Daily Media Links 9/7

September 7, 2021   •  By Nathan Maxwell   •  
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In the News

Nonprofit Law Prof Blog: First Effects of the AFPF Donor Disclosure Decision and Additional Analysis

By Lloyd Mayer

The first effects of the Supreme Court’s decision in Americans for Prosperity Foundation v. Bonta are now being felt, although it will take years for the full effects of this landmark donor disclosure case to be realized…

For recent, in-depth analysis of the possible further effects of the decision, see Americans for Prosperity Foundation v. Bonta: Questions and Answers, written by Professor Bradley A. Smith (Capital University) for the Institute for Free Speech. One interesting aspect of his analysis is his take on the possible effect on the federal tax law donor disclosure requirement (operationalized through Schedule B):

The Courts

The Hill: NPR suing judges in challenge to Maryland’s judicial broadcast ban

By Joseph Choi

National Public Radio on Wednesday filed a lawsuit against two Maryland judges, claiming a state law that prohibits the broadcasting of “lawfully-obtained official court recordings” violates its constitutional rights.

NPR’s suit was filed against 5th Judicial Circuit Associate Judge Glenn L. Klavans and 5th Judicial Circuit Administrative Judge Fred S. Hecker. As noted in the suit, both Klavans and Hecker have handled court proceedings under Maryland’s broadcast ban.

NPR filed the lawsuit so that it could broadcast court recordings from the upcoming trial of Jarrod Ramos, the gunman who killed five journalists at the Capital Gazette in Annapolis, Md., in 2018. The news organization intends to broadcast the recordings on its podcast “Embedded.”…

“The Broadcast Ban is unconstitutional under the First and Fourteenth Amendments to the United States Constitution because it punishes the broadcasting of lawfully obtained official court records, which are available to the general public,” the attorneys for NPR wrote in its suit.

“The United States Supreme Court has long and consistently held that government restrictions on the publication of lawfully-obtained truthful information on matters of public concern are subject to the most intense judicial scrutiny,” they added.


Business Insider: FEC unanimously rejects complaint that Maggie Haberman and news organizations illegally contributed to Hillary Clinton’s campaign with favorable coverage

By Jake Lahut

In a unanimous vote, the bipartisan Federal Election Commission dismissed a complaint alleging the Hillary Clinton 2016 campaign broke the law by soliciting favorable media coverage…

[Maggie] Haberman, a Pulitzer Prize winner who revealed some of the Trump administration’s most embarrassing and politically costly scandals through her reporting, was mentioned in a Clinton campaign email obtained by The Intercept in October 2016 during the WikiLeaks saga.

Although former Intercept editor Glenn Greenwald wrote that “Haberman’s stories were more sophisticated, nuanced, and even somewhat more critical than what the Clinton memo envisioned,” the complaint from Tony Dane of Virginia used the article to support broader accusations of illegal donations…

Dane’s complaint…insisted the FEC needed to act before Election Day in 2016 because the Clinton campaign was breaking campaign finance laws by using favorable media coverage as an unpaid or “in-kind” donation…

While the cozy tone in some of the emails drew criticism from Trump allies who were frustrated at what they saw as a double standard in campaign coverage, not one member of the FEC board voted against closing the file on the complaint.


New York Times: The Strange Tale of the Freedom Phone, a Smartphone for Conservatives

By Jack Nicas

It was a pitch tuned for a politically polarized audience. Erik Finman, a 22-year-old who called himself the world’s youngest Bitcoin millionaire, posted a video on Twitter for a new kind of smartphone that he said would liberate Americans from their “Big Tech overlords.”…

He teamed up with a 13-year-old firm in Orem, Utah, called ClearCellular, which had already created a phone that was disconnected from Apple and Google. The company also had experience with logistics, shipping and customer service.

The companies added the American Flag wallpapers and conservative apps to ClearCellular’s device and called it the Freedom Phone. Mr. Finman said that the phone also has his “PatriApp Store,” though ClearCellular provides the technological support for the app store…

He said that during elections, he planned to make the Freedom Phone direct users to nearby polling stations. And he aimed to create a news feed on the phone where he could promote conservative articles.

“I see it absolutely as one of the ultimate political tools,” he said. “Everyone has one in their pocket.”

Online Speech Platforms

Bloomberg: Facebook’s Political Content Dilemma

By Kurt Wagner

On Tuesday, [Facebook] announced that it would start to show some users outside the U.S. fewer political posts in their News Feed…

Facebook also is looking into forming an election commission… The group would help the company come up with policies related to elections, like how to handle political ads or election-related misinformation.

Facebook has a lot of political content issues to deal with… I think it’s positive that Facebook is looking to address them. I’m just not convinced these steps will make much of a difference.

Showing users less political content may slightly enhance the Facebook News Feed. I say “slightly” because political content makes up just 6% of what people see on Facebook, the company says. That means a tweak like this may not even register with most users…

The advisory board idea may be even less likely to help…

Will Facebook’s board come to any actual agreements? If politicians rarely (if ever) agree on how to create rules around election ads, misinformation and voting language, it feels unrealistic to expect that a group commissioned by Facebook will have a lot more luck.

Wall Street Journal: Apple to Delay iPhone Update That Could Scan Device for Illegal Content

By Joanna Stern and Tim Higgins

Apple Inc. is delaying the rollout of tools aimed at combating child pornography on iPhones after sparking concern among privacy advocates that the software could create broader risks for users…

[The] company planned to roll out a system through an iPhone software update later this year that could identify known child-pornography images, then alert Apple if a certain number of those images were uploaded to the company’s cloud storage service known as iCloud…

Privacy experts and critics worried the feature was a signal that the tech giant was softening its posture toward how it protects data via encryption…

“Based on feedback from customers, advocacy groups, researchers and others, we have decided to take additional time over the coming months to collect input and make improvements before releasing these critically important child safety features,” Apple said. Apple didn’t address when it could roll out the updates.

Washington Post: Misinformation on Facebook got six times more clicks than factual news during the 2020 election, study says

By Elizabeth Dwoskin

A new study of user behavior on Facebook around the 2020 election is likely to bolster critics’ long-standing arguments that the company’s algorithms fuel the spread of misinformation over more trustworthy sources.

The forthcoming peer-reviewed study by researchers at New York University and the Université Grenoble Alpes in France has found that from August 2020 to January 2021, news publishers known for putting out misinformation got six times the amount of likes, shares, and interactions on the platform as did trustworthy news sources, such as CNN or the World Health Organization…

In response, Facebook said that the report measured the number of people who engage with content, but that is not a measure of the number of people that actually view it (Facebook does not make the latter number, called impressions, publicly available to researchers).

“This report looks mostly at how people engage with content, which should not be confused with how many people actually see it on Facebook,” said Facebook spokesman Joe Osborne. “When you look at the content that gets the most reach across Facebook, it is not at all like what this study suggests.”

Wall Street Journal: Reclaiming Our Independence From Big Tech

By Blake Masters

Republican politicians have focused on political censorship, and it is easy to see why: Conservatives are often censored on major social media platforms. Facebook and Twitter banned President Trump from their platforms while he was president…

But there is an even more important problem that Congress must confront: Big tech is hurting us. Almost everything we do online today is designed to be addictive. The average American spent more than two hours a day on social media in 2020. It isn’t because scrolling through status updates and memes is the pinnacle of human existence, it is because engineers and psychologists have dedicated their careers to getting people hooked…

It is time to reclaim our independence. A first step is to ban targeted advertising. Let Google and Twitter sell ads the way a newspaper sells ads. Restore the world where you can speak to a spouse or a parent or a friend without your phone listening in.

The next step is to go after the engineered addictiveness of tech platforms. It is a crime when opioid manufacturers aggressively push a deliberately addictive product. When casinos do it, we recognize it as a vice that needs regulation. We should take the same attitude toward apps and mobile games that are draining away the energy of millions.

Reuters: Amazon considers more proactive approach to determining what belongs on its cloud service

By Sheila Dang

Amazon.com Inc plans to take a more proactive approach to determine what types of content violate its cloud service policies, such as rules against promoting violence, and enforce its removal, according to two sources, a move likely to renew debate about how much power tech companies should have to restrict free speech.

Over the coming months, Amazon will expand the Trust & Safety team at the Amazon Web Services (AWS) division and hire a small group of people to develop expertise and work with outside researchers to monitor for future threats, one of the sources familiar with the matter said.

It could turn Amazon, the leading cloud service provider worldwide with 40% market share according to research firm Gartner, into one of the world’s most powerful arbiters of content allowed on the internet, experts say.

The States

News and Observer: NC Gov. Roy Cooper vetoes donor privacy bill, calls it ‘unnecessary’

By Dawn Baumgartner Vaughan

North Carolina Gov. Roy Cooper vetoed a bill Friday that would have changed the privacy rules around donations, calling it “unnecessary.”

Senate Bill 636 would have made private any money or “tangible goods” donations to nonprofits.

“This legislation is unnecessary and may limit transparency with political contributions,” Cooper said in a statement…

Donald Bryson is president of the conservative nonprofit John Locke Foundation, which merged recently with Civitas Institute.

“People are actually scared of political retribution for their nonprofit giving, and that is not fair,” Bryson told The News & Observer on Friday.

“Just because some group lobbies and does grassroots lobbies to get a bill passed because they are in favor of [it] does not mean they are electioneering, it means they are in favor of those issues,” Bryson said.

Anchorage Daily News: Alaska Supreme Court confirms an end to 2 limits on cash in political campaigns

By James Brooks

In a pair of written rulings on Friday, the Alaska Supreme Court confirmed that two state limits on spending during political campaigns are unconstitutional and cannot be enforced.

In one ruling, the high court’s justices agree that the state of Alaska cannot limit political contributions to third-party groups because of the U.S. Supreme Court’s decision in a case known as Citizens United…

The other ruling confirms a summary order issued in August 2020 that overturned a $1 per-signature limit on payments to those who gather signatures for ballot measures…

Both rulings arrive as the state awaits the results of a federal case with even broader implications. A three-judge panel of the 9th U.S. Circuit Court of Appeals last month overturned most of Alaska’s limits on contributions directly to candidates and campaigns.

That ruling has been placed on hold while the court decides whether the case should be heard by the entire court rather than just a three-judge panel.

Hartford Courant: Judge orders blogger who frequently criticizes Hartford Police Department to turn over laptop as part of civil suit

By Rebecca Lurye

A Connecticut judge has ordered blogger Kevin Brookman — a frequent critic of the Hartford Police Department — to turn over his laptop and cellphone as part of a police lieutenant’s quest to identify and sue anonymous commenters who disparaged him on Brookman’s site.

The identities of the commenters on Brookman’s “We the People Hartford” are being sought by police Lt. Vincent Benvenuto, who is seeking to unmask the authors so he can sue them for defamation. Benvenuto claims his personal and professional reputation have been harmed by the comments, including one that described Benvenuto as racist…

“The accusation of racism is particularly offensive in the context of the Hartford Police department which must not only remain free from bias against its own members but also the public at large,” Superior Court Judge Cesar Noble wrote in his decision…

A state shield law allows journalists to conceal information and the identities of their sources. However, it also says journalists can be compelled to divulge information if it “is critical or necessary” to criminal or civil proceedings.

“It doesn’t seem right that one police lieutenant can try to expose my contacts like this because they want to find out who’s giving me information,” Brookman said Tuesday.

Texas Tribune: Social media companies can’t ban Texans over political viewpoints under bill headed to governor’s desk

By Kailyn Rhone

Texas is about to make it illegal for big social media companies to ban users based on their political viewpoints.

The Texas House voted 78-42 on Thursday to back an amended version of House Bill 20, which the Senate passed in a 17-14 vote Tuesday. The legislation, now on its way to the governor’s desk, would require social media platforms like Twitter, Instagram and YouTube — those with more than 50 million monthly users in the U.S. — to produce regular reports of removed content, create a complaint system and disclose their content regulation procedures.

Similar legislation was considered during the regular legislative session earlier this year and was championed by Gov. Greg Abbott, who said that social media companies were part of a dangerous movement to “silence conservative ideas [and] religious beliefs.”

KXAN: Austin ISD to screen employees’ social media accounts for violent, racist content

By Alex Caprariello

Beginning this September and occurring twice per year, Austin [Independent School District] employees’ social media accounts will be screened for inappropriate content including “illegal activity; violent, threatening, or sexually explicit posts; or racist, bigoted, or discriminatory behavior.”…

The district says the company [Social Intelligence] will flag both original content created by the employee as well as materials friends and family have tagged them in. The rule of thumb to consider, the district says, is if the inappropriate content appears in any way on one’s profile, it will be flagged.

Those found in violation of this new social media policy will be contacted by their supervisors. If the content appears to disrupt the employee’s effectiveness in their role, AISD human resources may get involved. Those found to be in violation of district policy may be terminated.

Nathan Maxwell


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