Daily Media Links 5/21

May 21, 2020   •  By Tiffany Donnelly   •  
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In the News

Politico: FEC reaches quorum after Senate confirms Trainor

By Zach Montellaro

The Senate confirmed Trey Trainor, a Texas election attorney, to fill one of the empty seats on the Federal Elections Commission, restoring a quorum for the nation’s chief campaign finance watchdog that has not had one for nearly a year.

Trainor was confirmed on a 49-43 party-line vote on Tuesday afternoon…

The Institute for Free Speech, [a] watchdog that shares much of Trainor’s anti-regulatory worldview, supported his confirmation. IFS chairman Bradley A. Smith, a former FEC commissioner, called him a “welcome addition” to the FEC who would defend the First Amendment…

Across the spectrum, campaign finance groups have called for a new slate of commissioners to be nominated to serve on unexpired terms, so one commissioner’s resignation won’t trigger another shutdown.

Center for Public Integrity: Federal Election Commission Regains Powers With New Member

By Dave Levinthal

With Trainor aboard, the six-seat commission will only have a bare minimum quorum of four commissioners, meaning it would again shut down if one of the other commissioners resigns, retires or otherwise can’t attend to his or her duties.

Trainor and the three holdover commissioners must vote together, without dissension, to affirm big decisions, which require at least four votes. Trainor is a former Trump attorney who has long supported minimal campaign finance regulations. At his Senate confirmation hearing in March, Trainor vowed to approach his work at the FEC in “an objective and methodical manner.” He testified that the “touchstone for all regulation of political speech is the First Amendment.” A quorum “won’t matter if any one commissioner simply decides to be obstructionist,” said former FEC Chairman Bradley Smith, a Republican who now leads the pro-campaign finance deregulation Institute for Free Speech.

[Caroline] Hunter, the FEC’s chairperson, said Trainor will bring to the commission the “practical perspective” of a professional election law attorney who’s long worked with political parties and candidates…

Hunter, and Smith, the former FEC chairman, both also agree that the president and Capitol Hill also have work to do.

“I’d encourage the Senate and the White House to approve a new slate of commissioners,” said Hunter, adding that cleaning house at the FEC – including her – would help an agency that “needs fresh perspectives.”

Government Executive: Finally With a Quorum, Federal Election Commission Faces ‘Extensive Backlog of Cases’

By Courtney Bublé

Democratic FEC Commissioner Ellen Weintraub told Government Executive she hopes to have a productive relationship with Trainor and is ready to “roll up my sleeves and work with all my colleagues to get the important work of this agency done.” She said there are 350 matters on the agency’s enforcement docket and 227 items waiting for commission action…

Meredith McGehee, executive director of IssueOne, a nonprofit that seeks to reduce the influence of money in politics, said Tuesday…

“Despite regaining a quorum, the FEC will likely stay hopelessly broken as an enforcer of our nation’s election laws[.]” 

Concerns about the commission’s functionality were shared across the ideological spectrum. Institute for Free Speech Chairman and former FEC Chair Bradley Smith praised Trainor’s confirmation, but said, “unfortunately, with just four commissioners, any one member can still prevent the commission from acting” on decisions. He called on President Trump to nominate additional commissioners, and for the Senate to confirm them, to restore the commission to its full membership of six.

CNN: Election watchdog regains policing powers with new member

By Fredreka Schouten

Bradley Smith, a former FEC chairman who favors less campaign finance regulation, called Trainor “well-qualified” and said his confirmation restores the agency’s partisan balance.

“The FEC can now, hopefully, defend its actions in court and provide guidance to speakers on how to comply with the law,” said Smith, who serves as chairman of the nonprofit Institute for Free Speech, in a statement. “That is critical at any time, but it is even more important in an election year.”

Right to Protest

New York Times: The Right of the People to Protest Lockdown

By Floyd Abrams and John Langford

Around the nation, state lockdown orders during the coronavirus pandemic have led to sharp debates over the trade-offs inherent in such orders. We have no doubt that states have and should have extremely broad authority to take steps to protect public health during an outbreak that has sickened so many Americans.

But we also have no doubt that some of the restrictions imposed by states are utterly inconsistent with the First Amendment.

Consider California. Three weeks ago, hundreds gathered at the Capitol to protest the state’s stay-at-home order. In response, the California Highway Patrol indefinitely banned all in-person protests at state facilities.

Such a ban on protests is at odds with the way California treats other activities…

In New York City, protesters who were wearing masks and abiding by social distancing requirements were arrested or issued summonses. “While we greatly, greatly respect the right of people to protest, there should not be protests taking place in the middle of a pandemic,” New York’s police commissioner, Dermot Shea, has said. Mayor Bill de Blasio has asserted that “people who want to make their voices heard – there are plenty of ways to do it without gathering in person.”

As our political leaders navigate our collective response to the worst public health crisis in a century, it is critical that we preserve, to the maximum extent possible, opportunities for political dissent. The First Amendment sometimes requires discomforting results to protect the liberties of our people.

Supreme Court

National Review: The Court Should Fix This Gap in Free-Speech Law

By Carrie Campbell Severino

Free speech is not free if the government can force you to say things you disagree with. That is the principle behind the Supreme Court’s ruling in Janus v. AFSCME (2018) that public-sector workers cannot be forced to pay for a labor union’s speech.

The same idea is being litigated in the context of state bar associations in Jarchow v. State Bar of Wisconsin. There two Wisconsin attorneys are challenging the requirement that those who practice law in the state join the State Bar of Wisconsin and financially support its speech. The bar is one of the state’s most powerful lobbying organizations. It seeks to influence legislation leftward on a wide range of ideologically charged issues, including the death penalty, abortion, felon voting, campaign finance, LGBT issues, and tax reform. And it throws in plenty of criticism of President Trump.

A state forcing nonconsenting attorneys to support any such speech as a condition of having their law licenses is no more acceptable than public sector unions deducting their own fees from the paychecks of nonconsenting workers. But this case has made its way as a cert petition before the Supreme Court, because while Janus arose in the context of labor unions, there is older precedent that provides at least some support to Wisconsin’s scheme.

The Courts

Reason (Volokh Conspiracy): Puerto Rico “Fake News” Ban Challenged by ACLU

By Eugene Volokh

From the Complaint in Rodriguez-Cotto v. Vazquez-Garced (filed today):

25 L.P.R.A. § 3654(a), makes it a crime to raise “a false alarm in relation to the imminent occurrence of a catastrophe in Puerto Rico or, if there is already a state of emergency or disaster, spread[] rumors or rais[e] a false alarm regarding non-existing abnormalities.”

The law was amended on April 6, 2020, to include a second fake news provision, 25 L.P.R.A. § 3654(f), which makes it a crime to “[t]ransmit or allow [another person] to transmit by any means, through any social network or mass media, false information with the intention of creating confusion, panic or collective public hysteria, regarding any proclamation or executive order decreeing a state of emergency or disaster or curfew.”

The ACLU argues that the provisions are unconstitutional because

  1. They’re not limited to knowing or reckless falsehoods.
  2. They are impermissibly content-based, because “they criminalize sharing false information only about certain subjects, namely emergencies in Puerto Rico and the government’s response to those emergencies.”
  3. The terms “spread[ing] rumors or giv[ing] false alarms about non-existing abnormalities” and “with the intent of creating confusion, panic, or collective public hysteria” are unconstitutionally vague.

A court may be able to avoid objection 1, by reading a recklessness/knowledge requirement into the statute (something courts often do as to statutes that are silent about what mental state is required); but I think that even with such a mental state requirement, the statute is likely to be struck down as unconstitutionally vague or overbroad.

Times of San Diego: Judge Hears Rachel Maddow Bid to Beat OAN’s $10 Million Lawsuit

By Ken Stone

MSNBC star Rachel Maddow may soon be off the hook for labeling San Diego-based One America News as “really literally paid Russian propaganda.”

U.S. District Judge Cynthia Bashant on Tuesday gave strong hints that she would dismiss a $10 million defamation lawsuit brought by San Diego’s Herring Networks, which owns OAN but has a relatively tiny cable audience…

In a telephonic hearing, famed lawyer Theodore J. “Ted” Boutrous Jr. spoke on behalf of Maddow and her motion to dismiss the federal court case…

“This is exactly the kind of legally baseless defamation lawsuit targeting truthful speech and opinion about a public issue that California defamation law and the First Amendment and anti-SLAPP statutes forbid,” Boutrous said…

[Maddow] was merely exercising her free-speech right to express an opinion (“based on undisputed facts”) when she delivered a “single rhetorical flourish” and “colorful rhetorical hyperbole,” her legal team argued in filings.

Bashant opened the half-hour hearing by saying she didn’t think any question existed that Maddow’s remarks arose from “protected activity.” [She continued]…

“The real question I have is whether this was a statement of opinion…or of fact.”…

Speaking for Herring was Los Angeles-based attorney Amnon Siegel.

He argued that Maddow didn’t make it clear that she was giving an opinion when she stated “very clearly and very firmly” that OAN is “really literally paid Russian propaganda.”

Hollywood Reporter: DOJ Asks Court for Immediate Appeal in Trump First Amendment Fight

By Ashley Cullins

PEN America in October 2018 sued Trump because it claims he repeatedly violates the First Amendment by threatening and retaliating against news outlets whose content he views as “hostile.” …

U.S. District Judge Lorna G. Schofield in March trimmed PEN America’s claims but allowed part of its suit to proceed. Specifically, she’s letting the group seek a declaration (but not an injunction) related to whether Trump is violating the First Amendment in connection with revoking or threatening to revoke press badges and security clearances.

In a Monday letter to Schofield, Trump’s DOJ lawyers asked for a pre-motion conference so it can lay out its arguments for an interlocutory appeal…

[T]he DOJ argues Schofield’s opinion addresses four controlling questions of law that leave “substantial ground for difference of opinion.” Those four questions are: whether the president can be sued for declaratory judgment regarding non-ministerial actions taken in his official capacity; whether allegations of a chilling effect on protected speech of third parties support organizational standing for a First Amendment claim; whether the First Amendment actually prohibits the president and his team from giving more or less access to reporters based on their coverage; and whether PEN can bring a First Amendment claim challenging the revocation or threatened revocation of security clearances based on allegations that there is a chilling effect on third parties’ speech. 

Minnesota Public Radio: Republican Senate candidate sues Walz over COVID-19 restrictions

By Brian Bakst

Republican Senate candidate Jason Lewis filed a federal lawsuit Tuesday against Democratic Gov. Tim Walz, arguing that restrictions meant to contain the spread of the coronavirus violate his ability to campaign as he wishes.

The case is just one of several lawsuits over the governor’s coronavirus orders. But the unique nature of it could earn Lewis attention, something harder for political candidates to come by with COVID-19 still dominating the public’s attention.

Lewis, a former congressman, is among the Republicans seeking the nomination to challenge Democratic U.S. Sen. Tina Smith. Lewis argues that the now-lapsed stay-at-home order and other continuing restrictions have kept him from campaign activities “such as rallies, meetings, dinners, and speeches.” …

The lawsuit was filed in U.S. District Court. It seeks an injunction against any enforcement against large gatherings or travel as well as attorneys fees.


Times of San Diego: Court TV: Fox News Hearing in COVID-19 Lawsuit Set for YouTube Live

By Ken Stone

What do the coronavirus and a Washington state nonprofit’s case against Fox News have in common? They’re both novel.

Thursday in Seattle, when a Superior Court judge hears a Fox Corp. motion to dismiss the case, WASHLITE will say that the First Amendment doesn’t apply to Fox News.

Fox lawyers ridicule that “astounding claim,” saying in a brief filed Tuesday that even if the group is right about Fox News hosts and guests deceiving viewers on the dangers of the virus, “the Constitution protects Fox’s speech as a matter of law.” …

Also new: King County Superior Court Judge Brian McDonald will let the world into the hearing – via YouTube.com. (Attorneys and other parties will take part via Zoom.). The live “simulcast” starts at 9:30 a.m.[PDT] and can be found here

“A lot of people do not like Fox News,” [Clay Calvert, a First Amendment expert and University of Florida law school professor] said in a phone interview. “But this case is about more than simply Fox News. It affects any news organization, whether they’re from the right or the left. The same issues would apply to MSNBC or CNN.”

The idea that cable news has no First Amendment protection if it’s conveyed on a third-party service provider would affect any cable news channel, he said.

WASHLITE also cites the state Consumer Protection Act in seeking a judge’s order to halt Fox News “false information” on COVID – what Fox lawyers call an illegal “gag” order.

Law & Crime: The Entire Mainstream Media Just Rode in to Support Fox News Against Coronavirus Coverage Lawsuit

By Aaron Keller

Two dominant media and journalism consortiums have sought permission from a judge in Washington State to file a brief as amici curiae – “friends of the court” – in a lawsuit filed by an activist group against Fox News and various cable television providers. Other major players in the mainstream media landscape are riding to Fox’s defense.

The activist group, known as WASHLITE, alleged that Fox violated state consumer protection law by branding itself as a “news” broadcast. The group also claimed Fox committed the “tort of outrage” (intentional infliction of emotional distress). The crux of the group’s claims are that Fox broadcasts downplayed the severity of the novel coronavirus and, thus, cannot be legally branded as accurate “news” broadcasts.

Fox has defended itself by saying WASHLITE’s tactics would amount to the judicial stifling of the free press. It has also pointed to inaccuracies and inconsistencies in the group’s proffered examples of Fox coverage.

The media entities seeking to be recognized as amici curiae are the Internet & Television Association (NCTA) and the Reporters Committee for Freedom of the Press (RCFP)…

WASHLITE’s “opposition brief raised for the first time the argument that cable news providers somehow lack First Amendment protection,” the amici documents summarized. “That radical proposition is plainly wrong: The First Amendment unquestionably protects cable programmers” (internal punctuation and citations omitted).

Online Speech Platforms

Mashable: Twitter’s ‘no replies’ feature could cause problems for Trump

By Rachel Kraus

Twitter is testing an ability that lets users limit who can reply to their tweets. If you’re part of the test, you’ll be able to determine whether everyone can reply (the norm and current default), if only people that you follow can reply, or if only people you tag in a tweet can reply. If you don’t tag anyone and go with that last option, you’re basically turning off all replies, period.

Reactions to the new feature have been mixed…

One important take points out the constitutional and legal ramifications of the feature for public officials. The ACLU has issued a statement that public officials need to be careful about how they use the reply-limiting features, lest they violate the First Amendment.

As a general matter, Twitter’s investment in user controls is a good thing. But public officials would be violating the First Amendment if they were to use this tool to block speakers on any accounts they’ve opened up for public conversation in their roles as government actors. Nor should public officials use this tool to decide who can, or can’t, reply to accounts they have opened up for requests for government assistance, which may be on the rise due to COVID-19.

The States

Independent Newsmedia: Q&A: Arizona Supreme Court E-Qual ruling a threat to Arizona democracy?

By Terrance Thornton

The Arizona Supreme Court Tuesday, May 13 denied a request for accepting a special action and relief from the in-person state law signature requirement to place statewide initiative questions on the November general election ballot…

At the core of the legal challenge to in-person signature gathering during the time of the novel coronavirus is the usage of the E-Qual program.

Through the E-Qual program, which is administered by the Arizona Secretary of State’s Office through the Citizens Clean Elections Commissions — a bipartisan, voter-approved regulatory body — Arizona voters can sign nominations forms for partisan candidates and provide $5 donations.

To better understand the ramifications of this recent ruling, Independent Newsmedia reached out to Terry Goddard, a longtime political advocate, former mayor of Phoenix and Arizona Attorney General.

Mr. Goddard is seeking an end to “dark money,” or political contributions undisclosed to 501(c)4 nonprofit organizations. But at the onset of the COVID-19 pandemic of 2020 he abandoned plans for this November.

Tiffany Donnelly

Tiffany Donnelly