Daily Media Links 3/30

March 30, 2020   •  By Tiffany Donnelly   •  
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In the News

Americans for Tax Reform (podcast): Free Speech & Citizen Privacy Under Attack, Even During Pandemic

Featuring Douglas Kellogg and Matt Nese

Nancy Pelosi & House Democrats went after citizen privacy & free speech with their coronavirus bill, highlighting just how at-risk freedom of speech is. Many state governments also have attempted to silence citizen advocacy. Matt Nese from the Institute for Free Speech joins the podcast to discuss these issues, and how to proactively protect citizen privacy.

Supreme Court

The Atlantic: Delaware’s Weird-and Constitutionally Suspect-Approach to Judicial Independence

By Garrett Epps

A judge, the old saying goes, is a lawyer who knew a politician. Whether judges are nominated by the executive or elected by voters or legislators, politics plays an overwhelming role in the process.

But can a state’s constitution mandate “partisan balance” on the bench-and exclude from judgeships anyone who isn’t either a Democrat or a Republican?

The Supreme Court was-before the coronavirus hit-scheduled to take up that question this past week. Now we don’t know when or how the oral argument will be held. Carney v. Adams, a case from Delaware, has attracted little public attention, but it has attracted a set of high-powered First Amendment advocates. To resolve it, the Court must balance the interests of officeholders who wish to make political supporters into judges, of individuals who wish to serve on courts, and of citizens who want to safeguard the independence of the bench.

The Courts

Legal Newsline: Political groups push for Federal Election Commission to respond to claims against Jeb Bush

By Charmaine Little

Campaign Legal Center and Democracy 21 are urging the Federal Election Commission to take action on its Federal Election Campaign Act lawsuit.

The plaintiffs asked the U.S. District Court for the District of Columbia for injunctive and declaratory relief in hopes of compelling the FEC to act on the FECA lawsuit. They first alerted the FEC with an administrative complaint in late March 2015, claiming that the previous Florida governor Jeb Bush infringed on 52 U.S.C when he allegedly “‘established, financed, maintained, and controlled’ both directly and indirectly through his agents, the Right to Rise Super PAC, Inc., which ‘acted on his behalf’ by raising and spending soft money to promote Bush’s presidential campaign,” according to the lawsuit.

The FEC had yet to take any action by the filing of the plaintiffs’ request for relief. The plaintiffs said the lack of response has set the tone for other wealthy politicians to break FECA rules.

Mondaq: After Multiple Lawsuits, New Jersey Nonprofit Disclosure Law Permanently Enjoined

By Matthew T. Sanderson, Trevor Potter, Bryson Morgan and Olivia N. Marshall
(Caplin & Drysdale)

A New Jersey law passed in June of 2019 that created new disclosure requirements for certain groups seeking to influence elections and government actions in the state was struck down by Judge Brian Martinotti of the U.S. District Court for New Jersey on March 11, 2020.

The law required “527” political organizations and “501(c)(4)” nonprofit groups seeking to influence New Jersey elections, ballot measures, legislation, or regulations to disclose donors contributing $10,000 or more. Disclosure would also triggered even if a group merely provided “political information” (including advertisements and get-out-the-vote efforts) about an election, legislation, or regulation in New Jersey. Previously, these groups were not required to publicly disclose their donors.

Several groups brought challenges to the law, including the conservative advocacy group Americans for Prosperity (AFP) and the American Civil Liberties Union of New Jersey (ACLU-NJ). Both groups argued in separate lawsuits that the law’s disclosure requirements were overly broad and violated New Jersey citizens’ rights to freedom of speech and association. 

Congress

Washington Post: The Cybersecurity 202: Cybersecurity experts slam child protection bill that risks rolling back encryption

By Joseph Marks

The EARN IT Act would strip tech companies of their prized liability protections for what users share on their platforms, unless they follow rules designed by a new government task force – which experts fear would require companies to give law enforcement special access to encrypted communications.

Network experts warned that such a move would make hundreds of millions of people more vulnerable to hacking – and probably wouldn’t even accomplish its main goal of preventing online child exploitation.

“The EARN IT bill not only will fail at its objectives, but will also destroy the protection encryption provides to everyday citizens’ medical, financial and personal data,” said Steve Grobman, chief technology officer of McAfee…

“It pushes toward an Internet where the law require[s] every message sent to be read by government-approved scanning software,” said Cindy Cohn, executive director of the Electronic Frontier Foundation, a digital rights advocacy group.

Joe Hall, senior vice president for a strong Internet at the Internet Society, a global nonprofit group, called the bill “a bipartisan buzz-saw steamroller through digital rights and free speech.” …

“The government has shown time and time again that they can’t protect classified information from access (and even release) by unauthorized parties,” [Jake Williams, a former National Security Agency hacker and founder of the cybersecurity company Rendition Infosec.] said…

“To think the government can (or will) do any better with encryption backdoors given this context is laughable,” he added.

New York Times: House Departs Without Vote to Extend Expired F.B.I. Spy Tools

By Charlie Savage

House Democrats left the capital on Friday after passing the $2 trillion coronavirus relief legislation without taking up a Senate bill to temporarily revive three expired F.B.I. surveillance tools for terrorism and espionage investigations, ensuring that the laws will remain lapsed at least until the Senate returns from vacation next month…

A majority of lawmakers in both chambers support extending the expired provisions, but they have been caught up in a larger argument over whether and how strictly to impose new restrictions on the F.B.I.’s FISA powers after an inspector general’s damning report found numerous factual errors and omissions in applications to target the former Trump adviser Carter Page during the Russia investigation.

The House passed a bill, negotiated by Ms. Pelosi and Representative Kevin McCarthy of California, the House Republican leader, this month before the provisions expired that would extend the expiring provisions while making changes to FISA.

The House bill, for example, would push the FISA court to appoint an outsider to critique the government’s arguments when a wiretap application raised serious issues about First Amendment activity, which could include political campaigns…

But amid objections from libertarian-leaning senators of both parties that the House bill fell short in curtailing surveillance powers, the Senate did not take it up.

FEC

Fox News: Bloomberg campaign hit with FEC complaint for $18M transfer to DNC

By Andrew Keiper

A Federal Elections Commission complaint has been filed against former New York City mayor and 2020 presidential hopeful Mike Bloomberg for an $18 million transfer from his defunct campaign to the Democratic National Committee.

At the core of the complaint is the tenuous distinction between Bloomberg’s personal finances and those of his presidential campaign. The complaint is unique because of the nature of Bloomberg’s self-funded campaign. He took no outside donations and maintained complete control over the campaign’s finances, and the complaint argues this weakens the legal distinctions normally found between campaign cash and a candidate’s personal wealth…

“Allowing these kinds of contributions is everything we’ve said no to in 40 years of campaign finance jurisprudence,” said Dan Backer, the man who filed the complaint through his pro-Trump Great America PAC.

“Never has this been okay at the federal level.” …

“If you allow Bloomberg to do this, you’re giving democracy to a billionaire oligarch,” Backer said. “… Having been unable to buy voters, he’s doing the next best thing and buying the party itself.”

Media

Boston Herald: Mainstream media wants to filter the message

By Boston Herald Editorial Staff

Look out for wolves in sheep’s clothing amongst our media during this coronavirus pandemic.

They are ready and willing to shut off the public’s access to news and information in the name of journalism. They do it, they tell you, because unfettered access to the president’s words is dangerous in this crucial moment.

So they’re looking to shield your feeble and impressionable mind from the president’s coronavirus press conferences.

As the Daily Beast news site reported, staffers and managers at MSNBC and CNN “will be ready to cut away from the briefings” when the informational portions “give way to unsupported presidential speculation and outright falsehoods.” …

All of this is ridiculous and offensive.

The American people are smart enough to decide if the president is lying or telling the truth. They don’t need egg-headed media elites editing his words – they do enough of that already.

The president is the point man for all of the resources available in the federal government and voters deserve to hear him, uncut and raw, not reconstituted by self-important journalists.

Independent Groups

Wall Street Journal: Democratic Groups Adjust to Coronavirus, Spend Big to Beat Trump

By Tarini Parti and Chad Day

Voters who are more dependent than ever on technology for social connection can expect to see more Democratic-boosting content on Facebook, Instagram and even videogame platforms…

“Ads are even more important than they were before,” said Josh Schwerin, spokesman for Democratic super PAC Priorities USA, which is spending on advertising earlier than it did in 2016 and plans to shell out $150 million before the Democratic National Convention in July. “People are sitting at home, and getting information in front of them is critical.” …

NextGen America, a progressive group created by former presidential candidate Tom Steyer that plans to spend $45 million this cycle, is also built around face-to-face organizing. The group stopped all in-person outreach on March 12…

The group’s roughly 200 organizers are spending hours a day reaching out to voters through Facebook groups, direct messages on Instagram and videos on TikTok (some of which are dance-themed). One organizer in New Hampshire even created an avatar on the social videogame “Minecraft.”

“He gave himself a NextGen T-shirt and has his virtual persona go up to other virtual personas, and he’s asking people if they’re registered to vote at their current address,” said Ben Wessel, NextGen America’s executive director. “I mean, they’re literally re-creating what they would do in the physical world in the online world.”

Online Speech Platforms

New York Times: Facebook, Google and Twitter Struggle to Handle November’s Election

By Kevin Roose, Sheera Frenkel and Nicole Perlroth

Facebook, Twitter, Google and other big tech companies have spent the past three years working to avoid a repeat of 2016, when their platforms were overrun by Russian trolls and used to amplify America’s partisan divide. The internet giants have since collectively spent billions of dollars hiring staff, fortifying their systems and developing new policies to prevent election meddling.

But as the events of just one day – Feb. 12 – at Facebook showed, although the companies are better equipped to deal with the types of interference they faced in 2016, they are struggling to handle the new challenges of 2020.

Slate: Confronting Viral Disinformation

By Mia Armstrong

In recent weeks, false information about COVID-19-often spread intentionally by state actors with the intent to cause harm, and amplified by overwhelmed and fearful users-has spread about as virally as the virus itself.

In its wake, that false information has left confusion and a big question: What can social media platforms, individuals and governments do about it?

That question was central to “Confronting Viral Disinformation,” Future Tense’s latest web event in our yearlong Free Speech Project series, which is examining the ways technology is influencing how we think about speech.

The States

New York Daily News: Cuomo floats public financing in N.Y. state budget despite judge scuttling controversial commission

By Denis Slattery

Gov. Cuomo is eyeing reviving the recently scuttled recommendations of a controversial commission on campaign finance as part of the state budget, sources told the Daily News.

During recent negotiations, the governor has floated the idea of slipping language into the spending plan that would establish a $100 million publicly-financed election system and limit minor parties’ access to the ballot – just weeks after a State Supreme Court justice tossed the law…

Cuomo has made clear that the ongoing coronavirus crisis has made no impact on his plan to include a multitude of policy measures, such as a $3 billion environmental bond, the legalization of recreational marijuana and tweaks to bail reforms, in the state budget despite calls from good government groups to pass a strictly fiscal measure.

The spending plan, which the governor said this week could include quarterly adjustments based on the state revenue, is due by April 1.

JD Supra: New York State Modifies Ethics Laws and Several Jurisdictions Update Reporting Requirements in Light of COVID-19

By Matthew Bobys, Theodore Grodek, Kenneth Gross, Ki Hong, Melissa Miles, Shayla Parker, Jeremy Regan, Charles Ricciardelli, and Tyler Rosen (Skadden, Arps, Slate, Meagher & Flom LLP)

As federal, state and local governments grapple with the COVID-19 outbreak, a number of jurisdictions have modified certain ethics, lobbying and campaign finance requirements in response to the crisis. Below, we describe certain steps taken by New York Gov. Andrew Cuomo to attempt to alter certain ethics laws in the state in an attempt to better allow for private sector assistance, including a clarification that gifts to the New York state government are exempt from state gift laws. We also summarize deadline extensions and other accommodations made by certain jurisdictions for filers of campaign finance and lobby reports.

Miami Herald: Florida governor blocks Miami Herald, Tampa Bay Times from coronavirus press conference

By David Smiley

Mary Ellen Klas, the Herald’s bureau chief for the Miami Herald/Tampa Bay Times Tallahassee Bureau, said she was refused entry into the Capitol in Tallahassee to attend a press briefing by the governor, lieutenant governor, director of emergency management and state surgeon general regarding COVID-19 testing, access to medicine and efforts to prevent New Yorkers from flying into the state.

On Twitter, Klas said a reporter for the News Service of Florida was told that he would be shut out as well if he insisted that Klas be allowed to cover the press conference in person. She posted a video of Meredith Beatrice, a state spokeswoman, explaining that Klas could view the press conference on a state-sponsored public affairs media service that live streams state government events…

Klas said later in an interview that Beatrice also told her the state was refusing her access into the Capitol because she had requested “social distancing” at the governor’s briefings…

“I asked for social distancing. I didn’t ask to be excluded,” said Klas, who said she tried to attend Saturday’s briefing because recent efforts to submit questions in writing had been unsuccessful. “The problem with having this available on a satellite feed is there’s no interaction, and we’d already had several days where they weren’t answering [our] questions.

Tiffany Donnelly

Tiffany Donnelly