In the News
Wiley (Privacy in Focus): Political Privacy Law Update
By Lee E. Goodman
Privacy in Focus has been tracking developments in the U.S. Supreme Court’s consideration of three petitions for certiorari seeking Court review of the California Attorney General’s (AG) mandatory donor-disclosure rule for nonprofit organizations. The Court requested a response from the California AG in Institute for Free Speech v. Becerra (No. 19-793). The AG filed his opposition brief on May 1. The Institute for Free Speech replied on May 15. All three cases now are fully briefed and awaiting a Court decision on the grant of certiorari. However, they do not appear on the upcoming cert conference.
In his opposition, the state AG argues that the Internal Revenue Service (IRS) already requires nonprofit organizations to disclose their donors to the IRS on forms known as “Schedule B,” and all California does is require the nonprofits to send a copy of that document to California as a condition of soliciting donations from California citizens. The AG argues that this disclosure of donors advances the AG’s consumer protection functions and is not a significant burden on the free-association rights of nonprofits.
The Institute for Free Speech’s reply emphasizes that all donor-disclosure mandates necessarily burden free-association rights by chilling donors from associating. Moreover, the Institute argues the state must demonstrate a greater, more specific need for the information than California can show.
New from the Institute for Free Speech
The Federalist’s Disappearing Comments Section Is a Preview of What Happens if We Revoke Section 230
By Luke Wachob
On Tuesday, NBC News reported that Google would ban two websites, ZeroHedge and The Federalist, from its advertising services. Such a ban could be an enormous blow to an ad-supported website. By some measures, Google Ads commands over 30% of the entire digital ad business worldwide.
A Google spokesperson added that The Federalist was in violation of its policies, not because of its articles, but because of content in its readers’ comments. The Federalist responded by immediately removing all user comments from its website. Google then said the matter was resolved, and the site would not be demonetized.
For some on the right, the hypocrisy angle of this story is seemingly too good to pass up. Some Republicans (and some Democrats) have called for revoking federal law’s protection of online platforms against liability for user-generated content. Many legal experts argue that these protections, established in 1996 through Section 230 of the Communications Decency Act, are essential to internet platforms’ ability to function because they could not possibly vet the billions of pieces of content that users post every day. Yet here is one of those very platforms punishing a conservative news site for user-generated content.
As is often the case, the simple narrative hides some contradictory facts. Mike Masnick of Techdirt noted that articles on his site had also faced temporary demonetization from Google Ads in the past over the same exact issue, throwing a bit of cold water on conservatives’ Big Tech bias theory. But Google’s policies appear to be enforced in a complaint-driven process, which creates problems of its own. NBC News put these two sites under a microscope and brought the results to Google. Will they do the same for left-leaning outlets? Or will a right-leaning site, like say, Fox News, raise similar issues with Google over comments on a progressive blog?
Congress
Multichannel News: Bill Banning Microtargeted Political Ads Draws Crowd
By John Eggerton
Rep. Anna Eshoo (D-Calif.) has collected a number of supporters for her bill banning microtargeted political ads.
Those backers include Mozilla, Common Cause, the Center for Digital Democracy, and the Open Markets Institute.
The idea behind the bill is to battle coordinated disinformation/misinformation campaigns.
H.R. 7014, the Banning Microtargeted Political Ads Act, would prohibit social media sites, streaming services and ad networks from targeting political ads based on demos or behavioral data.
It applies to all electioneering communications, meaning both candidate and noncandidate ads.
The Federal Election Commission will enforce the prohibition and there will be a private right of action as well, class action suits for example.
The bill does allow ads targeted by state, municipality and congressional district and targeted to individuals who opt in to targeted ads.
“Political speech is critical to democratic discourse, but organized disinformation and organic misinformation use microtargeting and prevent ideas from being debated in the open. Changing how paid political messaging works online could be a powerful step forward in response to the ongoing challenges of disinformation and manipulation of our democratic processes, whether by candidates, PACs, or others. We appreciate this legislation and the thoughtfulness of Rep. Eshoo in moving this discussion forward,” said Heather West, head of Americas public policy at Mozilla.
FEC
Federal Election Commission: FEC elects James E. “Trey” Trainor as Chair, Steven T. Walther as Vice Chair for the remainder of 2020
At its open meeting today, the Federal Election Commission elected James E. “Trey” Trainor III as Chair and Steven T. Walther as Vice Chair for the remainder of 2020.
Dave Levinthal Blog: Q&A with Trey Trainor, the FEC’s newest commissioner
By Dave Levinthal
I spoke with [FEC commissioner, now Chair] Trey Trainor by phone on June 9. Among the thornier issues discussed: his skeptics, his legal work for Trump and Republicans, FEC commissioner infighting, regulation of the Internet and the term “dark money.” We also tackled how the FEC will grapple with that massive backlog of cases – there are more than 350 pending before the agency – and whether commissioners will agree to defend the agency in court against lawsuits alleging the FEC is taking too long to rule on certain cases.
This interview is lightly edited for length and clarity: …
Q: If there’s one term that gets thrown around at FEC meetings in one shape or another almost every meeting, it’s the term “dark money.” What does that term mean to you, and what does it mean to you in the context of being a commissioner?
Trainor: It’s really interesting for me because I’ve never really been able to nail anyone down with regard to what “dark money” is. Because “dark money” is always what the other side is doing that I don’t like. It may still be fully within the bounds of legality, but it’s money that I don’t like. That’s typically how I see the “dark money” issue coming up. And especially now that you’ve seen both sides of the political aisle become very active in the independent expenditure world, I’m not even sure that the appetite is out there to address it or if it even needs to be addressed beyond where we sit right now. There are reporting mechanisms in place. At least right now, there are lower court decisions that are requiring the disclosure of donors, at least those within the quarter when the expenditures being made. I don’t know how those will hold up to scrutiny going forward. But a lot of that issue is playing out the courtroom, not necessarily at the commission.
Center for Responsive Politics: FEC to take public comments on petition to close ‘Bloomberg loophole’
By Karl Evers-Hillstrom
The Federal Election Commission agreed Thursday to take public comments on a petition to close a loophole that allowed former presidential candidate Michael Bloomberg to transfer millions to the Democratic National Committee.
Holding its first meeting in 300 days after having its quorum restored by the Senate, the FEC unanimously voted to advance a petition brought by conservative group Citizens United that aims to end the “Bloomberg loophole.”
Bloomberg transferred $18 million from his self-funded presidential campaign to the DNC in March, abusing a rule that allows candidates to funnel unlimited amounts of leftover campaign cash to party committees. Bloomberg was the first candidate ever to spend $1 billion on a political campaign, and the first to transfer massive amounts of their own money to a political party through a campaign committee…
Individuals are only allowed to donate $35,500 to the DNC’s main account in the 2020 election cycle. Bloomberg’s transfer is 500 times larger…
Citizens United lawyer Michael Boos wrote that although Bloomberg was a legitimate candidate for office, there is nothing in current regulations to stop wealthy individuals from pouring millions into a short-lived political campaign, then withdraw their candidacy and funnel that money to their preferred party committee.
FCC
TechCrunch: FCC Commissioner disparages Trump’s social media order: ‘The decision is ours alone’
By Devin Coldewey
FCC Commissioner Geoffrey Starks has examined the president’s executive order that attempts to spur the FCC into action against social media companies and found it wanting. “There are good reasons for the FCC to stay out of this debate,” he said. “The decision is ours alone.” …
Starks gave his take on the topic in an interview with the Information Technology and Innovation Foundation, a left-leaning think tank…
“The executive order definitely gets one thing right, and that is that the president cannot instruct the FCC to do this or anything else,” he said. “We’re an independent agency.” …
“The broader debate about section 230 long predates President Trump’s conflict with Twitter in particular, and there are so many smart people who believe the law here should be updated,” Starks explained. “But ultimately that debate belongs to Congress. That the president may find it more expedient to influence a five-member commission than a 538-member Congress is not a sufficient reason, much less a good one, to circumvent the constitutional function of our democratically elected representatives.” … [Starks continued:]
“The First Amendment allows social media companies to censor content freely in ways the government never could, and it prohibits the government from retaliating against them for that speech,” he said. “So much – so much – of what the president proposes here seems inconsistent with those core principles, making an FCC rulemaking even less desirable.”
Free Speech
Los Angeles Times: Those who exercise free speech should also defend it – even when it’s offensive
By Suzanne Nossel
Protests sparked by the murder of George Floyd and systemic racism have been boisterous, righteous assertions of the constitutional liberties of free assembly, expression and speech – even as police have too often breached those rights. Yet as a wider precept, free speech is losing ground. As activists take to the streets demanding systemic change, they should consider that a robust defense of free speech is crucial to their goals…
[A]s we rightly rush to address the harms speech can sometimes inflict (through official condemnations, counter-speech and other means), we should keep in mind the risks of relying on firings, “cancellations,” and official punishments for expression. Even if such sanctions are levied in the name of preventing or deterring genuine harm, they embolden authorities to dictate what speech is off limits. Governments and institutions wielding such power (including the Trump administration) mostly use it not to combat racism and bigotry, but rather to suppress dissent and muzzle critics. Even well-intended efforts to enumerate and ban offensive speech can boomerang, leading violators to adopt stealthy channels or coded language to purvey hateful messages. High-profile punishments for speech can reverberate, instilling a widespread excess of caution that shuts down pressing questions and worthy points.
Online Speech Platforms
CNN Business: Facebook says it took down Trump ads because they used Nazi symbol
By Donie O’Sullivan
Facebook on Thursday said it had taken action against ads run by President Trump’s re-election campaign for breaching its policies on hate. The ads, which attacked what the Trump campaign described as “Dangerous MOBS of far-left groups,” featured an upside-down triangle.
The Anti-Defamation League said the triangle “is practically identical to that used by the Nazi regime to classify political prisoners in concentration camps.”
“We removed these posts and ads for violating our policy against organized hate. Our policy prohibits using a banned hate group’s symbol to identify political prisoners without the context that condemns or discusses the symbol,” Andy Stone, a Facebook spokesperson, told CNN Business…
The ads targeted the far-left group antifa, calling on Trump supporters to back the President’s calls to designate the group a terrorist organization.
Responding to criticism of the ad earlier Thursday, the Trump campaign claimed the red triangle was “a symbol widely used by Antifa.” …
The ADL said Thursday that some antifa activists have used the symbol, but it is not particularly common…
In a statement, Tim Murtaugh, director of communications for the Trump campaign, insisted the red triangle is a “symbol used by Antifa.”
Murtaugh added, “We would note that Facebook still has an inverted red triangle emoji in use, which looks exactly the same, so it’s curious that they would target only this ad.”
New York Times: Twitter Labels Trump Tweet About ‘Racist Baby’ as Manipulated Media
By Kate Conger
Twitter added a warning to a post from President Trump about a racist baby on Thursday, saying it contained manipulated media designed to mislead people.
Mr. Trump’s tweet, which he posted earlier on Thursday, featured a video of two toddlers running down a sidewalk. The video had been altered to appear as if CNN had broadcast it, along with a fake chyron that claimed, “Racist baby probably a Trump voter.” The video went on to accuse “fake news” of stoking misinformation…
Twitter added the warning later on Thursday after the tweet had been viewed nearly four million times, tagging it with an exclamation mark and the words “manipulated media.” The company’s policies prohibit sharing videos, photos or audio that “have been deceptively altered or fabricated” to trick viewers and have the potential to cause harm. It was the first time Twitter used that particular label on one of Mr. Trump’s posts…
Nicholas Pacilio, a spokesman for Twitter, said Mr. Trump’s tweet “has been labeled per our synthetic and manipulated media policy to give people more context.” …
The manipulated media label does not come with restrictions preventing Mr. Trump’s message from being shared and liked.
Reclaim The Net: YouTube CEO: We’ll remove “hate speech” from elected officials but media outlets are allowed to reupload it with their own “context”
By Tom Parker
Now YouTube CEO Susan Wojcicki has revealed that if a politician gets their video taken down for containing hate speech, the mainstream media is allowed to reupload the clip because they provide “context,” creating a situation where the original statements from a politician are no longer available and mainstream media outlets are the only source of that statement.
Wojcicki made the comments during an interview with The Washington Post when she was asked whether YouTube would remove President Trump’s videos if they contained statements that were similar to those made in his tweet that was censored by Twitter last month…
“If a video was uploaded by a politician, any elected official, and it had something that crossed our line with regards to hate speech or violence, inciting violence, we would remove that content.
But you, Washington Post, would probably cover it and you may have a clip that we removed but because you’re providing commentary we would not remove the Washington Post version of it.
So that would still be there and users would still have the information about what’s happening in our society but the actual clip coming directly from that politician would not be accessible anymore.”
The Verge: Turning off political ads on Facebook could have unpredictable consequence
By Casey Newton
[S]tarting soon, you’ll be able to remove political ads from your Facebook feed. (Most political ads, anyway: Facebook cannot perfectly identify every remotely “political” ad, and so you may see some anyway.) …
I always think it’s worth noting when, in a democracy, a major media outlet enables the restriction of political speech – even when its intentions are good. Sure, there’s the journalist’s tendency to favor more speech in most contexts. But there’s also an awareness that placing limits on one kind of political speech can often benefit other forms of political speech. Limiting political speech in ads, for example, could favor incumbents, who have less need of advertising.
It could also change the kinds of political speech people see on Facebook. Advertising executives there have told me in the past that political ads tended to be less inflammatory than regular posts on the whole, because fewer people want to see inflammatory messages and thus they can be more expensive to distribute. But unpaid partisan engagement bait circulates widely through Facebook echo chambers…You can imagine a world where partisans disable political ads, see nothing but links to articles that flatter their worldview, and withdraw further into their echo chambers.
New York Post: Facebook closes loophole in political ads ahead of US elections
By Nicolas Vega
Facebook said this week it will close what critics have called a glaring loophole when it comes to disclosures on political ads.
Moving forward, the social network said it will affix labels to political ads shared by users on their own feeds.
Previously, political ads had a “paid for by” disclaimer attached to them when shared by a politician, but the label disappeared when users shared the ads to their own feeds, which critics said undermined its utility and allowed misinformation to continue spreading unchecked.
Facebook created the label in 2018 after facing backlash for failing to stop Russia from using the social network to influence the 2016 presidential election.
“Previously the thinking here was that these were organic posts, and so these posts did not necessarily need to contain information about ads,” Sara Schiff, a Facebook product manager, told Reuters.
Schiff said that Facebook now considers it important to disclose if a post a user is sharing “was at one point an ad.”
Facebook introduced a similar labeling approach for state news media earlier this month, but that label also sometimes drops off with sharing and does not appear when users post their own links to those outlets.
Washington Post: Zuckerberg says he’s ‘disgusted’ by Trump’s rhetoric. It’s just crocodile tears.
By Joe Scarborough
[Facebook CEO Mark] Zuckerberg clearly remains unfazed by warnings over his site’s content, even when those raising red flags are nearly 150 scientists funded by his own family’s institute. In a letter this month, those scientists pleaded with the Facebook chief executive to stop the social network from spreading racist rhetoric, misinformation and incendiary language “that harms people or groups of people, especially in our current climate that is grappling with racial injustice.”
Zuckerberg responded to these pleas with little more than a dribble of crocodile tears. While proclaiming his concern over the raw, unfiltered sewage of propaganda that he allows his site to spew daily, the CEO continues to profit mightily off hate groups and conspiracy theorists, whose dangerous ideas are given a long reach on Facebook…
The more critical question now is why Congress continues to allow Silicon Valley billionaires such as Zuckerberg, Sandberg and Twitter’s Jack Dorsey – whose company is likewise not liable for its reckless and damaging practices – to rake in billions by publishing violent rhetoric, deadly misinformation, deranged conspiracy theories and foreign interference that debase America’s culture, coarsen its political debate and erode our very democracy.
ALEC’s “Across the States” podcast: A Free Market Approach to Content Moderation w/ John Samples
Hosted by Dan Reynolds
Social media and free speech: they truly go hand in hand. Knowing this, Facebook recently started funding an oversight board made up of independent individuals as a non-governmental and free market solution to oversee content moderation on the platform. Joining host Dan Reynolds to discuss this is John Samples, a member of the new oversight board and Cato Institute Vice President, and Jonathon Hauenschild, Director of the Communications and Technology Task Force at ALEC.
The States
Sludge: Grassroots NY Challengers Take on the Pandemic and the Big Money Machine
By David Moore
The 2020 New York state budget included a public matching system for campaign financing that is set to take effect after the November 2022 election, enabling small-donor-backed candidates to run competitive campaigns…
“Public financing of elections-which means true small donor matching funds-will open doors for qualified candidates to run for office, and curtail the pay to play culture in our politics,” Susan Lerner, executive director of Common Cause New York, told Sludge. “The pandemic has only heightened the need for true campaign finance reform that restores accountability to the voters, and gives average people a place at the table.” …
Michael J. Malbin, the co-founder and executive director of the Campaign Finance Institute (CFI) and a professor of political science at SUNY-Albany, told Sludge that the commission’s plan was designed to increase political representativeness at the local level.
“The New York Reform Commission allowed gubernatorial candidates to raise money and have it matched anywhere in the state, while legislative candidates would only match contributions from within a district,” Malbin said. “What they were doing was to give candidates and supporting organizations an incentive to base campaigns on local organizations and local networks. I predict this will have the effect of drawing out and helping to support more candidates with more diverse political networks.” …
The CFI study concludes that even just taking into account contributions from 2018 donors, nearly all candidates would be better off with the public matching funds, and that participation is likely to grow.
