New from the Institute for Free Speech

Politicians Concerned About Coronavirus Misinformation Should Look in the Mirror

By Luke Wachob

Free speech does not ensure that society rejects all the wrong ideas and embraces all the right ones. But it gives each of us an opportunity to learn as much as we can about ourselves and the world around us. No authority has all the answers, so we all have an intrinsic right – and perhaps responsibility – to seek them out for ourselves.

Of course, some people have no answers at all, and many of them are in Washington, D.C. After watching national and international agencies repeatedly give bad advice to the public about a viral pandemic that could kill hundreds of thousands of Americans and many more around the globe, some political leaders are eager to combat misinformation… from random strangers on Facebook.

Enter Senators Mazie Hirono, Kamala Harris, Dick Durbin, and Bob Menendez, who sent a letter to Mark Zuckerberg this week expressing grave concerns about Facebook’s messaging service, WhatsApp. Actually, that’s too kind. They echoed a Mother Jones article in calling the app a “petri dish of coronavirus misinformation.”

Even though the company has adopted new policies to try to limit the spread of misinformation and educate its users, the senators lectured Zuckerberg on how WhatsApp could do better with more top-down control:

“WhatsApp could be altered to include a message asking people ‘are you sure this is true?’ before they forward a message or otherwise make forwarding a message more difficult. Even better, WhatsApp could use a combination of metadata and human content moderation to stop the spread of misinformation altogether and punish bad actors (e.g., by suspending their accounts)…”

If ever there was a time for humility when it comes to controlling speech, now is the moment. 

Supreme Court

National Law Review: Nine Amicus Briefs Filed in Support of Attempt to Invalidate TCPA Autodialer Ban

By Kevin H. DeMaio

On April 1, 2020, nine amicus briefs were filed in Barr, et al. v. American Association of Political Consultants, et al., currently pending in the Supreme Court, in support of an attempt to invalidate the TCPA’s ban on autodialed calls and texts to cellphones. The ban generally restricts persons or entities from placing automated calls or texts to cell phones without the recipients’ prior express consent. A host of businesses and associations affected by the ban-including Facebook and businesses from the energy, financial services, and tech industries-filed the amicus briefs and argued the TCPA’s blanket ban on autodialed calls and texts to cell phones should be struck down.

The Courts

Bloomberg Law: City’s League Membership Doesn’t Offend Taxpayers’ Speech Rights

By Brian Flood

An Illinois village’s membership in an intergovernmental league is constitutional, the Seventh Circuit said, rejecting some residents’ claim their taxes are being used to subsidize private speech with which they disagreed.

The Village of Lincolnshire has the right to express its viewpoints through its membership in the Illinois Municipal League, even if some citizens disagree with these viewpoints, the court said.

Lincolnshire is one of more than a thousand dues-paying members of the IML, a purportedly nonpolitical organization dedicated to improving local governance.

FEC

Town Topics: Election Commissioner Calls For Vote-By-Mail, Wider Participation to Help Fix Democracy

By Donald Gilpin

Speaking last Thursday in a virtual town hall with Princeton University Professor and Gerrymandering Project Founder and Director Sam Wang, Federal Election Commissioner Ellen Weintraub [discussed microtargeting].

“Technology has gotten ahead of where the rules are,” Weintraub said, referring to laws that the FEC had not revamped since 2006.

“Every time we look at something online, the platforms are sucking up all this data about us and using it to sell ads that precisely target each individual,” she said. “So not only are you not getting the same ads as the person in the house next door. You might not even be getting the same ad as the person sitting across the table from you.”

She continued, “It’s more important than ever at a time such as this that the information we are seeing online be shared broadly enough that there’s an opportunity for counterspeech, in accordance with the First Amendment. If you don’t like what one person is saying, you can get out there and make a better argument on the other side.”

Lamenting the polarization that characterizes the current political climate and has been exacerbated by online microtargeting, Weintraub noted, “This kind of divisive advertising that is so precisely tailored contributes to polarization. It makes people think they’re going to get their own tailor-made candidate and that compromises don’t have to be made. Politicians are not accountable for saying one thing to one person and the opposite to someone else.” 

SEC

Roll Call: SEC rules could thwart political spending disclosure efforts

By Kate Ackley

For years, Capitol Hill has gridlocked over proposals to mandate new public disclosures of corporate political money. So, activists like Bruce Freed have turned to shareholder-driven campaigns to get corporations to report details of such spending on their own.

Now, under pressure from big business lobbies like the U.S. Chamber of Commerce and the Business Roundtable, the Securities and Exchange Commission is considering new rules that could thwart efforts like Freed’s. If adopted, the proposed regulations could block myriad shareholder resolutions targeting everything from companies’ political disclosures to environmental and corporate governance policies…

“This appears absolutely to be coming from the big corporate trade associations,” said Rachel Curley, a democracy advocate for Public Citizen’s Congress Watch division, who focuses on calling on companies to disclose information about how much money they spend to influence elections.

Though the political action committees of corporations must disclose the donations they make, there’s no disclosure requirement for companies’ dues and other payments to trade associations that engage in election-related spending…

Those who decry undisclosed money that goes to nonprofit groups that can run political advertising called on the SEC not to adopt the new proposals.

“The past decade had shown that shareholders are similarly concerned with the lack of transparency of corporate political spending,” wrote Ciara Torres-Spelliscy, a professor at Stetson University College of Law. “Shareholder proposals about corporate dark money have been one of the most frequently filed topics in the past few years.”

First Amendment

The Hill: Why a national quarantine will not be the solution to the coronavirus

By Jonathan Turley

Yet even state orders can contravene liberties ranging from the right to travel, the right to association, and the right to due process. None stand absolute, but contravening such rights requires high burdens that often involve compelling interests, which are simple in a pandemic, and narrow tailoring of government actions, which is more difficult with a blanket ban on travel. A man was arrested last week for holding a “coronavirus party” in violation of New Jersey law. Such actions are likely to be upheld if the state can demonstrate an immediate danger to public health…

The courts are likely to be highly deferential to quarantine orders by state authorities and even limited orders by federal authorities. There is room at the elbows in the Constitution to deal with crises, but the countervailing demands of such rights as association and religious exercise grow quickly with time. More importantly, the efficacy of such orders depends greatly on the cooperation of essentially everyone in a population. Not even the federal government can keep a large population in an effective lockdown unless people are willing to stay in lockdown. That means the critical key to pandemic containment is persuasion rather than coercion.

Media

Federalist: Why Censoring Different Viewpoints About Coronavirus Will Make It Worse

By Auguste Meyrat

Support for taking only the most extreme measures to combat the Wuhan virus is the prevailing opinion these days, and mainstream and social media have been quick to suspend and stigmatize those with dissenting views.

Even presidents and celebrities are being censored. Multiple media outlets now refuse to cover President Donald Trump’s press briefings on the Wuhan virus. Twitter has banned posts from Brazilian President Jair Bolsonaro, Rudy Giuliani, conservative activist Charlie Kirk, and Fox News host Laura Ingraham for allegedly violating their terms of service. Facebook will implement similar measures against “Covid deniers.”

These voices are all being shut down for the same reason: They are presumed a threat to public health. Media elites and favored experts claim that by spreading misinformation and encouraging false hope, these people undermine all serious efforts to reduce the spread of the coronavirus and limit its damage. Although there is still insufficient data on the pandemic to determine whether the Wuhan virus is more comparable to seasonal flu or the bubonic plague, there is apparently enough data to end any debate on how to respond to it.

If this sounds familiar, that’s because the left takes this position with nearly every important issue, asserting that their views on topics such as climate change, gun violence, abortion, and gender are beyond debate and should be handled only by experts, clueless celebrities, and public officials who aren’t Republican. 

Law 360: Press Pools Protect 1st Amendment During Pandemic

By Anne Champion and Lee Crain

While federal, state and local governments act to limit in-person press access to government facilities due to the current pandemic, it is more essential than ever that governments comply with the First Amendment – and that media organizations defend their rights and the right of the public to robust media coverage of government. Governments should consider following the basic practices of delegating to the professional news media the ability to determine which journalists and media organizations serve as rotating members of a press pool, and ensuring that any press pools include journalists from a variety of outlets and media.

Deploying press pools, and ensuring that journalists are empowered to decide who among them is seated in a given pool, respects the First Amendment and ensures that no government official can use restricted access as a means of picking and choosing the prisms through which citizens learn about official actions and responses to the current pandemic. Now is a time at which First Amendment protections limiting government control over reporters must be at their zenith.

Times of San Diego: Washington State Group Is 1st to Sue Fox News for Calling Coronavirus a ‘Hoax’

By Ken Stone

An obscure Washington state group [Washington League for Increased Transparency and Ethics (“WASHLITE”)], has become the first in the nation to sue Fox News over its coronavirus coverage, asking a state court to keep the cable network from airing false information about the pandemic.

The 10-page complaint – filed Thursday in King County – also names as defendants Fox News Corp., owner Rupert Murdoch, AT&T TV and COMCAST.

It seeks an injunction to prohibit the conservative-leaning outlet from “interfering with reasonable and necessary measures to contain the virus by publishing further false and deceptive content.” …

The WASHLITE suit includes a request for relief under the state’s Consumer Protection Act, alleging Fox News violated the act by “falsely and deceptively disseminating ‘News’ via cable news contracts that the coronavirus was a ‘hoax,’ and that it was otherwise not a danger to public health and safety.” …

Eric Goldman, professor at Santa Clara University School of Law and an expert on so-called SLAPP lawsuits, says this complaint looks like one – a strategic lawsuit against public participation meant to chill free speech.

Fundraising 

New York Review of Books: The Fundraising Pulpit

By Jake Bernstein

Rep. Devin Nunes is a fundraising innovator, but he’s no pioneer. That distinction belongs to Richard Viguerie, the “funding father of the conservative movement.”

As a conservative activist in 1965, Viguerie discovered that the House clerk’s office possessed the names and addresses of campaign donors who gave more than $50 to federal candidates. He recognized the value of those names and quickly cobbled together 12,500 conservative donors from Barry Goldwater’s failed presidential bid. Within a year, his list had grown to 125,000 names. Eventually it would exceed five million. If only a small percentage of recipients sent $10, a single mailer could raise upwards of $10 million.

In his heyday, Viguerie mobilized his army of voters to lobby Congress and elect conservative politicians. But when it came to fundraising, he told Terry Gross on Fresh Air, “people are motivated by anger and fear much more so than positive emotions.” …

In this kind of fundraising the framing is inevitably negative and recursive, explained Rick Wilson, a longtime GOP consultant and now prominent anti-Trumper. “Your misery is legitimate, your fear is legitimate; it’s the culture of grievance,” he told me. “We are under attack because we are under attack.”

Lobbying

Associated Press: Coronavirus pandemic breeds Washington lobbying boom

By Richard Lardner and Brian Slodysko

The coronavirus pandemic has gut-punched global markets, put 6.6 million Americans out of work and raised the likelihood of a recession. But in the Washington lobbying world, business is booming.

Companies, interest groups and entire industries are seeking help from lobbyists as they navigate a chaotic environment to secure a piece of the record $2.2 trillion financial aid package the Trump administration must quickly pump out in an effort to stabilize the U.S. economy.

An Associated Press analysis of federal lobbying filings shows the number of companies and organizations hiring lobbyists shot up dramatically across the months of February, March and early April. Of the more than 700 registrations filed since the beginning of the year, at least 70 specifically mention the new virus, COVID-19 or a global health crisis. Dozens of other lobbyists and firms who were previously retained list the virus or the stimulus legislation in recent quarterly lobbying reports…

The surge in lobbying provided another potent example of the power and sway Washington’s permanent influence industry can hold during times of crisis.

Politico: Coronavirus clampdown: The virus casts a shroud over American civic life

By Jeremy B. White

Activists and lobbyists no longer have physical access to state lawmakers in some places [because of the coronavirus outbreak]…

Similar logistical challenges are also posing issues for California lobbyists, forced to press their clients’ cases in emails, calls and text messages, even with the uncertainty about when legislators will return to Sacramento and how much they can take on. Some political players fear that a lack of physical access will disproportionately harm groups without the clout or connections to advocate from afar, allowing bigger players to increase their advantage.

“Where the challenge will be is for individuals and entities that don’t have that level of access, that don’t know who to call or how to communicate with their elected officials absent walking into the building,” lobbyist Samantha Corbin said in an interview. “I don’t worry about the local governments. I don’t worry about the big businesses. They’ll have access.”

Online Speech Platforms

Wall Street Journal: Facebook’s WhatsApp Battles Coronavirus Misinformation

By Newley Purnell

WhatsApp is limiting users’ ability to forward content on its encrypted messaging platform, as misinformation about the coronavirus pandemic proliferates on the service in its biggest market, India.

In one of the biggest changes WhatsApp has made to a core feature, the company said Tuesday that its more than two billion users globally can now send along frequently forwarded messages they receive to only one person or group at a time, down from five.

In recent weeks the company has “seen a significant increase in the amount of forwarding which users have told us can feel overwhelming and can contribute to the spread of misinformation,” the company said.

WhatsApp is also testing a new feature that enables users to click an icon next to frequently forwarded messages-those forwarded at least five times-to search the web for their contents and verify them before sending the message to others, a WhatsApp spokeswoman said.

Reason: Is Twitter using the health emergency to settle political scores?

By Stewart Baker

Nate Jones and I dig deep into Twitter’s decision to delete Rudy Giuliani’s tweet (quoting Charlie Kirk of Turning Point) to the effect that hydroxychloroquine had been shown to be 100% effective against the coronavirus and that Gov. Whitmer (D-MI) had threatened doctors prescribing it out of anti-Trump animus. Twitter claimed that it was deleting tweets that “go directly against guidance from authoritative sources” and separately implied that the tweet was an improper attack on Gov. Whitmer.

I call BS. Hydroxychloroquine has looked very effective in several tests in France and China, but it hasn’t passed any controlled trials, and along with all the other promising drugs, it won’t pass those trials until the wave of death has begun to recede. In a world of bad choices, the drug looks like one of a few worthwhile gambles, as even Gov. Whitmer recognized by reversing course and asking to be allocated a lot of doses. Giuliani was closer to right than Whitmer. But Twitter decided that Giuliani’s view was so far from the mainstream that it had to be suppressed.

To be clear, Twitter management decided to suppress a legitimate if overstated view about how to survive the coronavirus. Twitter readers would not be allowed to see that view. That’s a stance that requires some serious justification.

Twitter invoked “authoritative guidance” and claimed that Giuliani was “going directly against” it. Exactly what guidance was that? 

The States

Ballotpedia (Disclosure Digest): Utah, West Virginia enact bills barring public agencies from disclosing personal information about 501(c) donors

By Jerrick Adams

Last month, Utah and West Virginia enacted legislation restricting public agencies from disclosing identifying information about donors to select nonprofit groups…

Utah SB171 prohibits a public agency from:

* Requiring an individual to provide the agency with personal information

* Requiring a tax-exempt entity under Section 501(c) of the federal Internal Revenue Code to provide the agency with personal information about its donors

* Releasing or otherwise publicly disclosing any personal information the agency might possess

* Requiring a current or prospective contractor to provide the agency with a list of 501(c) groups to which the contractor has provided financial or non-financial support

Any person who knowingly violates any provision of this law is guilty of a misdemeanor, punishable by imprisonment for up to 90 days, a maximum fine of $1,000, or both…

West Virginia SB16 prohibits a public agency from:

* Requiring a tax-exempt entity under Section 501(c) of the federal Internal Revenue Code to provide the agency with donor or membership information

* Releasing any information that identifies an individuals’ association with, or financial or non-financial support of, a 501(c) group without the express written consent of the group and the individual, or at the individual’s request

Colorado Sun: Colorado election officials take aggressive new approach to policing campaign violations

By Sandra Fish

A new enforcement division at the Colorado Secretary of State’s Office is reviewing campaign finance filings and taking action against possible violations.

It’s a sharp change from a system in prior administrations that required the public to file complaints about suspected violations of state law.

The more aggressive approach is drawing criticism from some observers who question the state’s authority to pursue complaints and whether the law is being fairly applied. So far, the office has filed three complaints.

Secretary of State Jena Griswold, a Democrat, made the shift over the past year and her office filed the first complaint in January. She said the new enforcement approach is allowed under a 2019 law approved by the Democratic-led General Assembly. The new measure was designed to address a successful challenge to the former complaint system, and codified existing rules.

Griswold said she sought the attorney general’s opinion on the new enforcement team to ensure its legality, and the office received money in the budget to create three new positions for the enforcement staff at an annual cost of $217,324.

The reliance on the public to file complaints often resulted in a process that often involved political retribution rather than compliance with the law. And the complaints didn’t always result in sanctions. Of 38 complaints filed in 2018, only two resulted in fines.

The Fulcrum: Coronavirus halts ballot measure progress across the country

By Sara Swann

At least 18 ballot measure campaigns across 10 states have suspended their in-person signature gathering efforts due to Covid-19, according to Ballotpedia. Four had initiatives related to democracy reform: Two in Arizona are promoting campaign finance regulations and voting rights improvements. One in Michigan wants to close lobbying and donor disclosure loopholes, while one in Arkansas would establish an independent redistricting commission.

Two groups that have sued, Arizonans for Fair Elections and Healthcare Rising AZ, maintain the in-person signature gathering requirement is an unconstitutional burden during a national public health crisis. If they are turned down in federal court, they say, they may have to give up on their causes until the next statewide election two years from now…

Democratic Secretary of State Katie Hobbs said Monday that she “wouldn’t oppose” expanding use of that system for ballot measures during the pandemic as “a reasonable option for protecting public health and supporting continuity in our democratic processes.”

Four states and one city have already made exceptions for ballot petitions given the current circumstances. Officials in Colorado, Utah, Washington, Oklahoma and San Diego have either granted deadline extensions for signature gathering or waived other obligations.