Daily Media Links 5/9: Abandoned? The Liberal Flight from the First Amendment, Regulation Won’t Help Internet Free Speech, and more…

May 9, 2018   •  By Alex Baiocco   •  
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In the News

Capital Research Center: Dark Money Ascendant: Atlantic Philanthropies

By Matthew Vadum

The Institute for Free Speech (formerly the Center for Competitive Politics) found last year that dark money funding fell to just 2.9 percent of all campaign spending during the 2016 election cycle. Moreover, dark money from nonprofit groups has never exceeded 5 percent of campaign spending in the last six election cycles and continues to fall.

More recently, CRC’s own researchers Michael E. Hartmann and Michael Watson examined three flows of money: to direct campaign contributions, to traditional public policy 501(c)(3) groups like think tanks, and to so-called dark money groups like 501(c)(4)s. Hartmann and Watson found that, since the Supreme Court decision Citizens United v. the Federal Election Commission, spending has increased in all three categories, but expenditures by super PACs and 501(c)(4)s still represents the smallest portion of campaign spending.

So dark money isn’t quite the threat it has been made out to be. Indeed, there is an upside to dark money: it can protect unpopular speech and hold government accountable for its policies and actions.

First Amendment 

Concurring Opinions: Abandoned? The Liberal Flight from the First Amendment

By Ronald K.L. Collins

Not too very long ago, the Senate Judiciary Committee considered a proposal, endorsed by 42 Democrats, to amend the First Amendment. Why? The answer is as simple as it was astonishing: Because they were outraged that the Supreme Court had vindicated First Amendment claims involving political speech in the form of contributions in an election campaign. To be more precise, but no less honest, they were livid with the Court’s handling of campaign finance cases dating back to 1976 – that is, rulings by the Burger, Rehnquist, and now Roberts Courts. (Let us not forget that liberal stalwarts such as Justices William Brennan and Thurgood Marshall signed onto some of those objectionable opinions).

In 1997, in response to similar efforts to amend the First Amendment, Senator Ted Kennedy counseled: “In the entire history of the Constitution, we have never amended the Bill of Rights, and now is no time to start. It would be wrong to carve an exception to the First Amendment. Campaign reform is a serious problem, but it does not require that we twist the meaning of the First Amendment.” But that was then. Now, carving out an exception to the First Amendment is the liberal battle cri du jour, with virtually every Democrat in the Senate then supporting the “twisting” of the First Amendment against which Senator Kennedy warned.

Reason (Volokh Conspiracy): Man Forbidden from Identifying Twitter Shaming Activist, Court Order Seems to Say

By Eugene Volokh

I’ve often blogged about “stop talking about me” orders-injunctions that ban not just speech that falls within a First Amendment exception (such as true threats or libel), or just unwanted speech to a person (such as repeated phone calls, e-mails, and the like), but also ones that ban a wide range of speech about a person (sometimes including all speech or all online speech by the defendant about the plaintiff).

Often these orders stem from bad breakups or other such disputes, but sometimes they relate to social or political debates. (See, e.g., the Moriwaki v. Rynearson case or McCauley v. Phillips.) I think such restrictions blatantly violate the First Amendment , something I argued in my 2013 Northwestern article, and also in probably about a dozen briefs I’ve filed in various courts.

A couple of weeks ago, I ran across another example, which I thought many readers would find particularly interesting because it bears on the debates about online anonymity. My view is that people have a First Amendment right to speak anonymously online — see, e.g., McIntyre v. Ohio Elections Commission. (When people can use coercive measures, such as subpoenas, to identify an anonymous poster who they say has legally wronged them is a separate matter.) At the same time, others who learn the anonymous speakers’ identities also have the First Amendment right to publicize that. It’s free speech all around.

But last Fall a Minnesota court took the opposite view, and apparently forbade a man from publicizing the identity of an anonymous Twitter poster whom the man was sharply criticizing, and trying to get her fired from her government job. 

Internet Speech Regulation

Wall Street Journal: Regulation Won’t Help Internet Free Speech

By Michael Beckerman

Mark Epstein’s “How To Keep Online Speech Free” (op-ed, April 30) highlights many of the tensions internet companies face in balancing the demands of creating safe online communities and protecting their users’ constitutional rights. What one person may consider abusive or hateful content could be speech protected under the First Amendment.

All the while tech companies are stuck in the middle and use a mix of artificial intelligence and human review to get it right. Tech companies are expected, fairly, to police a lot of content and, unfairly, to be perfect at it in the eyes of all audiences. Tech companies want to get it right and that’s why they’re taking additional steps to be transparent about the guidelines, community standards and enforcement policies they consider when the public asks for content to be removed or left untouched. These are admittedly tough decisions that sometimes vary based on the social norms in any community or given country.

But we’re able to have this debate because tech companies remain responsive to consumer demands and share the ideal of democratizing information. I challenge you to find another industry more willing to change its practices on a global scale or respond to consumers.

For those calling for more regulations on the way tech companies police content, let’s not forget how difficult the balance is and the consequences of limiting speech in a global, often undemocratic, world.

Recode: Facebook will spend so much reviewing political ads this year that it will lose money on them

By Peter Kafka

“We’re essentially going to be losing money on running political ads,” because the company is hiring “thousands” in advance of the 2018 elections, Zuckerberg said in an interview today. “That cost is going to be greater than the money that we make.”

The effort is part of Facebook’s reaction to the 2016 U.S. presidential election, when Russian-sponsored actors attempted to intervene by posting ads – as well as using fake users, accounts and groups.

In the long run, Zuckerberg says, the company will rely on computers and artificial intelligence to intercept objectionable content. But that will take five to 10 years, he said. So for now Facebook needs the help of humans, and that will cost “billions.” …

He said the company was reasonably confident it would be able to thwart the efforts of “state actors and fake news trolls” to interfere in the upcoming U.S. elections – in part because it has had success fending off interventions in recent French and German elections, as well as last year’s special Senate election in Alabama.

But he also assumes that Facebook will see more attacks than it did two years ago. “I know that people are going to try to abuse the systems, especially after feeling like they were able to get a [return on investment] doing that in 2016.”

City Journal: Platform, or Publisher?

By Adam Candeub and Mark Epstein

Section 230 of the Communications Decency Act immunizes online platforms for their users’ defamatory, fraudulent, or otherwise unlawful content. Congress granted this extraordinary benefit to facilitate “forum[s] for a true diversity of political discourse.” This exemption from standard libel law is extremely valuable to the companies that enjoy its protection, such as Google, Facebook, and Twitter, but they only got it because it was assumed that they would operate as impartial, open channels of communication-not curators of acceptable opinion…

The dominant social media companies must choose: if they are neutral platforms, they should have immunity from litigation. If they are publishers making editorial choices, then they should relinquish this valuable exemption. They can’t claim that Section 230 immunity is necessary to protect free speech, while they shape, control, and censor the speech on their platforms. Either the courts or Congress should clarify the matter.

The Media 

Politico: Trump suggests pulling credentials from ‘corrupt’ media

By Louis Nelson

President Donald Trump complained Wednesday that his administration receives overwhelmingly negative coverage from network news outlets and floated the idea of pulling credentials from outlets whose reporting is deemed unfair by the White House…

In a Wednesday morning tweet, Trump said the negative reporting about his administration is “fake.”

“The Fake News is working overtime. Just reported that, despite the tremendous success we are having with the economy & all things else, 91% of the Network News about me is negative (Fake),” the president wrote online. “Why do we work so hard in working with the media when it is corrupt? Take away credentials?”

Trump has complained often about the media and has on multiple occasions raised the possibility of taking retaliatory steps against the press, including canceling the daily press briefing and threatening to “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”


The Hill: Shining a light on corporate spending in our elections

By Rep. Salud Carbajal (D-Calif.)

The Supreme Court’s ruling in Citizen’s United v FEC opened the door for unrestricted campaign spending by corporations, institutionalizing the influence that special interests have on Washington, without sufficient oversight to keep them in check.

Since the decision, corporations have used lax reporting requirements as a loophole to obscure their influence on political campaigns. Now, even foreign-controlled companies can also spend millions of dollars on television, social media, and radio ads, either through direct contributions or through third party Super PACs, without ever disclosing where the money came from or how much was spent.

That’s why I’ve introduced the Corporate Political Disclosure Act of 2018,which would require publicly traded corporations to disclosure their political expenditures to the U.S. Securities and Exchange Commission (SEC) and ensure that information is made readily available to their shareholders and the public…

For too long, companies have kept Americans in the dark about their campaign contributions. We need to work to even the playing field, beginning with shining a long overdue light on corporate spending. 

Independent Groups 

Center for Responsive Politics: TV ads in midterms up nearly 90 percent fueled by nondisclosing groups

By Geoff West and Robert Maguire

Political TV ad buys are up nearly 90 percent over the same period during the last midterm election in 2014, according to a report published Monday by the Wesleyan Media Project in partnership with the Center for Responsive Politics.

A majority of the ads bought by outside groups targeting House and Senate races were run by “dark money” groups, which don’t disclose any of their donors, much of which was never reported to the Federal Election Commission (FEC).

Special elections and contested primaries were the main driver of the increase in TV ads, according to the study, which analyzed ad buys from January 2017 through May 3, 2018.

About $65 million was spent on roughly 150,000 ads in House and Senate special elections this cycle in Montana, Georgia, Pennsylvania and Alabama.

“So far, the 2018 cycle suggests that TV advertising is alive and well as a campaign tactic, as special elections and hotly contested primaries have driven TV ad totals well above the 2014 benchmark for this same time period,” Erika Franklin Fowler, co-director of the Wesleyan Media Project, said.

Overall, outside groups have funded about 43 percent of TV ads airing in Senate races and a third of those in House races.

Candidates and Campaigns 

NPR: Trump Attorney Cohen May Have Received Russian Payments, New Document Alleges

By Philip Ewing and Ryan Lucas

Michael Avenatti, who represents adult film actress Stormy Daniels, described what he called Cohen’s suspicious financial relationships in a document released on Tuesday evening.

Avenatti did not release the primary source materials that he used to draft his “executive summary,” but at least three companies confirmed to NPR independently that they had hired Cohen or the shell company he formed to make the payment to Daniels that he has acknowledged.

The claims in Avenatti’s document would, among other things, undercut accounts that Trump, Cohen and attorney Rudy Giuliani have given about the payments made to Daniels.

The document – if substantiated – describes a previously unknown relationship between Cohen and interests associated with Russian oligarch Viktor Vekselberg. It also depicts what amounted to an influence business in which Cohen may have essentially acted as a lobbyist based on his relationship with Trump…

Vekselberg, one of Russia’s richest men, reportedly has been stopped and questioned on his way into the United States by investigators working for Justice Department special counsel Robert Mueller, who are conducting an investigation into Russian interference in the 2016 presidential race and any ties between the Trump campaign and Russia.

Washington Examiner: Rosie O’Donnell didn’t commit a felony. Dinesh D’Souza did

By Becket Adams

[I]t’s more likely that O’Donnell was careless rather than criminal. She’s also probably in the clear, especially considering that excessive contributions are routine, non-felonious issue for the FEC…

D’Souza pleaded guilty in May 2014 to using straw donors to funnel an estimated $20,000 to a New York Senate candidate. He enlisted the aid of two acquaintances, a friend and a woman with whom he was romantically involved, to carry out the illegal donations. D’Souza promised that he would reimburse them later. This is all illegal, which is why he was sentenced to serve eight months in “community confinement.” …

There’s a significant difference between over-contributing, which is a routine matter, and using straw donors, the latter of which is a felony. D’Souza is guilty of the latter. There’s no real comparison between his $20,000 felony and O’Donnell giving a combined $5,400 in over-the-limit contributions to five candidates. 

Axios: Wave watch: Democrats get more votes for their money

By Alexi McCammond

One big warning for Republicans in the midterm elections: Democrats got more votes for their money in every competitive special election since President Trump took office, as this comparison of Federal Election Commission filings and election returns shows.

Why it matters: Republicans still won most of the races, but Democrats narrowed the partisan gap in each race by an average of 16 points compared to each district’s GOP leanings. Money matters, and Republicans have a lot of it. But the gap in return on investment is another factor in the uphill battle Republicans are facing in races around the country.

One reason Republican groups have invested so much in these races is because Democratic candidates have out-raised their Republican challengers. (Note: Candidates’ own spending is not included in the numbers above.)

The States

Arizona Capitol Times: Grassroots school group to tackle ‘dark money’ measure

By Howard Fischer, Capitol Media Services

She said the movement to use taxpayers dollars to send children to private and parochial schools is financed to a great extent by organizations whose donors are shielded from public view by state laws…

So she’s ready to help remove the legal veil over the donors.

“That dark money is where our problem arose,” Penich-Thacker said, saying there’s a “natural connection” between Save Our Schools and the initiative…

The proposal being pushed by former attorneys general Terry Goddard, Tom Horne and Grant Woods, the first a Democrat and the other two Republicans, would put a “right to know” provision in the Arizona Constitution, requiring public disclosure of the names of anyone who puts at least $10,000 into any campaign, whether for public office or a ballot measure.

That’s already required now.

But there’s an exception: Groups organized under the Internal Revenue Code as “social welfare” organizations can refuse to disclose their donors, leaving voters with a name…

If the initiative is approved it would not just force disclosure in statewide and legislative races but again empower cities and towns to enact their own similar requirements.

Baltimore Sun: Maryland Gov. Hogan signs education, sexual assault and harassment bills pushed by Democrats

By Erin Cox

So far, the governor has signed 569 of the 892 bills passed this spring, according to staff. More than 300 remain, including legislation to ban the practice of conversion therapy and to make Maryland the first state in the country to regulate political ads on Facebook.

Alex Baiocco

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