Daily Media Links 9/13

September 13, 2019   •  By Alex Baiocco   •  
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The Courts 

San Francisco Chronicle: Appeals court tells FBI it must expunge old memo on antiwar website

By Bob Egelko

A federal appeals court says the FBI cannot hold onto 15-year-old records of its scrutiny of a San Francisco online antiwar website’s activities, including an editor’s public criticism of the U.S. war in Iraq.

The FBI started looking into antiwar.com and its editors in 2004 after the website posted two “watch lists” of people the FBI was investigating after the Sept. 11, 2001, terrorist attacks. A 2004 FBI memo also cited articles and political statements by the site’s editors, Eric Garris and Justin Raimondo, and recommended that the San Francisco FBI office investigate whether Garris was a threat to national security.

The office declined, saying the “watch lists” were publicly available and that the editors’ free-speech activities posed no security threat. After the editors learned about the memo in 2011 and sued, the FBI agreed in 2017 to pay $299,000 to cover the site’s legal fees and costs but refused to delete the 2004 document, saying it could “inform ongoing and future investigative activity.”

A federal magistrate agreed with the FBI but was overruled Wednesday by the Ninth U.S. Circuit Court of Appeals, which said federal privacy law requires the government to expunge the memo.

If FBI records describe someone’s speech or actions that are protected by the First Amendment, the records can be “maintained” only if they are “within the scope of a currently ongoing authorized law enforcement activity,” Judge A. Wallace Tashima said in the 3-0 ruling.

He quoted the court’s 1986 ruling that said Congress, in passing the privacy law, intended to prevent the government from maintaining “information not immediately needed, about law-abiding Americans, on the off-chance that government or the particular agency might possibly have to deal with them in the future.”

Hollywood Reporter: Showtime, Sacha Baron Cohen Ask Court to Toss Roy Moore’s ‘Who Is America?’ Lawsuit

By Ashley Cullins

Showtime and Sacha Baron Cohen are asking a New York federal judge to toss the lawsuit Roy Moore filed following a segment featuring him on Who Is America? – in part, because he should have known the potential consequences of contractually waiving his right to sue.

The former Alabama Supreme Court Chief Justice, who earlier this summer announced he’s again running for state Senate, in September 2018 filed a $95 million lawsuit against the premium cable network and the comedian. Moore claims he was tricked into flying to Washington under the guise of receiving an award and the July 29, 2018, segment defamed him…

In April, Cohen and Showtime convinced the court the fight should be moved to New York. Now, they’re arguing it should be thrown out altogether. (Read the full motion below.)

“That segment commented facetiously about the public controversy over widespread news reports that Judge Moore had engaged in inappropriate relationships with young women,” writes attorney Elizabeth McNamara in the filing. “It was just one segment among many throughout the Program’s run in which Cohen, playing cartoonishly absurd characters, interacted with unsuspecting public figures in order to playfully – but pointedly – satirize American society and politics.”

McNamara argues the lawsuit flies in the face of long-standing First Amendment protection for political parody, and that Moore signed a standard consent agreement as a condition of participating that waived any claims related to the program or its production…

Separately, Showtime and Cohen reiterate the Constitutional protections for satire: “While perhaps uncomfortable – akin to Vice President [Dick] Cheney being asked to autograph a ‘waterboard kit’ in another segment – this is ‘fully protected satire’ of a controversial political figure, not actionable defamation.”

NPR: Virginia Lt. Gov. Justin Fairfax Files $400 Million Lawsuit Against CBS

By Ben Paviour

Attorneys for Virginia’s Democratic lieutenant governor, Justin Fairfax, filed a $400 million defamation lawsuit against CBS on Thursday, accusing the network of amplifying sexual assault claims that Fairfax says are “false, defamatory and politically-motivated.”

The lawsuit centers on CBS This Morning’s airing of two interviews with Meredith Watson and Vanessa Tyson, who in February accused Fairfax of separate incidents of sexual assault…

In a statement, CBS News said: “We stand by our reporting and we will vigorously defend this lawsuit.”…

University of Richmond law professor Carl Tobias said courts have set high bars for defamation cases out of deference to the First Amendment. Fairfax’s attorneys will have to prove CBS acted out of malice.

“There are allegations to that effect, but they may be difficult to prove,” Tobias said.

Vallejo Times-Herald: Man suing city, Vallejo Police Department officer for excessive force

By John Glidden and Nate Gartrell

The incident took place in the middle of the day on Aug. 11, 2018, in the parking lot of a Walnut Creek pizzeria. A now viral video captured by an onlooker shows McLaughlin dressed in shorts and a white T-shirt, pointing a gun at Hutchins, who had his hands raised above his head.

According to the lawsuit, as the two men passed each other there was “a tense exchange,” with Hutchins’ exercising, “his rights to free speech.” That’s when McLaughlin then identified himself as a police officer and pointed his weapon at the man.

McLaughlin then allegedly said Hutchins would be charged with a crime and taken to jail. The incident progresses with McLaughlin ordering the man to get on his knees before the sheriff’s deputy comes up behind Hutchins and takes him to the ground, the lawsuit alleges.

“Immediately after plaintiff Mr. Hutchins was on the ground, defendant officer McLaughlin began to intentionally target his head and other areas with repeated fist strikes,” the lawsuit states. “Defendant McLaughlin also slammed plaintiff’s head on the asphalt multiple times.”…

A second excessive force lawsuit is expected to be filed against the city and McLaughlin.

Months after the Walnut Creek incident, Adrian Burrell, a Bay Area artist and filmmaker, posted a video to his Facebook page showing McLaughlin tackling and handcuffing Burrell, who filmed the officer from his porch. That exchange took place on Jan. 22.

Community members and First Amendment advocates denounced McLaughlin’s actions, arguing Burrell’s filming was not interfering with McLaughlin’s duties.

Burrell filmed from his porch, about 30 feet from the traffic stop, which occurred in Burrell’s driveway.

Courthouse News Service: Federal Judge Blocks Tennessee Crackdown on Voter Drives

By Daniel Jackson

Calling the law vague with a “complex and punitive regulatory scheme,” a federal judge issued an injunction Thursday temporarily halting the implementation of a Tennessee law designed to regulate voter registration drives.

U.S. District Judge Aleta Trauger granted the preliminary injunction even as the state Attorney’s General Office argued that voter registration drives are not communicating about political change and the regulations that were set to take effect Oct. 1 would be a mere inconvenience…

The law would have created additional requirements for voter registration drives that collect more than 100 signatures and pay for the work of collecting the applications, such as directing those collecting voter applications to undergo training and make sworn statements they would follow the law. It would also require applications be turned in within 10 days and set penalties for the submission of incomplete applications.

The measure further mandated drives make clear disclaimers on its communications with voters that they are not associated with the Tennessee secretary of state, which administers elections…

“The Act creates an onerous and intrusive regulatory structure for problems that, insofar as they are not wholly speculative, can be addressed with simpler, less burdensome tools,” Trauger wrote.

Law360: Trump’s Judicial Picks Are Gutting Campaign Finance Law

By Ciara Torres-Spelliscy

President Donald Trump’s judicial appointees are coming to get reasonable campaign finance laws and kill them.

According to Law360’s tracker, 150 of Trump’s judicial nominees have been confirmed, including most notably two seats on the U.S. Supreme Court that are now occupied by Justices Brett Kavanaugh and Neil Gorsuch. They are likely to make campaign finance law even more of a mess, or do away with it altogether.

As I describe in a recent law review article[1] and in my forthcoming book “Political Brands,” Chief Justice John Roberts’ Supreme Court has been intolerant of campaign finance laws since its first term, and in the process has made mincemeat out the concept of corruption. But Justices Kavanaugh and Gorsuch are likely even more hostile to laws that try to curb money in politics than their predecessors, Justices Anthony Kennedy and Antonin Scalia…

With Trump’s picks on the high court, more campaign finance laws may be on the chopping block, including the 1907 ban on corporations giving money directly to federal candidates, the ban on foreigner spending in American elections, and rules that try to prevent dark money. Even basic contribution limits could be at risk…

Moreover, because of Trump’s multiple appointments to fill lower court judgeships, mini-Kavanaughs and mini-Gorsuchs abound to ruin state, local and federal campaign finance laws even before they reach the Supreme Court.

FEC

PBS NewsHour: Enforcing foreign money ban in U.S. elections on hold without quorum at FEC

The Federal Election Commission’s mandate is to ensure that campaign financing is transparent and election laws are obeyed. Intended to have six members, the agency currently has only three — and as a result, is unable to pursue the hundreds of election-related enforcement matters before it. Judy Woodruff sits down with the chair of the FEC, Ellen Weintraub, to discuss the current limitations.

Fundraising 

Politico Magazine: The Buttigieg Money Pit

By Bill Scher

Buttigieg is the latest candidate to teach political junkies and reporters that dollars aren’t votes. Through June, Buttigieg raised more money than any 2020 candidate save for Bernie Sanders, and he had the third-highest number of individual donors. Buttigieg, unlike Sanders and Elizabeth Warren, isn’t shunning large donor events, but 43 percent of his second-quarter haul came from donors who gave less than $200. Doesn’t that show broad-based support?

Well, no. Even though the Democratic donor community has been expanded with the rise of easy-click online giving, it remains a small, disproportionately white, disproportionately wealthy faction of the total Democratic electorate…

Past presidential candidates with lots of small donors have failed to win the most votes. Howard Dean was leading the 2004 Democratic presidential field in fundraising when John Kerry successfully kept his campaign afloat before the Iowa caucuses by mortgaging his house. In 2016, Sanders had approximately 2.4 million individual donors-twice as many as Hillary Clinton-yet Clinton won 15.6 million votes, nearly 4 million more than Sanders.

Of course, having millions of dollars in the bank gives a candidate the resources to expand support and surge at the right moment…

[T]he yawning gulf between Buttigieg’s dollar numbers and his poll numbers illuminates how Democratic donors, both small and large, do not intrinsically reflect the will of the broader Democratic electorate, and cannot dictate the ultimate outcome of the primary.

Chasing online donations may have been necessary to meet the Democratic National Committee’s new debate rules, and eye-popping dollar figures will also be a great way to get media coverage. But the Democratic primary is ultimately won with the votes of those who spend their dollars on six-packs, not on politicians.

Politico: Republicans clash with Trump-aligned operatives over fundraising platform

By Melanie Zanona

House Republicans sparred behind closed doors with Trump-aligned political operatives at a GOP retreat over the new online fundraising platform backed by party leaders and the White House.

The fight Thursday over WinRed’s data and competitiveness highlights long simmering tensions between GOP lawmakers and operatives allied with the president, and underscores the growing frustrations in the party as they try to hash out a strategy to win back the House next year.

During a testy exchange on the first day of the House GOP’s annual retreat, members expressed misgivings with WinRed, a small donor apparatus designed to compete with the Democrats’ online fundraising behemoth ActBlue that was launched this summer by the national campaign arms after months of delays.

Rep. Elise Stefanik (R-N.Y.) specifically raised concerns about data sharing, while other lawmakers were confused with how the operation works and pressed operatives for more information about the fundraising tool, according to aides and lawmakers who were present.

Stefanik, who formerly led recruitment efforts for the GOP’s campaign arm, pressed WinRed president Gerrit Lansing about whether lawmakers who use the apparatus would have to share their data with other people and questioned how it could be protected, several sources said.

Lansing tried to assure lawmakers that their data is their own. But Stefanik expressed worry that once information is shared with the RNC’s clearinghouse for voter information, Data Trust, other people – including primary opponents – can access it. Lansing however, warned members that if they don’t build their donor files, they risk getting crushed by ActBlue again.

Candidates and Campaigns 

New York Times: Andrew Yang Said He Would Give 10 People $1,000 Each Month. Is That Legal?

By Matt Stevens

But unlike earlier in his campaign, when Mr. Yang paid what he calls “freedom dividends” out of his own pocket to three families, his advisers said the money for the latest round of payments would be funded by campaign donations, raising questions about whether such a giveaway violates federal election law.

Campaign finance experts said that while federal rules prohibit campaigns from giving people anything of value as an incentive to vote, Mr. Yang would not be breaking the law in that area if he did not ask for people’s votes in return.

But Federal Election Commission rules do prohibit the use of campaign funds on personal expenses…

Mr. Yang’s campaign said late Thursday that the planned payments would pass legal muster because they would not exist if not for the campaign. The payments, his advisers added, were part of a broad effort to educate the public about Mr. Yang’s signature policy – a function directly tied to the campaign and allowed under the law…

However, F.E.C. rules specify that the personal use of campaign funds by “any person” is prohibited…

“Campaign donors give their hard-earned money to fund campaign activities, and the law makes clear that paying personal expenses is not a campaign activity,” said Adav Noti, former associate general counsel at the F.E.C. “When donors give, they have a reasonable expectation that their money will be used on a campaign and not on somebody’s car payment.”…

“Andrew Yang’s use of campaign funds to give ‘freedom dividends’ to supporters would push the boundaries of, and perhaps break, campaign finance law,” said Paul Seamus Ryan, a vice president at Common Cause, a nonpartisan organization that promotes government accountability. “This unprecedented use of campaign funds would give rise to a bunch of novel legal questions.”

Aspen Times: Pence visit to Aspen underscores murky area of campaign finance law

By Rick Carroll

While Vice President Mike Pence’s fundraising visit to Aspen has come and gone, a lingering question has been whether the anonymous donations made to cover expenses absorbed by supporting local law enforcement agencies were political contributions.

Those payments came from two individuals, Mark Horace Love and E. G. Kendrick, who cut checks to Pitkin County in the identical sums of $9,087.50, according to the county’s response to an open records request from The Aspen Times…

“I don’t think there are rules that address this situation,” said FEC spokesman Myles Martin, adding the issue has not come before the FEC in the past…

Denver attorney Mark Grueskin, whose area of expertise includes campaign finance law, said the contributions should be reported and the donors’ identities should not be protected.

“This was clearly a payment to benefit a federal campaign and a national political party,” he said, adding “it must be reported by the candidate or the party or both to the FEC.”…

According to Christopher O. Murray, who was deputy general counsel for Mitt Romney’s 2012 presidential campaign, Love and Kendrick’s payments were not political contributions because they did not cover expenses the Pence campaign or the RNC were legally obligated to pay, or had previously committed to pay…

“What it comes down to,” Murray said, “is who is legally responsible for paying for that protection, and here the local law enforcement is providing assistance to the Secret Service. And unless they ask a third party to pay for that in advance, and the third party agrees, local law enforcement remains legally responsible for paying their share of the cost.”

Slate: Texting With Bernie, Andrew, and Joe

By Aaron Mak

Peer-to-peer texting is a technology that campaigns and organizations use to send text messages to potential supporters and volunteers on a huge scale. With the help of these software platforms, volunteers can send out a thousand or so scripted texts per day asking recipients to donate or attend a rally. It might be, to the privacy-guarding phone user, pretty annoying. It’s also about to become a lot more prevalent.

Election tech experts are expecting voters to receive more texts throughout the election cycle going into 2020, as more campaigns take advantage of the technology. This is partly because outreach coordinators are finding that it’s a lot more effective to text people than to email or call them. The result is more personal-or “personal”-interactions between campaigns and voters. That can pay off in support and growing volunteer operations…

They technically don’t need your consent to text you because of a quirk in the Telephone Consumer Protection Act, a 1991 law aimed at curbing phone spam. The TCPA states that organizations using automated texting platforms need to get recipients’ prior consent in order to send them messages. Peer-to-peer platforms, in contrast, require the user to press send for each individual text. So companies selling this technology argue that even though a volunteer might be mashing the send button a thousand times, the process technically isn’t automated, and is therefore legal. Consumer advocates, on the other hand, see this as an evasion of the TCPA…

Companies in the space report open rates between 70 and 90 percent for campaign texts, far higher than that for emails or phone calls. You’ll likely start seeing more unsolicited texts during the debates and as the primary elections get underway.

The Media 

Yahoo News: Limbaugh and Hannity are ‘party leaders’ just as much as McConnell, new book argues

By Jon Ward

Hannity’s elevated stature reflects a trend that has made increasing numbers of Americans on the left and right scornful of political parties and establishment leaders, and place more stock in the words of figures they consider to be outsider critics, such as cable TV news personalities or talk radio hosts.

But the author of a new book on the history of talk radio says that modern media figures like Hannity are just as much party leaders as more conventional figures like McConnell, with one key difference: They are far less accountable than party bosses used to be.

“The reason I say they’re still party leaders is, first of all, because they wield enormous influence with primary voters in determining who nominees are and in setting the constraints as to where Republicans can be policy-wise. But they’re also doing things that traditional party leaders did, like hosting fundraisers, MC’ing rallies, bringing on candidates to excite volunteers or to get name recognition,” said Brian Rosenwald, author of “Talk Radio’s America: How an Industry Took Over a Political Party That Took Over the United States.”

“They’re doing a lot of what traditional party leaders did, but they’re doing it from this different perspective … with these different priorities,” Rosenwald said…

Talk radio filled a vacuum created by the gradual decline of political parties, which lost significant power in the 1970s and ’80s with the introduction of primary elections. Previously, party bosses and leaders controlled who received the nomination of their party for president and lower offices.

Changes to campaign finance law in the early 2000s further weakened party power…

A cable TV insider, speaking on the condition they not be identified, recently told Yahoo News that an interview on MSNBC’s “Rachel Maddow Show” is considerably more valuable to a Democratic presidential candidate than a meeting with Tom Perez, chairman of the Democratic National Committee.

The States

NJ.com: An environmental group loses its way

By Tom Moran, Star-Ledger Editorial Board

Assemblyman Andrew Zwicker is an ardent environmentalist and a leader in the fight against climate change…

So, it is not just shocking, but bizarre, that the League of Conservation Voters decided to withdraw its endorsement…

What was the problem? Zwicker was co-sponsor of a bill to force private groups that are engaged in politics to release the names of their biggest donors, those contributing $10,000 or more…

“I think he’s shown strong support for environmental issues, but you can’t separate the two,” says Ed Potosnak, the LCV’s executive director. “If you care about climate change, you have to care about the role that the non-profit community plays.”

Give the LCV this much – it has company in its concern about the bill. The American Civil Liberties Union has filed suit from the left, claiming that its big donors might be subject to harassment if their names are revealed, given ACLU support for causes like gay marriage and immigrant rights. The law is also opposed from the right by groups like Americans for Prosperity…

But the law has broad support from those who are concerned about the growing influence of dark money in our politics…

On Thursday, a dark money fund set up by senior aides to Gov. Phil Murphy, New Direction New Jersey, finally relented and released the names of its donors as promised long ago…

Potosnak objects that some of the group he battles in the Legislature, like the state Chamber of Commerce, are not covered by the bill and can keep their donors secret…

As it happens, Zwicker is working on a clean-up bill now, and says he may draft a provision to include the C-6s, among other tweaks.

Insider NJ: Stretching the Rules on Campaign Finance Reform

By Al Sullivan

Pay to play laws and stricter reporting of donors came into fashion when reformers in Hudson County and around the state sought to even the financial playing field and reduce the ability of incumbents to leverage government contracts to build political war chests. Reformers wanted to the public to know just who really owned government by exposing donors and limiting the ability to trade in government business.

But apparently many of the forces aligned with the “good guys” are finding it difficult to live by the same rules reformers imposed in the past.

In Hoboken, the city council recently received legal advice that its pay to play laws are too strict, and that the city should adopt the less stringent state pay to play laws.

This legal opinion the city council is reviewing claims that local law sets campaign limits that are too low and prohibits a local union from advocating for its membership effectively. Local government has the ability to set up stricter regulations than the state’s…

One area that has long been problematic is the influence of advocacy groups. In the past, these were truly grass roots organizations with noble intentions. But over the last few decades, they have become as powerful at lobbying as the corporate interests they oppose. A recent state law seeks to hold these groups to the same standard by requiring them to disclose their donors the way politicians and other lobby groups must. But a lawsuit filed by The American Civil Liberties Union of New Jersey hopes to have the courts toss out the law, creating a loophole for these organizations and keeping voters and others from knowing just what powerful funders actually influence them…

Many grass roots organizations fear that if forced to reveal their supporters, powerful corporate interests might find a way to intimidate them. The problem is these laws are designed to provide public disclosure as to what forces actually influence their elected officials.

Alex Baiocco

https://www.ifs.org/author/abaiocco/

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