Daily Media Links 9/2

September 2, 2020   •  By Tiffany Donnelly   •  
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We’re Hiring!

Legal Director – Institute for Free Speech – Washington, DC or Virtual Office

The Institute for Free Speech anticipates the need for a highly experienced attorney to direct our litigation and legal advocacy. President Trump announced plans to nominate our longtime Legal Director to the Federal Election Commission, in which case he likely would be confirmed in late summer or fall.

This is a rare opportunity to develop and implement a long-term legal strategy directed toward the protection of Constitutional rights. You would work to create legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, that threaten citizens’ privacy if they speak or join groups, and that impose heavy burdens on organized political activity. The Legal Director will direct our litigation and legal advocacy, lead our in-house legal team, and manage and expand our network of volunteer attorneys.

A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country.

[You can learn more about this role and apply for the position here.]


The Hill: Barr announces new FISA restrictions

By Kaelan Deese

Attorney General William Barr issued two memos on Tuesday that would impose new restrictions on how his department would conduct surveillance on a candidate for a federal office and their staff members…

The new restrictions come after President Trump has repeatedly criticized the process in which the FBI obtained a warrant from court created by the the Foreign Intelligence Surveillance Act (FISA), as it investigated Russia’s interference in the last presidential election.

“Today, the Department of Justice and the Federal Bureau of Investigation press forward with Foreign Intelligence Surveillance reforms,” Barr said in a statement.

One change would require the FBI to consider briefing a candidate or campaign staffer that they are at risk of being compromised by a foreign power prior to applying for a FISA warrant for that person.

Another would strengthen oversight of the use of FISA for surveillance of candidates or elected officials to ensure they are justified and nonpartisan. The reforms would also increase auditing of the procedures, including regular audits of FBI use of National Security Letters.

Politico: DHS, FBI rebut reports about hacked voter data on Russian forum

By Tim Starks

The Department of Homeland Security’s cybersecurity arm and the FBI said on Tuesday they’ve seen no cyberattacks on voter registration databases this year, following news reports about Michigan voter data appearing on a Russian hacking forum.

The agencies also said they’d not seen attacks “on any systems involving voting,” according to the statement. “Information on U.S. elections is going to grab headlines, particularly if it as cast as foreign interference. Early, unverified claims should be viewed with a healthy dose of skepticism.”

The source of the confusion: Journalist Julia Ioffe tweeted that Russian news media had discovered the data about 7.6 million Michigan voters on the hacker platform, along with voter information from swing states like Florida and North Carolina. The tweet generated 11,000 retweets and 11,000 likes as of Tuesday afternoon.

The Michigan Department of State tweeted a response before DHS’s Cybersecurity and Infrastructure Security Agency and the FBI did. “Public voter information in Michigan and elsewhere is available to anyone through a FOIA request,” the response says. “Our system has not been hacked.” …

What’s next: “My main takeaway: it’s going to be critical over the next few months to maintain our cool and not spin up over every claim,” tweeted CISA Director Chris Krebs. “The last measure of resilience is the American Voter.”

The Courts

Courthouse News: Judge Asked to Block Portland Police From Assaulting Protest Medics

By Karina Brown

Attorneys in Portland, Oregon, asked a federal judge Tuesday to order police not to beat, pepper-spray or arrest medics who don’t immediately leave when police order a crowd to disperse because they are actively caring for protesters who are injured and can’t move…

After suing the city in July, the medics argued Tuesday that the court should grant a temporary restraining order that would allow them to stay behind lines of advancing officers in certain specific circumstances…

Courtney Peck, an attorney for the medics, said providing first aid is the medics’ method of protest. By preventing them from helping injured protesters, she said, police are infringing on medics’ First Amendment rights.

“Our clients are protesting in a specific way,” Peck told Immergut. “They are doing it in a very tangible way. They are not accepting police violence. Instead, they are stepping in and preventing it so police cannot injure people and thereby prevent people from protesting.” …

“They are asking for an exception from an Oregon criminal statute – interfering with a police officer,” [city attorney William] Manlove said. “The real question is, does the First Amendment give them some kind of exception? Certainly they have a subjective intent to convey some type of message. But if their message is the same as the message of thousands of other protesters, then they don’t have a particularized message.”

New York Times: Protesters Sue Kenosha Claiming Arrests, Curfew Violate U.S. Constitution

By Keith Coffman, Reuters

Four people arrested for curfew violations while protesting the shooting of a Black man by a white policeman in Kenosha, Wisconsin sued the city and county governments on Tuesday, claiming they were denied free speech rights guaranteed by the U.S. Constitution.

The plaintiffs argue that more than 150 people protesting the shooting have been taken into custody while pro-police demonstrators have been allowed to freely take to the streets, according to the lawsuit filed in federal court for the Eastern District of Wisconsin.

“In Kenosha, there are two sets of laws – one that applies to those who protest police brutality and racism, and another for those who support the police,” the plaintiffs argue in their complaint, which seeks a temporary restraining order until the litigation can be heard in court.


The Hill: Top House Democrats demand Ratcliffe hold previously scheduled election security briefings

By Cristina Marcos

Speaker Nancy Pelosi (D-Calif.) and key committee chairmen handling oversight of the intelligence community demanded on Tuesday that Director of National Intelligence John Ratcliffe reinstate election security briefings that had been planned for this month. 

Pelosi, House Intelligence Committee Chairman Adam Schiff (D-Calif.) and Rep. Pete Visclosky (D-Ind.), the chairman of the House Appropriations subcommittee overseeing defense spending, warned in a letter to Ratcliffe that they would “consider the full range of tools available to compel compliance” if the briefings don’t resume. 

“Oversight of elections security, foreign malign influence, and election interference is of the highest priority for the U.S. House of Representatives as the 2020 election approaches,” they wrote. “If you are unwilling to resume election-related intelligence briefings to Congress, we will have no choice but to consider the full range of tools available to compel compliance.”

Donor Privacy

Philanthropy Roundtable: Donor Privacy: Expanded Protections, Growing Threats in 2020

Donor privacy is critical to the protection of philanthropic freedom-the right of Americans to choose how and where to spend their charitable assets in order to fulfill their diverse missions. Unwarranted state incursions into private charitable giving will chill the exercise of First Amendment freedoms, allowing donors to fund controversial philanthropic causes without fear of harassment and reprisal. 

Donor privacy also protects those who choose to give anonymously for a variety of good reasons, including deeply held moral or religious beliefs, a sense of humility, a wish to lead a more private life, and the desire to minimize solicitations from other organizations. 

States have been the most active front in the battle to protect donor anonymity. So far this year, 15 states have considered legislation that would threaten the privacy of donors to 501(c)3 organizations. On the other side, seven states advanced donor-privacy protections this year, with four of them-Louisiana, Oklahoma, Utah, and West Virginia-enacting them into law. There have been several lawsuits around the country challenging efforts to force donor disclosure. The most important of these cases is Americans for Prosperity Foundation v. Becerra, a case challenging the California attorney general’s demand for that group’s donor list. The U.S. Supreme Court is weighing whether to take the case in its next term.



Bloomberg Government: Primary Winners Form Leadership PACs Before Coming to Congress

By Kenneth P. Doyle

Two Republican nominees for safe, open House seats recently became the latest candidates to establish “leadership” political action committees before arriving to Congress…

The PACs, which are standard for incumbents and first surfaced more than four decades ago, provide an avenue for the candidates to contribute to their future colleagues’ campaigns and can help jump-start their Capitol Hill careers before their likely general election victories in November. The practice among not-yet-elected candidates dates back to at least 2008, when former Rep. Aaron Schock (R-Ill.) formed one.

Free Speech

The Atlantic: Academics Are Really, Really Worried About Their Freedom

By John McWhorter

This year, the Heterodox Academy conducted an internal member survey of 445 academics…[M]ore than half the respondents consider expressing views beyond a certain consensus in an academic setting quite dangerous to their career trajectory.

So no one should feign surprise or disbelief that academics write to me with great frequency to share their anxieties. In a three-week period early this summer, I counted some 150 of these messages. And what they reveal is a very rational culture of fear among those who dissent, even slightly, with the tenets of the woke left…

Overall I found it alarming how many of the letters sound as if they were written from Stalinist Russia or Maoist China…

[O]ne correspondent wrote, “It isn’t just fear of firing that motivates professors and grad students to be quiet. It is a desire to have friends, to be part of a community. . . Ostracism is a form of social death. It is a very potent threat.” …

Very few of the people who wrote to me are of conservative political orientation. Rather, a main thread in the missives is people left-of-center wondering why, suddenly, to be anything but radical is to be treated as a retrograde heretic. Thus the issue is not the age-old one of left against right, but what one letter writer calls the “circular firing squad” of the left: It is now no longer “Why aren’t you on the left?” but “How dare you not be as left as we are.”

Tax-Financed Campaigns

CNN: How a Biden win can sink one of McConnell’s top priorities

By Fred Wertheimer

Joe Biden’s acceptance of the Democratic nomination for President has brought him closer to accomplishing a mission he started 47 years ago: to create a system of public financing for presidential and congressional elections…

McConnell spent his 35-year Senate career attacking public financing of elections — using filibusters when in the minority to prevent votes on the legislation and, as Senate majority leader, refusing to schedule votes on public financing or any other campaign finance reform bills.

In 2019, public financing of elections returned to the national stage in a new form. The House of Representatives passed H.R. 1, historic democracy reform legislation that featured a new, small donor based, public matching funds system for federal elections…

An April 16 statement by End Citizens United endorsing Biden stated his position on H.R. 1 as provided to the group, “A first priority of a Biden administration, will be to lead on a comprehensive set of reforms like those reflected in the For the People Act (H.R. 1) to end special interest control of Washington and protect the voice and vote of every American.”

House Speaker Nancy Pelosi (D-Calif.) has vowed H.R. 1 will be a top priority for the House in the 2021 Congress — as it was in the current one, where it was the first order of business. Senate Democratic Leader Chuck Schumer (D-NY) also has said it would be a top priority if Democrats win control of the Senate.

Thus, the stage is set in 2021 to enact the landmark democracy reforms in H.R. 1 if current polling that puts Biden ahead of Trump and Democrats in control of the House and Senate holds up in November.


New York Times: Charlie Hebdo Republishes Cartoons That Prompted Deadly 2015 Attack

By Norimitsu Onishi

The French satirical magazine Charlie Hebdo has republished the same cartoons about the Prophet Muhammad and Islam that prompted a deadly attack on the magazine in 2015, an act that will be seen by some as a commitment to free speech and by others as reckless provocation.

The publication coincides with the start on Wednesday of the long-awaited terrorism trial of people accused as accomplices in the attack… The magazine posted the cartoons online on Tuesday and they will appear in print on Wednesday…

Charlie Hebdo’s editors wrote in the new issue that it was “unacceptable to start the trial” without showing the “pieces of evidence” to readers and citizens. Not republishing the caricatures would have amounted to “political or journalistic cowardice,” they added. “Do we want to live in a country that claims to be a great democracy, free and modern, which, at the same time, does not affirm its most profound convictions?”

Online Speech Platforms

Washington Post: Facebook takes down Russian operation that recruited U.S. journalists, amid rising concerns about election misinformation

By Elizabeth Dwoskin and Craig Timberg

Facebook took down a small network of fake accounts and pages associated with Russian operatives that had recruited U.S. journalists to write articles targeting left-leaning readers on topics such as racial justice, the Biden-Harris campaign and President Trump’s policies, the company said Tuesday.

The network of 13 fake accounts and two pages was in its early stages of attempting to build an audience, Facebook said, which the company argued was evidence of its growing effectiveness at targeting foreign disinformation operations ahead of the 2020 election. The actions emerged as a result of a tip from the FBI and was one of a dozen operations tied to the Russian Internet Research Agency or individuals affiliated with it. The company has taken on roughly a dozen IRA-affiliated operations since the last presidential election, when IRA-backed pages amassed millions of views on the platform. The pages had about 14,000 followers.

“They’ve gotten better at hiding who they are, but their impact has gotten smaller and smaller,” Nathaniel Gleicher, Facebook’s head of security policy, said of the foreign operations…

In addition, Facebook also took down a disinformation network associated with a U.S. public relations firm that the company said had spent millions to target users primarily in Latin America.

Politico: Twitter forces Democratic candidate to delete post flouting voter suppression rules

By Cristiano Lima

Twitter on Tuesday forced a Democratic House candidate to delete a tweet that urged supporters of President Donald Trump to vote the day after this November’s election, a company spokesperson confirmed to POLITICO.

The company said an Aug. 18 tweet by the campaign for Elizabeth Hernandez, who is challenging GOP Rep. Kevin Brady for his seat in Texas’ 8th Congressional District, violated its rules against voter suppression.

Hernandez’s campaign told POLITICO that a staffer had posted the tweet in jest.

Candidates and Campaigns 

Business Insider: Legal insiders brace for a world where Trump loses in November and the ex-president faces down a slew of reinvigorated court fights

By Dave Levinthal

More than a dozen legal experts and practitioners, including former high-ranking officials at the Department of Justice and the Federal Election Commission, tell Insider that legal troubles for Trump and a vanquished Trump reelection campaign could ignite – not subside – if the president is no longer president.

Department of Justice officials may already be discreetly investigating Trump reelection activity, according to several of the legal experts.

Of particular interest, potentially: accusations that the Trump campaign is masking the true recipients of about $170 million in election-season spending. The existence of an internal Trump campaign audit of spending irregularities may also entice federal investigators, they said…

[The list of possible legal fights] includes lawsuits tied to an obscure section of the US Constitution forbidding a president from making money off foreign governments, possible Hatch Act violations, the president’s business entanglements, lingering Mueller investigation matters, and campaign-finance questions still stewing from the Stormy Daniels hush-money affair…

There’s a “distinct possibility” that the Justice Department, in addition to the FEC, would show interest in the Trump campaign’s financial dealings, said Adav Noti, the Campaign Legal Center’s chief of staff and senior director of trial litigation.

But Noti agreed that any definitive, public Justice Department action, were any to happen, would probably not occur until next year after the 2020 presidential campaign.

The Hill: Biden campaign releases Animal Crossing yard signs

By J. Edward Moreno

Animal Crossing users will now be able to add Joe Biden campaign yard signs to their villages…

“Animal Crossing is a dynamic, diverse, and powerful platform that brings communities together from across the world,” Christian Tom, director of digital partnerships for the Biden campaign, said in a statement to The Hill. “It is an exciting new opportunity for our campaign to engage and connect Biden-Harris supporters as they build and decorate their islands.”

The outreach strategy comes as Democrats have struggled to engage younger voters in support of Biden and his running mate, Sen. Kamala Harris (D-Calif.)

The States

The Hill: NJ governor signs bill criminalizing false 911 calls based on race

By Morgan Gstalter

New Jersey Gov. Phil Murphy (D) on Monday signed a bill that makes it a crime to call 911 or file a false police report to solely intimidate someone because of race, ethnicity, religion or gender.

The bill, which took effect immediately, amends existing law to include false incrimination and filing a false police report as a form of bias intimidation.

Violators face up to five years in prison and fines up to $15,000.

Murphy said in a statement that threatening to call 911 is an “unacceptable, abhorrent form of discrimination” that can be used to intimidate people of color.

“This irresponsible misuse of our 9-1-1 system places victims in a potentially dangerous situation, and can erode trust between Black and Brown New Jerseyans and law enforcement,” Murphy said. “Individuals who choose to weaponize this form of intimidation should held be accountable to the fullest extent of the law.”

Tiffany Donnelly

Tiffany Donnelly


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