The Courts
Campaigns & Elections: AAPC Launches Lawsuit Over Access To SBA Funds
By Sean J. Miller
Warning that some political consulting firms are in “dire need of an infusion of funds” given the fallout from the COVID-19 pandemic, an industry group has turned to the courts for relief.
The American Association of Political Consultants (AAPC) has sued the Small Business Administration to get an emergency injunction to stop it from denying consulting firms access to loans available through the SBA’s Paycheck Protection Program (PPP) on the basis of their “political or lobbying activities.”“There is a long-standing SBA rule that says that businesses primarily engaged in political or lobbying activity are ineligible [for loans],” Rose Kapolczynski, president of the AAPC, told C&E.
“Congress in the CARES Act said all business concerns are eligible, but the SBA has decided to use their old 7(a) loans ineligibility standard for the CARES Act Paycheck Protection Program … We just want political consultants to be treated like every other small business. It’s about fairness and freedom of speech.” …
“There’s so much uncertainty around political campaigning right now,” said Kapolczynski. “But the entire political consulting industry could be affected if the recession that we’re teetering on the edge of right now is as bad as people expect. That could mean that there is much less money available for campaigns and that will ripple through the industry. That will mean less direct mail, less television, fewer staff on campaigns.
New Jersey Law Journal: Third Circuit Upholds Dismissal of Teenage Trump Supporter’s Defamation Suit Against Newsweek
By P.J. D’Annunzio
A federal appeals court has decided that a then-12-year-old Philadelphia boy’s claims that Newsweek magazine defamed him by accusing him of supporting “raw racism and sexual abuse” by endorsing President Donald Trump in 2016 were rightly dismissed.
The U.S. Court of Appeals for the Third Circuit affirmed the lower court’s dismissal of the lawsuit against Newsweek, filed on behalf of Cole McCafferty by his parents, Brian and Melissa McCafferty. The boy gained media attention after releasing a series of social media posts during the 2016 presidential election and beyond, which drew the attention of several outlets…
[I]n 2018, Newsweek featured him by name in a piece titled “Trump’s Mini-Mes,” which Cole McCafferty alleged cast him in a “false light.”
However, Third Circuit Judge Stephanos Bibas wrote in the court’s April 14 opinion that Newsweek’s comments were not defamatory and that the magazine was protected by the First Amendment.
“Political discourse can be bruising. People often express opinions that offend others. But the First Amendment protects virtually all of those opinions, even offensive and hurtful ones, to promote a greater good: robust political discourse. The price of free speech is putting up with all sorts of name-calling and hurtful rhetoric,” Bibas said.
Charlotte Observer: Anti-abortion group arrested outside NC clinic during stay-home order. Now it’s suing.
By Hayley Fowler
Love Life – a Charlotte-based religious group that opposes abortion – said its members were praying and ministering outside A Woman’s Choice abortion clinic in Greensboro at the end of March when police arrived, according to a lawsuit filed in federal court Tuesday.
Several were arrested and charged with “travel[ing] for a non-essential function,” the complaint states.
“The government can’t allow some people to walk and talk on sidewalks and then say that these pro-life citizens can’t walk and pray there,” attorney Denise Harle said in a news release. “This was never about public health and safety; it was about the government silencing people because it doesn’t like what they have to say.”
Love Life is suing the city of Greensboro and Guilford County for allegedly violating the First Amendment…
Members of the group were arrested April 4 in Charlotte for protesting at a different abortion clinic, The Charlotte Observer reported. U.S. Sen. Ted Cruz of Texas criticized the Charlotte-Mecklenburg Police Department in a tweet later that day, calling their arrests unconstitutional.
Counsel for Love Life echoed that argument in Tuesday’s lawsuit.
New York Times: Trial of Giuliani Associates Parnas, Fruman Likely Delayed to 2021 After U.S. Election
By Reuters
The trial of Lev Parnas and Igor Fruman, two associates of U.S. President Donald Trump’s personal lawyer Rudy Giuliani, for alleged campaign finance violations will likely be delayed until after November’s presidential election because of the coronavirus pandemic.
In a letter to U.S. District Judge Paul Oetken, who presides over the case, U.S. Attorney Geoffrey Berman in Manhattan said the government did not object to a defense proposal to adjourn the trial until February 2021 from Oct. 5, 2020.
First Amendment
Daily Wire: WATCH: Police Arrest ‘Reopen’ Protester; Say Constitutionally Protected Rights ‘Non-Essential’
By James Barrett
On Tuesday, police in North Carolina’s capital city arrested at least one protester who had joined a peaceful protest outside the state’s General Assembly building to call on the governor to “reopen” the state. In explanation of why the protest was broken up and at least one demonstrator arrested, the Raleigh Police Department explained on Twitter that “protesting is a non-essential activity.”
Nearly every state in the country is now under stay-at-home orders, which bar activities state governors deem to be “non-essential.” In the stunning sequence of events on Tuesday in Raleigh, North Carolina residents were told that exercising the First Amendment-protected rights “peaceably to assemble, and to petition the government for a redress ” are among the activities deemed “non-essential” by state authorities…
The Raleigh Police Department issued a series of tweets on Tuesday detailing their response to the protests. “We are aware of the [Reopen NC] protest that is occurring in Downtown Raleigh on Wilmington and Jones Street and are monitoring the situation,” the department tweeted. “The protestors are in violation of the Governor’s Executive Order and have been asked to leave,” Raleigh Police added in another tweet. “We are reopening Wilmington and Jones Street. The protest has been cleared. There was one arrest made.”
In response to someone asking “what part of the governor’s order was violated” in this instance, Raleigh Police responded: “Protesting is a non-essential activity.”
ABC 11’s Jonah Kaplan reported from the scene, posting a series of tweets, along with photos and video (posts below).
CBS 17: Raleigh police release statement after department tweets ‘protesting is a non-essential activity
Yesterday, demonstrators gathered outside the General Assembly holding signs reading “Reopen NC,” “Freedom is not free,” and “#ReopenNC #Tyranny.”
Raleigh police responded and began to warn the demonstrators that they were in violation of EO 121 – which in part bans gatherings of more than 10 people…
The Department tweeted that “Protesting is a non-essential activity” in response to the question of what part of EO 121 the demonstrators were violating.
The tweet…received harsh backlash.
In response, Raleigh police released a statement.
“In these unprecedented times and unusual circumstances, both the Governor and the County have declared a state of emergency. Under these current and temporary declarations, protesting is not listed as an essential function,” it read.
Raleigh police said Wake County District Attorney Lorrin Freeman would be the one to decides “charging language for failure to adhere to the Governor’s Orders and the Wake County Proclamation, when charging is appropriate, and what charges individuals may face for violating either one of these orders.”
The statement said Raleigh officers are bound to carry out the regulations handed down by the executive orders and the county’s proclamation.
“But more important is the health and wellness of all who live in our community, including the officers who must engage in circumstances such as these. We simply want everyone to be safe during this very serious public health crisis,” the statement read.
Congress
Townhall: GOP Senators Ask Sec. Pompeo and Amb. Craft to Hold China Accountable on Free Speech
By Reagan McCarthy
A group of Republican Senators penned a letter to Secretary of State Mike Pompeo and the United States Ambassador to the United Nations, Kelly Craft, urging them to take action on the Chinese Communist Party’s (CCP) suppression of free speech and freeflow of vital information. Sens. Marsha Blackburn (R-TN), Kelly Loeffler (R-GA), John Cornyn (R-TX), Joni Ernst (R-IA) and Marco Rubio (R-FL) spearheaded the effort.
FEC
Colorado Politics: FEC complaint alleges Republican super PAC making illegal contributions to Cory Gardner
By Ernest Luning
One of the Democrats who was hoping to challenge U.S. Sen. Cory Gardner is accusing the leading Republican Senate super PAC of making illegal, in-kind contributions to Gardner by paying for fundraising efforts for his re-election campaign, Colorado Politics has learned.
Dan Baer, who ended his Senate campaign in September after former Colorado Gov. John Hickenlooper joined the primary, charged in a complaint filed with the Federal Election Commission that the Senate Leadership Fund has been spending to encourage donors to contribute to Gardner’s campaign, which Baer argues violates a prohibition on coordination between candidates and super PACS…
In the complaint, filed March 11, Baer is also alleging that SLF hasn’t reported what amounts to an in-kind contribution to Gardner’s campaign and is funneling corporate contributions that it can accept to a federal candidate, who can’t…
Baer said in the complaint that a friend received a text message solicitation from SLF ahead of President Donald Trump’s Feb. 22 campaign rally in Colorado Springs, where the president brought Gardner on stage and exhorted the crowd to “help us get Cory Gardner across that line because he’s been with us 100%.”
The text message linked to a donation page on the Republicans’ WinRed fundraising platform urging visitors to “stand with Cory and protect the Republican Senate majority!”
Further down, the page states: “Paid for by Senate Leadership Fund. Not authorized by any candidate or candidates committee.”
Media
Times of San Diego: Fox News, Citing First Amendment, Urges Judge to Toss WASHLITE Suit
By Ken Stone
Claiming First Amendment protections, Fox News on Tuesday asked a judge in Washington state to dismiss a lawsuit by the nonprofit group WASHLITE.
The April 2 suit seeks to restrain the network’s coronavirus coverage…
Claims of Fox News misleading the public about the danger of the pandemic “are frivolous because the statements at issue are core political speech on matters of public concern,” says the 13-page motion with backup material.
“The First Amendment does not permit censoring this type of speech based on the theory that it is ‘false’ or ‘outrageous,'” the filing said. “Nor does the law of the State of Washington.” …
Does [Catherine “Cat” Clark, WASHLITE’s lawyer] consider her proposed injunction a “gag order” as Fox News contends?
“I cannot answer this question as it asks me to divulge information protected by the attorney client privilege and/or the work product doctrine,” she said via email, giving the same answer to: “Will you cite case law that lets you use consumer-protection laws against ‘news articles’?”
Online Speech Platforms
New York Times: Washington AG Sues Facebook Over Political Ads
By Katie Paul, Reuters
Washington state’s attorney general filed a second lawsuit against Facebook Inc over political ads on Tuesday, saying the social media giant once again failed to make disclosures required under the state’s campaign finance laws.
Facebook already paid $238,000 in 2018 to resolve a previous dispute over political advertising in Washington state.
The company later announced that it would stop accepting political ads related to state or local initiatives in Washington, although it still permitted advertisements around “issues of national importance” targeting people in the state.
In a statement on Tuesday, Washington Attorney General Bob Ferguson said that Facebook had continued selling hundreds of ads to at least 171 state political committees since 2018, in violation of its own policy.
Ferguson says the company’s Ad Library, a searchable database aimed at providing transparency around political advertising, provides some information about those ads but does not include details required under Washington law such as the name of the person paying for the ads or their precise cost.
By Billy Perrigo
Facebook now says more than 98% of content removed for violating its rules on extremism is flagged automatically. On YouTube, across the board, more than 20 million videos were taken down before receiving a single view in 2019…
But algorithms are notoriously worse than humans at understanding one crucial thing: context. Now, as Facebook and YouTube have come to rely on them more and more, even innocent photos and videos, especially from war zones, are being swept up and removed. Such content can serve a vital purpose for both civilians on the ground – for whom it provides vital real-time information – and human rights monitors far away. In 2017, for the first time ever, the International Criminal Court in the Netherlands issued a war-crimes indictment based on videos from Libya posted on social media. And as violence-detection algorithms have developed, conflict monitors are noticing an unexpected side effect, too: these algorithms could be removing evidence of war crimes from the Internet before anyone even knows it exists…
Both Facebook and YouTube are notoriously secretive about what kind of content they’re using to train the algorithms responsible for much of this deletion. That means there’s no way for outside observers to know whether innocent content…has already been fed in as training data, which would compromise the algorithm’s decision-making.
Politico: Social Media Can Be an “Arbiter of the Truth” After All
By Paul M. Barrett
One lesson of the coronavirus crisis should be that Facebook and its rivals need to act on their ability to tell the difference between real and fake, true and untrue. The line might be especially stark when public health is at issue. But it’s no less important in the political realm, where the daily barrage of mis- and disinformation confuses voters and undermines democracy…
[W]hat I’m urging is an expansion of fact-checking, not to serve a partisan agenda, but to limit the amount of mis- and disinformation polluting American public life. That’s just a public service – the same way that taking down misinformation about Covid-19 is a public service.
The platforms cannot and should not try to referee every trivial fib that politicians tell about each other. They should prioritize the consequential issues and statements of the day, much as Facebook’s fact-checkers already try to do. To address legitimate concerns about content-even untruthful content-disappearing from the public record, the platforms could retain a copy of everything they remove and store it in a cordoned-off archive from which it couldn’t be shared online. That way, researchers, journalists, and curious members of the public could see the deleted material without the danger that it will go viral.
The States
Philanthropy Magazine: The Exchange
By Ashley May
West Virginia enacted the “Protect Our Right to Unite Act” to bolster donor privacy. ACLU West Virginia supported the legislation-its policy director told the West Virginia Gazette that “the groups that people join are none of the government’s business.” This bill “reaffirms the vital freedom of association.” We’ll be watching similar donor-privacy measures in other states.
Meanwhile, California’s Legislature is considering a law that would give the state Attorney General authority to collect donor information from donor-advised funds. The Alliance for Charitable Reform is working with allies in the state to protect donors of all stripes who prefer to remain anonymous.
Capitol Beat: Georgia lawmakers still in COVID-19 campaign fundraising limbo
By Beau Evans
Georgia lawmakers cannot legally raise campaign contributions while the General Assembly’s 2020 session remains suspended due to the coronavirus outbreak, the state agency board tasked with enforcing the state’s campaign finance laws decided Tuesday.
The Georgia Government Transparency and Campaign Finance Commission voted 3-2 to keep intact the prohibition against campaign fundraising that applies while the legislature is in session, even though lawmakers have been sent home indefinitely to wait out the COVID-19 pandemic.
The suspension of the session on March 13 put legislative incumbents seeking re-election in campaign pickle ahead of the June 9 primary election.
Georgia lawmakers are facing a campaign pickle with coronavirus upending their ability to raise money for re-election efforts ahead of the June 9 primary election, with some complaining the situation puts them at a disadvantage against primary challengers free to raise as much money as they can bring in.
Sidney Herald: Joel Krautter files complaint against local PAC
By Eric K. Gill
Sidney state Rep. Joel Krautter on April 10 filed a campaign finance complaint against a Montana group…for alleged false representation…
In his notarized complaint, Krauter categorized “Doctors for a Healthy Montana” as a “PAC.” In documentation filed with the complaint, Krautter accused the group of violating state law by misrepresenting itself and failing to adequately list the economic interests of a majority of its contributors.
“Contrary to its false and misleading name, the majority of contributors, are not doctors, but are actually politicians,” Krauter wrote, citing four “contributors.” …
The dispute between “Doctors for a Healthy Montana” and Sidney’s state legislator reached a boiling point after an ongoing and highly visible public campaign against Rep. Krautter that includes a roadside billboard accusing him of favoring taxpayer-funded abortions…
As recourse, he filed a complaint with the state commissioner of Political Practices challenging the group for claiming it represents multiple doctors.
“I looked at the campaign finance law and I looked at the group,” Krautter explained. “When they’re calling themselves doctors, doctors being plural, I felt that was a black-and-white violation…they’re misleading the public.” …
In filing a complaint against “Doctors for a Healthy Montana,” Krautter seeks to require the group to change its name. In addition, Sidney’s state representative is requesting the commission to “impose fines and penalties upon them for breaking the law in such an obvious, inappropriate, and deceptive manner.”
KOB 4: Rio Arriba County settles over Mexican flag-flying episode
By Associated Press
A New Mexico county has settled with a man who said a troubled sheriff pulled him over for flying a Mexican flag on his truck on the Fourth of July.
The attorney for Joshua Talamante said last week that Rio Arriba County has agreed to settle for $55,000 nearly six months after Talamante filed a tort claim notice, a precursor to a lawsuit.
Kansas City Star: Missouri Gov. Mike Parson criticized for COVID-19 briefings that lack transparency
By Caitlyn Rosen
Reporters are barred from attending Missouri Gov. Mike Parson’s briefings at the state Capitol and are required to submit questions by email an hour in advance.
Their queries are screened and selected by Parson’s staff for the sessions, which are live-streamed on Facebook…
The press attended the governor’s briefings before he banned gatherings of 10 or more on March 20. Parson says he’s believes press access is not an issue.
“It’s not just about doing interviews every day and answering questions,” Parson said at his Tuesday news conference. “We’re doing an adequate job of that.”
But news executives and transparency advocates, including the Missouri Press Association and the Missouri Broadcasters Association, have expressed concern…
“It’s challenging to be transparent when you can’t get follow up questions or be able to ask questions of the governor right on the spot,” Mark Gordon, president and CEO of the Missouri Broadcasters Association, said…
In some cases, even the pre-submitted questions are never asked…
“Citizens do not benefit when a governor is allowed to handpick the few questions he chooses to answer, particularly during a public health crisis,” said Mike Fannin, president and editor of The Star.
