economic safety of Americans? It doesn’t, yet the current version of the “Coronavirus Aid, Relief, and Economic Security Act,” which is floating around Washington, seems to require it.

Page 524 of the language currently being negotiated applies to loans to midsized businesses and reads:

“Any eligible borrower applying for a direct loan under this program shall make a good-faith certification that- ….

(X) that the recipient will remain neutral in any union organizing effort for the term of the loan.”

What does this mean? That businesses with between 500 and 10,000 employees that take a loan under the program would need to remain neutral when a union tries to organize them. In other words, they could not communicate with their employees about unionization.

First Amendment

The Atlantic: Red and Blue America Agree That Now Is the Time to Violate the Constitution

By Adam Chilton, Charles Crabtree, Kevin Cope, and Mila Versteeg

Countries are taking extraordinary measures to slow the COVID-19 pandemic. Many of these measures limit individual freedom and may also violate rights guaranteed by national constitutions…

The United States now faces this same dilemma: To what extent should the Constitution be violated to fight the coronavirus? Lockdowns, especially ones that apply to people who haven’t tested positive for the virus, are constitutionally questionable. The threat by the leaders of Newark, New Jersey, to prosecute residents who spread false information about the virus-if carried out-could violate the First Amendment…

To assess how Americans weigh the trade-off between preserving civil liberties and halting the spread of the coronavirus, we conducted a survey last week, just as state and local governments were beginning to implement their most restrictive policies yet. The survey reveals a remarkable willingness to tolerate civil-rights violations in order to confront the pandemic, regardless of party affiliation…

[C]riminalizing speech based on its content, an idea antithetical to modern American constitutionalism, was also very popular: About 70 percent of respondents supported restricting people’s ability to say things that may qualify as misinformation… And even when we explicitly told half of our sample that the policies may violate the Constitution, the majority supported all eight of them-even the speech restrictions.


New York Times: Trump’s Briefings Are a Ratings Hit. Should Networks Cover Them Live?

By Michael M. Grynbaum

How to report on Mr. Trump’s fabrications has long been a source of concern among journalists and press critics, dating to the blanket cable news coverage of his rallies in the 2016 presidential campaign.

Even after Mr. Trump took office, journalists have debated the civic benefits of broadcasting the president’s remarks to the nation with the need to supplement his statements with corrections and context.

The emergence of the pandemic has raised the stakes for what had existed mostly as an insular discussion among media ethicists. Now, the president’s critics say, lives are at risk.

“I would stop putting those briefings on live TV – not out of spite, but because it’s misinformation,” the MSNBC host Rachel Maddow declared to her viewers…

Network producers and correspondents say there is often some internal debate about whether to carry the president’s appearances live and unfiltered. But given the intensity of the national crisis, many executives have concluded there is no justification for preventing Americans from hearing directly from the president and his health care administrators.

Online Speech Platforms

The Hill: Twitter comes under fire over Chinese disinformation on coronavirus

By Chris Mills Rodrigo

Twitter is being pulled into the middle of a fight between the Trump administration and China over the coronavirus.

Republican lawmakers and Trump allies have been stepping up pressure on the social media platform to crack down on disinformation from Chinese government officials and agencies about the virus and its spread.

While Twitter has sought to curb posts including fake medical advice or recommendations, critics say the company is not going far enough to address government propaganda from China…

Secretary of State Mike Pompeo said last week that the government has determined that China, along with Russia and Iran, are actively engaged in coronavirus misinformation campaigns on social media to sow discord and confusion in the U.S.

NPR “All Things Considered”: How Facebook Wants To Handle Misinformation Around The Coronavirus Epidemic

NPR’s Ailsa Chang talks with Facebook Vice President of Global Affairs and Communications Nick Clegg…

Chang: [G]iven the lessons that we have learned since [the 2016 election], would Facebook be more proactive during this 2020 election towards political posts, using the same rigor that Facebook is using to weed out misleading information with regard to the coronavirus?

Clegg: We do, of course, have some limits. You cannot use your freedom as a politician in the United States, for instance, to say things which will lead to real-world harm. But beyond that, in a democracy with an independent press and with the claims and counterclaims that politicians make about each other, we think it’s very important that private companies should allow voters for themselves to make their own judgments about what politicians are saying, about the future of their country, whereas when it comes to a medical pandemic, as I say, underpinned by science and by authoritative institutions such as the CDC and the WHO and others, it’s, of course, much easier for us to act under the strict expertise and guidance from those institutions themselves.

Candidates and Campaigns

The Hill: Trump campaign threatens legal action over liberal super PAC ad

By Jonathan Easley

President Trump’s reelection campaign is threatening legal action against television stations in key battleground states if they continue airing an ad cut by the liberal super PAC Priorities USA alleging that the president called the coronavirus a “hoax.”

Alex Cannon, the legal counsel for Trump’s reelection campaign, sent a letter to television stations in key battleground states where the ad is running demanding they “cease and desist” from airing the ad if they want to “avoid costly and time consuming litigation.” …

The ad, which is titled “Exponential Threat,” splices together different audio clips of Trump downplaying the virus over a graphic showing the number of cases on the rise.

“The coronavirus, this is their new hoax,” Trump says in the ad…

However, fact-checkers at The Washington Post, Snopes, Politifact and FactCheck.org have said it’s wrong to claim that Trump called the virus a hoax.

Instead, Trump’s full quote reveals that he was describing Democratic efforts to politicize the virus.

Rolling Stone: Can Ads That Use Trump Against Himself Destroy His Re-Election Bid?

By Peter Wade

A January report in the Wall Street Journal, which looked at the effectiveness of all types of political advertising, found that there is “no evidence that online political ads are any more powerful than old-fashioned TV spots,” while adding that “there are good reasons to think that all online ads, not just the political ones, have little impact.”

The WSJ report goes on to argue that voters’ first reaction is to reject a message that “challenges” their view and that persuasion usually comes with context and from a source that they “perceive as competent and trustworthy.”

Advertising alone appeared to give Mike Bloomberg a fighting chance, even with his late entry into the primary process. Using his millions, the former mayor of New York City flooded the airwaves in key states and used targeted digital ads that boosted his polling numbers – and appeared to turn him into a presidential contender. But the Bloomberg portrayed in these ads quickly gave way to reality when then-candidate Elizabeth Warren focused on Bloomberg’s past controversial policies and personal behavior to kill his high office hopes.

In the coming 2020 general election, we have two well-known national personalities pitted against each other, many voters’ impressions of the candidates are already baked in, meaning advertising may not make a significant difference with voters.

The States

Colorado Springs Independent: City will prosecute those who distribute handbills against homeowner wishes

By Pam Zubeck

Every Sunday, Joel Schott, like thousands of other Colorado Springs residents, awakes to find a plastic bag of newsprint ads in his driveway. He simply picks it up and trashes it.

But not everyone does that, and the bags of ads pile up in gutters and, worse, in the city’s creeks and drainage channels…

So Schott tried to file a complaint for littering against the business responsible for tossing the bags – The Gazette.

He’s not the only one. The city has received about a dozen similar complaints over the last year but turned them away, because city officials saw it as a First Amendment issue – the right to free speech.
No longer.

On March 6, the city finalized a new approach to such complaints. While complicated, the procedure allows the city to prosecute the newspaper for distribution of handbills against the wishes of recipients.

Virginia Mercury: GOP candidate sues Virginia election officials, says coronavirus thwarted efforts to get ballot signatures

By Graham Moomaw

A candidate seeking the Republican nomination to run against U.S. Sen. Mark Warner (D) has filed a lawsuit against Virginia election officials that argues the COVID-19 pandemic has made it too difficult to gather the petition signatures necessary to qualify for the June primary ballot.

Omari Faulkner, a Navy reservist and former Georgetown University basketball player, filed the suit in the Richmond Circuit Court this week…

“The mandates that have been in place for the last few weeks to protect public health directly affected a campaign’s ability to contact individuals to obtain their signatures,” the Faulkner campaign said in a written statement. “With group activity limited to no more than 10 individuals and nearly all businesses closed, our First Amendment right to ballot access has been compromised.”

The suit asks the court to prevent the state from enforcing the signature requirements and allow any candidate with 3,500 signatures to qualify for the ballot. Without court intervention, the suit says, Faulkner’s name will not appear on the ballot for the June 9 primary.

Palm Beach Post: Judge dismisses ex-West Palm commissioner’s suit against political consultant

By Tony Doris

Former West Palm Beach City Commissioner Shanon Materio has lost her lawsuit against political consultant Rick Asnani over a campaign mailer…

After losing a close race to Christina Lambert in 2018, Materio sued Asnani and affiliated companies, alleging they defamed her in a campaign mailer…

Circuit Court Judge Glenn Kelley ruled Tuesday that the flyer was protected under freedom of speech laws. He dismissed the case…

Materio said Wednesday she disagreed with the judge…

“[W]e disagree that our claims were without merit, or that a political mailer is covered by the SLAPP statute.”

Techdirt: Houston Police Chief Says He’ll Prosecute People For False Statements About COVID-19 Response; Won’t Debate 1st Amendment

By Mike Masnick

We already went over this with Newark, NJ, but now Houston’s top law enforcement officer is falsely claiming he can and will prosecute people for making false statements about Houston’s COVID-19 response…

[E]xcept (1) you can’t prosecute people for mere rumors on social media, and (2) saying that you are going to prosecute false information is incredibly dangerous because it stops people from sharing valuable and useful information if they’re afraid that it might not be fully verified. We saw this in China, where police went after the doctor who was trying to raise the alarm about COVID-19 and it silenced him and probably slowed worldwide (and local) attention to the risks of COVID-19.

Tiffany Donnelly

Tiffany Donnelly