Daily Media Links 7/9

July 9, 2021   •  By Tiffany Donnelly   •  
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Supreme Court

OC Register: The Supreme Court protects the unpopular with donor disclosure ruling

By Bartlett Cleland and Lee E. Goodman

At issue [in Americans for Prosperity Foundation v. Bonta was] California’s mandate for all non-profit, religious, civic and charitable organizations to disclose detailed information about their donors to the state as a condition of soliciting contributions from Californians. Such detailed information typically remains private so as not to chill citizen’s support for their civic and charitable causes. Every American should be concerned about the type of detailed donor disclosure required in the Golden State…

In 2013, Illinois Senator Richard Durbin sent an official Senate letter to more than 300 suspected corporate and individual [American Legislative Exchange Council] supporters demanding they disclose their contributions. Senator Durbin stated, “I intend to convene a hearing … and I intend to include your responses to my letters in the hearing record.” He made good on that threat.

Unsurprisingly, official Senate harassment and intimidation significantly impacted sponsorship and contributions. Many Council members stopped participating in the organization’s activities rather than face such official retaliation. The same sort of harassment continues to this day for many organizations and citizens who face “cancellation” and loss of funding and employment among other ruinous strategies by their political or cultural opponents.

The Hill: The Supreme Court donor ruling is a defeat for Kamala Harris

By Howard Husock

It was [Vice President Kamala] Harris, the former California attorney general, who first interpreted the state’s regulations on charities to mandate that nonprofit (501c3) organizations report all gifts greater than $5,000 via the IRS Schedule B donor list.

The Supreme Court’s ruling shouldn’t be associated with Harris just because she issued the original requirement on nonprofits. She also was the first to strictly enforce the law, and she persisted in defending it even after an initial court ruling against it.

After more than a decade — in which California deemed AFP to be in compliance with state law, despite the organization not filing the list of its major donors — Harris chose to reinterpret the law to mean that an IRS filing was not sufficient. When AFP declined to comply, fearful that the personal information of conservative donors would be disclosed, Harris doubled down…

It’s worth mentioning what Harris had to overlook in order to persist in defending her interpretation of California’s charity law. She had to ignore a key precedent from the 1958 Supreme Court ruling that overturned Alabama’s Jim Crow requirement that the NAACP disclose donor information. At the time, this was practically an invitation to lynching.

BloombergQuint: Gorsuch Critique of Landmark Libel Case Should Be Taken Seriously

By Noah Feldman

In a sign of hard times for traditional free-speech values, U.S. Supreme Court Justice Neil Gorsuch has added his voice to that of Justice Clarence Thomas in calling for a re-examination of the landmark 1964 precedent of New York Times v. Sullivan — the case that makes it extremely difficult for public figures to win libel suits. Thomas’s view, first expressed in 2019, was that the press protections established by Sullivan violated the original intent of the First Amendment. It was inconsistent with his own free-speech jurisprudence, and was therefore unlikely to garner support from other justices.

Gorsuch’s opinion last week, in contrast, focused on the up-to-the-minute problem of misinformation in the age of social media. Gorsuch’s concerns aren’t trivial or ideological. He quoted a 28-year-old old essay in support of them written by his Supreme Court colleague Elena Kagan when she was a law professor. Gorsuch’s opinion raises at least the possibility that other justices might be open to rethinking the question of public-figure libel.

The Courts

New York Times: Four States Start Inquiries Into Recurring Donation Tactics of Both Parties

By Shane Goldmacher

Four state attorneys general have begun looking into the online fund-raising practices of both political parties, specifically seeking information about the use of prechecked boxes to enroll contributors in recurring donation programs that spurred a wave of fraud complaints and demands for refunds last year.

The attorneys general for New York, Minnesota, Maryland and Connecticut have sent letters to [WinRed and ActBlue] asking for documents related to the practices, according to court documents and people familiar with the matter.

WinRed revealed the existence of the letter from the attorneys general in a Federal District Court filing this week, as the firm is seeking to stop any state-level investigation, arguing federal law should pre-empt any such effort…

In a letter dated April 29, Letitia James, the New York attorney general, writing on behalf of the four attorneys general, outlined to WinRed the scope of their request for documents. It included a request for any internal documents that might have assessed the effectiveness and impact of prechecked recurring boxes, data on conversion rates, “A/B testing” of its user interface as well as communications about its practices…

In a statement, ActBlue acknowledged that it had received “an inquiry from these attorneys general and worked with them to provide information that responded to their inquiry.” It is not clear what information ActBlue provided.

WinRed has so far resisted the documents request, arguing in a June letter to the attorneys general that oversight of its operations was a federal matter.

Wall Street Journal: Donald J. Trump: Why I’m Suing Big Tech

By Donald J. Trump

One of the gravest threats to our democracy today is a powerful group of Big Tech corporations that have teamed up with government to censor the free speech of the American people. This is not only wrong—it is unconstitutional. To restore free speech for myself and for every American, I am suing Big Tech to stop it.

Social media has become as central to free speech as town meeting halls, newspapers and television networks were in prior generations. The internet is the new public square. In recent years, however, Big Tech platforms have become increasingly brazen and shameless in censoring and discriminating against ideas, information and people on social media—banning users, deplatforming organizations, and aggressively blocking the free flow of information on which our democracy depends.

No longer are Big Tech giants simply removing specific threats of violence. They are manipulating and controlling the political debate itself…

Perhaps most egregious, in the weeks after the election, Big Tech blocked the social-media accounts of the sitting president. If they can do it to me, they can do it to you—and believe me, they are…

Our lawsuits argue that Big Tech companies are being used to impose illegal and unconstitutional government censorship.

Washington Post: Legally, Trump’s tech lawsuit is a joke. But it raises a serious question.

By Fred Hiatt

Former president Donald Trump’s lawsuits against Facebook, Twitter and YouTube have been rightly derided as wrong on the facts, preposterous on the law and doomed to be thrown out of court.

Which is all true — except that many people will not find Trump’s complaints, in this case, all that unreasonable.

It just doesn’t feel right, in other words, that company CEOs Mark Zuckerberg, Jack Dorsey and Sundar Pichai get to decide which politicians Americans can hear and which ones we can’t. Everyone mocking Trump’s misreading of the First Amendment would be foolish to dismiss that feeling.

Independent Groups

The Atlantic: How Democrats Lost the Courts

By Emma Green

How were Democrats going to get their base to care about the courts? Money. Democratic donors started funneling cash to organizations such as the Sixteen Thirty Fund, which are managed by an enormous umbrella group called Arabella Advisors. These groups were exactly the kind that Democrats had spent years decrying on the Republican side: With the Sixteen Thirty Fund functioning as a “fiscal sponsor,” groups such as Demand Justice aren’t legally required to disclose basically any information about their funders, budget, or board of directors. Since 2018, Demand Justice has spent $1.8 million on television ads and another $1 million on Facebook ads, according to Anna Massoglia, a researcher at the watchdog group OpenSecrets, and Democrats have generally outspent Republicans with dark money across all areas of politics. Leonard Leo, who helps lead an influential network of groups that work on conservative issues, including judicial advocacy, was so inspired by Democrats’ use of dark money that he restructured his organizations to mirror his opponents’, he said recently.

The explosion of dark money funding progressives’ court advocacy is uncomfortable for progressive activists to talk about.


New York Times: Toyota says it will stop donating to Republicans who contested the election results.

By Tiffany Hsu

Toyota said on Thursday that it would stop donating to Republicans who disputed the 2020 presidential vote after being the focus of an ad campaign by the Lincoln Project, a group that was founded to antagonize President Donald J. Trump with viral video criticisms.

The automaker said in a statement that its support of the politicians had “troubled some stakeholders.”

“At this time, we have decided to stop contributing to those members of Congress who contested the certification of certain states in the 2020 election,” the company said. It added that it was “committed to supporting and promoting actions that further our democracy” through its PAC and “has longstanding relationships with members of Congress across the political spectrum.”

The Lincoln Project had released an ad directed at Toyota, which it accused of donating $55,000 to 37 Republicans in Congress who pushed back against President Biden’s victory…

The [ad] includes footage of a vehicle crash test interspersed with images of the Jan. 6 riot. A narrator warns Toyota executives that “if they don’t reconsider where they send their money, Americans will reconsider where we send ours.”

Online Speech Platforms

New York Times: Mark Zuckerberg and Sheryl Sandberg’s Partnership Did Not Survive Trump

By Sheera Frenkel and Cecilia Kang

The indictments made it clear just how large a part Facebook had played, both in spreading misinformation about election fraud to fuel anger among the Jan. 6 protesters, and in aiding the extremist militia’s communication ahead of the riots…

In the years since Mr. Trump won the 2016 election, Facebook has struggled with the role it played in his rise and in the growth of populist leaders across the world. The same tools that allowed Facebook’s business to more than double during those years — such as the News Feed that prioritized engagement and the Facebook groups that pushed like-minded people together — had been used to spread misinformation…

This account, adapted from a forthcoming book on Facebook, is drawn from more than 400 interviews, including those with former and current employees of all levels of the company. The interviews paint a portrait of the Trump presidency as a trying period for the company and for its top leaders. The Trump era tested a central relationship at Facebook — between Ms. Sandberg and Mr. Zuckerberg — and she became increasingly isolated.

Reason (Volokh Conspiracy): The Case Against Imposing Common Carrier Restrictions on Social Media Sites

By Ilya Somin

In recent weeks, the case for imposing “common carrier” restrictions on major social media platforms such as Twitter and Facebook has gathered steam on the political right. Supreme Court Justice Clarence Thomas expressed sympathy for the idea in a recent concurring opinion. Co-blogger Eugene Volokh likewise gives it sympathetic treatment in an important new draft article on the subject (though he also expressed some reservations). A growing number of conservative politicians and activists had embraced the idea with a lot less nuance and reservation. If such proposals get enacted into law and survive First Amendment challenges (two big ifs!), they would set a very dangerous precedent.

The States

Hays Free Press: Bill could limit state campaign contributions

By Sahar Chmais

Limiting campaign contributions for state officials and state candidates is the goal set by State Representative Erin Zwiener.

House Bill 121, initiated by Zwiener, proposes to limit contributions to $5,000 per election, per individual, and $10,000 per election, per political action committee (pac). Texas has no contribution limit for state candidates and is one of 11 states without a campaign limit for state-level offices.

“House Bill 121 will bring integrity and transparency to our campaign finance system,” Zwiener said. “The best way to ensure that our elections have integrity is to make sure Texas elected officials aren’t for sale. This legislation would provide common sense campaign contribution limits, just like we have at the federal level.”

Popehat Report: What Is An Anti-SLAPP, Anyway? A Lawsplainer Series

By Ken White

Welcome back to my lawsplainer series on Anti-SLAPP statutes. In Chapter One, I explained why the existing civil justice system is inadequate to protect defendants from meritless lawsuits targeting free speech. In Chapter Two I explained how anti-SLAPP statutes address that problem by providing a special procedural vehicle to dismiss bogus and censorious lawsuits. It’s time for Chapter Three: what makes a good or bad anti-SLAPP statute?

Tiffany Donnelly

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