Daily Media Links 5/19

May 19, 2020   •  By Tiffany Donnelly   •  
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In the News

Bloomberg Government: Courts Hamper Efforts to Shine Light on Digital Campaign Ads

By Kenneth P. Doyle

[A] court ruling required Maryland to permanently cease enforcing parts of its online ad disclosure law against newspapers and TV stations that have websites selling political ads…

The Maryland ruling handed down on May 8 by the U.S. District Court for Maryland ordered the state to pay $400,000 for attorney fees to the Washington Post and other newspapers, which challenged the online ad requirements. That decision followed a federal appeals court ruling that found unconstitutional states’ requirements for newspapers and TV stations with websites to track and publish information about the online ads they sell…

The Honest Ads Act has “the exact same problem” as the Maryland law struck down in court because it compels speech by private organizations in violation of the First Amendment, said David Keating, president of the Institute for Free Speech, a nonprofit that frequently challenges disclosure requirements and other campaign finance laws. Keating noted that state and federal candidates and political organizations are already required to disclose their campaign spending, which should provide enough transparency without additional rules affecting others.

[Ed. note: The Institute for Free Speech filed an amicus brief in support of the newspapers in the case.]

Congress

Roll Call: Amid the pandemic, Senate floor still all about the nominations: Road Ahead

By Chris Cioffi

Though the coronavirus pandemic dominates the headlines, the Senate is back to the nominations grindstone this week as the chamber considers a slew of people tapped to serve on federal courts and in the Trump administration…

Up next: the confirmation of Texas lawyer James “Trey” Trainor III, who represented the Trump campaign in 2016, to the Federal Election Commission. Trainor would restore a quorum at the agency, allowing the FEC to hold meetings and conduct official business. Democrats oppose the nomination, as well as the process. With Trainor onboard, the commission would have two Democrats and two Republicans, but typically, FEC nominees have been advanced in bipartisan pairs.

Fox News: Jordan launches inquiry on guidance telling judges to avoid groups like Federalist Society

By Ronn Blitzer

House Judiciary Committee ranking member Rep. Jim Jordan, R-Ohio, is launching an investigation into a draft advisory opinion by the Judicial Conference’s Committee on Codes of Conduct which, if approved, would prohibit federal judges from being members of the right-leaning Federalist Society or left-wing American Constitution Society (ACS).

Jordan’s concern with the draft advisory opinion is that membership in these groups had previously been allowed, and while under the draft opinion this would no longer be allowed, membership in other groups including the American Bar Association (ABA) would continue to be permitted…

“The draft advisory opinion discriminates against the viewpoints of members of the judiciary who chose to associate with the Federalist Society,” Jordan said in a letter to the Office of the General Counsel for the Administrative Office of the U.S. Courts obtained by Fox News. Jordan noted that more than 200 federal judges and close to 30 members of Congress had expressed concerns over it.

Bloomberg Government: What to Know in Washington: Donors Press Congress on More Giving

By Zachary Sherwood and Brandon Lee

A group of philanthropists is asking Congress to require foundations and other charitable groups formed by affluent donors to give more to charitable causes to combat the economic downturn caused by the coronavirus pandemic.

Walt Disney heiress Abigail Disney, Susan and Regan Pritzker of the billionaire Pritzker family, and early Google software developer Ning Mosberger-Tang are among more than 260 philanthropists asking Congress to increase the minimum amounts that private foundations and donor-advised funds donate to charities each year…

The plan would double the mandatory amount that private foundations must donate to charities each year to 10% of their total assets, up from 5%. It would also require donor-advised funds – entities that allow tax deductions on donations without distributing the money – to give 10% of their assets to charity. Donor-advised funds currently don’t have any minimum donation requirements.

The change would apply to 86,000 private foundations, including the Ford Foundation and the Lilly Endowment, and 728,000 donor-advised funds…

Media

Reason (Volokh Conspiracy): Lawsuit Against Fox News Claims Cable Television Is Unprotected by the First Amendment

By Eugene Volokh

I blogged about this lawsuit (Wash. League for Increased Transparency & Ethics [WASHLITE] v. Fox News) when it was filed last month; my view is that the suit is based on constitutionally protected expressions of opinion, and therefore barred by the First Amendment. But the plaintiff’s response to Fox’s motion to dismiss did much more than just argue that Fox’s statements were factually false-among other things, it claimed that cable television channels just aren’t protected by the First Amendment…

But this is flat wrong: Cable channels generally have no First Amendment rights against the private cable operators that choose whether or not to allow them, but they have full First Amendment rights vis-à-vis the government. (See, e.g., U.S. v. Playboy Entertainment Group (2000)). Indeed, that’s the same as in many other media: The First Amendment doesn’t protect me against Reason’s deciding to kick us off their site (or even Reason’s deleting posts it doesn’t like, not that it’s ever tried to do that). But the First Amendment does protect me against the government imposing liability on my posts (unless my posts fall within one of the standard First Amendment exceptions, such as the libel exception).

Online Speech Platforms

Wall Street Journal: The Lockdown Skeptic They Couldn’t Silence

By Allysia Finley

Does a pandemic demand the strong medicine of censorship? Social-media companies seem to think so. They’re taking steps to control speech in the name of combating the spread of medical misinformation. Facebook employs “fact checkers” to review posts, makes those that don’t pass their test harder to find, and directs users to purportedly reliable sources like the World Health Organization. YouTube has taken down videos it deems inconsistent with science. Twitter plans to add warning labels to tweets that don’t pass muster with “subject-matter experts, such as public health authorities.”

Aaron Ginn’s story is a cautionary tale that even well-intended censorship can overreach, suppressing the search for truth. Mr. Ginn, 32, is the Silicon Valley technologist who posted an essay on March 20 titled “Evidence over hysteria-COVID-19” on the Medium website. Citing academic research and government data, Mr. Ginn argued that public-health experts were focusing too much on “flattening the curve . . . while ignoring the economic shock to our system” of shuttering businesses and schools and ordering Americans to stay home…

Mr. Ginn’s essay drew 2.6 million page views in 24 hours-and a barrage of liberal criticism… Then Medium took it down, saying it violated rules under a “risk analysis framework we use for ‘Controversial, Suspect and Extreme content.’ “

Yet if Medium meant to stifle debate, its action backfired. Mr. Ginn has since become an informal organizer of a small battalion of well-credentialed dissenters.

New York Times: Now More Than Ever, Facebook Is a ‘Mark Zuckerberg Production’

By Mike Isaac, Sheera Frenkel and Cecilia Kang

The beginning of the end of Mr. Zuckerberg’s distanced leadership came on Nov. 8, 2016, with the election of Donald Trump. From that moment, a relentless series of crises – his casual dismissal of concerns over fake news as “a pretty crazy idea”; revelations that the platform had been used as a plaything for state-sponsored espionage; the Cambridge Analytica scandal – jolted Mr. Zuckerberg to tighten his grip…

The revamp has not gone without incident. In early May, Facebook struggled with how to handle a viral conspiracy video known as “Plandemic,” waffling as the footage spread to the screens of millions of users. Last week, reporters at the Detroit Metro Times showed that the company was blind to assassination-stoking activity on pages with 400,000 members.

Still, for Mr. Zuckerberg, the pandemic has the potential to be a more favorable backdrop than what 2020 would have ordinarily been dominated by – the presidential election and the difficulties of policing political speech.

Techdirt: Content Moderation At Scale Is Impossible: Google Removes Podcast Addict From Play Store Because It Has COVID-19 Related Podcasts

By Mike Masnick

Podcast Addict, a very popular mobile podcast player, says that Google removed its app from the Play Store, supposedly for violating Google’s new rules related to COVID-19. Like pretty much all big internet platforms, Google’s Play Store is trying to combat “misinformation” and “disinformation” about COVID-19. A few months back we saw this issue play out with Google advertisements, in which it was blocking politicians from advertising about the failed response of various elected officials to the pandemic, because it said only “official” government entities could advertise about COVID-19.

In this case, the “problem” seems to be that via Podcast Addict… you can get podcasts about COVID-19…

As the notice says, the app has been suspended because “apps referencing COVID-19, or related terms, in any form will only be approved for distribution on Google Play if they are published, commissioned, or authorized by official government entities or public health organizations.” But, uh, the app doesn’t “reference” COVID-19. It just had podcasts about it (as, I should note, does Google’s own podcasting app and YouTube)…

I’m sure that the Play Store has a bunch of people frantically trying to spot and pull down a variety of apps that are spewing dangerous mis- and disinformation (and, rest assured that when they inevitably miss some, reporters and others will quickly call out the company’s “failure” to properly police this stuff).

Candidates and Campaigns

Reason: Two Billionaires Demonstrate the Limits of Money in Elections

By Jacob Sullum

Two and a half weeks after Sen. Bernie Sanders (I-Vt.) slammed Michael Bloomberg for trying to “buy this election,” the former New York City mayor left the presidential race, having spent $570 million of his own money to win 58 delegates-3 percent of the number needed to secure the Democratic nomination. Tom Steyer, the other billionaire in the race, did even worse, abandoning his campaign after spending more than $250 million and earning zero delegates.

Those spectacular failures should give pause to the politicians and activists who think money poses such a grave threat to democracy that the Constitution must be amended to authorize limits on campaign spending. Bloomberg and Steyer-who outspent former Vice President Joe Biden by factors of more than eight and nearly four, respectively-demonstrated that no amount of money can buy victory for candidates who fail to persuade voters…

The Supreme Court has repeatedly held that caps on campaign spending violate the First Amendment. Yet Democratic legislators are so obsessed with the supposedly corrupting impact of money in politics that they’re ready to authorize such restrictions by fundamentally rewriting free speech law, as a proposed constitutional amendment-backed by every Democrat in the Senate and more than nine out of 10 Democrats in the House-would do.

Contrary to the fears underlying that illiberal initiative, voters are perfectly capable of rejecting even the most powerfully amplified messages. Just ask Bloomberg and Steyer.

Wall Street Journal: How Biden Can Win Over Progressives

By Cenk Uygur

I host America’s largest online progressive news show and co-founded Justice Democrats, the PAC for the progressive wing of the Democratic Party that helped elect AOC and the Squad. I can tell you with some authority what progressives think, but so far almost no one in the Democratic establishment has bothered to try to find out…

If you asked, you might have found out, for example, that Justice Democrats has one litmus test. It isn’t Medicare for All or the Green New Deal-it’s rejecting money from corporate PACs. Why? Because the central issue in U.S. politics is corruption.

This bothers political elites the most. They pay lip service by opposing the Supreme Court’s Citizens United ruling-the easiest point to score in politics-but if you tell them taking corporate money is corruption, they will despise you. They almost all take the money, so it feels like a personal insult…

Saying you want to get money out of politics is meaningless. Saying you’re going to make it your top priority and should be judged a failure if you can’t get it done-that’s serious. Democrats should promise to pass Sen. Kirsten Gillibrand’s Clean Elections Act, which would give every American $600 in “democracy dollars” each cycle to donate to federal candidates. Then fight for a constitutional amendment to get public financing of elections. That’s the same amendment Mr. Biden said he favored 23 years ago.

The States

Arizona Republic: Arizona Supreme Court rejects bid by groups to gather initiative petition signatures online

By Andrew Oxford

The Arizona Supreme Court will not let initiative campaigns collect signatures online to qualify for the ballot in November, a move several campaigns had urged as a public health precaution as the coronavirus pandemic upended the usual practices of circulating petitions in public places or door-to-door.

In a 6-1 decision, the court rejected a request by four ballot measure campaigns to use the same website, known as E-Qual, that candidates for state offices use to get signatures for their nominating petitions…

Two ballot measure campaigns filed a similar, unsuccessful lawsuit in federal court.

One of those groups, Arizonans for Fair Elections, also said Wednesday it would suspend its campaign, citing the state Supreme Court decision. Its proposed initiative called for automatic voter registration and tougher lobbying laws.

City & State: Who exactly is a lobbyist?

By Rebecca C. Lewis

[T]he scope of actions that require individuals to register as lobbyists is especially broad in New York…

For months, JCOPE demanded that private citizen Kat Sullivan, an alleged rape survivor, register as a lobbyist because she spent over $5,000 advocating for the passage of the Child Victims Act, including the purchase of billboards. Sullivan independently used some of her settlement money from a lawsuit over the alleged rape to support the legislation. She maintained that she was simply expressing her First Amendment right to free speech. While JCOPE maintained that it was in the right, it eventually dropped the issue.

While Sullivan may have been attempting to influence public policy, which could be considered lobbying, she was not employed by anyone to do so, which is part of the state definition of a lobbyist. “If she had taken a bus to Albany and knocked on doors in the Capitol, no one would have questioned whether she had to report the bus fare,” Fisher said. “At the end of the day, the statute requires you to be engaged in compensation for somebody … but nobody hired her to do it.”

KFOR: Controversial Oklahoma bill that would have reversed campaign contribution rules permanently killed

By Cassandra Sweetman

An ethically controversial bill was pulled off the table almost as quickly as it was introduced after the senate author said it was never meant to become law…

State Senator Roger Thompson amended HB 3996 earlier this week. His changes would allow campaign contributions to be used for personal expenses, including mortgages, vacations, athletic events, concerts and country club dues.

It didn’t get any support, and the senator said it was never supposed to.

“It was never to be on the floor, it was never to become law, and it’s one of those things that you said, ‘Boy, I wish I hadn’t done that,'” Thompson said Friday…

“I’m in budget discussions with the house, and we’re talking about transparency, so I said, ‘You want to talk transparency? I’ll just file a bill and we’ll talk transparency,” Thompson said. “It was filed only to get the attention.”

As soon as it got that attention, he killed the bill. He admitted he should have talked to the Ethics Commission before submitting the provocative legislation.

 

Tiffany Donnelly

Tiffany Donnelly