Daily Media Links 4/22

April 22, 2020   •  By Tiffany Donnelly   •  
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In the News

The Atlantic: The Important First-Amendment Principle Now at Risk

By Garrett Epps

[The Fifth Circuit Court of Appeals] has had four chances to apply a foundational First Amendment precedent, and has bobbled it each time. That mistake, in a case called Mckesson v. Doe, poses a threat to both freedom of speech and freedom of assembly.

The Supreme Court has before it a petition to review the lower court’s Mckesson decision. Groups as diverse as the NAACP, the Rutherford Institute, and the Institute for Free Speech have filed amicus briefs on behalf of DeRay Mckesson, the civil-rights organizer threatened with financial ruin by the case. 

New from the Institute for Free Speech

California Group Asks Ninth Circuit to Rule 28-Second Ad Disclaimer is Too Long

A California ballot committee late yesterday asked the Ninth Circuit Court of Appeals to rule that San Francisco’s disclaimers for campaign ads are unconstitutionally long. The law requires committees to list their donors on their ads, as well as donors to other groups that never gave to the committee itself. For Yes on Prop B, the group that brought the lawsuit, the required disclaimer takes 28 seconds to read and covers 30% or more of its printed ads.

The First Amendment does not allow the government to take over such a large portion of a speaker’s message, the lawsuit says. The group is represented by attorneys from the Institute for Free Speech in the case, Yes on Prop B v. San Francisco.

“The government’s power to require a simple ‘paid for by’ disclaimer is not a license to force any information it chooses into an ad. San Francisco’s disclaimer makes it nearly impossible for groups to use common, even essential, advertising formats,” said Institute for Free Speech Legal Director Allen Dickerson…

“The Supreme Court has allowed simple ‘paid for by’ attribution statements to survive constitutional scrutiny, but it has never blessed on-communication donor disclosure at all, much less the lengthy and misleading approach San Francisco has mandated,” the group’s brief notes.

To read the brief, click here. For additional background on the case, click here.


New York Times: Republican-Led Review Backs Intelligence Findings on Russian Interference

By Nicholas Fandos and Julian E. Barnes

For years, President Trump has derided the assessment by American intelligence officials that Russia interfered in the 2016 presidential election to assist his candidacy, dismissing it without evidence as the work of a “deep state” out to undermine his victory.

But on Tuesday, a long-awaited Senate review led by members of Mr. Trump’s own party effectively undercut those allegations. A three-year review by the Republican-led Senate Intelligence Committee unanimously found that the intelligence community assessment, pinning blame on Russia and outlining its goals to undercut American democracy, was fundamentally sound and untainted by politics.

Politico: Don’t Waste Stimulus Money on Newspapers

By Jack Shafer

Newspaper bailout defenders like to say there’s nothing unprecedented about the government intervening in the market to help the press. They point to the steep mailing subsidies the U.S. Post Office gave publications for most of the nation’s history. They point to the government mandates that all (paid) public notices must be placed in newspapers. They point to the antitrust exemption that allowed competing newspapers to combine their business sides while keeping their news sides independent in “joint operating agreements.” But industrywide government loans to news outlets or massive direct subsidies of them as recently proposed by Poynter Institute thinkers Kelly McBride and Rick Edmonds as well as a consortium of organizations and individuals, including PEN America, are unprecedented. The imposition of government money into newsrooms would inevitably bring with it the potential chill of political interference. Politicians-usually Republicans like President Donald Trump-routinely issue threats to defund NPR and PBS every time they object to the outlets’ coverage. Do we really want to make the print press beholden to such political whims? 

First Amendment

The Hill: Donald Trump cannot be criminally charged for his pandemic response

By Jonathan Turley

Mary McCord, a former acting assistant attorney general for national security with the Justice Department, made an entirely frivolous claim in the Washington Post that Trump could be charged with criminal incitement for tweets in which he spurred citizens to “liberate” a handful of states. Many criticized the tweets as irresponsible and inflammatory.

McCord and other critics took it a step further by claiming it could be a crime…

McCord brushes aside the difference between reckless and rebellious language. Despite her position as the legal director of the Institute for Constitutional Advocacy and Protection at Georgetown University, she seems to advocate for criminalizing political speech. The criminal code allows for prosecution of a person who “incites, sets on foot, assists, or engages in rebellion or insurrection against the authority of the United States or the laws thereof.” Civil libertarians denounce this, yet McCord suggested that anyone, including the president, could be charged for calling for liberation from what they see as burdensome restrictions.


First Amendment Watch: New Study Says Trump Has Undermined Press Freedoms On a Global Scale

A new report published by the Committee to Protect Journalists (CPJ) examines the impact of President Donald Trump’s attacks on the press and concludes that the president’s actions not only threaten democracy in the U.S., but also endanger press freedom across the globe…

The CPJ report cites numerous attempts by Trump to undermine the press including his recent defamation lawsuits against The New York Times, The Washington Post and CNN; his unsuccessful attempts to take away White House press credentials from two reporters; and his efforts to retaliate against Jeff Bezos, who owns the Post and Amazon, by attempting to interfere with regulations that affect his businesses.

Written by Leonard Downie Jr., a former executive editor for The Washington Post, the report draws from more than forty interviews with journalists, press freedom advocates, journalism school deans, media lawyers, journalism professors, and Trump administration officials, as well as data from the U.S. Press Freedom Tracker that has data on the number of arrests, physical attacks, and investigations of journalists.

Washington Post: Enough about ‘sources,’ Mr. President

By Erik Wemple

Cracking down on leaks is by no means a policy innovation of the Trump administration. President Barack Obama established a grim precedent in this policy area, as his people pushed nine or 10 of these leak prosecutions, depending on how you count. In addition, the Obama administration seized phone records of the Associated Press in a leak investigation and even identified then-Fox News reporter James Rosen as a potential co-conspirator in a criminal leak as it sought records of his work…

Nearly a year ago, the Trump Justice Department indicted WikiLeaks founder Julian Assange for alleged offenses including “conspiracy to receive national defense information,” “obtaining national defense information” and “disclosure of national defense information.” The charges relate to Assange’s work a decade ago in securing classified documents through then-Army intelligence analyst Chelsea Manning. Whatever your opinion of Assange, the indictment seeks to criminalize the same work done by investigative reporters every day. 

Online Speech Platforms

Daily Wire: WATCH: YouTube CEO: We’ll Remove Any Content That Goes Against WHO Recommendations

By Hank Berrien

Speaking on CNN’s “Reliable Sources” with host Brian Stelter, YouTube CEO Susan Wojcicki stated that anything that would contradict World Health Organization recommendations would be removed from the platform.

Wojcicki said, “We have actually seen a 75 percent increase in the news coming from authoritative sources since the beginning of 2020. So, we have seen a lot of demand there. But then we also -“

Stelter interrupted, “What does that mean? That means an increase in video views for those?”

Wojcicki continued, “Yes. And so we talk about that as raising authoritative information. But then we also talk about removing information that is problematic, you know. Of course, anything that is medically unsubstantiated. So people saying, like, take vitamin C, you know, take turmeric, like, those are – will cure you. Those are the examples of things that would be a violation of our policy. Anything that would go against World Health Organization recommendations would be a violation of our policy. And so remove is another really important part of our policy.”

New York Times: Take YouTube’s Dangers Seriously

By Shira Ovide

Kevin Roose: Part of what makes YouTube seductive – and successful as a business! – are its automated recommendations, and its function that starts playing the next video after you finish one. That software plays a huge role in what people watch.

If someone goes to a library, checks out “Mein Kampf” and becomes a neo-Nazi, that’s not the library’s fault. If there’s a robot librarian who greets them at the front door, steers them to the German history section and puts “Mein Kampf” in front of them…

National Review: Facebook Fails the Coronavirus Test

By David Harsanyi

Facebook is reportedly removing the posts of those organizing anti-quarantine protests in conjunction with state governments, calling them “harmful misinformation.” …

While I’ve long defended the right of social-media companies to dictate and enforce their own speech codes as they please without any interference from politicians, it’s difficult to give Facebook the benefit of the doubt here. Government has some leeway in protecting public health, but it has no right, not even during an emergency, to work to preemptively prevent Americans from expressing their political beliefs. If Facebook removed advertisements for protests at the behest of state and local governments – as initial reports suggested it might have – it would be an clear assault on expression, made all the more appalling by the fact that the protests were aimed at the very public policy that allows the state to undercut the ability of citizens to organize a demonstration in the first place. But even if Facebook was merely working with such governments to decide what millions of Americans can say to each other, that would be a big problem for both philosophical and practical reasons.

Wall Street Journal: Coronavirus Misinformation Spreads on Facebook, Watchdog Says

By Lukas I. Alpert

Posts on Facebook are promoting bogus Covid-19 cures and conspiracy theories about the origins of the coronavirus, despite efforts by the social-media giant to crack down on misinformation, a watchdog group says.

Sites with millions of Facebook followers have touted high doses of vitamin C and silver particles as able to cure the virus, according to NewsGuard, which tracks and rates news sites it says traffic in dubious information. Neither treatment has been scientifically proven to work. Other Facebook pages have spread the unproven theory that 5G wireless technology spreads the virus, NewsGuard said.

Some of the posts cited by NewsGuard had been shared, liked or commented on thousands of times.

The findings highlight Covid-19’s emergence as a new focus of misinformation on social-media sites, with the world of online pseudoscience and conspiracy theory pivoting from more typical fare, such as bogus cancer cures, antivaccine arguments and chemtrail conspiracies.

“In a majority of the false posts we reviewed, Facebook did not provide any warning, fact-checking language, or links to more credible sources-despite the platform’s recent promises to do so,” NewsGuard said in a report scheduled to be released Tuesday.

Techdirt: Chinese Embassy Gets Briefly Suspended From Twitter; Insists ‘Free Speech Must Be Honored’ On Platform Banned Across China

By Mike Masnick

Content moderation at scale is impossible to do well. By now we’ve established that pretty firmly. However, there’s something deeply amusing to see that when the Chinese embassy in Sri Lanka was temporarily banned from Twitter over what Twitter later claimed was a “systematic mistake,” that the embassy then chose to go on a little righteous rant about free speech needing to be honored.

The Embassy put out a press release more or less saying the same thing:

The Embassy feels regretful to this “systematic mistake”, and would like to reiterate that the “Freedom of Speech” must be honored, while not be misused to spread groundless, racial or hatred speech, nor be treated with “Double Standards”.

Someone should remind the embassy that Twitter itself is banned throughout China.

Candidates and Campaigns

Brennan Center: Battle Over Paid Sick Days in Covid-19 Response Bill Shows What’s Wrong with Campaign Finance System

By Hazel Millard

To better understand the ongoing debate over paid sick leave, it is necessary to take a closer look at the outsized influence of wealthy donors and special interest groups on who wins elections and what elected officials prioritize once in office. The way campaigns are funded in the United States desperately needs reform…

Public health experts recognize campaign money as an obstacle to securing paid sick leave legislation. Jody Heymann, a professor at UCLA’s School of Public Health, identified the U.S. campaign finance system as a root cause of why the United States continues to lag behind the rest of the world on paid sick leave, noting that “[t]he ability [to make] very large corporate contributions plays a much more substantial role in our elections than in other countries.” …

Some cities and states have improved the odds for ambitious legislation like paid sick leave by changing how campaigns are funded. In 2011, for example, Connecticut passed paid sick leave… [T]he implementation of Connecticut’s public financing program, in 2008 for legislative candidates and in 2010 for gubernatorial candidates, changed the state’s political landscape. Public financing meant that candidates could be “competitive in a race … without compromising on an issue like paid sick days.”…

The failure of the U.S. political system to respond adequately to the Covid-19 crisis underscores the importance of reforming our democracy, including fixing how elections are funded. The health and safety of millions of American workers depends on it.

The States

The Oregonian: Portland Mayor Ted Wheeler violated campaign finance disclosure rules, city elections official says

By Everton Bailey Jr.

Portland Mayor Ted Wheeler broke new city election rules by not properly disclosing his largest campaign contributors on his re-election website or two campaign social media accounts, the City’s Auditor’s Office ruled Tuesday.

City election rules that took effect with this election cycle require candidates to prominently list the top five donors who’ve given more than $1,000 on campaign communications, said city elections officer Deborah Scroggin.

Wheeler announces “Paid for by Friends of Ted Wheeler” on his campaign website, but the top contributors aren’t identified there or on his re-election Facebook page or Twitter account…

The campaign donor disclosure rule was among the provisions of a November 2018 voter-approved measure regulating campaign finance. The majority of the provisions in the measure, including a $500 limit on any contributor’s donations, were ruled unconstitutional by a Multnomah County circuit judge several months after Portland voters approved it. But the section regarding campaign disclosures was upheld and has been in effect since last September, Scroggin said.

Tiffany Donnelly

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