In the News
Bloomberg Government: IRS Rule Change Could Aid Foreign Election Meddling, Critics Say
By Kenneth P. Doyle
Transparency advocates are looking for a legislative fix after the IRS approved a rule they say opens the door to allow politically active nonprofits to take foreign money to influence U.S. elections, without being detected.
“At a time when over $10 billion total is expected to be spent during this election season, the requirement that organizations (like the National Rifle Association) report their donors to the IRS was key to ensuring that the foreign-money ban on elections was enforced,” Campaign Legal Center President Trevor Potter said…
Others hailed the move, which was announced Tuesday, saying it would prevent accidental disclosure of information always meant to be confidential.
“Everyone has the right to support social causes without being harassed,” David Keating, president of the nonprofit Institute for Free Speech, said in a statement.
Under the new rule, the IRS will stop routinely collecting information identifying specific donors to tax exempt groups, except for charities, for which donations are tax deductible. Previously, the IRS collected this information but didn’t make it public…
Nonprofits known to critics as “dark money” groups have spent nearly $1 billion to influence federal elections over the last decade, according to reports filed with the FEC. And much of their election-related spending isn’t reported because groups skirt campaign finance rules by avoiding specific words of advocacy or spending during certain time periods not covered by the rules.
Trump Administration
Reuters: Trump to sign executive order on social media on Thursday: White House
By Jeff Mason and Nandita Bose
U.S. President Donald Trump will sign an executive order on social media companies on Thursday, White House officials said after Trump threatened to shut down websites he accused of stifling conservative voices.
The officials gave no further details. It was unclear how Trump could follow through on the threat of shutting down privately owned companies including Twitter Inc. The company declined comment.
The dispute erupted after Twitter on Tuesday for the first time tagged Trump’s tweets about unsubstantiated claims of fraud in mail-in voting with a warning prompting readers to fact check the posts…
The American Civil Liberties Union said the First Amendment of the U.S. Constitution limits any action Trump could take…
“Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen,” Trump said in a pair of additional posts on Twitter on Wednesday.
The president, a heavy user of Twitter with more than 80 million followers, added: “Clean up your act, NOW!!!!”
Republican Trump has an eye on the November election. “Big Tech is doing everything in their very considerable power to CENSOR in advance of the 2020 Election,” Trump tweeted on Wednesday night. “If that happens, we no longer have our freedom.”
Washington Post: Trump expected to sign executive order that could threaten punishment against Facebook, Google and Twitter over allegations of political bias
By Tony Romm and Josh Dawsey
President Trump is preparing to sign an executive order Thursday…
Trump’s directive chiefly seeks to embolden federal regulators to rethink a portion of law known as Section 230, according to the two people, who spoke on the condition of anonymity to describe a document that could still evolve and has not been officially signed by the president…
The law is controversial. It allows tech companies the freedom to police their platforms for abuse without fear of lawsuits. But critics say those exceptions have also allowed some of Silicon Valley’s most profitable companies to skirt responsibility for the harmful content that flourishes on their online platforms, including hate speech, terrorist propaganda and election-related falsehoods.
The order would prompt federal officials to open a proceeding to reconsider the scope of the law, the people familiar with the document said. A change could mean potentially dramatic free-speech implications and wide-ranging consequences for a broad swath of companies reliant on doing [online business.]
The order would also seek to channel complaints about political bias to the Federal Trade Commission, which would be encouraged to probe whether tech companies’ content-moderation policies are in keeping with their pledges of neutrality. It would also require federal agencies to review their spending on social media advertising…
“In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand-pick the speech that Americans may access and convey online,” according to an undated draft version of the executive order obtained by The Washington Post late Wednesday.
The Courts
Reason (Volokh Conspiracy): Freedom Watch and Laura Loomer Lose Lawsuit Against Social Media Platforms
By Eugene Volokh
In Freedom Watch, Inc. v. Google Inc., decided today by D.C. Circuit Judges Judith Rogers, Thomas Griffith, and Raymond Randolph, Freedom Watch and Loomer sued “Google, Facebook, Twitter, and Apple … alleging that they conspired to suppress conservative political views.” No, said the court (correctly, in my view):
[A.] The plaintiffs’ First Amendment claim failed because “the First Amendment ‘prohibits only governmental abridgment of speech.’” …
[B.] The plaintiffs’ antitrust claim failed because there was no evidence of an anticompetitive behavior by platforms…
[C.] The plaintiffs’ claim under D.C.’s public accommodation statute failed because the statute doesn’t apply to online service providers…
I would add that the D.C. ban on discrimination based on “political affiliation” in places of public accommodations is limited to discrimination based on “belonging to or endorsing any political party.” Discrimination on mere ideological beliefs is not covered, as the D.C. Court of Appeals expressly held in Blodgett v. University Club (D.C. 2007).
I also think that 47 U.S.C. § 230 would preclude liability for service providers’ decision to block material that they view as offensive. And I think (though here matters are less firmly established) that state and D.C. public accommodations laws can’t apply to this fundamentally interstate medium, given the dormant Commerce Clause. But the court didn’t have occasion to reach those questions.
Courthouse News: San Francisco Mayor Dodges Suit Over Removal of ‘Racist’ Billboards
By Nicholas Iovino
San Francisco Mayor London Breed cannot be sued for allegedly pressuring advertising firms to pull a political rival’s billboards that were denounced as racist by the mayor and several other elected officials, a federal judge ruled…
Failed mayoral candidate Ellen Zhou sued Mayor Breed and two billboard advertising firms…in November last year, after the companies took down two of her campaign billboards…
Zhou argued in her lawsuit that Breed used her government position to “pressure and encourage” advertising firms to remove her billboards and suppress her speech.
In a 13-page ruling, U.S. District Judge William H. Orrick III rejected that theory. He cited a 1984 Third Circuit decision, R.C. Maxwell Co. v. New Hope, which found a town government’s letter urging a landlord to take down billboards was not coercive.
“The landlord’s ‘nebulous desire’ to stay in the town council’s good graces was not enough to give rise to a constitutional claim,” Orrick wrote.
Zhou failed to show Breed provided “such significant encouragement” that the billboard companies’ decisions to pull the ads were “effectively government decisions,” Orrick concluded.
“No one threatened legal action or any other negative ramifications to encourage removal of the billboards,” Orrick wrote.
Times of San Diego: OAN to Appeal Judge’s Ruling to Toss Rachel Maddow Defamation Suit
By Ken Stone
A San Diego federal judge Friday dismissed a $10 million defamation lawsuit filed by the owners and operators of San Diego-based One America News Network against MSNBC and political commentator Rachel Maddow.
Last summer, the liberal host told her viewers that the Trump-friendly conservative network “really literally is paid Russian propaganda.”
U.S. District Judge Cynthia Bashant dismissed Herring Networks’ suit with prejudice, ruling “there is no set of facts that could support a claim for defamation based on Maddow’s statement,” made during a July 22, 2019, segment of her show.
Robert Herring Sr., the 78-year-old owner and founder of the Trump-friendly network based in San Diego, told Times of San Diego that he would appeal…
Bashant ruled that Maddow’s statement “is an opinion that cannot serve as the basis for a defamation claim,” and thus is protected under the First Amendment.
The judge ruled that most viewers would be able to conclude that Maddow was forwarding her opinion when she made the July 22 statements.
New York Daily News: Tulsi Gabbard drops defamation suit against Hillary Clinton
By Stephen Rex Brown
Former Democratic presidential hopeful Tulsi Gabbard dropped her defamation lawsuit against Hillary Clinton Wednesday, citing the coronavirus pandemic and importance of defeating President Trump in November.
Gabbard sued Clinton in January for suggesting she was a “Russian asset” whose candidacy helped Trump’s reelection chances.
Media
Times of San Diego: Seattle Judge Throws Out COVID-19 ‘Hoax’ Suit Against Fox News
By Ken Stone
A nonprofit watchdog group in Washington state had “laudable” aims, a Seattle judge said Wednesday, but he threw out its lawsuit targeting Fox News.
“WASHLITE’s professed goal in this lawsuit – to ensure that the public receives accurate information about the coronavirus and COVID-19 – is laudable,” said King County Superior Court Judge Brian McDonald.
But the way the Washington League for Increased Transparency and Ethics moved against the top-rated cable news channel “runs afoul of the protections of the First Amendment,” he said in an eight-page order…
In its original complaint, WASHLITE called out Fox News host Sean Hannity for leading viewers to believe the pandemic was a “hoax.” Fox News argues Hannity never said that.
Judge McDonald noted that in many key U.S. Supreme Court decisions involving the First Amendment, “the motives for seeking to curtail or prohibit speech were understandable and could be considered righteous.”
But he said the Supreme Court recognized that “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Congress
The Hill: Republicans working on legislation to strip Twitter of federal liability protections
By Maggie Miller
Sen. Josh Hawley (R-Mo.) and Rep. Matt Gaetz (R-Fla.) on Wednesday separately announced they were both working on legislation to strip Twitter of federal protections that ensure the company is not held liable for what is posted on its platform.
The lawmakers began work on legislation following Twitter’s decision to add warnings to two tweets by President Trump this week…
Both Hawley and Gaetz argued that Twitter’s decision to flag the tweets called its legal liability protections under Section 230 of the Communications Decency Act into question…
Hawley sent a letter to Twitter CEO Jack Dorsey on Wednesday questioning why the platform should be given Section 230 protections and tweeted that he would soon introduce legislation to end “government giveaways” under the legal shield.
“If @Twitter wants to editorialize & comment on users’ posts, it should be divested of its special status under federal law (Section 230) & forced to play by same rules as all other publishers,” Hawley tweeted. “Fair is fair.” …
Gaetz also announced the action on Wednesday against Twitter, tweeting that he was “working on legislation to revise Section 230 so we don’t have election interference from companies like Twitter.”
Donor Privacy
Bloomberg Tax: Burden Shifts to States After IRS Eases Donor-Disclosure Rules
By Sam McQuillan
It’s now on states to seek more information about nonprofit donors if they want it, after the IRS rolled back disclosure requirements.
The IRS nixed a requirement that organizations exempt under tax code Section 501(c), except for 501(c)(3) charities and Section 527 political organizations, include names and addresses of donors who contribute $5,000 or more on tax forms they send to the agency. The final IRS rules (T.D. 9898), issued Tuesday, left it up to states to take a different path.
“To the extent that any state determines that the burdens of collecting and maintaining such information are justified by its own needs, such a state is free to require reporting of such information to the state and to maintain the information at the state’s own expense,” the IRS said…
The broader issue of donor disclosure was at the center of Americans for Prosperity Foundation v. Becerra, in which a U.S. Court of Appeals for the Ninth Circuit panel ruled a conservative political action committee must disclose information on its biggest donors to the state attorney general. That fight is now before the U.S. Supreme Court, where the justices have invited the solicitor general to file a brief reflecting the government’s views as they consider whether to take the case…
Nineteen attorneys general-including those from New Jersey, New York, and California-commented on the proposed rules, telling the IRS that no longer receiving the information from the agency would “require a reorientation of processes that would cost the states time and money.”
Independent Groups
Politico: POLITICO Playbook
By Anna Palmer and Jake Sherman
Jesse Lehrich — an Obama and Hillary Clinton alum — and Nicole Gill are launching Accountable Tech, which is aimed at combating misinformation online. It’s a 501(c)(4), which does not need to disclose its donors. Bios … Why they’re doing it … Poll memo
Axios: New calls to curtail tech’s targeted political advertising
By Margaret Harding McGill and Kyle Daly
Ranking Digital Rights, a research program affiliated with the New America think tank, is calling on Facebook and other online platforms to limit targeted advertising in the lead-up to the November election in a report released Wednesday…
The Ranking Digital Rights report says severely limiting or altogether eliminating advertisers’ ability to target individuals online would “dramatically reduce the flow and impact of election-related disinformation and misinformation on social media.”
In the short term, the group wants Facebook and Google to only let political advertisers target people by geographic area, and offer a transparency mechanism to provide insight on policy enforcement, RDR senior policy analyst Nathalie Maréchal told Axios.
“If I had my magic wand, I would apply this to all ads,” Maréchal said. “But if they would start with political ads only between now and November, that would be much better than the current situation.”
Online Speech Platforms
Wall Street Journal: Twitter Plays Into Trump’s Hands
By The Editorial Board
[President Trump’s tweets about mail-in voting this fall] are now appended with a hazard symbol urging users to get the, er, truth according to some anonymous Twitter editor…
Now that the precedent has been set, Democrats will no doubt demand that Twitter flag Mr. Trump’s every other missive. Fact check: Joe Biden got a good night’s rest and is decidedly not sleepy.
When Republicans demand the same, they’ll have a point. “Medicare for All will cost substantially less than the status quo,” Bernie Sanders tweeted Jan. 14… Is Twitter going to verify what the leaders of Iran are posting? Any fact-checking can’t help but be wildly inconsistent, and it will inevitably be attacked as arbitrary and partisan.
All of this means that CEO Jack Dorsey is handing Mr. Trump evidence to prove his point that technology elites are out to get the President and his followers. Mr. Dorsey is teeing up Twitter (and maybe other social-media sites) for government monitoring and political control. “Twitter is completely stifling FREE SPEECH,” Mr. Trump wrote on Twitter (of course), “and I, as President, will not allow it to happen!” Watch and weep as public support leaps for government regulation of internet content, a Fairness Doctrine for social media.
Reason (Volokh Conspiracy): Twitter’s Speech Isn’t “Stifling Free Speech”
By Eugene Volokh
[1.] [S]uch labeling by Twitter isn’t stifling free speech-it’s Twitter management exercising their own free speech: They are letting [President Trump] speak, but responding to the speech with their own. That’s their First Amendment right, just as it’s [President Trump’s] First Amendment right to criticize them.
Now if they did take down his post, then one could argue that would be stifling free speech. It wouldn’t be a violation of the Free Speech Clause, because Twitter is a private company. But free speech is a broader idea than just the freedom from government suppression; one could sensibly say that a private entity is undermining free speech in various ways, especially when the entity promotes itself as a forum for public discourse…
[2.] The President, of course, has no power to stop Twitter from doing this, partly because he can’t create new laws and partly because Twitter’s speech is constitutionally protected…
[3.] Finally, there is a separate objection here: that Twitter is “interfering” in the election by throwing its massive weight behind one particular position. But the First Amendment protects our right to speak, at least under Citizens United…
In any event, though, even if one concludes that speech by rich and powerful institutions or individuals that may influence elections is “interference” that should be condemned, it is still not “stifling FREE SPEECH.”
(By the way, it’s not clear where the Citizens United dissenters would have drawn the line between newspaper corporations, which they said do have a First Amendment right to speak about candidates, and other corporations, which they said don’t have such a right. It’s therefore not clear which side of the line Twitter would fall on-recall that Citizens United was a video production company, and the dissenters would have ruled against it. But their position didn’t prevail.)
By Yael Halon
Facebook CEO Mark Zuckerberg has called out Twitter for attaching a fact check to a tweet from President Trump, telling Fox News’ Dana Perino that privately-owned digital platforms should not act as the “arbiter of truth.”
“We have a different policy than, I think, Twitter on this,” Zuckerberg told “The Daily Briefing” in an interview scheduled to air in full on Thursday.
“I just believe strongly that Facebook shouldn’t be the arbiter of truth of everything that people say online,” he added. “Private companies probably shouldn’t be, especially these platform companies, shouldn’t be in the position of doing that.”
Zuckerberg made the comment after President Trump warned social media giants that the federal government could “strongly regulate” or “close them down” if they continue to “silence conservative voices.”
“I have to understand what they actually would intend to do,” Zuckerberg said in response to the president’s warning. “But in general, I think a government choosing to to censor a platform because they’re worried about censorship doesn’t exactly strike me as the the right reflex there.”
The States
KFOR: Stitt signs controversial bill that prohibits Israel boycotts
By K. Querry, Associated Press
Gov. Kevin Stitt has signed a controversial bill that prohibits state contracts with companies that boycott Israel.
House Bill 3967 states that Oklahoma shall not enter into contracts with companies that advocate boycotts, divestments or sanctions against Israel. The bill’s author, Rep. Mark McBride of Moore, says the bill recognizes Israel as an important trading partner and ally in the Middle East.
On Thursday, Gov. Stitt signed the measure into law.
In March, attorneys with the Oklahoma chapters of the American Civil Liberties Union and Council on American-Islamic Relations warned that the measure is unconstitutional.
Mike Redman, the interim director of ACLU of Oklahoma, said the U.S. Supreme Court has recognized that economic and political boycotts are a form of political speech enshrined and protected by the First Amendment.
“The ACLU has a long history of challenging this type of legislation,” Redman said.
Federal judges in Arizona, Kansas and Texas have blocked similar laws from taking effect, while a judge in neighboring Arkansas let a similar law stand.
