Daily Media Links 5/15: Arkansas Supreme Court justice files suit to block TV ads, says election attacks false, Court upholds convictions of 2012 Ron Paul campaign staffers, and more…

May 15, 2018   •  By Alex Baiocco
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In the News

Center for Public Integrity: Politicos beware: Court ruling could prompt more transparent campaign spending

By Carrie Levine

The decision Friday involved three staffers from the 2012 presidential campaign of Ron Paul, R-Texas. The Paul staff members – Jesse Benton, John Tate and Demetrios Kesari – were convicted in 2016 of charges connected to $73,000 in payments to an Iowa state senator…

The three men made the payments to the state senator, Kent Sorenson, via a third-party video production company…

Lawyers for Benton, Tate and Kesari argued that the law, and FEC precedents, don’t prohibit a campaign paying a vendor who then pays a subcontractor, even if campaign finance reports only show the name of the original vendor. Prosecutors said it was illegal to hide the purpose of the payments, which were described as “audio/visual expenses,” when they were really made in exchange for Sorenson’s endorsement…

Democratic nominee Hillary Clinton’s campaign helped fund an infamous dossier on Trump – the campaign paid law firm Perkins Coie, which then hired a research firm, Fusion GPS, to conduct research on Trump. The Campaign Legal Center accused both Clinton’s campaign and the Democratic National Committee of failing to file accurate campaign finance reports and has a complaint pending at the FEC against both entities.

“If I’m Perkins Coie, right now I’m a bit nervous about the reporting of payments to Fusion GPS,” said Brad Smith, a former FEC chairman and current chairman of the Institute for Free Speech.

TaxProf Blog: The IRS Scandal, Day 1828: Smith Responds To Johnston’s ‘Ad Hominem Attack’ On His WSJ Op-Ed

By Paul Caron

TaxProf Blog op-ed: David Cay Johnston’s Ad Hominem Attack On My WSJ Op-Ed, by Bradley Smith (Capital University Law School; former Chair, Federal Election Commission):

David Cay Johnston claims that I have a “moral obligation” to address the claims of his op-ed, Bradley Smith’s WSJ Op-Ed Is A ‘Breathtaking’ Distortion Of The Facts Of The IRS ‘Scandal’. Well, OK then….

First, he argues that “there was no “targeting” of right wing groups,” and that any “hassling” was limited to “dubious applicants.”

Of course, this is not the conclusion of TIGTA, which notes that the inappropriate IRS scrutiny began with organizations with the words “tea party” in their names, later expanded to include many other names, starting with “Patriot” and gradually expanding to include many others. (Here is how the U.S. Court of Appeals for the Sixth Circuit summed up the TIGTA Report: “Those findings include that the IRS used political criteria to round up applications for tax-exempt status filed by so-called tea-party groups; that the IRS often took four times as long to process tea-party applications as other applications; and that the IRS served tea-party applicants with crushing demands for what the Inspector General called ‘unnecessary information.'”)

Free Speech

Reason: Comic Says ICE Raided His Home Over Twitter Joke About Cultural Appropriation: Reason Roundup

By Elizabeth Nolan Brown

Two recent stories highlight how aggressively Immigration and Customs Enforcement (ICE) and the FBI are policing speech on social media… In the first, ICE opened an investigation into Brooklyn comedian Jake Flores because of his Twitter jokes about Cinco de Mayo, cultural appropriation, and ICE agents.

On May 5, Flores started by questioning chattering-class priorities. “It would be cool if we talked about cultural appropriation after we ABOLISH ICE,” …

These tweets were followed up by Flores laying out a modest proposal for how Cinco de Mayo should work:

“White people are allowed to culturally appropriate on the condition that you help to destroy ICE. You kill 1 ICE agent and you get to wear a sombrero. 2 kills and you can wear a pancho.” …

The next day, Homeland Security allegedly showed up at Flores’ apartment door.

ICE Press Secretary Jennifer Elzea has at least confirmed that the agency opened an investigation into Flores after reading his tweets (no word from Elzea on the alleged apartment visit). “The kind of language expressed…even in an allegedly joking manner, is reckless and irresponsible,” she tells Splinter News. “It potentially puts at risk those who have taken an oath to uphold the law and protect public safety.”

Meanwhile, The Guardian offers up an all-too-similar story. Rakem Balogun of Texas fell under FBI surveillance for making Facebook posts that didn’t sit right with the bureau. In December of last year, agents raided Balogun’s house and arrested him; they kept him in jail for five months (with no bail allowed).

The Courts

Associated Press: Court upholds convictions of 2012 Ron Paul campaign staffers

By David Pitt

Campaign chairman Jesse Benton, campaign manager John Tate and deputy campaign manager Dimitri Kesari were convicted in 2016 of causing false records to be filed, causing false campaign expenditure reports, engaging in a false statements scheme and conspiring to commit the offenses…

Benton, Tate and Kesari contend that campaigns pay vendors who pass money on to subcontractors all the time and there’s nothing illegal about it. Prosecutors said it was illegal to cause the campaign to file inaccurate documents to try to hide that Sorensen was paid for a campaign endorsement…

Among the things they challenged was whether prosecutors could apply a federal financial fraud false reporting statute to campaign expenditure reports and whether that violation falls under the jurisdiction of the Federal Election Commission.

The appeals court concluded that “the production of false financial records by a political campaign falls within that framework.” The judges also concluded that the FEC does have jurisdiction over campaign expenditures and the authority to establish penalties for false reporting.

“I think there’s a danger this opinion criminalizes some very normal activity on political campaigns,” said Kesari’s attorney, Jesse Ryan Binnall. “And now people on campaigns have a very real concern that if for whatever reason somebody in the Department of Justice doesn’t like them, that they could pursue criminal charges against them.”


USA Today: We read every one of the 3,517 Facebook ads bought by Russians. Here’s what we found

By Nick Penzenstadler, Brad Heath, Jessica Guynn

USA Today Network reporters reviewed each of the 3,517 ads, which were released to the public this week for the first time by the House Permanent Select Committee on Intelligence. The analysis included not just the content of the ads, but also information that revealed the specific audience targeted, when the ad was posted, roughly how many views it received and how much the ad cost to post…

Adam Schiff, D-Calif., the minority leader of the House Intelligence Committee, said he made the ads available to the public so that academics could study both the intention and breadth of the targeting.

“These ads broadly sought to pit one American against another by exploiting faults in our society or race, ethnicity, sexual orientation and other deeply cynical thoughts,” Schiff said in an interview with USA TODAY NETWORK. “Americans should take away that the Russians perceive these divisions as vulnerabilities and to a degree can be exploited by a sophisticated campaign.”

A federal grand jury in February indicted 13 individuals accused of working for the Internet Research Agency to produce the ads. The charges related to meddling in the 2016 election, the only election interference case Mueller’s office has filed so far.

Candidates and Campaigns 

Roll Call: Women Reaching New Levels in Political Donations

By Kate Ackley

The number of women donating to federal candidates has surged by 182 percent when compared with this time in the 2016 cycle, according to new data from the nonpartisan Center for Responsive Politics. Much of the activity has been among Democratic donors, a trend that first began to appear after the Women’s March on Washington the day after Trump’s inauguration.

The number of women who are donating in smaller amounts, but enough to trigger the $200 threshold requiring disclosure to the Federal Election Commission, is even more dramatic: up 422 percent over 2016, the center’s data showed.

“It’s a huge increase,” said Sarah Bryner, the center’s research director. “It reflects a change in how women see political fundraising. In the past, people didn’t really view political donations as something that important or even that impactful, and it still may not be. But they are ramping up their activism – and money and contributions are included in that, especially on the left.” …

In total, women account for 46 percent of all donors this cycle, up from 33 percent in 2016…

The rise of female political donors parallels a similar surge in the number of women running for elective office and has prompted a change in campaign finance rules allowing candidates to use their political money for child care in some cases.

The States

Arkansas Times: Ark. Supreme Court justice sues to block TV stations from airing ‘defamatory’ ads from dark money group

By Benjamin Hardy

Associate Justice Courtney Goodson has filed a defamation lawsuit seeking an end to local broadcasts of TV ads funded by the Judicial Crisis Network, a D.C.-based “dark money” group backing one of Goodson’s opponents in a race for her seat on the Arkansas Supreme Court.

Goodson’s suit seeks a temporary restraining order against KATV and the parent companies of several other local stations in Arkansas, including Nexstar Broadcasting, Mission Broadcasting and Comcast of Arkansas. The real target, though, is the JCN, which is attempting to replace Goodson with challenger David Sterling, an attorney for the state Department of Human Services…

Goodson’s suit, filed in Pulaski County circuit court on Monday, calls the JCN’s advertising “false, misleading, and defamatory.”

Arkansas Online: Arkansas Supreme Court justice files suit to block TV ads, says election attacks false

By John Moritz

In Washington County, where one of two suits was filed, Circuit Judge Doug Martin issued a temporary restraining order to halt the ads from airing. The ruling affected Nexstar Broadcasting, which has stations in central Arkansas, and Goodson’s attorney said she hoped the company would stop airing ads there, too.

In Pulaski County, where the other suit was filed, Circuit Judge Chris Piazza scheduled a hearing for 10 a.m. Friday.

Additionally, Little Rock’s KATV station suspended the ads from its airwaves pending the hearing, according to copies of an email sent by Goodson’s attorney, Lauren Hoover. ..

“Courts, as a general proposition, are very reluctant to restrain speech in advance,” said John DiPippa, the dean of the University of Arkansas at Little Rock’s William H. Bowen School of Law, and a professor of constitutional law…

“I’m a big believer in the First Amendment,” Goodson said in a brief phone interview. “But no one has a First Amendment right to lie.”

The other target of recent Judicial Crisis Network ads, Hixson, released his own forceful statement Monday condemning “dark money” expenditures. Asked whether his campaign was considering its own legal action, a spokesman said it was not.

Idaho Press-Tribune: ‘The Idahoan’ ruled exempt from Sunshine Law, qualified as a ‘newspaper’

By Betsy Z. Russell

Under Idaho law, [Deputy Attorney General Brian] Kane wrote, the publication “appears to be serving a legitimate press function.”

It may not be exempt under federal law, however. “Under the federal campaign finance law, the test for ownership and control includes candidates, parties and committees,” Kane wrote.

The publication appears to be funded and controlled, at least in part, by political committees affiliated with campaign consultant Lou Esposito, Kane wrote, including Free Enterprise PAC, Gun PAC, and Land PAC.

“Although purporting to be a newspaper, The Idahoan appears to be a shill intended as cover for Mr. Esposito’s political committees and their corresponding viewpoints,” the legal opinion concluded.

But while that’s an issue under federal law, Kane found, it’s not under Idaho law.

Late on Monday afternoon, Kane revised the legal opinion to remove the “shill” sentence, saying it was a mistake to include it. “Under the Idaho definition for the press exemption, it really isn’t a close call,” he said. “They really do qualify for the exemption.”

Kane advised Denney that he might want to propose an amendment to Idaho’s law to include committees, “if he believes the activity discussed in this analysis warrants oversight.”

Denney, in a news release issued Monday, said, “It appears that The Idahoan qualifies for the press exemption in Idaho Code.”

Techdirt: California Gov’t Thinks It Might Be Able To Regulate Fake News Sometime Before 2020

By Tim Cushing

Somehow recent overseas efforts to regulate fake news, hate speech, etc. haven’t managed to persuade US government officials to think two or three times before introducing the same sort of legislation. Whatever hasn’t been turned into blatant vehicles for government censorship has produced a steady stream of embarrassing collateral damage.

In the United States, the First Amendment protects a wide variety of unpopular speech, but that isn’t stopping California legislators from trying to govern their way through the “fake news” problem. Eric Goldman reports an effort has been started to put the state in the business of directly regulating online speech.

The bill has been heavily edited since its introduction in February. At that point, the Cali legislature wanted to compel social media services to inform users what steps it was taking to protect them from “fake news” as defined by the California government, if and when the government ever gets around to defining exactly what it thinks “fake news” is…

The latent desire to govern speech never really goes away, no matter how many tax dollars are spent defending constitutionally-indefensible bills in state and federal courts. “Shall make no law,” indeed.

Alex Baiocco

Alex Baiocco