Daily Media Links 7/13

July 13, 2021   •  By Tiffany Donnelly   •  
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In the News

California Globe: AB 5 First Amendment Lawsuit Expects Response From State AG This Week

By Evan Symon

[Aaron] Starr’s lawsuit, filed on June 23rd in the United States District Court for the Central District of California, directly challenges another industry covered by AB 5: the canvassing and carrying industry. Washington-based Institute for Free Speech was specifically tapped to help challenge the law.

In Mobilize the Message, LLC, Starr Coalition v. Bonta, Starr’s political committee Starr Coalition for Moving Oxnard Forward and signature and door-knocking service company Mobilize the Message says that AB 5 discriminates against political speech. Specifically, they note how it violates the first amendment, as it discriminates against political speech by permitting door-to-door sales people and newspaper carriers as contractors, but not political canvassers. The high costs of these canvassers made them largely unaffordable for many campaigns, giving well-funded campaigns an unintended advantage. As a result, canvassing has largely plummeted in California, with most campaigns only being able to utilize volunteers for their efforts.

“California allows independent contractors to ask passersby to sign a credit card application, but not a ballot measure petition,” said Institute for Free Speech Vice President for Litigation Alan Gura of AB 5. “It allows them to go door-to-door selling home goods, but not promoting candidates. It allows them to drop off newspapers, but not campaign literature. The First Amendment prohibits discrimination against speech based on its content, and that’s exactly what’s happening here.”

“The First Amendment is for everyone, and hopefully the state will see the light and allow campaign workers, whoever they may be campaigning for, to work as freely as the people selling stuff. That’s what the First Amendment requires — that we treat speech equally without reference to the content of the speech.”

Insider: We found nearly $400 million rotting in a forgotten taxpayer-funded government account

By Dave Levinthal

Holed away in a forgotten government account is a massive cash stash most anyone — from depleted federal programs to coronavirus-throttled charitable causes — would love to tap.

But it sits idle and untouched.

The intended beneficiaries of the taxpayer-fueled Presidential Election Campaign Fund — presidential candidates — don’t want it, soured by its restrictions on their election fundraising and spending.

Other potential recipients, meanwhile, can’t have it. 

For this, blame Congress. Conservatives would prefer to disband the fund and repurpose its money. Many Democrats want the money to seed a reimagined public campaign finance program contained within a broader “democracy reform” agenda that’s hamstrung on Capitol Hill. Neither side will budge.

Meanwhile, the Presidential Election Campaign Fund’s pot topped more than $396.4 million as of May 31 — a record amount during the fund’s nearly 50-year history, according to US Treasury records reviewed by Insider…

Bradley Smith, a former Federal Election Commission chairman who now leads the nonprofit Institute for Free Speech, said Congress should repeal the law establishing the president fund and direct its money to the Treasury’s general fund.


Assumptions Gone Awry: New Book Casts Further Doubt on “Appearance of Corruption” Legal Standard

By Alec Greven

In their insightful new book, The Appearance of Corruption: Testing the Supreme Court’s Assumptions about Campaign Finance Reform, political scientists Daron R. Shaw, Brian E. Roberts, and Mijeong Baek examine the assumptions of Buckley v. Valeo and apply cutting-edge research to put them to the test in the modern campaign finance landscape. The researchers characterize three core assumptions underlying the Court’s use of the “appearance of corruption” standard in Buckley to justify federal campaign finance laws:

  1. “Campaign finance laws lower perceptions of political corruption;
  2. Lower perceptions of corruption raise trust in government; and
  3. Greater trust in government raises political participation” (p. 133).

The Courts

New York Times: Trump Suits Against Tech Giants Face Steep First Amendment Hurdles

By Adam Liptak

Whatever else might be said about the curious lawsuits filed last week by former President Donald J. Trump, in which he accused three big tech companies of violating his First Amendment rights by denying him access to their platforms, it is fitting that he sued in Florida.

The state has long been on the cutting edge, and on the losing end, of efforts to force private companies to publish political messages to which they object.

Almost 50 years ago, the Supreme Court struck down a Florida law that would have allowed politicians a “right to reply” to newspaper articles critical of them. And late last month, a federal judge in Florida blocked a new state law that would have imposed large fines on some tech companies (but not those that own theme parks in the state, like Disney) that “willfully deplatform a candidate for office.”

Together, the two decisions, one from the Nixon era and the other issued on June 30, demonstrate that the lawsuits Mr. Trump filed in Miami on Wednesday against Facebook, Twitter and YouTube face steep odds. The First Amendment applies to government censorship and not private activities, courts have said, and it protects publishers’ editorial judgments, including ones that decline to give politicians a forum.

The Hill: Texas AG to stop blocking critics on Twitter, ending First Amendment suit

By John Kruzel

Texas Attorney General Ken Paxton (R) has unblocked critics on his Twitter account and agreed to not block anyone in the future, ending a First Amendment lawsuit against him.

The agreement was filed Friday in an Austin-based federal case brought against him by nine Twitter users who had been blocked from Paxton’s @KenPaxtonTX Twitter account after criticizing him or his policies. 

The plaintiffs, represented by the Knight First Amendment Institute at Columbia University and the American Civil Liberties Union of Texas, agreed to drop their suit as part of the deal.

“We’re pleased that Attorney General Paxton has agreed to stop blocking people from his Twitter account simply because he doesn’t like what they have to say,” said Katie Fallow, an attorney at the Knight Institute. “Multiple courts have recognized that government officials who use their social media accounts for official purposes violate the First Amendment if they block people from those accounts on the basis of viewpoint. What Paxton was doing was unconstitutional.”

Biden Administration

Politico: Biden to call for ‘a new coalition’ to defend voting rights

By Laura Barrón-López

While Biden’s [voting rights speech at Philadelphia’s National Constitution Center on Tuesday] may not give activists, nor a growing number of Democrats, what they’re desperately calling for — the endorsement of a carve out for the legislative filibuster specifically for their signature voting rights bills — the president will lay out how Democrats plan to meet what his White House is calling the greatest threat to democracy since the Civil War…

Biden will again call on Congress to pass Democrats’ sweeping bill to change the election system…

But Biden is severely limited, in part by the nature of the presidency but also because of the makeup of Congress, where Democrats have a slim House majority and control an evenly split Senate.

Those limitations, however, are driving Democrats to consider new tactics, including changing the legislative filibuster — which establishes a 60-vote threshold for most legislation to pass through the Senate and allows Republicans to block new voting rights legislation, among other Democratic priorities. And a growing number of Democratic lawmakers are looking to Biden to help make that happen.

Sen. Richard Blumenthal (D-Conn.), long an opponent of the filibuster, said he hopes to have a conversation with the White House about the procedural rule and that more of his Democratic colleagues in the Senate will change their mind about amending it.

“I’m sure that President Biden could be influential but he’ll have to make that decision,” Blumenthal said of Biden pushing for a filibuster change.“I hope that he’ll do everything possible.”


Washington Post: The SEC must require companies to disclose their risk from climate change

By Joe Kennedy III and Steven M. Rothstein

Today…we are faced with a looming threat to market stability that was not foreseen by our forebears: the growing risk of climate change to our economy — and our very existence. That’s why the SEC must update its regulations and clearly require that companies disclose the risk that climate change poses to their businesses, and that they use standardized, transparent methodologies to do so that result in current, reliable data…

Current SEC leadership, acknowledging doubts on whether disclosure requirements related to climate change adequately inform investors of both risks and opportunities, has already solicited public comment to guide rulemaking.

[Ed. note: In June, the Institute for Free Speech submitted comments to the SEC on the proposed climate change disclosures. Read them here.]

Independent Groups

Axios: Dark money fights dark money

By Lachlan Markay

An obscure progressive nonprofit called the North Fund has scaled up operations during the last two years, allowing the group to quietly work in high-profile legislative fights in Washington and state capitals.

The North Fund’s structure — and its refusal to reveal financial contributors — make it the latest progressive nonprofit to operate in ways that obscure key financial information from the public, even as it pushes for legislation to limit the role of so-called dark money in politics…

The North Fund is shadowy even by the standards of D.C. advocacy groups. It has no website. Its address is a shared workspace. And in March, it won a fight against Montana officials trying to force the group to disclose its donors…

The North Fund operates as a “fiscal sponsor” for Just Democracy and other groups under its umbrella, a legal designation effectively allowing those groups to operate as any stand-alone nonprofit would but without submitting their own financial information to the IRS.

That’s an increasingly common structure on the left…

In an emailed statement, North Fund president Jim Gerstein declined to identify any of the group’s financial supporters.

“North Fund strictly follows all disclosure requirements at local, state and federal levels, and donors decide for themselves whether to disclose their contributions,” he wrote.

Many progressive groups benefitting from that sort of opacity are simultaneously advocating for more political money disclosure. Their excuse is they don’t want to handicap their own side in a fight against a well-funded conservative opposition.

The States

Hollywood Reporter: Donald Trump Scores First Amendment Win in “Fake News” Meme Case

By Eriq Gardner

A New York judge has just dismissed a privacy lawsuit against [former President Donald Trump] over the retweeting of a meme. In what appears to be a first, the judge finds the meme to be “newsworthy.”

The meme in question comes from Logan Cook, who goes by the internet handle “CarpeDonktum.”

Cook found a video of a white toddler running after a black toddler and stuck a chyron reading “breaking news” over it. The captions read, “Terrified Todler [sic] Runs From Racist Baby” and “Racist Baby Probably A Trump Voter.”

The video then fades to black, and reads, “What actually happened.” The toddlers run at each other and embrace. A new caption: “AMERICA IS NOT THE PROBLEM…FAKE NEWS IS. IF YOU SEE SOMETHING, SAY SOMETHING. ONLY YOU CAN PREVENT FAKE NEWS DUMPSTER FIRES.”

After Trump tweeted the video, which led Twitter to add a “manipulated video” message, the parents of the toddlers filed suit against both Trump and Cook…

New York Supreme Court Judge David Benjamin Cohen decides dismissal is warranted…

“It is common knowledge that one of the principal tactics of Trump’s presidential campaigns, as well as his presidency, was to incessantly attack the mainstream media as purveyors of ‘fake news,’ including his claim that the media exaggerates the extent of racial division in this country. Thus, the video’s references to ‘fake news’ and its depiction of race relations, however distorted, are clearly newsworthy.”

Dallas Morning News: Texas’ social media censorship bill pushes unconstitutional limits on free speech

By Tom Leatherbury

In Texas, Gov. Greg Abbott has called a special legislative session in part to debate and pass content moderation legislation.

The legislation contemplated would be similar to Senate Bill 12, which died at the last minute during the recent legislative session. As proposed, it would prohibit social media companies from blocking users based on their viewpoints or their locations within Texas and impose attorneys’ fees on those companies that do. Unfortunately, this proposed legislation does more to harm free expression in Texas than it does to protect it…

The legislation would force social media companies to host and maintain content that goes against their own terms of service or user policies. Doing so serves no compelling state interest, and…it’s the antithesis of narrowly tailored…

Many advocates for legislation such as SB12 claim that it passes constitutional muster because social media platforms are common carriers. This couldn’t be further from the truth…

Since the 1990s, the companies that operate these platforms have limited who can use them and the content that they will host, and the companies have outlined those expectations in their terms of service agreements…

Legislation like SB12 promises detrimental effects that curtail the ability of private social media platforms to moderate their own content; threatens to make the internet a more unreliable, extremist arena; and is unlikely to withstand inevitable, swift, and vigorous constitutional challenges.

Washington Post: A governor can send the National Guard out of state. Can a wealthy donor?

By Mandy Smithberger

When Gov. Kristi L. Noem (R) announced recently that she would send 50 South Dakota National Guard soldiers to Texas at the expense of a private donor, criticism was swift.

Arkansas Gov. Asa Hutchinson, a fellow Republican, said Noem had set a “bad precedent.” Rep. Adam Smith (D-Wash.), the chair of the House Armed Services Committee, said the Guard was being used as a “private militia.”…

What the critics weren’t able to say was that Noem broke the law. Perhaps the most disturbing thing about her action was that it was probably legal…

Private donations per se are not so much the issue. Both the federal government and the South Dakota state government accept private donations…

It’s not clear, however, whether use of private funds like this is illegal in South Dakota.

As governor, Noem is commander in chief of the National Guard when it is not called into federal service…But what role did the $1 million offer from the foundation funded by Willis and Reba Johnson, Republican megadonors based in Tennessee, play in Noem’s decision?…

Imagine a scenario, for example, in which wealthy donors pay for the California National Guard to fight wildfires around Malibu while the rest of the state burns. Equally troubling would be the use of a privately funded Guard unit deployed to surround or protect an assembled group that is supported or opposed by a governor and like-minded state leaders.

Money in politics already creates significant corruption concerns. This South Dakota deployment seemingly places decisions about where we use force and why up to the highest bidder.

Tiffany Donnelly

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