Supreme Court

SCOTUSblog: Argument preview: What does it mean to “induce” or “encourage” unlawful presence?

By Jack Chin

8 U.S.C. § 1324(a)(1)(A)(iv) imposes criminal penalties on any person who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence in is or will be in violation of law.” Is this, as the government argues with the support of a single amicus brief, a narrow provision prohibiting criminal solicitation and aiding and abetting? Or is it, as the U.S. Court of Appeals for the 9th Circuit found and a range of amici argue, a constitutionally overbroad statute criminalizing a wide range of protected expression, including political speech, attorney representation, charitable and religious counseling, support and outreach, and grandmothers urging their foreign-born grandchildren not to leave them?

National Review: Coming for the Lawyers

By Daniel R. Suhr

[T]here’s a new effort underway to undermine freedom of association for public-interest lawyers. Three Democratic U.S. senators recently filed a brief with the U.S. Supreme Court calling for a new rule that could require public-interest legal organizations to disclose all their donors as the price for submitting their views on the Court’s cases. Their brief decries the “secrecy” and “dark money” that currently protect these groups’ ability to operate. It echoes a legislative bill the same trio has introduced in Congress (the AMICUS Act).

Forcing donor disclosure onto non-profit public-interest law firms would drastically curtail the quantity and quality of pro bono lawyering in this nation… Justice Thurgood Marshall, wrote when the government tried to get access to the ACLU’s donor list, “the existence of such a list [in the government’s hands] surely will chill the exercise of First Amendment rights of association on the part of those who wish to have their contributions remain anonymous.” …

The Supreme Court should reject this invitation to violate the freedoms of speech and association. There are enough lawyers out their looking to make business for themselves. Let’s protect one group of attorneys whose only business is defending our constitutional rights.

The Courts

Ars Technica: ISPs sue Maine, claim Web-privacy law violates their free-speech rights

By Jon Brodkin

The broadband industry is suing Maine to stop a Web-browsing privacy law similar to the one killed by Congress and President Donald Trump in 2017. Industry groups claim the state law violates First Amendment protections on free speech and the Supremacy Clause of the US Constitution.

The Maine law was signed by Democratic Gov. Janet Mills in June 2019 and is scheduled to take effect on July 1, 2020. It requires ISPs to get customers’ opt-in consent before using or sharing sensitive data…

On Friday, the four major lobby groups representing the cable, telco, and wireless industries sued the state in US District Court for the District of Maine, seeking an injunction that would prevent enforcement of the law.

Courthouse News: Judge Orders Restoration of Immigration Detention Hotline

By Nathan Solis

A free hotline used by immigrants held in detention facilities to connect them with legal resources or family members was ordered to be restored by a Los Angeles federal judge after federal officials blocked a nonprofit from operating the service.

U.S. District Judge Andre Birotte Jr., who ordered the national hotline restored, said the government’s actions would “chill” a person’s First Amendment rights, including reporting on abuses at federal facilities.

Congress

New York Times: Russia Backs Trump’s Re-election, and He Fears Democrats Will Exploit Its Support

By Adam Goldman, Julian E. Barnes, Maggie Haberman and Nicholas Fandos

Intelligence officials warned House lawmakers last week that Russia was interfering in the 2020 campaign to try to get President Trump re-elected, five people familiar with the matter said, a disclosure to Congress that angered Mr. Trump, who complained that Democrats would use it against him.

The day after the Feb. 13 briefing to lawmakers, Mr. Trump berated Joseph Maguire, the outgoing acting director of national intelligence, for allowing it to take place, people familiar with the exchange said. Mr. Trump cited the presence in the briefing of Representative Adam B. Schiff, the California Democrat who led the impeachment proceedings against him, as a particular irritant.

During the briefing to the House Intelligence Committee, Mr. Trump’s allies challenged the conclusions, arguing that he has been tough on Russia and strengthened European security. Some intelligence officials viewed the briefing as a tactical error, saying that had the official who delivered the conclusion spoken less pointedly or left it out, they would have avoided angering the Republicans.

First Amendment

WBUR (On Point): Walter Shaub Wants You To Fight For An Ethical Democracy

By Dorey Scheimer and Robert Siegel

For decades, Walter Shaub advised presidential candidates about transparency, ethics and how to avoid conflicts of interest. We talk to Shaub about how he ran the Office of Government Ethics and the future of ethics in government…

[Schaub:] “An important function of government is to protect the weak from the strong. And when the government is populated by elected officials who depend on the wealthy and the corporations to put them in their offices and keep them there, they become beholden to the strong in a way that undermines their effectiveness in protecting the rest of us. And I think that’s sort of a breach of the social compact that needs to be addressed. The idea somehow that it’s free speech to give gobs of money to candidates and influence them directly or indirectly is, I think, naive in the sense that it overlooks that the speech of the well-funded is drowning out everyone else’s speech. And there is no marketplace of ideas where everybody’s ideas gets heard when the people with the most powerful voices are drowning out everyone else. And so I do tend to think of our campaign finance situation in this country as a threat to democracy.”

Free Expression

Wall Street Journal: Banished in Beijing

By Editorial Board

President Xi Jinping says China deserves to be treated as a great power, but on Wednesday his country expelled three Wall Street Journal reporters over a headline. Yes, a headline. Or at least that was the official justification. The truth is that Beijing’s rulers are punishing our reporters so they can change the subject from the Chinese public’s anger about the government’s management of the coronavirus scourge.

Political Parties

Ricochet: Repeal and Replace McCain-Feingold

By Shawn Buell (Majestyk)

The [Bipartisan Campaign Reform Act of 2002] largely stripped the ability of the parties to direct sums of money to candidates. The Parties can receive unlimited soft money for issue advocacy and voter registration, but donations to candidates must come in the form of “Hard Money,” which has a $2,500/campaign limit per individual per election.

This relatively low contribution ceiling puts a serious crimp in any candidate’s attempt to make an impact in national or even statewide elections, forcing candidates to use other vehicles (such as Political Action Committees) to help fund their campaign apparatus … at the cost of not being allowed to coordinate with the Parties themselves. That is unless you are a self-funding candidate, in which case you may coordinate…

Most campaign finance law is a tangled skein whose headline intent is to prevent bribery and collusion but whose bottom line is to form a sort of pillow-fort of legalism around incumbency, while making it impossible for the Parties themselves to govern who chooses to run under their banner and with or without their sanction.

Section 230

Techdirt: What A Shame: Legacy Newspapers Want To Take Away Free Speech On The Internet

By Mike Masnick

The News Media Alliance represents a bunch of old school newspapers. Like other legacy companies which failed to adapt to the internet, it’s now advocating for the removal of Section 230 protections from internet services.

According to a written testimony provided to Axios, NMA will tell parties on Wednesday at the Justice Department’s upcoming workshop on Section 230 that policymakers should limit the safe harbor exemption within the law that protects tech platforms from being sued for the content that other people post on its site.

What’s most shameful about this is that newspapers have a long history of being the most prominent free speech supporters. And the whole point of Section 230 is that it helps enable more free speech online. Removing 230 will inevitably lead to greater censorship and difficulty in enabling the public to speak out.

While you can see — cynically — why this might appeal to legacy newspapers that have lost their position as the gatekeepers for what public speech is allowed to reach the wider world, it really casts a huge shadow on the legacy of those newspapers as free speech supporters. 

Online Speech Platforms

NBC News: Twitter is testing new ways to fight misinformation – including a community-based points system

By Ben Collins

Twitter is experimenting with adding brightly colored labels directly beneath lies and misinformation posted by politicians and public figures, according to a leaked demo of new features sent to NBC News.

Twitter confirmed that the leaked demo, which was accessible on a publicly available site, is one possible iteration of a new policy to target misinformation it plans to roll out March 5.

In this version, disinformation or misleading information posted by public figures will be corrected directly beneath the tweet by fact-checkers and journalists who are verified on the platform, and possibly other users who will participate in a new “community reports” feature, which the demo claims is “like Wikipedia.”…

In one iteration of the demo, Twitter users could earn “points” and a “community badge” if they “contribute in good faith and act like a good neighbor” and “provide critical context to help people understand information they see.”

The points system could prevent trolls or political ideologues from becoming moderators if they too often differ from the broader community in what they mark as false or misleading…

In the demo, community members are asked if the tweet is “likely” or “unlikely” to be “harmfully misleading.” They are then asked to rate how many community members will answer the same as them on a sliding scale of 1 to 100, before elaborating on why the tweet is harmfully misleading.

“The more points you earn, the more your vote counts,” the demo reads.

The Verge: Facebook’s proposed regulations are just things it’s already doing

By Casey Newton

Facebook also released a white paper (PDF) outlining the approach it would like to see regulators take to creating legal standards for content moderation. The approach it would like to see, you may not be surprised to learn, is one that largely follows the avenues Facebook has already taken. That includes: requiring public reporting on policy enforcement actions; reducing the visibility of content that violates standards; and blocking attempts to regulate speech based on the content of that speech. (The paper does not address how countries might regulate political ads, though Zuckerberg’s statement that posts on Facebook ought to be regulated like something in between a telecom company and a newspaper suggests the answer is “very lightly.” …

Even if you find Facebook’s suggested regulations self-serving, they do highlight important trade-offs that states will have to make as they consider new laws. Consider, for example, the increasingly popular idea of legally requiring platforms to remove bad posts within 24 hours. Facebook points out, rightly I think, that this creates the wrong incentives. 

Washington Post: How conservatives learned to wield power inside Facebook

By Craig Timberg

Facebook’s quest to quell conservative criticism has infused a range of decisions in recent years, say people familiar with the company’s internal debates. These included whether to allow graphic images of premature babies on feeding tubes – a prohibition that had rankled antiabortion groups – or to include the sharply conservative Breitbart News in a list of news sources despite its history of serving, in the words of its former executive chairman Stephen K. Bannon, as the “platform for the alt-right.” …

But its inclusion has sparked criticism among those who say the move was mainly to address Republican complaints about the company.

Courthouse News: Singapore Tells Facebook to Block Critical Site

By Agence France-Presse

Singapore on Monday ordered Facebook to block the page of an anti-government website in the city-state, the latest use of a law against online misinformation that critics say stifles free speech.

The legislation gives ministers powers to order internet platforms and websites to put warnings next to posts they deem false, and to order pages blocked from users in the tightly regulated city.

While most have complied with the directives, political website States Times Review, which regularly posts articles critical of the government, has refused to obey any of them.

Candidates and Campaigns

Washington Post: Bloomberg’s manipulated debate video earns Four Pinocchios

By Glenn Kessler

Late in the ninth Democratic debate, Bloomberg made this comment: “What I was going to say, maybe we want to talk about businesses. I’m the only one here that I think that’s ever started a business. Is that fair?”

Two seconds passed, and no one else on the stage answered. Bloomberg said, “Okay,” and moved on.

The video takes that minor moment and stretches it to 22 seconds, with reaction shots that make the other candidates look troubled, embarrassed or confused. The video is silent except for cricket sounds heard in background. But these were all taken from other moments in the debate…

Twitter has announced that starting March 5, it will label “synthetic or manipulated video” or even remove tweets if they could cause harm. A Twitter spokesperson told HuffPost that the Bloomberg video would probably have a label attached to it if it had been tweeted after the policy went into effect.

More than 2 million people had watched the video seven hours after it had been posted. So this is not a minor matter.

Bloomberg spokeswoman Julie Wood defended the video: “It’s tongue-in-cheek. There were obviously no crickets on the debate stage,” she said.

Washington Post: Dressing for the campaign trail can be tough for female candidates. M.M. LaFleur is lending free clothes to ease the burden.

By Taylor Telford

Women running for office say they often feel pressure to look the part lest they not be taken seriously. But the expense and upkeep of a professional wardrobe can be a barrier for many. That’s why workwear retailer M.M. LaFleur is offering to lend clothing to female candidates this election season.

“A lot of women can’t afford to buy the kinds of clothes that people expect of candidates,” said company co-founder Sarah LaFleur…

In an email to customers this week, LaFleur said that interested candidates could contact the company with their credentials, including name, location and description of the office they’re running for, to receive five outfits selected for them by M.M. LaFleur stylists. The company has received more than 550 responses from women in state, local and federal races and an outpouring of support from customers…

M.M. LaFleur is leaving the onus on candidates in local or state races to ensure the donation of clothing is acceptable under their jurisdiction’s campaign finance laws. To make sure candidates in federal races can take M.M. LaFleur up on the offer while not violating federal campaign finance laws, LaFleur herself will purchase the clothing and lend it to candidates as an individual, rather than the company.

Fox News: Tucker Carlson: Bloomberg is trying to buy the presidency – he believes only his wealth matters

By Tucker Carlson

[Mike Bloomberg]’s not running on ideas. He’s not trying to convince voters of anything. He’s not making arguments or working to change their minds…

He is trying to buy them and hence, the presidency. It’s the single most cynical political campaign ever run in this country. Bloomberg is trying to subvert our democracy with cash, and he is going all-in to do it…

How wealthy is Michael Bloomberg? Well, for context, the richest of the fabled Russian oligarchs, Leonid Mikhelson, is worth about $24 billion. Michael Bloomberg could literally give away twice that amount or spend it on a presidential race, if he wanted, and still be five times as rich as Donald Trump is.

It’s hard to imagine just how much money that is. But with that money, Bloomberg can suffocate all opposition and seize power. Our ruling class, which worships money above all, sees nothing wrong with this. They’re eager to help Bloomberg do it. Like Bloomberg, they’re religiously libertarian on economic matters…

This is the nightmare scenario that campaign finance reform activists used to tell us about. They were right about one thing: our system has been vulnerable to people like Michael Bloomberg for a long time. He is just the first one who’s actually tried to do it. You should be alarmed by his campaign for president.

National Review: Warren Reverses Pledge to Refuse PAC Money, Implies She’s Been Held to Sexist Double Standard

By Tobias Hoonhout

Senator Elizabeth Warren (D., Mass.) changed her tune on the nefarious influence of super PACs just days after receiving the backing of a newly formed PAC, telling reporters on Thursday that because “all of the men” in the race refused to rely entirely on individual donors, she shouldn’t be expected to either.

“It can’t be the case that a bunch of people keep them and only one or two don’t,” she said.

Washington Post: Sanders implies Russia, not his supporters, may be to blame for online vitriol. Experts aren’t so sure.

By Isaac Stanley-Becker and Tony Romm

Sen. Bernie Sanders mounted a new defense Wednesday for the toxicity emanating from pockets of his presidential campaign’s supporters, implying that it was possible that Russian actors were again manipulating social media to incite Democratic divisions.

Sanders’s language was indirect, offered on the debate stage here as his opponents faulted him for the behavior of his most strident fans. It drew criticism from experts in disinformation, who said they had no direct evidence that the Kremlin had masqueraded as Sanders voters, interfering in the 2020 race much as Russian trolls had done four years earlier…

Graham Brookie, the director of the Digital Forensic Research Lab at the Atlantic Council, which tracks disinformation on social-media sites [said:]

“Any candidate or public official casually introducing the possibility of Russian influence without providing any evidence or context, creates a specter of interference that makes responding to real interference harder.” 

The States

Monterey County Weekly: Marina’s effort at campaign finance reform backfires before it takes effect.

By Sara Rubin

When I meet Cristina Medina Dirksen and Kathy Biala for a drink to talk about their first-time candidacy for public office, both are in the early stages of learning how to ask for money. Both are running for Marina City Council this November…

In January, Marina City Council voted 3-2 to pass campaign finance reform, capping contributions at $200 from Marina individuals – no PACs allowed. That ordinance takes effect on Feb. 22, and both Biala and Medina are now scrambling to raise $10,000 before that date, calling family members to ask for checks. Medina filed her first campaign finance document with the city clerk on Feb. 14, reporting a $1,000 gift from a relative, Tony Raffoul in Santa Maria.

That kind of campaign contribution – a big sum from an out-of-towner – is exactly what the new ordinance aims to block…

With two first-time candidates in Marina scrambling to raise big money before the ordinance takes effect, they’re undermining this attempt at campaign finance reform for the 2020 election.

“You can say, well, Bernie did it – but we’re from Marina,” says Biala, a current Marina planning commissioner. “I don’t want to spend my time meeting with people asking for money. [Fundraising] has become a necessary evil.”

Marina’s is indeed a flawed ordinance, capping individual donations at $200 but allowing candidates to self-fund with no limit – something O’Connell, a retired attorney, says was a problem because of free speech protections.

“It favors a candidate who is already wealthy,” Medina says.

Electronic Frontier Foundation: Virginia Anti-SLAPP Bill is Good for Free Speech But Can Still Be Made Stronger

By Joe Mullin

The Virginia legislature is on the verge of a big step forward for free expression. In the coming days, legislators will have the opportunity to pass a bill that would push back against harassing lawsuits called SLAPPs, or Strategic Lawsuits Against Public Participation…

Last month, we explained our support for Virginia’s H.B. 759. Earlier this week, the Virginia House of Delegates passed an amended version of this bill. And, the Virginia Senate passed its own anti-SLAPP bill.

Virginia legislators will now come together in a conference committee to iron out the differences between the bills. Several other states have anti-SLAPP bills in various stages of consideration, including Kentucky, Massachusetts, Ohio, and New York, so it’s a good time to consider the elements that make up a good anti-SLAPP law.

A good anti-SLAPP law puts the brakes on harassing or censorious litigation, and creates incentives that make it easier for a SLAPP victim to get legal help. The House of Delegates bill, H.B. 759, succeeds on both counts, and we hope Virginia lawmakers see fit to pass it. There are also a few areas in which the bill could be stronger-and one significant loophole, which we’ll get to below.

Detroit News: Filing: Nonprofit tied to top lawmaker received $500k from undisclosed donor

By Craig Mauger

A nonprofit tied to the then-leader of the Michigan Senate received $500,000 from a single unidentified donor in 2018, according to a tax filing…

Transparency advocates say the situation reveals a path for companies and individuals to try to influence lawmakers in secret. [Former Senate Majority Leader Arlan] Meekhof says the group followed Internal Revenue Service policies and the money went to the nonprofit, not his campaign or himself.

“If they are concerned, they should appeal to the IRS to change the rules,” Meekhof said this week of critics in a phone interview…

“This is a gap in the disclosure laws that we have in this country,” [Michael Beckel, research director for Issue One] said. “Most nonprofits aren’t closely associated with politicians so the rules that are in place are trying to govern the widest breadth of nonprofits as possible.” …

State Sen. Jeremy Moss, D-Southfield, a transparency advocate, questioned what someone potentially could have gained by spending the large sum of $500,000…

“If we want a government that’s responsive to the people that we serve, the people we serve need to know who’s funding their elected officials, their campaigns and other endeavors,” Moss said.