Daily Media Links 5/16: Beware the DNC’s lawsuit against the Trump campaign, Suit filed to block plan to restrict power of Clean Elections, and more…

May 16, 2018   •  By Alex Baiocco
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In the News

American Thinker: Is Your State Restricting Your Ability to Support Candidates?

By Luke Wachob

A new report by the Institute for Free Speech grades the states on political giving freedom and offers the clearest picture to date of how states limit contributions to candidates, political parties, and political action committees. These limits make life difficult for upstart challengers and others who lack a pre-existing base of financial support. But exactly how cumbersome they are varies tremendously from state to state.

Consider a candidate for the Colorado General Assembly. Despite the fact that many of these candidates will have to campaign in the expensive Denver media market, they can accept no more than $200 per election from individuals. In addition, corporations and labor unions are prohibited from giving any money to candidates. Cross the border in neighboring Nebraska, and it’s a totally different story. The Cornhusker State has no contribution limits at all, allowing individuals, groups, businesses, and unions to donate as they please.

The pattern repeats across the country. One state will impose low limits across the board, while a neighboring state has no limits whatsoever, and yet another has a mix of moderate limits on some kinds of giving. So it is that a candidate in Virginia faces no limits on contributions from individuals, while a candidate in West Virginia is limited to $1,000 per donor. A candidate for the South Dakota House of Representatives can also accept no more than $1,000 per individual, while a candidate in North Dakota can accept unlimited amounts, just like in Virginia.

Daily Caller: Clinton Campaign Funneled $150,000 To Hillary Clinton’s Personal Company

By Andrew Kerr

The Clinton campaign’s rent payments to ZFS vary greatly…

“I would think that’s not usual,” [former FEC chairman and founder of the Institute for Free Speech Brad] Smith told TheDCNF. “That would be something that would cast out as to whether they’re actually paying market value.”

A possible explanation is that ZFS is extending credit to the Clinton campaign. If that were the case, however, that could open up the Clinton campaign to reporting violations, according to Smith.

“You can’t extend credit to a campaign on different terms than you would anybody else,” Smith said. “A landlord can’t say, ‘well, you just pay me what rent you can when you can’ – no, you can’t do that.”

Smith said the varying nature of the campaign’s payments ZFS lead him to believe there likely isn’t a formal sublease agreement in place between it and Clinton’s LLC.

“That’s what it sounds like, they don’t have any actual agreement,” he said…

“The bottom line is that there’s a bunch of Clinton affiliated organizations that are renting space up there, and it doesn’t seem like there’s much really going on,” Smith told TheDCNF. “Rental payments all go to Hillary Clinton through her LLC.”

“Obviously, it has a certain fishiness to it,” he added. “If they are charging market rates, there’s probably nothing illegal per se about doing business with your own company charging market rates.”

First Amendment 

Washington Post: Beware the DNC’s lawsuit against the Trump campaign

By Nathaniel A.G. Zelinsky

Americans – and the courts – should think hard before embracing all of the DNC’s legal theories. As it applies to the Trump campaign, the case presents implications for the First Amendment and, if successful, could transform free-speech law in the United States in worrisome ways. Down the road, the DNC itself might regret prevailing on the legal claims that it advances today.

The DNC lawsuit boils down to a simple question: When may the law penalize someone who disseminates truthful but illegally acquired information about a matter of public concern? Under current First Amendment caselaw, most recently addressed in the 2001 Supreme Court decision in Bartnicki v. Vopper, the answer is almost never – unless the person who published stolen information also participated in the initial theft…

Just as the Constitution guarantees a reporter’s right to publish the DNC hacks, so too can a political campaign take advantage of emails stolen by a third party…

Consider the unintended consequences that might arise if the DNC’s lawsuit succeeds in holding the Trump campaign legally responsible for Moscow’s hacks. In the future, a journalist who closely cooperates with a leaker might also be labeled a conspirator and held liable for the leaker’s actions. Put more sharply: Under the DNC’s legal thinking, the Trump administration today could prosecute those many reporters who rely on sources leaking classified material to uncover accounts of governmental incompetence (or worse).

Internet Speech Regulation

Slate: Facebook Is Pretty Good at Catching Nudity and Trolls. It’s Still Struggling to Stop Hate Speech.

By April Glaser

Facebook removes tons of content from its platform for violating its rules, but it generally doesn’t reveal much about that content’s nature or quantity. On Tuesday, however, the social network pulled back the curtain with a new report on how it enforces its content-removal policies…

Facebook’s effort to share data is voluntary, and it follows the company’s move at the end of April to release its guidelines for removing content. But increasingly, lawmakers are warming up to the idea of legislation that would require Facebook to be more transparent beyond voluntary disclosures. One option is the Honest Ads Act, which would require Facebook and its peers to disclose when political ads are bought on their platforms and who paid for them.

The Courts

Houston Chronicle: PETA lawsuit against Texas A&M turns Facebook comments into a First Amendment issue

By Alyson Ward

People for the Ethical Treatment of Animals has filed a lawsuit alleging Texas A&M violated the First Amendment by filtering out negative comments on the university’s Facebook page.

The lawsuit, filed Monday in U.S. District Court, deals with how to define “free speech” in social media on digital platforms – an issue that is still a new frontier in First Amendment law…

PETA is being represented by the Electronic Frontier Foundation, a nonprofit digital rights organization. The suit was filed against Michael K. Young, the university’s president, because he has authority over campus policies.

“Our First Amendment rights are infringed when agencies and officials block the posts they don’t like or agree with,” David Greene, the Electronic Frontier Foundation’s civil liberties director, in a statement. “And the rights of all readers are affected when the government manipulates it social media pages to make it appear that its policies and practices are embraced, rather than condemned.”…

“These cases are being litigated more frequently,” said Josh Blackman, a constitutional law professor at South Texas College of Law-Houston who follows First Amendment law.

The decision, he predicted, will turn on how the court defines the Texas A&M Facebook page.

“If the page is opened up as a ‘public forum,’ then the government cannot discriminate on the basis of viewpoint,” Blackman said, and deleting comments that oppose animal cruelty could well constitute “viewpoint discrimination.” But if the page is determined to be something less than a public forum, he said, then the removal of comments may be allowed – but only if the policy to remove them is applied to all commenters, not just those from PETA.

Online Speech

Wired: Twitter Will Begin Hiding All Tweets From Suspect Accounts

By Louise Matsakis

Twitter announced Tuesday that it will begin to hide all tweets from some accounts in conversations and search results. The goal is to identify and filter trolls and harmful users, based not on any specific tweet, but on how they use the social network holistically…

Those whose tweets are deemed to be “disruptive,” but that don’t violate Twitter’s policies outright, will be secluded at the bottom of a conversation thread or search result, to make room for more productive and respectful conversations…

After Twitter announced its new moderation policies Tuesday, a number of its users (predictably) latched onto the news as evidence of the social network’s sinister efforts to silence free speech. But Twitter likely isn’t bothered. The platform-which has been plagued by spam, abuse, and misinformation problems since it launched-is attempting to execute a strategy its competitors have not. Instead of striving for neutrality, Twitter is again prioritizing better conversations, as it continues to examine what a healthy conversation looks like online.


USA Today: Sen. Bernie Sanders says this one issue keeps progressive policies from advancing

By Nicole Gaudiano

Sen. Bernie Sanders, speaking at a policy forum here Tuesday, identified a singular roadblock to achieving success on a host of progressive policies – and it wasn’t the Trump administration.

It’s American oligarchy.

Re-framing a familiar theme from his 2016 presidential campaign in stark terms, Sanders on Tuesday argued that the small number of multi-billionaires who now have power over the country’s economic, political and social life is “one issue out there which is so significant and so pervasive that, unless we successfully confront it, it will be impossible to succeed on any of these other important issues.”

The solution, he said, is not only ending voter suppression, “extreme gerrymandering” and overturning the Citizens United Supreme Court decision, which helped pave the way for super PACs, but moving toward automatic voter registration. 

HuffPost: Elizabeth Warren Pledges Big Money To ‘Turn Up The Heat On Gerrymandering’

By Daniel Marans

Warren is splitting the cash among several Democratic campaign committees and groups. She is sending $8,000 each to nine Democratic legislature campaigns in states where Democrats hope to pick up seats: Florida, Georgia, Maine, New Hampshire, Ohio, Pennsylvania, South Carolina, Texas and Wisconsin.

She is also contributing $30,000 each to the Democratic Legislative Campaign Committee (a national party arm that helps elect Democratic state lawmakers) and the National Democratic Redistricting Committee (a group led by former Attorney General Eric Holder that is devoted to fighting GOP-led partisan redistricting). The remainder of the $175,000 will be split among several nonprofit liberal resistance groups, including Forward Majority, a super PAC devoted to electing Democratic state lawmakers…

[S]he would crack down on the influence of special interests through three major reforms: requiring Cabinet members, agency heads and members of Congress to divest themselves of assets that pose a conflict of interest with their policy work; prohibiting presidents and those officials from lobbying after they leave their posts; and barring corporations from providing multimillion-dollar leave packages to executives so they can serve in government.

“Let’s dismantle the broken system that lets rich donors and giant companies undermine democracy by buying their way in Washington,” she declared.

The States

Reuters: Arkansas judge bars TV ads attacking state Supreme Court justice. Is that constitutional?

By Alison Frankel

On Monday, Circuit Judge Doug Martin of Fayetteville, Arkansas, granted a temporary restraining order to Arkansas State Supreme Court Justice Courtney Goodson, who is running for reelection. The order bars local television stations from airing an attack ad on Goodson by the deeply conservative Judicial Crisis Network. Judge Martin concluded that Justice Goodson, who sued a half-dozen television stations in Fayetteville and Little Rock on Monday, was likely to prevail on her allegations that the JCN ads were defamatory. Because early voting is already underway in the judicial election, Judge Martin said, Justice Goodson will suffer irreparable harm if the ads continue to run until Election Day…

In a post Monday night at The Volokh Conspiracy, the law prof [Eugene Volokh]  said an injunction issued before a judgment on the merits of a defamation claim “is a clearly unconstitutional ‘prior restraint,’ and violates the First Amendment,” Volokh wrote. “Here, there was no trial, no ‘final determination’ and no ‘decision on the merits’- just a temporary restraining order presumably based (in relevant part) on a conclusion that the plaintiff showed a ‘likelihood of success on the merits.’ That is no basis for restricting speech, even for a few days, especially (but only) criticism of a high government official during an election campaign.” …

The only constitutional answer, Volokh told me in an interview on Tuesday, is for candidates to run their own ads countering their opponents’ supposedly false claims.

Arizona Capitol Times: Suit filed to block plan to restrict power of Clean Elections

By Howard Fischer

The author of Arizona’s Citizens Clean Elections Act wants a judge to block vote on a plan by Republican lawmakers to take away some of the power of the commission that administers the program of public financing of candidates.

In a new lawsuit, Louis Hoffman contends the referendum put on the November ballot by GOP lawmakers asks voters to make two changes to the law on public financing of political campaigns. Attorney Danny Adelman, who represents Hoffman, said the Legislature illegally combined the two changes into a single take-it-or-leave-it measure for voters. And that, he said, violates a provision of the Arizona Constitution which says all laws “shall embrace but one subject.”

What the lawmakers are trying to do, Adelman charges, is convince voters to accept the whole package – including sharp new restrictions on the Citizens Clean Election Commission – just because they may like the other half of the package which deals with how candidates can spend the public money they get. So he wants Maricopa County Superior Court Judge Teresa Anderson to block the measure from appearing on the November ballot.

Columbia Daily Tribune: House investigative committee digging into Greitens’ campaign finance

By Rudi Keller

The committee investigating Gov. Eric Greitens will call his policy director Will Scharf to testify about a campaign memo from 2016 showing rival campaigns were digging into not-for-profit contributors in search of hidden donors.

House Special Investigative Committee on Oversight Chairman Jay Barnes, R-Jefferson City, said a memo Scharf wrote for Greitens’ Republican primary rival Catherine Hanaway supports the committee’s earlier work investigating a donor list Greitens obtained from the Mission Continues, a veterans’ charity he founded…

Scharf worked for Hanaway’s losing primary effort against Greitens when the memo was written. He was hired by Greitens after the campaign to work in the governor’s office and Hanaway is now the attorney representing Greitens for Missouri, the governor’s official campaign committee. The memo, dated July 9, 2016, raises questions about White Impala LLC, formed Dec. 10, 2015, and ELX83 LLC, formed Dec. 29, 2015…

“Literally the only records of their existence are filings with the Secretary of State and the” Missouri Ethics Commission “reports of their contributions to the Greitens campaign,” Scharf wrote. “By all appearances, these two entities were created to channel contributions to the Greitens campaign from an anonymous donor or donors.”

Alex Baiocco

Alex Baiocco