Daily Media Links 4/7

April 7, 2020   •  By Tiffany Donnelly   •  
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Supreme Court

Wall Street Journal: The Supreme Court on Hold

By The Editorial Board

The Supreme Court on Friday said it is postponing oral arguments on cases originally scheduled for the last weeks in April after having already delayed hearings from mid-March. The delay makes sense given the national health guidelines and the close quarters of the High Court’s hearing room, but the Justices may have to consider alternatives if the virus lockdown drags on.

The Justices are working and may issue rulings as early as Monday on cases previously heard this term. The Court also said in a statement it will consider rescheduling March and April sessions before the end of the current term in late June “if circumstances permit in light of public health and safety guidance at that time.”

Albany Law Review: Applying the First Amendment to the Internal Revenue Code: Minnesota Voters Alliance and the Tax Law’s Regulation of Nonprofit Organizations’ Political Speech

By Edward A. Zelinsky

Part I of this Article explores the U.S. Supreme Court’s decision in Minnesota Voters Alliance v. Mansky, which establishes that, under the banner of reasonability, the First Amendment requires “objective, workable standards” when political expression is regulated by the government… 

Parts II, III, and IV explore, in light of Minnesota Voters Alliance, the provisions of the Internal Revenue Code (“Code”) that regulate the political expression of tax-exempt institutions. Part II examines Revenue Ruling 2007-41 in which the IRS contends that, depending upon the “facts and circumstances” of particular instances, “issue advocacy” can constitute forbidden campaign intervention for purposes of section 501(c)(3)…

Part III discusses the tax imposed by section 527(f)27 on civic organizations, labor unions, business associations, and other tax-exempt institutions when they attempt to “influence” elections. This Part also discusses the Treasury regulation that holds that organizations tax-exempt under section 501(c)(4)29 cannot intervene in political campaigns…

Part IV confronts the Code’s ban on lobbying by 501(c)(3) organizations…

Having established that these provisions of the tax law are today understood too capaciously to pass First Amendment scrutiny, Part V of this Article addresses the administrative understanding of these provisions which would satisfy the test of Minnesota Voters Alliance that restrictions on political expression be reasonable, objective, and determinant.



Washington Post: The Technology 202: Democratic senators blast WhatsApp’s handling of coronavirus falsehoods

By Cat Zakrzewski

A group of Democratic senators say Facebook hasn’t done enough to stop coronavirus misinformation on its messaging service WhatsApp. Now they’re calling on chief executive Mark Zuckerberg to take more drastic steps.

Sens. Mazie Hirono (Hawaii), Kamala D. Harris (Calif.), Richard J. Durbin (Illinois) and Robert Menendez (N.J.) sent a letter yesterday to Zuckerberg raising concerns that the service has devolved into a “petri dish of coronavirus misinformation.” …

WhatsApp announced this morning it would introduce new limitations on messages that have been forwarded many times. Once a message has been previously forwarded five times, the new restriction will only allow it to be forwarded to one chat at a time. Since last year, the company has been marking such messages with a double arrow.

“We believe it’s important to slow the spread of these messages down to keep WhatsApp a place for personal conversation,” a company blog post said…

The senators want Facebook to consider changes to WhatsApp including a prompt asking a user whether they have verified a message is accurate before they forward it to another contact, according to a copy of their letter shared with The Technology 202. Hirono suggested the company could track a possible bad actor by identifying entities forwarding an unusual amount of messages.


Intercept: FBI Opened Terrorism Investigations Into Nonviolent Palestinian Solidarity Group, Documents Reveal

By Chip Gibbons

In 2006, St. Louis-based activist and academic Mark Chmiel received a message on his answering machine from the Federal Bureau of Investigation. The FBI wanted to talk to Chmiel about trip three years ago that he and other St. Louis activists took with the International Solidarity Movement to the West Bank, in the Israeli-occupied Palestinian territories. When Chmiel’s attorney reached out to the FBI, they did not respond…

The FBI was conducting an international terrorism investigation into Chmiel and another activist from the delegation…

Nothing in the documents [later obtained by public records request] suggests any of these investigations ever resulted in criminal charges. Instead, the documents reveal sprawling investigations involving FBI field offices in multiple states and the national headquarters, as well as local law enforcement…

The approach is of a piece with the FBI’s long history of using its intelligence and national security powers to track domestic dissent.

“These cases demonstrate the FBI’s unwillingness to distinguish non-violent civil disobedience protesting government policy from terrorism,” Michael German, a former FBI agent and current fellow at the Brennan Center for Justice, who reviewed the documents, told The Intercept. “The first” – the Los Angeles probe- …”shows the FBI’s use of tools designed to target foreign enemies against Americans exercising their First Amendment rights.” …

Why the FBI ever thought the activists were guilty of anything other than First Amendment-protected activity remains unclear…

This association with ISM appears to have been enough to warrant the probe…

It seems the FBI’s investigation resulted in little more than thousands of pages of documents that did little other than to make the FBI itself perhaps the greatest threat, by spying on First Amendment-protected speech. 


Reason: A Progressive Media Group Demanded Censorship of Trump’s Coronavirus Press Briefings. The FCC Said No.

By Robby Soave

The progressive media organization Free Press thinks President Donald Trump is spreading dangerous misinformation during his televised press briefings on the government’s coronavirus response. So it petitioned federal regulators to make broadcasters either stop airing them or “put those lies in context with disclaimers noting that they may be untrue and are unverified.”

It was an odd demand. If Free Press think the president is abusing his authority, the group probably shouldn’t be asking his administration to police how people cover the president’s pronouncements. Seems like the sort of request that could backfire.

Thankfully, the Federal Communications Commission (FCC) rejected the petition on Monday, sending a stern rebuke to anyone who thinks censorship is a valid response to problematic speech.

“The federal government will not-and never should-investigate broadcasters for their editorial judgments simply because a special interest group is angry at the views being expressed on the air as well as those expressing them,” said FCC Chairman Ajit Pai in a statement. “In short, we will not censor the news.”

Washington Post: Journalists threatened and detained as countries on multiple continents restrict coronavirus coverage

By Louisa Loveluck, Robyn Dixon and Adam Taylor

A century [after the “Spanish flu”], coronavirus is again testing the resilience of independent media around the world as governments exploit concerns over coverage of the epidemic to clamp down on press freedoms.

From Latin America to Russia, governments have tried to shape coverage so it avoids criticism or information that authorities deem harmful to public order. Questioning of official accounts has drawn fines, police investigations and the expulsion of foreign correspondents. In some countries, the virus has provided a pretext for governments to pass emergency legislation that is likely to curb freedoms long after the contagion has been extinguished.

The consequences could amount to life or death, free-press advocates say.

“During a public health emergency, there are extremely strong requirements of governments to provide truthful information to the public so that we as individuals and in our communities can make decisions about what we should be doing,” said David Kaye, the United Nations’ special rapporteur on freedom of opinion and expression. “That depends on a vibrant press that doesn’t feel that when it reports that it could be subject to intimidation, threats or even criminal sanction.”


Politico: Congressional campaigns brace for fundraising disaster

By Ally Mutnick, Sarah Ferris, and James Arkin

The global pandemic – and the ensuing recession – has slowed fundraising and frozen the political terrain in place, according to more than a dozen campaign officials and strategists in both parties…

Many Democrats – and even some Republicans – expect that the slowdown will likely only solidify House Democrats’ financial edge…

House Republican challengers – some of whom only recently launched campaigns – will likely find it harder to catch up. The GOP, generally, tends to rely less on email lists and more on donor events that are now impossible to stage…

“It is a frozen battlefield,” said Rep. Tom Cole (R-Okla.), a former House GOP campaign chairman. “That’s usually to the advantage of an incumbent.”

For GOP challengers, Cole said the problems are acute: “They can’t break through. Nobody cares what they have to say. … They can’t raise much money. They can’t go door-to-door.” …

Another wrinkle for both parties: Primary season is only halfway over. Dozens of challengers will still have to empty bank accounts to secure the nomination and then face a potentially reduced capacity to refill their coffers for the general election.

New York Times: Progressives Built an Organizing Juggernaut for 2020. Then the Virus Hit.

By Astead W. Herndon and Ian Prasad Philbrick

[Due to the COVID-19 crisis,] many progressive candidates and the organizations that support them are struggling to adapt to a bleak reality – dried up fund-raising, unclear election dates, and a moratorium on tried-and-true political tactics like in-person phone banks and door-to-door canvassing…

There are also political challenges, said Waleed Shahid, a spokesman for Justice Democrats. Insurgent candidates are more likely to rely on door-to-door canvassing and rallies to show enthusiasm, activities that are functionally discontinued until further notice. Progressive candidates also tend to rely exclusively on small-dollar donations, which have experienced a downturn as people tighten their budgets.

“Incumbents have certain advantages in a crisis, namely access to the media as a voice of authority,” Mr. Shahid said.

The grim picture may have a profound political impact for the general election and beyond. 

Online Speech Platforms

New York Times: Facebook Hampers Do-It-Yourself Mask Efforts

By Mike Isaac

Facebook has long struggled to distinguish between innocuous and malicious content on its site. While the Silicon Valley giant has relied on automated systems to flag and remove posts that violate its terms of service, those systems can have trouble spotting nuance and can sometimes be overly aggressive or make mistakes in identifying what may need to be taken down.

In recent weeks, Facebook has worked to clamp down on potentially harmful coronavirus content. It has created teams to deal with the issue and has banned certain types of posts specifically related to the virus.

At the top of its list were ads for masks, hand sanitizer and others looking to profit from the sale of safety equipment. Facebook banned advertising for such equipment last month, and has taken down nearly all posts related to the sale of masks across its Craigslist-like section, called Marketplace.

But as the company ramped up efforts to crack down on scammers and other miscreants, volunteer coordinators may have been caught in the crossfire.

“The automated systems we set up to prevent the sale of medical masks needed by health workers have inadvertently blocked some efforts to donate supplies,” Facebook said in a statement. “We apologize for this error and are working to update our systems to avoid mistakes like this going forward. We don’t want to put obstacles in the way of people doing a good thing.”

The States

WBTV: Sen. Cruz: Charlotte abortion protest arrests under NC stay-at-home order ‘unconstitutional’

By Joe Marusak and Lauren Lindstrom

Police on Saturday charged eight Charlotte abortion protesters with violating North Carolina’s COVID-19-related ban on mass gatherings.

The arrests went national late Saturday when U.S. Sen. Ted Cruz of Texas criticized Charlotte-Mecklenburg Police.

“This is an unconstitutional arrest,” Cruz, a runner-up for the Republican presidential nomination in the 2016 election, tweeted. “@BenhamBrothers exercising core First Amendment rights. PEACEFULLY. In a way fully consistent w/ public safety. Because elected Dems are pro-abortion, they are abusing their power-in a one-sided way-to silence pregnancy counselors.”

About 50 protesters gathered outside A Preferred Women’s Health Center on Latrobe Drive, according to police. The center has been the scene of numerous abortion protests over the years.

That size crowd violates the mass gatherings provision in the state’s stay-at-home order, police said, so officers asked everyone to leave…

After police issued the citations, eight of the protesters still refused to leave and were arrested.

Reason (Volokh Conspiracy): Candidate for Wisconsin S. Ct. (Judge Jill Karofsky) Seeks Preliminary Injunction Against Allegedly Libelous Campaign Ads

By Eugene Volokh

Today, Judge Judge Timothy M. Witkowiak refused to issue the injunction, partly on prior restraint grounds. The election is scheduled for tomorrow.

I just watched the live-stream of the argument… and the judge:

  1. ruled that the controversy about one ad (the Worley ad) is moot, because the ad is no longer running (perhaps, I think, because it does seem pretty clearly false);

  2. rejected the injunction against the other ad (the Thompson ad), on prior restraint grounds, and also suggested that the ad might not be false, depending on whether you interpret “went easy on a sexual predator that shot his girlfriend, allowing a deal that puts him back on the street” as meaning that the defendant has gone back on the street, or that he will go back on the street earlier than he otherwise would have.

Voice of OC: CA Appellate Court Takes Over City of Fullerton’s Lawsuit Against Local Bloggers

By Spencer Custodio

California’s Fourth District Court of Appeal has barred Orange County’s Superior Court from issuing any more orders regarding a City of Fullerton’s lawsuit against two resident-bloggers while the appellate court considers the case…

Joshua Ferguson and David Curlee were sued by the city of Fullerton after the blog, Friends for Fullerton’s Future, began publishing secret city hall documents…

Ferguson and Curlee are also appealing Crandall’s anti-Strategic Lawsuit Against Public Participation (SLAPP) motion rejection…

“I think it’s important to not lose sight of what these bloggers exposed. These bloggers exposed serious misconduct on the part of government officials. And now they’re facing the wrath of government because of it,” Jason Shepard, a media law professor at California State University, Fullerton, said…

Shepard said Fullerton’s entire case is troublesome to the First Amendment.

“The Supreme Court has ruled many times that journalists serve a special role in our democracy. And that includes citizen journalists and bloggers and local watchdogs. And absent some additional information about the actions of these bloggers, I think a prior restraint is a clear violation of the First Amendment,” he said.


Tiffany Donnelly

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