Daily Media Links 7/29

July 29, 2019   •  By Alex Baiocco   •  
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The Courts

Washington Post: Judge dismisses libel suit against Washington Post brought by Covington Catholic High School student

By Richard Leiby

A federal judge in Kentucky on Friday dismissed a $250 million libel suit against The Washington Post brought by a high school student who claimed that the organization’s coverage of his and his fellow students’ encounter with an American Indian activist at the Lincoln Memorial in January was false and defamatory.

U.S. District Judge William O. Bertelsman ruled that seven Post articles and three of its tweets bearing on Nicholas Sandmann – who was part of a group of Catholic students from Kentucky who came to Washington to march against abortion – were protected by the First Amendment. In analyzing the 33 statements over which Sandmann sued, the judge found none of them defamatory; instead, the vast majority constituted opinion, he said.

“Few principles of law are as well-established as the rule that statements of opinion are not actionable in libel actions,” Bertelsman wrote, adding that the rule is based on First Amendment guarantees of freedom of speech. “The statements that Sandmann challenges constitute protected opinions that may not form the basis for a defamation claim.”

Sandmann’s parents, who brought the suit on their son’s behalf, said they would appeal. “I believe fighting for justice for my son and family is of vital national importance,” Ted Sandmann said in a statement. “If what was done to Nicholas is not legally actionable, then no one is safe.”

Congress

New York Times: What Will It Take for Congress to Protect America’s Elections?

By Editorial Board

While progress has been made in safeguarding the nation’s electoral system, partisan bickering has impeded Congress from enacting a range of important reforms, from improving coordination between state and federal authorities to upgrading election infrastructure to closing loopholes in campaign finance laws…

Mr. McConnell also may be the Senate’s fiercest crusader against regulating the flow of campaign cash. It is thus unsurprising that he has not embraced proposals such as the bipartisan Honest Ads Act, which would require funding transparency for online political ads, nor the Disclose Act, a version of which has been introduced in every Congress since 2010, aimed at exposing the “dark money” flooding groups like labor unions, trade associations and super PACs…

Democrats have aggressively pushed multiple bills that would require campaigns to notify federal authorities of any offers of foreign assistance. This might be a useful tightening of election law, but it is also a rebuke of President Trump, whose campaign team failed to report overtures by the Russians in 2016 and who recently expressed an openness to future offers.

Such a measure has no chance of passing the Senate and serves only to harden partisan divisions. In June, Senate Democrats attempted to push through a bill to this effect using a unanimous consent request. This Wednesday, in the aftermath of Mr. Mueller’s testimony, they tried again with not one but two bills.

Democrats are understandably frustrated by the foot-dragging of the White House, Mr. McConnell and other reform opponents. But for reform to make any further progress in Congress before the 2020 election, both sides must focus on minimizing, not stoking, the tension between them. Abusing the cause of election security to score political points is no way to safeguard the nation.

Online Speech Platforms 

Washington Post: The stubborn, misguided myth that Internet platforms must be ‘neutral’

By Daphne Keller

If platforms with insufficiently neutral policies were “legally responsible for all the content they publish,” as some critics have proposed, no one would like that either. A platform held to the legal standards of publishers like The Washington Post would have to vet everything users post before the public could see it. Users would have to wait while lawyers decide if its political opinions or cat videos break the law. If the lawyers thought any speech exposed the platform to liability, or even the expense of litigating groundless claims, they wouldn’t let the content be shared.

The drafters of CDA 230 recognized this problem. They created a law that let the wide array of Internet intermediaries shape their own policies, without facing the binary choice between becoming traditional publishers or remaining entirely passive…

In theory, Congress could have done this differently in 1996, and still could today. Platforms could be allowed to moderate user speech as long as they do so neutrally. But it’s not clear what a rule like that would even mean. The idea of “neutral moderation” rules usually comes from people who are new to the topic or else so certain of their own moral precepts that they can’t imagine anyone disagreeing about what neutral speech rules would be.

“Neutral moderation” requirements, which would presumably be enforced by a greatly expanded regulatory agency like the Federal Communications Commission, would almost certainly violate the First Amendment. To enforce a law like that, the government would have to set new rules for ordinary Internet users’ lawful speech, picking winners and losers and deciding who is heard and who is silenced. It’s hard to imagine anyone being happy with that arrangement – but the threat of it may be useful in scaring companies into changing their content policies.

New York Times: Chris Hughes Worked to Create Facebook. Now, He Is Working to Break It Up.

By Steve Lohr

Chris Hughes used to huddle with Mark Zuckerberg in a Harvard dorm room building Facebook from scratch. Now, he’s huddling with regulators to explain why Facebook needs to be broken up.

In recent weeks, Mr. Hughes has joined two leading antitrust academics, Scott Hemphill of New York University and Tim Wu of Columbia University, in meetings with the Federal Trade Commission, the Justice Department and state attorneys general. In those meetings, the three have laid out a potential antitrust case against Facebook, Mr. Wu and Mr. Hemphill said.

For nearly a decade, they argue, Facebook has made “serial defensive acquisitions” to protect its dominant position in the market for social networks, according to slides they have shown government officials. Scooping up nascent rivals, they assert, can allow Facebook to charge advertisers higher prices and can give users worse experience…

On Wednesday, Facebook announced that the F.T.C. had started an antitrust investigation into the company. The Justice Department has also started a broad antitrust review of the technology industry, as have lawmakers. And on Thursday, some state attorneys general met with the Justice Department to discuss competition in the industry…

The professors and Mr. Hughes are not alone in focusing on Facebook’s company-buying campaign. In March, Representative David Cicilline, Democrat of Rhode Island and chairman of the House antitrust subcommittee, wrote to the F.T.C., urging the agency begin an investigation of Facebook.

His first suggested line of inquiry was the social network’s acquisition campaign.

Reason: Section 230 Is the Internet’s First Amendment. Now Both Republicans and Democrats Want To Take It Away.

By Elizabeth Nolan Brown

Santa Clara University law professor Eric Goldman argues that Section 230 is “better than the First Amendment,” at least where modern communication and technology are concerned.

“In theory, the First Amendment-the global bellwether protection for free speech-should partially or substantially backfill any reductions in Section 230’s coverage,” Goldman wrote on his blog recently. “In practice, the First Amendment does no such thing.” …

“Congress passed Section 230 because the First Amendment did not adequately protect large online platforms that processed vast amounts of third-party content,” writes Jeff Kosseff in his 2019 book on Section 230, The 26 Words That Created the Internet…

With both major parties having been thrown into identity crises in the Trump era, it’s not surprising they would somehow converge on a pseudo-populist crusade against Big Tech. The political class now wants everyone to believe that the way the U.S. has policed the internet for the past quarter-century-the way that’s let so many of the world’s biggest internet companies be founded and flourish here, midwifed the birth of participatory media we know today, helped sustain and make visible protest movements from Tunisia to Ferguson, and shined a light on legalized brutality around the world-has actually been lax, immoral, and dangerous. They want us to believe that America’s political problems are Facebook’s fault rather than their own.

Don’t believe them. The future of free speech-and a lot more-may depend on preserving Section 230.

CNN: Finland is winning the war on fake news. What it’s learned may be crucial to Western democracy

By Eliza Mackintosh

The course is part of an anti-fake news initiative launched by Finland’s government in 2014 – two years before Russia meddled in the US elections – aimed at teaching residents, students, journalists and politicians how to counter false information designed to sow division.

The initiative is just one layer of a multi-pronged, cross-sector approach the country is taking to prepare citizens of all ages for the complex digital landscape of today – and tomorrow…

Toivanen, the chief communications specialist for the prime minister’s office, said it is difficult to pinpoint the exact number of misinformation operations to have targeted the country in recent years, but most play on issues like immigration, the European Union, or whether Finland should become a full member of NATO (Russia is not a fan).

As the trolling ramped up in 2015, President Sauli Niinisto called on every Finn to take responsibility for the fight against false information. A year later, Finland brought in American experts to advise officials on how to recognize fake news, understand why it goes viral and develop strategies to fight it. The education system was also reformed to emphasize critical thinking…

“It’s not just a government problem, the whole society has been targeted. We are doing our part, but it’s everyone’s task to protect the Finnish democracy,” Toivanen said, before adding: “The first line of defense is the kindergarten teacher.” …

But some argue that simply teaching media literacy and critical thinking isn’t enough – more must be done on the part of social media companies to stop the spread of disinformation…

Germany has already put a law in place to fine tech platforms that fail to remove “obviously illegal” hate speech, while France passed a law last year that bans fake news on the internet during election campaigns. Some critics have argued that both pieces of legislation jeopardize free speech.

Washington Post: Why crafty Internet trolls in the Philippines may be coming to a website near you

By Shibani Mahtani and Regine Cabato

The world of Internet trolls – the gaslighting, the fabrications, the nastiness – is now a fact of life in the Web ecosystem nearly everywhere.

But something new is happening here: Experienced public relations experts in the Philippines are harnessing the raw energy of young and aggressive social media shape-shifters.

They are dramatically altering the political landscape in the Philippines with almost complete impunity – shielded by politicians who are so deep into this practice that they will not legislate against it, and using the cover of established PR firms that quietly offer these services.

It is also showing signs of going global – with the Philippines as a hub – as the United States and countries across the world move into another election cycle in the troll age.

“This is what disinformation will look like in the U.S. in 2020,” said Camille François, chief innovation officer at the New York-based social network analysis company Graphika.

Political manipulation, she said, does not need to come from an ill-intentioned enemy state. It can originate with those who have cut their teeth in the competitive worlds of advertising, media and marketing. Social media companies, she added, were caught off guard before – notably in the U.S. presidential election in 2016 – and could be yet again with this new iteration.

“The Philippines shows us trends that are headed this way,” said François, who led a report commissioned by the Senate Select Committee on Intelligence investigating Russian trolls in the United States. “And, it is 2019, the market is global – so they will find jobs outside of their own nation.”

Independent Groups

Washington Free Beacon: House Dems Get Dark Money Group After Introducing Bill Against Dark Money

By Joe Schoffstall

House Majority Forward, a 501(c)(4) nonprofit that will not have to disclose its donors, was established in March…

The new ad highlights bills being “blocked” by Republicans in Congress, bills to reduce drug costs, expand gun control, provide a path to citizenship for some illegal immigrants, and-despite House Majority Forward being itself a dark money nonprofit-HR 1, or the For the People Act. Introduced by House Democrats in January, HR 1 contained a provision for the disclosure of major donors who give to 501(c)(4) nonprofits.

House Majority Forward will share staff with the House Majority PAC, a committee linked to House Speaker Nancy Pelosi…

House Majority Forward mirrors Majority Forward, a dark money group tied to Senate Democrats and affiliated with the Senate Majority PAC, a committee aligned with Senate Minority Leader Chuck Schumer (N.Y.). Majority Forward and the Senate Majority PAC share personnel and office space, with both led by J.B Poersch, a Schumer ally. The relationship has been described as “ridiculously cozy” by watchdog groups.

Majority Forward poured $46 million into the 2018 election cycle supporting Democrats, and accounted for nearly a third of the $150 million total spent by all groups that do not disclose their donors, making it by far the largest dark money spender of the cycle. Throughout the midterm elections, liberal dark money groups outspent their conservative counterparts, 54 to 39 percent.

Democrats also have the help of another new secret money group for the 2020 election cycle. Future Majority, a Washington, D.C.-based strategy center, was launched by a group of Democratic strategists to “rebrand” the party and focus on midwestern states, a target of many liberal donors and groups. 

Candidates and Campaigns 

New York Times: Seven 2020 Democrats Pledge to Focus First Bill on Fighting Corruption

By Alexander Burns

Seven Democratic presidential candidates, including Senator Elizabeth Warren of Massachusetts and Mayor Pete Buttigieg of South Bend, Ind., have promised that their first legislation as president would be an ambitious clean-government bill, earning their campaigns an influential reform group’s stamp of approval.

End Citizens United, a grass-roots advocacy group that played a key role in the 2018 midterm elections, said the seven candidates had vowed to prioritize ethics and campaign finance reform in a commitment the group is calling the “Reform First” pledge. The group said it would begin raising money for all seven candidates online and highlight their campaign activities on social media…

The imprimatur of End Citizens United, while short of an endorsement, could be an important symbolic and financial asset in the Democratic primary. The group has more than four million members around the country, including half a million donors, and raised nearly $9 million for candidates in last year’s elections. During that campaign, it urged candidates to reject contributions from corporate political action committees, and helped persuade Democratic congressional leaders to introduce a reform bill as the first legislation of the new House majority…

Officials with End Citizens United said its fund-raising and promotional activities for the presidential candidates would begin immediately…

The “Reform First” pledge came together quietly over a period of months, as End Citizens United strategists met with more than a dozen campaigns to lay out the parameters and argue that it was a politically advantageous space to occupy in the primary…

What the End Citizens United-approved candidates share is the view that any other policy initiative might be futile without having a drain-the-swamp law in place first.

Fundraising  

Washington Post: Democrats swore off donations from lobbyists and fossil fuel execs. But some are skirting their own rules.

By Hailey Fuchs and Michelle Ye Hee Lee

Every Democratic primary candidate this year has sworn off financial support from certain industries despised by the Democratic base…

Yet federal filings show campaigns have accepted plenty of money from influential donors in those industries – as long as the donor’s job title falls outside the narrow, and at times technical, definitions in candidates’ pledges.

Such donations underscore how campaigns are navigating the expectations of voters and activists while working to draw tens of millions to survive a crowded and lengthy primary. But critics say these contributions show candidates have taken symbolic pledges with arbitrary definitions…

All the highest-polling 2020 candidates have rebuked help from three sources: “fossil fuel money,” federal or corporate lobbyists and corporate PACs. Some have committed to return money from pharmaceutical executives.

But the pledges come with caveats.

In the case of fossil fuel pledges, candidates have vowed not to accept contributions over $200 from executives, lobbyists and PACs in the oil, gas and coal industry. But they have accepted donations from others in high-level positions at such companies…

Ultimately, the Democratic presidential nominee is likely to benefit from donations from all of the industries, despite their pledges during the primary campaign. The Democratic National Committee – which will channel its funds to support the party’s nominee – has not made similar promises.

The Atlantic: Political Fundraising Has a Big, Nasty Secret

By David A. Graham

Broadly speaking, U.S. campaign-finance laws have been written to prevent nefarious influence by donors over politicians. To that end, the government limits (for now, at least) how much an individual can give to a candidate. It prevents “straw donations,” in which an individual routes donations through other people, since that would give a single individual undue influence. It prevents donations from foreigners to U.S. political campaigns. It requires that campaigns and some other bodies disclose who has given to them. The unifying principle is the presumption that the public needs to worry about who might influence a politician. Scam PACs bypass that principle. Here, it’s not the donors who are taking advantage-it’s the donors who are being taken advantage of …

The catch here is who regulates the behavior. If you call people up, ask them for money, and claim most of the donation will go to a charity but don’t actually do that, you’re liable to get in trouble with the government…

But the FTC, state attorneys general, and other bodies that might regulate this kind of behavior in other spheres are constrained in their ability to intervene, because this is all happening under election law-which seems to be an ingenious loophole for bad behavior. As ProPublica notes, the FTC doesn’t have jurisdiction over political fundraising. That’s the province of the Federal Election Commission…

[T]wo Democratic commissioners acknowledged in 2016 that “the power of the Commission to directly and comprehensively protect political contributors is limited.” In 2018, the FEC asked Congress to amend the Federal Election Campaign Act to allow the commission to regulate fraud.

The Daily Beast also reported in 2018 that the Justice Department had brought charges against a scam PAC in Arizona, and a defendant pleaded guilty in November 2018. “This is the first-ever federal prosecution of fraudulent scam PACs, but it won’t be the last,” U.S. Attorney for Manhattan Geoffrey Berman said at the time.

Alex Baiocco

Alex Baiocco