Daily Media Links 6/6: Telling Trump to Stop Blocking Critics on Twitter Doesn’t Affect the Platform’s Rules, Montana governor pushes for more transparency on donors, and more…

June 6, 2018   •  By Alex Baiocco   •  
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The Courts

Politico: Judge in libel suit rules BuzzFeed may have protection for report on Trump dossier

By Josh Gerstein

BuzzFeed scored a significant legal victory on Monday with a judge’s ruling that the online outlet appears to have legal protection for its decision to publish the so-called dossier about President Donald Trump’s alleged ties to Russia.

Ruling in a libel suit brought by a Russian internet entrepreneur named in the document, U.S. District Court Judge Ursula Ungaro, based in Miami, ruled on Monday that BuzzFeed could claim the “fair report privilege” for its brief article and the accompanying release of the dossier online in January 2017…

A BuzzFeed spokesman hailed the judge’s latest decision

“Today’s ruling is a victory for the American free press and the First Amendment, which allows citizens to monitor the conduct of their leaders and elected representatives,” said the spokesman, Matt Mittenthal. “As the judge writes, a document that was circulating at the highest levels of government, under active investigation by the FBI and briefed to two successive presidents, falls squarely into the category of ‘official action’ by our government. As we have argued from the start, the public’s interest in understanding the investigation into whether the Russian government compromised and colluded with Donald Trump is, and has always been, quite clear.”

Reason: Telling Trump to Stop Blocking Critics on Twitter Doesn’t Affect the Platform’s Rules

By Jacob Sullum

Harvard law professor Noah Feldman worries that the recent First Amendment ruling against Donald Trump’s blocking of critics on Twitter could ultimately result in legal restrictions on the ability of social media companies to exclude users or regulate their speech. “This is the first time, to my knowledge, that the First Amendment has ever been applied to a private platform,” Feldman writes in a New York Times op-ed piece…

U.S. District Judge Naomi Reice Buchwald’s May 23 ruling against Trump was not, in fact, the first time a public official has been rebuked for violating the First Amendment by excluding people from a social media account because of the opinions they expressed…

Loosely speaking, Buchwald affirmed a First Amendment right to follow the president on Twitter. But it would be more precise to say she affirmed a First Amendment right not to be blocked from the president’s Twitter account (specifically, the “interactive space” associated with his tweets) by the president (or his underlings) because something you said offended him…

“If President Trump was able to create a public forum on Twitter without Twitter’s agreement to such a legal state of affairs,” Feldman says, “then it becomes more plausible to think that Twitter itself is a public space, regardless of whether it intends to be one.” Only if you ignore the crucial distinction between government action and private action when applying a constitutional provision that is explicitly aimed at the former. So far there is no evidence that the federal courts are inclined to do that.

Internet Speech Regulation

Recode: Senator Mark Warner: Facebook’s move to create transparency around paid political ads isn’t going to be enough

By Theodore Schleifer

The top Democrat on the Senate Intelligence Committee said the social company was sort of missing the point with its new transparency dashboard that requires political advertisers on Facebook to confirm their “identity and location” to root out foreign governments.

“I think they were slow to the game,” Warner said Wednesday at the Code Conference in Rancho Palos Verdes, Calif. “Last week, when they came out with some of their new transparency tools – pretty darn good. But transparency around paid political advertising? I just don’t think it’s going to be to enough. That is not really where the rubber hits the road.” …

“Where the rubber hits the road is misinformation and disinformation,” he said. “We’re still chasing, in a sense, static 2016 fake accounts.”

Campaigns & Elections: Amid Facebook Transparency Push, Strategic Concerns Emerge

By Benjamin Barrett

Mark Jablonowski, CTO at DSPolitical, said one worry is that the new rules could constrain smaller campaigns and may very well not go far enough to curtail the possibility of foreign manipulation given that the changes thus far relate to paid advertising.

“A large part of the issue in 2016 was with bots and commandeering organic pages,” he noted.

While Jablonowski applauded the push for accountable advertising as “good for politics and good for the industry as a whole,” he worries specifically about the potential burden some changes may place on smaller campaigns with finite time and resources.

“A local campaign that gets late fundraising has still got to have the knowledge about how to become a verified page owner-that’s a week or two long endeavor,” he said…

Legislators and regulators are also still examining potential solutions, albeit slowly. The Federal Election Commission has proposed new disclosure rules for digital ads, but it appears unlikely to implement any new rules ahead of this year’s midterm elections. And in Congress, momentum on The Honest Ads Act has stalled.

Meanwhile, other industry self-regulatory efforts have moved forward. The Digital Advertising Alliance recently launched an initiative that includes a “PoliticalAd” icon for advocacy advertisers in top-level campaigns. The DAA has urged the FEC to use the initiative as a model in its own regulatory effort.

HuffPost: Facebook Reveals Democrats And Republicans Bought Secretive Ads In California Races

By Paul Blumenthal

Campaigns and PACs on both sides of the partisan divide have been setting up Facebook pages and websites under names not their own for at least the past 10 years. What’s changed is that it has become much easier to find these pages and identify who is behind them since Facebook set up a database on May 24 to disclose political ads running on its platform…

“Campaigns and political organizations have long created branded websites that share specific information with voters,” said Josh Schwerin, a spokesman for Priorities USA Action. “These are locally focused pages for sharing articles and information from reputable news outlets and clearly labeled political sites that are of interest to voters in a specific region.” …

Some groups choose not to obscure their affiliation. Patriot Majority USA, a Democratic Party-affiliated nonprofit group that doesn’t disclose its donors, advertises through Facebook pages that explicitly state the partisan purpose of the ads. The group’s get-out-the-vote pages – Your Voting Record Is Public, Vote For A Better California and Send DC A Message on June 5th – have all aimed to convince those voters likely to support Democratic candidates to head to the polls on Tuesday…

The head of Patriot Majority USA offered another reason for why those Facebook pages aren’t simply named for the super PAC.

“We believe that the page name is valuable real estate in the way that Facebook advertisements are served,” said Craig Varoga. “It is the very first thing that the user sees before the actual advertising copy and it is a best practice to use that real estate with content that will drive the message we’re looking to spread.”

Candidates and Campaigns 

AP News: Democrats driving anti-corruption message into 2018 midterms

By Ken Thomas

The message, articulated Tuesday in speeches from two potential 2020 presidential candidates, aims to undercut President Donald Trump’s argument that he has taken steps to “drain the swamp” in Washington and rein in the influence of lobbyists.

Massachusetts Sen. Elizabeth Warren issued a stark warning about Trump’s efforts to deregulate the federal government, calling it a deceptive way to help the nation’s wealthiest Americans and corporations…

“Back in 2016, Candidate Trump made big promises, promises to drain the swamp, promises to fight for working people, promises to ignore lobbyists, promises to stand up to Wall Street,” Warren said at the Coalition for Sensible Safeguards symposium…

Montana Gov. Steve Bullock, a Democrat who was re-elected in 2016 even as Trump won his state by 20 points, used a speech at the Center for American Progress to promote ways of reducing the influence of big money in politics…

Bullock said he plans to sign an executive order this week that requires the recipients of certain government contracts to disclose their political donations, including contributions to so-called “dark money” groups not required to disclose their donors.

The speeches signaled how Democrats plan to make ethics and campaign finance reform a point of emphasis as they challenge Republicans this year amid the backdrop of the Russia investigation and oversight of Trump’s Cabinet. The money in politics message has served as an early litmus test.

Warren said she would soon introduce “sweeping anti-corruption legislation to clean up corporate money sloshing around Washington.”

Daily Beast: Jill Stein Finally Reveals How She’s Been Spending Recount Money

By Charles Davis

The June 4 filings, first noted by Dave Levinthal of the Center for Public Integrity, are the first Federal Election Commission reports offered by Stein’s campaign in the last seven months. They come following a Daily Beast investigation that revealed that Stein was likely violating federal campaign-finance laws by keeping her campaign finances hidden.

“The delay in our latest filing is due to the fact that we have had to revise our reports as a routine part of the audit process that automatically follows the use of clean money public campaign finance matching funds,” Stein campaign communications director Dave Schwab said in a statement. “This is a difficult, labor-intensive process that has taken our compliance team months of work to prepare.”

Stein had raised $7.3 million for swing-state recounts and had hinted that donors would have the ability to vote on how she would spend any leftover money. But those recount efforts came to an end in December 2016 and no votes have been offered. Instead, since then, the Stein campaign has pursued recount-related litigation in Wisconsin and Pennsylvania, seeking to access the source code of electronic voting machines. Most of the money spent in the past several months has been on lawyers and filing fees. But money has also been used to keep Stein’s 2016 core campaign staff intact.

The States

NBC News: Montana governor pushes for more transparency on donors

By Mike Memoli

Speaking about campaign finance laws in a speech to a Democratic think tank Tuesday, the potential 2020 hopeful decried the outsized influence of dark money groups who he said were “eroding our democracy” in the wake of the Citizens United decision.

If such contributions can’t be prohibited, Bullock said one solution is to insist on new disclosure requirements.

“Tattooed across NASCAR drivers’ jumpsuits, and every square inch of their cars are the logos of the companies sponsoring the teams, underwriting the costs, paying their salaries,” he said. “If elected officials are going to be like NASCAR drivers – sponsored and supported by various special interests – we ought to at least know who’s doing the sponsoring and spending.”

Bullock, speaking at the Center for American Progress in Washington, pointed to a Montana law he signed that required all advocacy groups to disclose donations and spending that occurs within 90 days of elections. He also announced that he would sign a new executive order requiring that any entities seeking state government contracts of greater than $2,500 to disclose their political spending.

New Hampshire Business Review: AG’s office amps up its campaign finance enforcement

By Jay Surdukowski

During the course of a much-anticipated recent meeting of the Ballot Law Commission on election law matters, where most discussion focused on voter fraud, the attorney general’s office quietly announced that it would be proactively enforcing campaign finance laws for the first time with a dedicated Election Law Unit. This is significant news and candidates and political committees are forewarned…

The big question: How aggressive will the Election Law Unit be in the campaign finance realm? There are a patchwork of fines and civil penalties scattered throughout election law, some quite hefty. On the criminal law side of the ledger, some violations constitute misdemeanors and others felonies. Enforcement has been starved for resources over the decades, and it will be interesting to see how this new Election Law Unit will operate with a broad portfolio including campaign finance.

In this uncertain new climate, it will behoove candidates, political committees and their treasurers and chairpersons to make diligent efforts to comply with campaign finance law this election season now that the attorney general’s office is watching far more closely. 

WWLP Springfield: Lawmakers looking at bill that would tighten state campaigning funds

By Jennifer Zarate

The bill is called “An Act Enhancing Transparency in Campaign Finance.” It’s an effort to close loopholes. The bill’s sponsor wants state political parties to only use state funds to support candidates.

The bill seeks state rather than federal control on campaign contributions. 

Common Cause Massachusetts Executive Director Pam Wilmot said there’s too much money in politics, and this bill would help control it, “There’s one part that addresses running for the state committee of a political party, any political party, and the second relates to the kinds of money any political party can raise and then spend in our state races.”

Bill sponsor Senator James Eldridge said the legislation will reduce so-called “dark money” in politics, saying, “Right now, wealthy people and groups can make enormous donations without ever revealing their true identity. This harms our democracy and because Federal limits are much higher than state limits, Eldridge said, legislation is needed to clarify state law to prevent this activity.”

This is the second time he’s filed this bill…

The Election Laws Committee is studying the bill, which means it likely won’t go anywhere this session.

ABC News: Washington state sues Google, Facebook over campaign ad data

By Gene Johnson, AP

Washington Attorney General Bob Ferguson on Monday sued Google and Facebook, saying the companies failed to maintain information about political advertising as required by state law.

Washington law requires the companies to maintain information about buyers of political ads, the cost, how they pay for it, and the candidate or ballot measure at issue, according to the lawsuits, filed in King County Superior Court on Monday. The companies also must make that information available to the public upon request…

“Washington’s political advertising disclosure laws apply to everyone, whether you are a small-town newspaper or a large corporation,” Ferguson said in a statement. “Washingtonians have a right to know who’s paying for the political advertising they see.”

Social media companies have been under pressure to be more transparent when it comes to political ads, including issue ads…

“Attorney General Ferguson has raised important questions and we look forward to resolving this matter with his office quickly,” Rob Leathern, Facebook’s director of product management, said in an emailed statement…

“We are committed to transparency and disclosure in political advertising,” Google said in a statement Monday. “We are currently reviewing the complaint and will be engaging with the Attorney General’s office.” …

The state is seeking fines and legal fees.

San Antonio Express-News: Task force wants to raise San Antonio political contribution caps

By Josh Baugh

A seven-member panel appointed by Mayor Ron Nirenberg with input from council members, the Campaign Finance Task Force decided Tuesday to recommend that contribution limits be increased by 50 percent. For more than a dozen years, donors could give no more than $500 per cycle to a council candidate and no more than $1,000 to a mayoral candidate.

The task force is recommending those numbers increased to $750 and $1,500, respectively.

Other Texas municipalities maintain varying limits on campaign contributions, and there are limits for federal office. But state candidates, including counties, have no limits on how much money they can accept…

[A] slim majority of the task force, including two former council candidates – Melissa Cabello Havrda and Mari Aguirre-Rodriguez – successfully argued for increasing limits. They maintain that the ability to accept more money would allow candidates to spend less time fundraising and more time engaging with would-be constituents…

The task force will also recommend that the City Council enact an ordinance that requires that candidates disclose the occupation and employer of anyone who gives them $100 or more, in aggregate, during a campaign-finance cycle.

Slate: New Hampshire Police Charged and Arrested a Man for Criticizing Them on the Internet

By Mark Joseph Stern

On May 3, Frese wrote a comment on a Seacoast Online article about recently retiring police officer Dan D’Amato. He believed that D’Amato had treated him unfairly and harshly criticized his alleged misconduct. He then tore into Exeter Police Chief William Shupe, declaring that “Chief Shupe covered up for this dirty cop.”

Although the outlet removed the comment, the police charged Frese with criminal defamation of character, a Class B misdemeanor…

Political speech-and, in particular, criticism of public officials-lies at the heart of the First Amendment, and the Exeter police would have to overcome several hurdles to secure a conviction. Perhaps most obviously, the law under which Frese was charged may be unconstitutional on its face. The statute criminalizes false speech that “tend[s] to expose” a living person to “public hatred, contempt or ridicule,” without distinguishing between expression directed at private individuals and public figures. But the First Amendment protects some false speech, particularly in the context of political debate. And the astonishing breadth of this law, outlawing any fiction that brings “ridicule” upon a living person, raises serious constitutional concerns…

Gilles Bissonnette, legal director of the American Civil Liberties Union of New Hampshire, is looking into Frese’s case and told me on Friday that he’s disturbed by the prosecution. “It appears that the police may be using this statute to suppress speech that is critical of police,” he told me. “This is deeply troubling.” 

Alex Baiocco


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