Daily Media Links 6/25

June 25, 2020   •  By Tiffany Donnelly   •  
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The Courts

The Hill: Justice Department announces superseding indictment against Wikileaks’ Assange

By Maggie Miller

The Justice Department on Wednesday announced a superseding indictment in the case against WikiLeaks Founder Julian Assange, alleging that he intentionally worked with hackers affiliated with groups “LulzSec” and “Anonymous” to target and publish sensitive information. 

The new indictment, handed down by a federal grand jury in Alexandria, Va., did not add any charges to the existing 18 charges brought against Assange last year, but alleged that Assange and WikiLeaks actively recruited hackers to provide WikiLeaks with documents…

The earlier charges brought against Assange and [former Army Intelligence Analyst Chelsea] Manning ignited a debate over the publication of classified materials, and whether the case could produce a chilling effect on journalists who publish these documents. 

Glenn Greenwald, co-founding editor of The Intercept, tweeted Wednesday following the superseding charges being made public that the charges constituted a “severe” threat to press freedom.

“The Trump DOJ’s attempt to imprison Julian Assange for working with his source to publish classified documents that exposed US war crimes is the most severe US threat to press freedom since 2016,” Greenwald tweeted. “It’s sickening to watch so many journalists ignore it, & so many liberals cheer it.”

WSIL News 3: Illinois Right to Life files federal lawsuit against Gov. Pritzker

By Mike Miletich

Illinois Right to Life is the latest organization to file a lawsuit against Gov. JB Pritzker. The pro-life group is demanding equal treatment for large gatherings. Similar to a lawsuit filed by the Illinois Republican Party, Illinois Right to Life says members should have the same opportunity to hold events and rallies as churches and protesters. The lawsuit was filed in the U.S. District Court for the Northern District of Illinois…

The plaintiffs are requesting the Court declare Pritzker’s crowd limits violate the First and 14th Amendments. “The First Amendment applies equally to all Illinoisans – not only groups whose political views are supported by Gov. Pritzker,” said Liberty Justice Center President Patrick Hughes. “The work and voice of Illinois Right to Life in the public sphere is just as critical and constitutionally-protected as other voices.”

Congress

Digital News Daily: New Bill Would Require Platforms To Disclose Content Removal Policies

By Wendy Davis

Two senators have introduced a bill that would require large online platforms to explain how they moderate content, and allow consumers to both initiate complaints about content and appeal decisions to remove material.

The Platform Accountability and Consumer Transparency Act, introduced Wednesday by Sens. Brian Schatz (D-Hawaii) and John Thune (R-South Dakota), would also require large web publishers to post quarterly reports about material that has been removed, demonetized or demoted. Twitter, Facebook, Google and other large web publishers would also have to create a system for processing complaints about content, notify users about decisions within 14 days, and allow consumers to appeal…

Among other provisions, the new proposal would require large platforms to remove content that courts have determined is illegal within 24 hours. Section 230 currently protects companies from liability for many types of illegal content posted by users.

Some judges have said that protection also means companies can’t be required to remove objectionable content. For instance, California’s highest court ruled in 2018 that Yelp couldn’t be required to take down reviews that a trial judge had ruled were defamatory.

The bill would also create a new exemption to Section 230 for federal civil laws, which would allow regulators to prosecute web companies for a broad array of unlawful activity by users. Currently, Section 230 has an exemption for federal criminal laws.

Multichannel News: Wicker: Senate Commerce Will Review Sec. 230

By John Eggerton

Sen. Roger Wicker (R-Miss.), chairman of the powerful Senate Commerce Committee, signaled to the FCC commissioners Wednesday (June 24) that his committee would be looking into edge provider’s Sec. 230 exemption from civil liability for how they treat third party content on their sites. 

That came in an FCC oversight hearing, where Wicker said in his opening statement: “This committee will evaluate the merits of Sec. 230 and whether modifications are necessary to promote more transparency and accountability across internet platforms and services.” …

Wicker said Sec. 230 was intended to preserve a vibrant and competitive online marketplace” but said that he was “deeply troubled by recent reports that suggest some online platforms are disproportionately censoring conservative voices or imposing an unfair bias through their policies or terms of service.” …

He also cited comments by Facebook moderators that he said “seemed to confirm a blatant anti-conservative bias.” 

If there is going to be a debate over the future of Sec. 230, he said–and there almost certainly is going to be–“it is clear that each side has a responsibility to insure that the internet remains a forum for a true diversity of political discourse that promotes competition and innovation.”  

Washington Examiner: Senior House Democrat claims Facebook and Twitter favor conservatives

By Anna Giaritelli

“Don’t be fooled by made-up claims of bias against conservatives,” Illinois Rep. Janice Schakowsky, chairwoman of the House energy and commerce subcommittee on consumer protection and commerce, said in a hearing on “disinformation” Wednesday. “Today, it seems there is less of a bias against conservatives and rather a bias for conservatives,” she said.

Schakowsky said that on Friday, 9 of the 10 highest-performing political pages on Facebook were conservative, including that of Trump, Donald Trump for President, writer Ben Shapiro, Breitbart, and Fox News host Sean Hannity…

“Our nation and the world are facing an unprecedented tsunami of disinformation that threatens to devastate our country and the world,” said Rep. Michael Doyle, the Democratic chairman of the House energy and commerce subcommittee on communications and technology. “It has been driven by hostile foreign powers seeking to weaken our democracy and divide our people, by those in our country who seek to divide us for their own political gain, and by the social media companies themselves – who have put profits before people as their platforms have become awash in disinformation, and their business models have come to depend on the engaging and enraging nature of these false truths.” …

Schakowsky blamed a recent addition to the Communications Decency Act of 1996 for giving companies an out by not more closely monitoring false or offensive speech.

Media

Reason: The New York Times’s Inconsistent Standards Drove Slate Star Codex To Self-Cancel

By Robby Soave

Scott Alexander is the pseudonymous proprietor of Slate Star Codex, a science and history blog well-liked by many libertarians and neoliberals. On Monday, he took the drastic step of deleting the blog after a New York Times reporter threatened to reveal his name in a forthcoming article…

To underscore how important his anonymity is to him, Alexander titled his farewell post, “NYT Is Threatening My Safety By Revealing My Real Name, So I Am Deleting The Blog.” Alexander’s reasons for wanting to remain anonymous are twofold: For one, as a person who has staked out well-founded but 

occasionally controversial positions on hot-button issues-race and IQ science for instance-and courted a passionate base of fans and critics, he has previously received death threats. He does not wish to make it any easier for people to find him.

While I’m largely sympathetic to Alexander’s plight, I think it’s a bit of an over-dramatization for him to assert that his safety would be seriously undermined by his unmasking…

But Alexander’s other objection to having his name published is quite reasonable: He’s a psychiatrist, and in order for him to do his work it’s important for his patients not to know all that much about him personally, or about his opinions. And given the cultural moment we are currently living through-involving widespread cancellations or even firings of anyone deemed guilty of problematic or offensive behavior, no matter how trivial, long ago, or ridiculous-Alexander’s concern that his employer might decide someone with a national commentary presence is more trouble than they are worth is understandable.

Independent Groups

Daily Beast: Revealed: Silicon Valley Bigwig Sent a Million Dollars to Dem Groups

By Lachlan Markay

One of Silicon Valley’s top investors has quietly dumped seven figures into Democratic super PACs over the past two years through a pair of dark money groups that have little documented activity beyond channeling money into federal elections.

Matt Cohler, a former Facebook executive and a partner at the venture capital firm Benchmark, is behind the pair of nonprofit groups, one of which has donated a total of more than $1 million this year alone to three leading Democratic political groups. The Pacific Environmental Coalition’s latest donation came last month, according to records released this week; it donated $500,000 to Senate Majority PAC, a powerhouse super PAC aligned with Senate Minority Leader Chuck Schumer (D-N.Y.)…

There’s little public information about the PEC. It doesn’t appear to have a website or social media presence. And it hasn’t existed long enough to file an annual financial report with the Internal Revenue Service. But according to incorporation records in California, Cohler is the group’s [CEO].

That relative lack of information about PEC’s activity caught the attention of the ethics watchdog group, Campaign Legal Center. The group says it plans to file a complaint with the Federal Election Commission detailing its suspicion that PEC and another Cohler-run dark money group ran afoul of laws barring donors from using “pass through” entities to mask the sources of their political contributions.

Online Speech Platforms

Courthouse News: Devin Nunes Can’t Sue Twitter Over Fake Cow Account

By Brad Kutner

Social media giant Twitter has been dismissed from a defamation dispute filed by Republican Congressman Devin Nunes, pushing the outspoken conservative’s hopes of exposing anonymous Twitter accounts even further out of reach.

Nunes, CA-22, first filed the lawsuit – one of six defamation claims in courts around the country – early last year. And while other parties remain in the case, including a Republican strategist, Nunes, through his Charlottesville-based lawyer Stephen Biss, made quite clear their hope was to find out who tweets behind the mask of @DevinCow.

The opinion, released Wednesday afternoon and written by Henrico County Judge John Marshall, points to Section 230 of the Communications Decency Act… [T]he federal law says online platforms cannot be held liable for the content users post while also empowering them to moderate content as needed.

In his 4-page opinion, Marshall said the law granted Twitter the protection it had long claimed it was granted…

Marshall pointed to two cases used by Twitter’s lawyer, Patrick Carome of DC-based Wilmer Hale, during oral arguments held just under two weeks ago, Zeran and Nemet, as the basis for his decision.

Paul Allen Levy, an attorney with the public interest litigation group Public Citizen, said it was important for a state judge to use these cases as precedent.

“It points the way for other trial judges faced with this sort of problem; letting section 230 to work as intended, protecting entities like Twitter from the burdens of having to litigate what is plainly a situation in which it’s going to be immune,” said Levy in an interview.

Candidates and Campaigns

Roll Call: Parties publish dirty laundry so the right people can air it

By Nathan L. Gonzales

Just the term “opposition research” conjures up images of dumpster-diving in the shadows for sensitive discarded documents that can then be used for surprise attacks in television ads. Posting the opposition research online, however, is just one example of how both parties publicly share information to avoid illegal coordination with outside groups and running afoul of campaign finance laws. And it’s been happening for nearly a decade. (see “IE strategy borders on art form,” in CQ Roll Call eight years ago.)

Since the official campaign committees can’t coordinate with their independent expenditure arms or with outside groups, strategists on both sides of the aisle use public signals to keep the party on the same page and avoid duplication of resources, such as paying twice for the same background information. 

Publicly available opposition research is also evidence that there are few surprises in modern campaigns, where races are more likely to be decided by execution and quality of ads, money to put them in front of voters, the partisanship of a district, and the national political environment.  

Most of the books have a Table of Contents followed by “Key Findings,” which can be easily turned into talking points or messages for an attack ad. 

Slate: Five Years Later, How Obergefell Paved the Way for Bostock and the DACA Decision

By Evan Wolfson

In his book, Engines of Liberty, ACLU legal director David Cole-who helped successfully argue Bostock v. Clayton County-illustrates the importance of these broader campaigns well. He writes: “Look behind any significant judicial development of constitutional law [or policy enactment], and you will nearly always find sustained advocacy by multiple groups of citizens, usually over many years and in a wide array of venues … politically engaged citizens united by their devotion to a particular constitutional vision.”

Associated Press: Democrats confirm plans for nearly all-virtual convention

By Bill Barrow

Democrats will hold an almost entirely virtual presidential nominating convention Aug. 17-20 in Milwaukee using live broadcasts and online streaming, party officials said Wednesday.

Joe Biden plans to accept the presidential nomination in person, but it remains to be seen whether there will be a significant in-person audience there to see it. The Democratic National Committee said in a statement that official business, including the votes to nominate Biden and his yet-to-be-named running mate, will take place virtually, with delegates being asked not to travel to Milwaukee.

It’s the latest sign of how much the COVID-19 pandemic has upended American life and the 2020 presidential election, leading Biden and the party to abandon the usual trappings of an event that draws tens of thousands of people to the host city to mark the start of the general election campaign. Not even during the Civil War or World War II did the two major parties abandon in-person conventions with crowded arenas…

Party Chairman Tom Perez said scaling back Democrats’ festivities is a matter of public health. 

The States

Sacramento Bee: Ethnic studies legislation + Election watchdog votes for transparency + ACA 5 goes to voters

By Andrew Sheeler

California’s election watchdog has voted to require more transparency and disclosures of those who use limited liability companies (LLCs) to make political contributions.

The Fair Political Practices Commission also voted to require campaigns to list the name of the actual person directing LLC political spending, according to an FPPC statement.

According to the FPPC, a 2019 examination of LLCs found that it was extremely difficult to identify the true source of an LLC’s political expenditures.

“This goes to the heart of California’s law on campaign finance, the goal of which is to make it as transparent as possible to see those who are spending money on political activity,” FPPC Chair Richard C. Miadich said in a statement. “When someone can form an LLC in a couple of hours for a couple hundred dollars, it opens the door to potential abuse and funneling of dark money into an election, causing irreparable harm to trust in the process and to the rights of the voting public.”

NBC 6 Miami: Viral Video Criticizing State Attorney Is Just Opinion, Not Electioneering: Expert

By Phil Prazan

Documentary filmmaker Billy Corben’s viral social media video criticizing the Miami-Dade State Attorney up for reelection is legal and not electioneering, according to one of Miami’s most well-known election finance experts. 

Corben, the filmmaker behind documentaries such as “Cocaine Cowboys” and “Screwball”, told NBC 6 he stayed up all night creating a video critical of Katherine Fernandez Rundle’s handling over the case of Darren Rainey. The video was posted Tuesday on the anniversary of his death, when he was left in a boiling hot jailhouse shower for two hours.

Fernandez Rundle is running for a seventh term against challenger Melba Pearson for the top prosecutor in Miami-Dade County…

Fernandez Rundle’s campaign alleged to the Miami Herald that creating and posting the video violated Florida campaign finance law. 

“It’s in clear violation of campaign finance statues,” Fernandez Rundle’s campaign wrote to the Herald. “The social media post with the digital ad is clearly an expenditure and Florida law requires a political committee to be formed.” 

Corben pointed to a subsection in Florida law that exempts the video because it is distributed on an unpaid profile and is available to the public for free…

J.C. Planas, a election lawyer frequently hired by candidates and an adjunct professor at St. Thomas University, sides with Corben, saying electioneering is “expenditure based.”

“In this case, there doesn’t seem to be any money that was spent by Billy Corben. He produced this himself. He narrated this himself. And he put it out on Twitter, which is a free platform,” Planas said.

Portland Press Herald: Secretive police unit gathers information on Maine citizens, commissioner tells lawmakers

By Megan Gray

A secretive unit of the Maine State Police does gather information about groups and organizations even when they are not suspected of crimes, including people who are participating in protests, a top law enforcement official told lawmakers Wednesday.

Michael Sauschuck, the commissioner of the Maine Department of Public Safety, testified at a joint legislative hearing about the Maine Intelligence and Analysis Center, which is at the center of a federal whistleblower lawsuit filed by a state trooper. The trooper had been assigned to the center and says he was retaliated against after reporting that the intelligence unit illegally used surveillance tools to monitor innocent citizens.

Those allegations raised concerns among lawmakers and civil liberties advocates and prompted groups that were allegedly targeted by the center’s surveillance to demand details about the activities. Sauschuck refused to directly respond to the allegations in the lawsuit during his legislative testimony Wednesday, but he acknowledged under questioning that the center does gather intelligence on citizens, including groups that organize public protests.

“We’re not spying on people,” Sauschuck said. “This is public information that is readily available.”

The Portland Press Herald first reported that the Maine State Police might be using powerful new technologies to scan your face and intercept your cellphone signals, and don’t have to tell the public because of an unusual provision in state law. That secrecy is raising alarms among privacy advocates in Maine, who worry that law enforcement could be using advanced technology to monitor residents, including those who are not suspected of any crime.

Reason (Volokh Conspiracy): Florida Judges Split on Injunction Against Critic of State Senator

By Eugene Volokh

From today’s en banc majority opinion of the Florida Court of Appeal (4th Dist.) in Logue v. Book, by Judge Mark W. Klingensmith, joined by Chief Judge Spencer D. Levine and Judges Robert M. Gross, Dorian K. Damoorgian, Jonathan D. Gerber, Burton C. Conner, Alan O. Forst & Jeffrey T. Kuntz-first, the general First Amendment reasoning:

While the record indicates that [State Senator Lauren Frances Book] was irritated by [sex offender rights activist Derek Warren Logue]’s actions, the Constitution protects the right of the political irritant to voice his opinions as much as it protects any citizen’s right to do so…. “In a representative democracy … the[] branches of government act on behalf of the people and, to a very large extent, the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives.” … Though [Book’s] frustration is understandable, expressions of opposing views, even as insults, are not the same as harassment or threats….

Publicly expressing anger toward an elected official is not a basis for entry of an injunction. In public debate, elected officials must tolerate insulting remarks-even angry, outrageous speech-to provide breathing room for the First Amendment. See Fox v. Hamptons at Metrowest Condo. Ass’n (Fla. 5th DCA 2017)…. [Logue]’s actions and comments, while distasteful, are precisely the kind of “vehement, caustic, and … unpleasantly sharp” political speech which has historically been protected by the First Amendment and which fall outside the Florida harassment statutes….

Viewing someone as a “threat” does not mean the person can be subject to an injunction as if he or she actually made one. 

Tiffany Donnelly

Tiffany Donnelly