Daily Media Links 7/3

July 3, 2019   •  By Alex Baiocco   •  
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First Amendment

Reason (Volokh Conspiracy): First Amendment Likely Bars Arizona’s Withdrawal of Tax Benefits to Nike Over Betsy Ross Sneaker Controversy

By Eugene Volokh

[T]he First Amendment generally forbids the government from retaliating against government contractors based on the contractors’ protected First Amendment activity (which would include either deciding to release a shoe with a particular flag design, or deciding not to release it); the Supreme Court so held in Board of Comm’rs v. Umbehr (1996). And while that case involved traditional payment-for-service contracting, the logic of the case would apply to financial incentives such as those involved in the Nike case. (Indeed, Umbehr relied on, among other cases, Speiser v. Randall (1959), which held this as to tax exemptions.)

Of course, the government can generally choose to terminate a contract (assuming the terms of the contract allow that) or not to renew it for a wide range of reasons. But it can’t do that based on, say, the party’s race or religion-or, the Court held in Umbehr and a companion case (O’Hare Truck Serv. v. City of Northlake (1996)) the party’s First-Amendment protected speech.

The Court in Umbehr focused on speech-based decisions to cancel a terminable-at-will contract, or not to renew such a contract. But it sounds like the Nike matter likewise involves a decision to cancel an already arranged plan; and just as the First Amendment bar on the government firing employees based on their First Amendment activity also applies to refusals to hire (Rutan v. Republican Party of Illinois (1990)), so the First Amendment bar on terminating contracts based on First Amendment activity applies to refusals to contract.

For more, see my post about why it’s unconstitutional for the City of Los Angeles to require that would-be contractors disclose their ties to the NRA.

Axios: Trump’s unexpected 1st Amendment legacy

By Sara Fischer

President Trump’s consistent attacks on the free press and access to information, mostly through social media, have forced judges to re-evaluate the rules of political communications in the digital era.

Why it matters: Some of these actions have led to historic legal cases or set new precedents that could create stronger protections in the long term.

Heading into the summer, First Amendment advocates are waiting for a ruling that will end a two-year-long debate over whether Trump, and other public officials, can block constituents on social media.

In May 2018, the District court ruled that the president’s practice of blocking his critics on Twitter was unconstitutional. The government appealed that decision, and in March of this year, the Second Circuit Court of Appeals heard arguments…

Shortly after Trump was elected, the National Archives and Records Administration (NARA) confirmed that tweets posted by Trump using his @realDonaldTrump handle are considered presidential records.

That makes the White House legally responsible for saving deleted or altered tweets and submitting them to the Archivist of the United States upon leaving office…

Last year, a federal judge found that the White House’s stripping of the security pass of CNN correspondent Jim Acosta was unconstitutional.

The ruling establishes a principle that future administrations and other elected officials must provide a meaningful process and establish a real justification, such as a security threat or operational burden created by a reporter’s actions, in order to revoke a press pass…

In many of these cases, courts have had to figure out ways to apply decades- long principles to new mediums.

Congress

Washington Post: Americans deserve to know who pays for political ads. But is that enough?

By Editorial Board

Sens. Amy Klobuchar (D-Minn.) and Mark R. Warner (D-Va.) introduced the Paid Ad Act last week to stymie adversaries who pour money into swaying the U.S. electorate. Foreign nationals would be prohibited from buying ads in any medium naming a candidate for office at any time, and foreign governments and lobbyists would be prohibited from buying what are known as “issue ads” during an election year…

The gentler way to address these ads is to ensure that Americans know who paid to persuade them. This is the primary purpose of the Honest Ads Act, also spearheaded by Ms. Klobuchar. It would amp up disclosure requirements for domestic and foreign actors alike. But truly robust disclosure will require broader campaign finance reform preventing ads’ funders from hiding behind the names of shady organizations…

Still, barring issue ads altogether treads tricky free expression territory, not least because of the difficulty of defining what qualifies as a topic of sufficient political importance. True, foreign governments and lobbyists do not have First Amendment rights, but these rules would not only affect scheming Russians. Our North American neighbors, for example, might want to educate the American electorate about the U.S.-Mexico-Canada Agreement on trade. And the United States has its own interests in funding the promotion of democracy abroad. What message would it send to other countries to bar them from advancing their views here as we advance ours there?

Ms. Klobuchar and Mr. Warner’s bill forces Congress to ask whether disclosure is enough – and if it is not, whether the threat of further foreign interference is enough to accept tamping down on countries’ ability to communicate their message beyond their borders.

Nextgov: Congress Wants DHS to Study Disruptive Deepfake Videos

By Brandi Vincent

Lawmakers concerned about the rise of deepfakes-hyper-realistic, manipulated videos-want the Homeland Security Department to do a deep-dive into the dangers they pose to democracy.

“Deepfakes pose a serious threat to our national security, homeland security, and the integrity of our elections,” Rep. Derek Kilmer, D-Wash., said in a statement. “While there is an effort underway to counter these videos on social networks and video sites, it is currently being done through a patchwork of policies.”

Kilmer introduced the Deepfake Report Act of 2019 with Reps. Peter King, R-N.Y., Stephanie Murphy, D-Fla., and Will Hurd, R-Texas Friday. The same legislation was also introduced in the Senate by Sens. Rob Portman, R-Ohio, Martin Heinrich, D-N.M., Joni Ernst, R-Iowa, Brian Schatz, D-Hawaii, Cory Gardner, R-Colo., Gary Peters, D-Mich., and Mike Rounds, R-S.D….

The newly introduced bipartisan legislation aims to enhance awareness around deepfakes and “digital content forgery,” which the bills’ writers refer to as “the use of emerging technologies, including artificial intelligence and machine learning techniques, to fabricate or manipulate audio, visual, or text content with the intent to mislead.”

To do so, it directs Homeland Security to conduct in-depth research and hold public hearings to inform reports that are to be published “not later than 200 days” after the law is enacted and “every 18 months thereafter.” Through the reports, the agency is required to assess the state of the emerging technology and how it can and is being used and abused by bad actors.

The bill also requires Homeland Security to consult the intelligence community and multiple agencies including the Justice Department, Federal Election Commission and National Science Foundation in its research.

“Addressing the challenges posed by deepfakes will require policymakers to grapple with important questions related to civil liberties and privacy,” Portman said. “This bill prepares our country to answer those questions and address concerns by ensuring we have a sound understanding of this issue.”

Daily Caller: Democratic Rep Calls For Prosecution Of Border Patrol Agents For ‘Making Fun’ Of Congress Members In Private Facebook Group

By Andrew Kerr

Democratic Rep. Frederica Wilson of Florida said Tuesday that the border patrol agents who made fun of members of Congress in a private Facebook group should be prosecuted.

“Those people who are online making fun of members of Congress are a disgrace,” Wilson said during a press conference after touring an immigrant detention center in Homestead, Florida. “We’re going to shut them down and work with whoever it is to shut them down and they should be prosecuted.”

“You cannot intimidate members of Congress – threaten members of Congress – it is against the law,” Wilson said.

ProPublica revealed Monday that more than 9,000 former and current Border Patrol agents are allegedly part of a secret Facebook group where inflammatory pictures and comments are regularly posted…

“This is something we are working on,” Wilson said in reference to the Facebook group. “Let’s be glad we found it and we’re going to correct it and we’re going to shut it down.”

Customs and Border Protection launched an investigation into the private Facebook group, ProPublica reported Tuesday.

Online Speech Platforms

CNBC: As Facebook cracks down on fake political ads, businesses are getting caught in the crossfire

By Megan Graham

Earlier this year, Wil Spillane, a social media strategist at Delaware-based Trellist Marketing and Technology, tried to post a Facebook ad for a client that made a chemical ingredient for paint. He said the ad positioned the product as eco-friendly because customers would only have to use one coat of paint, thus reducing their carbon footprint.

The ad seemed innocent enough, until Spillane received a response from Facebook that his ad had been flagged and couldn’t run without verification that he had U.S. identification documents and a domestic mailing address.

It turns out Facebook’s ads manager system had flagged Spillane’s paint ad because it determined it was a political or issues-based ad, which requires an extra level of approval to publish on the platform.

“We weren’t talking about anything that could have been controversial, we were stating some of the values … Not trying to get involved in the Green New Deal or anything like that,” Spillane said in an interview with CNBC. “That ad was actually flagged, not approved and never was able to run.”

He said he decided to become verified to run political ads to prevent future issues just in case.

Spillane’s experience running ads for small businesses isn’t uncommon these days…

Small business advertisers said they were particularly affected by the political ad filter since ads are often flagged automatically and they often don’t often have quick access to a human reviewer to appeal to…

The Facebook spokeswoman said the company continues to review its political ads policy to “better understand the types of issue ads that require additional transparency to people who use our platform versus ads that fall outside the scope of true discussion, debate or advocacy.”

Fundraising   

ABC News: Booker returns pharma executive’s money after he claimed he hadn’t accepted any

By Armando Garcia and Soo Rin Kim

During last week’s presidential debate, [Democratic presidential candidate Sen. Cory Booker] took a strong stance against the pharmaceutical industry… and further stated that his campaign doesn’t take contributions from the industry’s corporate PACs and executives.

ABC News’ closer examination of disclosure reports filed to the Federal Election Commission, however, revealed that Booker’s campaign did accept several donations from individuals associated with the pharmaceutical companies, including executives and leaders.

After ABC News reported on those donations as part of its debate fact checking, the Booker campaign told ABC News that they have decided to return a $2,800 donation from Eagle Pharmaceutical Executive Vice President and Chief Compliance Officer Michael Cordera…

Booker’s campaign told ABC News that Cordera’s is the only contribution returned because the campaign doesn’t consider the other donors as c-suite executives, or top senior staffers, and board chairs…

As a majority of the 2020 Democratic presidential hopefuls turn against corporate PAC money, such contributions highlight loopholes in candidates’ pledges that don’t stop the flow of donations from wealthy individuals in the industry.

Sen. Kirsten Gillibrand of New York, who has been vocal about driving big money out of politics and is a strong advocate of publicly-funded election, earlier this month also raised money at a private fundraiser hosted by pharmaceutical giant Pfizer’s Executive Vice President of Corporate Affairs Sally Susman…

Gillibrand defended the fundraiser at a CNN Town Hall, saying that Susman was just personal friend and a supporter of her beliefs. She added that she “doesn’t want to undermine an individual’s right to participate.”

The States

Michigan Capitol Confidential: Michigan Bill Would Ban ‘Viewpoint Discrimination’ By Facebook, Google

By Tom Gantert

State Rep. John Reilly of Oakland Township introduced House Bill 4801 on June 26. A press release from the Michigan House Republican caucus cited a Project Veritas undercover sting that secretly recorded a Google executive…

Reilly continued: “Social media companies cannot eat their cake and have it too. They cannot enjoy the privileges of being a platform, such as immunity from liability for users’ content, while also enjoying the privileges of being a publisher to control what everyone may or may not say on their network.” …

Antony Davies, an associate professor of economics at Duquesne University, said in an email that there is a distinction between a government entity and a private enterprise.

“Where Google and Facebook are concerned, it may be time for everyone to take a deep breath,” said Davies. (Davies is a member of the Board of Scholars at the Mackinac Center for Public Policy, which publishes Michigan Capitol Confidential.)

“But a private enterprise is funded through cooperation. You agree to provide something to the private enterprise and the private enterprise agrees to provide something to you. You and it cooperate in making both you and it better off,” Davies said. “At any point, you are free to walk away from the enterprise. In some cases, like in choosing a grocery store, walking away is easy. In others, like choosing an employer, it’s harder. But the relationship between you and the enterprise is voluntary.”

Davies continued: “Google and Facebook are private enterprises. Facebook has every right to censor and even ban people. I believe that is, generally, a bad business decision and it definitely makes Facebook less valuable to a lot of users. But Facebook has the right to walk away from its relationship with us just as we have the right to walk away from our relationship with Facebook.”

Albany Times Union: Nine-member ‘public financing’ commission announced

By Chris Bragg

Gov. Andrew Cuomo and legislative leaders announced on Wednesday members of the nine-person commission that will make binding recommendations by Dec. 1 about how to implement publicly financed elections in New York…

The commission’s nine members include two appointed by Cuomo, two by Democratic Senate Majority Leader Andrea Stewart-Cousins, two from Democratic Assembly Speaker Carl Heastie, one “at large” seat jointly selected by the governor, Heastie and Stewart-Cousins, as well as one appointee each from Assembly Minority Leader Brian Kolb and Senate Minority Leader John Flanagan, both Republicans.

That means that there were essentially seven Democrat appointees and two by Republicans – the latter party long ideologically opposed to publicly financed elections.

According to the press release announcing the commission, it will determine specific aspects of the public financing system, including eligibility thresholds, public financing limits and contribution limits for participating candidates.

[Press release naming all appointees available at the bottom of the article linked above]

Alex Baiocco

Alex Baiocco