Daily Media Links 9/4

September 4, 2020   •  By Tiffany Donnelly   •  
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In the News

Epoch Times: Study: Corruption Prosecutions Down After Citizens United

By Mark Tapscott

Public corruption prosecutions have declined since the Supreme Court’s Citizens United decision, according to a new study by the Institute for Free Speech. Campaign finance reformers had predicted that decision would unleash a flood of special interest influence-peddling in government…

But federal court records for the nine years prior to 2010 and the nine year since do not show an increase in public corruption prosecutions by the government. In fact, prosecutions declined in six of the eight years Obama was in the White House.

“A comparison of public officials charged with corruption offenses by the U.S. Department of Justice nine years before and nine years after the High Court’s decision show a decline rather than an increase in corruption,” the Institute for Free Speech’s Alex Greven said in the report made public Thursday.

“Further, states that were most affected by Citizens United saw a larger decrease in corruption than states unaffected by the decision,” Greven wrote.

Greven’s organization is headed by former FEC Chairman Bradley A. Smith, a long-time critic of overly restrictive campaign finance laws and regulations.

The highpoint in federal public corruption prosecutions between 2000 and 2018 came in 2008 with more than 1,300 cases filed. There was a slight increase under Obama in 2009-10 and again in 2014-15, but the total declined every other year, falling below 800 in 2018.

Election Law Blog: “Has Citizens United Increased Corruption? An Examination of Public Corruption Prosecutions”

By Rick Hasen

New study for the Institute for Free Speech:

Ten years after the decision, this report asks if such claims about Citizens United were correct. Did the Supreme Court’s ruling that corporations and unions can speak without limit and contribute unlimited amounts to
finance independent political expenditures increase the amount of corruption in our democracy?

We find no evidence to support this claim. A comparison of public officials charged with corruption offenses by the U.S. Department of Justice nine years before and nine years after the Court’s decision show a decline rather than an increase in corruption. Further, states that were most affected by Citizens United saw a larger decrease in corruption than states unaffected by the decision.

The report considers correlations not causation, and I think there are other explanations (such as this one) for the decline in corruption prosecutions.

The Courts

Law360: 7th Circ. Keeps Illinois’ COVID-19 Quarantine Order Afloat

By Hailey Konnath

The Seventh Circuit on Thursday refused to block Illinois Gov. J.B. Pritzker’s COVID-19 executive order, which the state’s Republican Party had argued impermissibly gives leeway to religious gatherings, ruling that the speech that accompanies religious exercise has a privileged position under the First Amendment…

The Illinois Republican Party and some of its affiliates took issue with one of those orders that bans gatherings of more than 50 individuals but carves out an exception for the free exercise of religion. Notably, the Republicans argued that the accommodation for free exercise in Executive Order 2020-43 violates the Free Speech Clause of the First Amendment, per their case. Preferential treatment for religious exercise, but not for political speech, is illegal, the Republicans said, urging an Illinois federal court to block the measure.

The district court, however, declined to preliminarily shut down the order, and the Seventh Circuit on Thursday agreed…

“[A] comparison between ordinary speech (including political speech, which all agree lies at the core of the First Amendment) and the speech aspect of religious activity reveals something more than an ‘apples to apples’ matching,” the Seventh Circuit said.

The panel added, “What we see instead is ‘speech’ being compared to ‘speech plus,’ where the ‘plus’ is the protection that the First Amendment guarantees to religious exercise.”

While the First Amendment’s speech, press, assembly and petition guarantees are mechanisms for expressing views, the Free Exercise Clause is content-based, the Seventh Circuit noted.

Oregonian: Medics must comply with lawful police orders to disperse during protests, judge rules

By Maxine Bernstein

A federal judge on Wednesday declined to grant special rights to volunteer street medics beyond that of general demonstrators who must disperse when police declare an unlawful assembly or riot.

“Although Plaintiffs’ goal of providing aid to protesters is undoubtedly admirable, this Court has found no legal authority for affording protest medics, as defined by Plaintiffs, unique recognition under the First Amendment beyond that afforded any individual who attends a protest,” U.S. District Judge Karin J. Immergut ruled.

“Protest medics may continue to protest, and provide medical aid during the protests. They simply have no unique status under the First Amendment that allows them to disregard lawful orders.”

Bloomberg Law: Elizabeth Warren Beats Covington Students’ Defamation Suit

By Peter Hayes

Sen. Elizabeth Warren (D-Mass.) and Rep. Deb Haaland (D-N.M.) shook off defamation claims by a group of Catholic high school students from Kentucky over tweets related to a January 2019 incident on the National Mall, after the Sixth Circuit held they are immune from the lawsuit.

The legislators are immune from suit as federal employees under an amendment to the Federal Tort Claims Act, because they were acting within the scope of their employment when they sent the allegedly defamatory tweets, the U.S. Court of Appeals for the Sixth Circuit said Thursday.


Daily Beast: Trump’s New Election Law Pitbull Goes to War With Transparency Groups

By Lachlan Markay

Donald Trump’s first addition to the nation’s top election regulator has launched a broadside against anti-corruption groups that, he claims, are trying to advance a left-wing agenda by attempting to spur enforcement of federal election laws.

Trey Trainor, the Federal Election Commission’s newest commissioner and its current chairman, released a blistering statement Wednesday going after a number of those nonprofits by name. “There are several organizations dedicated to limiting the free-speech rights of Americans by changing the nation’s campaign-finance laws,” Trainor wrote. “They seek to change policy not by making the most persuasive case, but by seeking to silence those with whom they disagree by whatever means necessary.”

The 11-page statement was a remarkable broadside not just against the groups themselves, but also against fellow FEC commissioners past and present, whom Trainor accused of conspiring with the transparency organizations he singled out-Citizens for Responsibility and Ethics in Washington, the Campaign Legal Center, Common Cause, and Democracy 21-to undermine the commission and impose ideologically driven restrictions on American free-speech rights.

Right to Protest

Courthouse News: Fewer Americans Believe the US Allows Peaceful Protests

By Victoria Prieskop

While most Americans believe that the right to peacefully protest is important, the number who believe that right is being honored in the U.S. is declining, according to a new poll released Wednesday.

A Pew Research Center survey found that Americans who believe that “people are free to peacefully protest” in the United States has fallen from 73% in 2018 to 60% in July and August of 2020, with the decline coming from almost entirely Democrats.

Among the public overall, 68% say it is very important for the country that people are free to peacefully protest, down from 74% two years ago. In this case, the decline has come entirely among Republicans…

Perhaps even more significantly, the poll of 11,000 U.S. adults found that fewer than half of Americans say the rights and freedoms of all are respected. While 85% of those polled say it is very important that the rights and freedoms of all people are respected, only 41% say this describes the country as it currently stands. 


Washington Free Beacon: Tara McGowan, Fake News Network Owner, to Speak on Panel About Fake News

By Charles Fain Lehman

Tara McGowan, whose Courier Newsroom project has been labeled “hyperlocal partisan propaganda” for its spreading of pro-Democrat messages on social media, announced Wednesday that she would speak later this month on a panel dedicated to “fake news and social media disinformation.”

McGowan, CEO of the Democrat-aligned political firm Acronym, will appear on the panel, jointly hosted by Northeastern University-Seattle and the World Affairs Council of Seattle, on September 17. Slated to speak alongside her are journalists Davey Alba of the New York Times, Peter Hamby of Snapchat, and McKay Coppins of the Atlantic, which is owned by Acronym investor Laurene Powell Jobs.

The event’s official page describes it as “a panel discussion,” with participants covering “what’s real and what’s not, and how to reclaim control of your social media feeds.” “Social media,” it notes, “has become an indispensable tool for political campaigning and news delivery, but it’s also used for nefarious purposes”-panelists will cover these trends.

McGowan’s inclusion is surprising, given that Courier-an umbrella organization created and largely owned by Acronym, which in turn oversees “local” news sites that distribute pro-Democrat talking points-has spent millions distributing its stories on Facebook and other social media platforms. The group is the subject of a complaint filed Thursday with the FEC, seeking to compel it to register as a political committee.

Online Speech Platforms

Politico: Facebook’s ad shakeup could alter campaigns’ endgame plans

By Steven Overly

Facebook threw yet another new curveball at campaign offices Thursday when it announced a ban on new political ads in the week before Election Day, curtailing a highly effective conduit for raising last-minute money and pinpointing messages to voters…

“This has nothing to do with Facebook protecting voters and everything to do with Facebook protecting Facebook,” said Bob Salera, spokesman for the National Republican Congressional Committee. “All this does is let the bad guys spread fake news while the good guys have both hands tied behind their backs.”

His comments echoed the sentiment of the Trump campaign’s deputy national press secretary, Samantha Zager, who accused Facebook of joining a “Silicon Valley Mafia” trying to skew the election in favor of Biden…

Democratscountered thatTrump and his conservative allies have massive social media followings, particularly on Facebook, where the president’s page alone counts 30 million followers compared to just 2.8 million for Biden’s page. Without ads, Biden’s direct reach is simply smaller.

And Facebook’s change won’t actually fix the platform’s misinformation problem, they say…

The advertising ban could also benefit incumbents who often have greater name recognition and a larger following than their challengers – a concern that could alarm Biden’s supporters…

That’s especially true for down-ticket candidates, some political operators said.

“You are de facto bolstering incumbents and reducing the chances for challengers, and that’s true at the top of the ticket but all the way down to local races even more so,” said Mark Jablonowski, the managing partner and chief technology officer at Democratic agency DSPolitical.

New York Times: Four State Attorneys General Back Trump on Social Media Regulation Push

By David Shepardson, Reuters

Four Republican state attorneys general led by Texas backed President Donald Trump’s push to narrow the ability of social media companies to remove objectionable content and require new transparency rules.

Texas, Louisiana, Indiana and Missouri’s state attorneys general said in joint comments made public on Thursday that new rules are needed. They argue social media platforms cannot be truly free “unless the participants understand the rules of the forum, and competition is able to provide alternatives when speech restrictions go too far.”

The attorneys general added that the “examples are legion of online platforms downplaying, editing, or even suppressing political speech that bears no relationship to the traditionally regulated categories of speech.” On Wednesday, a group representing major internet companies including Facebook Inc, Amazon.com Inc and Alphabet Inc’s Google urged the Federal Communications Commission to reject a petition filed by the Trump administration, saying it was “misguided, lacks grounding in law, and poses serious public policy concerns.”

Politico: Facebook, Twitter crack down on Trump’s double-voting remarks

By Cristiano Lima

Facebook and Twitter on Thursday moved to limit the visibility of President Donald Trump’s recent remarks encouraging supporters to try to cast two ballots for the November election, which the social media companies said violated their election integrity rules.

Facebook said it would take down videos of a recent interview in which Trump urged North Carolina residents to vote twice to test the state’s vote-by-mail system if the posts did not “correct the record” about voter fraud. And Twitter separately slapped warning labels on two Trump tweets that similarly urged supporters to attempt to cast two ballots.

New York Times: Twitter to Add Context to Trending Topics

By Kate Conger and Nicole Perlroth

Twitter said Tuesday that it would add more context to topics that trend on its service, an effort to clean up a feature that has often been used to amplify hate and disinformation…

Twitter offers trends as a way for users to identify which topics are most popular. The trends serve as an on-ramp for new users who are learning how to find information on Twitter and to help all users navigate news topics. They can be curated according to personal interests or geographic location.

But the system has often been gamed by bots and internet trolls to spread false, hateful or misleading information…

The episodes have led some Twitter employees to believe that the trends feature is not worth its liabilities. Over the past two years, current and former employees have argued that Twitter would never adequately deal with disinformation until it eradicated its trending list.

Candidates and Campaigns

Hollywood Reporter: Biden Campaign Partners With Cameo On Fundraising Effort (Exclusive)

By Alex Weprin

Joe Biden’s presidential campaign is teaming up with the celebrity and influencer video platform Cameo in a novel fundraising effort.

Cameo is a video-sharing app in which actors, musicians, influencers and other public figures record personalized video messages for users, in exchange for a fee.

Under the new partnership, participating celebrities will create videos for the platform’s users as normal, but the payments will be earmarked for the Biden campaign. While some of the talent may attract users interested specifically in campaign messaging, users will be able to suggest any messages consistent with Cameo’s policies…

Talent participating in the partnership will have a Biden for President logo on their Cameo profiles.

San Antonio Express-News: San Antonio congressional candidate used faux Border Patrol agent in TV ads

By Cayla Harris

Tony Gonzales, the Republican candidate in Texas’ 23rd Congressional District, enlisted a volunteer to dress as a U.S. Border Patrol agent in campaignads during his primary race – a move some experts called unethical and possibly illegal…

The website for the Border Patrol’s parent agency notes that a federal law bans the use of any symbols, emblems, seals or badges associated with it “in connection with any advertisement … where such use could reasonably be interpreted as conveying the false impression that such advertisement, solicitation, business activity, or product is in any manner approved, endorsed, sponsored, or authorized by, or associated with, U.S. Customs and Border Protection.”

The Supreme Court has created broad protections for political speech, so any attempt to enforce this provision against the Gonzales ad would face a high hurdle. Gonzales campaign officials, for their part, say the provision applies only to commercial speech.

Questioning the ads as problematic “rests on a statute prohibiting people from using government emblems and symbols to sell goods and services,” Gonzales campaign counsel Chris Gober said in an email. “It does not, however, prohibit the use of government emblems and symbols for political debate – a fact supported by Supreme Court precedents – which is why the campaign remains confident that its advertisement complies with all legal and ethical standards.”

The States

Reason (Volokh Conspiracy): Ordinary Oregonians Have Lesser First Amendment Rights Than the Institutional Media Do

By Eugene Volokh

So the Oregon Court of Appeals reaffirmed in yesterday’s Lowell v. Wright decision:

Plaintiff Lowell, the owner of a piano store, brought this defamation action against defendant Wright, an individual, and defendant Artistic Piano, a competitor piano store for whom Wright works, after Wright posted a negative Google review about plaintiff’s business….

The court concluded that the review was speech on a matter of public concern, but about a private figure, and that some statements in the review were factual assertions and not just opinion; and this would generally mean that,

Under Gertz v. Robert Welch, Inc. (1974), when the plaintiff in a defamation action is a private party (not a public official or public figure), the First Amendment limits the plaintiff’s recovery of presumed or punitive damages to situations in which the plaintiff proves that the defendant acted with “actual malice” … [-]knew that the statements were false or acted with reckless disregard of whether they were false….

But not in cases where the speakers are ordinary citizens…

I can see why it would view Citizens United, which wasn’t a libel case, as not strictly binding here, though I actually think that the language of Citizens United (and its endorsement of five Justices’ views in Dun & Bradstreet v. Greenmoss Builders, which was a libel case) is pretty clear:

“We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” …

In any event, it looks like it’s up to the Oregon Supreme Court to correct this (assuming the defendants ask for review, which I hope they would); and I hope that court does what the Minnesota Supreme Court did last year, when it essentially reversed its previous endorsement of the First Amendment media-nonmedia distinction.

Tiffany Donnelly

Tiffany Donnelly


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