In the News
FIRE: First Amendment News 280
By Ronald K. L. Collins
This from Eugene Volokh over at the Volokh Conspiracy:
We’ve just filed a friend-of-the-court brief asking the Oregon Supreme Court to protect such equal rights, and overturn Oregon precedent that denies such rights.
Here’s the heart of the amicus brief, in Lowell v. Wright, filed on behalf of:
- the Institute for Free Speech and the Electronic Frontier Foundation;
- Oregon law professors William Funk (Lewis & Clerk), Ofer Raban (U. of Oregon), and Kyu Ho Youm (U. of Oregon); and
- bloggers Prof. Glenn Harlan Reynolds, Howard Bashman, SCOTUSblog, and me.
(Many thanks to Owen Yeates of the Institute for Free Speech, who is our local counsel, to Sam Gillen, a UCLA law student who worked on the brief with me, and of course to Scott and Cyan Banister, for generously supporting our UCLA Amicus Brief Clinic.)
This case presents three important related questions:
(1) Does Oregon law unconstitutionally deny ordinary Oregonians the protections offered by Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974), which limits presumed damages in libel cases brought by private figures?
(2) Does Oregon law unconstitutionally discriminate in this respect against ordinary speakers, denying them the same First Amendment rights that the institutional media enjoy?
(3) Is it unsound for Oregon law to differ from the Ninth Circuit precedent that covers virtually identical lawsuits that happen to be within the federal courts’ diversity jurisdiction?
Supreme Court
Philanthropy Roundtable: The Supreme Court May Soon Rule on Donor Privacy
By Debi Ghate
For those following donor-privacy issues, there was an important development in the case known as Americans for Prosperity Foundation v. Becerra in mid-December. The current status of this litigation is that the plaintiffs have petitioned the U.S. Supreme Court to take up the case for review, challenging the decision from the Ninth Circuit, which ruled against the plaintiffs. There have been 22 amicus briefs filed in support of AFP et al.’s petition for writs of certiorari, including one from The Philanthropy Roundtable.
The question before the court? “Whether California’s requirement that charitable organizations that fundraise in the State disclose to the state Attorney General’s office the identities of their substantial contributors violates the constitutional freedom of association.”
In considering this petition, the Court asked the Solicitor General what the federal government’s position is on this question. After a long wait, the Solicitor General has now issued that opinion in his own amicus brief. Bottom line: The Solicitor General supports granting the petition.
Given this development, it is very likely that the Supreme Court will soon take up this important case. It’s pivotal for philanthropic freedom on the donor-privacy front. And this news comes at a good time given Vice President-elect Kamala Harris’s connection to the policy being challenged in the case, as this article from National Review explains. Note also that the defendant, Xavier Becerra, has been tapped by Biden’s team to serve as the new secretary of health and human services.
[Ed. note: The Institute for Free Speech filed an amicus brief in AFPF v. Becerra in support of the petitioners. We also filed a related lawsuit challenging then-Attorney General Kamala Harris’s demand for nonprofit Schedule B information in IFS v. Becerra. Read more about that case here.]
The Courts
Washington Examiner: Federal court skeptical of Trump attempt to ban TikTok
By Nicholas Rowan
The U.S. Court of Appeals for the District of Columbia Circuit on Monday showed skepticism toward the Trump administration’s attempt to ban new downloads of the Chinese app TikTok…
In the December injunction against the government, U.S. District Court Judge Carl Nichols found that an attempt by the Commerce Department to ban the app was “arbitrary and capricious.” The government appealed that ruling, and in hearings Monday, the Justice Department argued before the D.C. Circuit that the government should be allowed to ban the app.
Thomas Byron, a senior appellate counsel at the Justice Department, explained that the federal government was seeking a “de facto ban” on the app by preventing people in the U.S. from using the app. TikTok users would still be able to see videos in their web browsers under the ban…
Judge Patricia Millett said this argument still seemed to cut people off from engaging in free speech on TikTok.
“By forbidding new users from joining, this prohibition bans a lot of Americans from joining the communications and exchanges that I think more than a quarter of the American population is already engaged in,” she said. “For all those people who wish to join in those communications – they’re banned. How are they not banned?”
Philanthropy
Wall Street Journal: The Left Wants a Philanthropy of the Few
By Elise Westhoff
It takes a fine sense of irony to start the season of giving by trying to limit Americans’ generosity. Yet that would be the outcome of a high-profile legislative proposal unveiled on Dec. 1, “Giving Tuesday,” conceived by former hedge-fund manager John Arnold and Boston College law professor Ray Madoff. The proposal would stifle Americans who want to support worthy causes but aren’t superrich. It would also further the goals of progressive politicians who seek to punish charitable giving they don’t like and can’t control.
The “Initiative to Accelerate Charitable Giving” is framed as a way to force the wealthy to give more. It enjoys the backing of some of America’s biggest and most prominent foundations, including Ford, Kresge, Kellogg and Hewlett. These large and powerful institutions are effectively trying to dictate how smaller and less influential donors give, which dovetails neatly with the goals of progressive politicians and activists.
Independent Groups
Atlanta Journal-Constitution: Senate leaders wage proxy war in Georgia with millions from rich donors
By Chris Joyner
Hedge fund billionaires and trade unions are funneling millions into Georgia’s Senate races through two powerful super PACs, which in turn are blanketing the state with negative ads in an attempt to motivate core voters to return to the polls Jan. 5…
Total ad spending on the runoff is already at $400 million, according to AdImpact, a Virginia-based data firm that tracks political spending. And two dueling super PACs, the Republican-backed Senate Leadership Fund and the Democratic Senate Majority PAC, are locked in a breakneck race to raise and spend as much as they can to turn out their voters.
According to reports filed earlier this month, the Republican-led PAC, with ties to Senate Majority Leader Mitch McConnell, reported $104 million in donations between Oct. 15 and Nov. 23, most of that coming in after the November general election. The Democratic PAC, associated with Senate Minority Leader Chuck Schumer, raised just a hair under $90 million.
Fox News: Dem tops watchdog’s list of 2020 political ethics violators
By Audrey Conklin
Democratic Montana Lt. Gov. Mike Cooney ranked No. 1 on the nonpartisan ethics watchdog group Foundation for Accountability and Civic Trust’s (FACT) list of political ethics violators that FACT compiled after it filed two ethics complaints against the failed gubernatorial candidate.
“Each year, we go back through what has happened and where we saw some of the biggest violations,” FACT Executive Director Kendra Arnold told Fox News. “This year, we saw there were two different kinds of groups of ethics violations: One was not following campaign laws to try and get into office, and the second was people in office using their positions for their own benefit or abusing taxpayer funds.”
The Montana Commissioner of Political Practices (COPP) in October found Cooney guilty of violating ethics rules when he coordinated an online advertising campaign with the Democratic Governors Association (DGA) and failed to report contributions he received from the association, which surpassed Montana’s contribution limits…
Arnold said her general rule of thumb in regard to ethics violations is: If it feels wrong, it probably is wrong.
“In our list, there are several candidates who posted direct information targeted to super PACs so they would spend money supporting their campaigns,” Arnold said. “I think that is absolutely intentional and there is no way around it. They are posting information they absolutely know will be used in that way.”
Online Speech Platforms
New York Times: How Do We Get to Herd Immunity for Fake News?
By Greg Weiner
We often speak of disinformation, propaganda and conspiracy theories going “viral.” If that is the case, platforms are unlikely to be able to treat every case. Viruses replicate and evolve… Lies will always find an outlet.
In a free society, the best response to viral misinformation is to fortify our immune systems against it, informationally speaking, by developing citizens who are motivated and able to distinguish truth from fiction. Perhaps more important, these citizens must be able to deal with the nuance in between…
A society of information consumers, content in their padded and custom-built realities, cannot be rescued merely by reforming social media. That is the equivalent of responding to a pandemic of viral disinformation by treating each infection only as it occurs. The goal should be herd immunity, achieved by educating citizens capable of – and interested in – careful thought.
Mashable: BitChute welcomes the dangerous hate speech that YouTube bans
By Matt Binder
If Parler is a conservative alternative to Twitter and MeWe is attempting to replicate Facebook, BitChute is best described as the right-wing alternative to YouTube.
Hate speech. Neo-Nazi propaganda. Anti-Semitic QAnon conspiracy theories. Even terrorism. It’s all there. And the platform keeps growing…
When YouTube finally banned “harmful” conspiracy theory content “used to justify real-world violence” in October, many QAnon spreaders were purged from the site.
Many of them already had a BitChute channel up and running with the expectation they’d eventually be booted from YouTube. And it wasn’t hard to move their content over. The company has an importer tool that makes it easy…
As the U.S. experiences another coronavirus spike, it looks like the same conspiracy theorists could, once again, spread misinformation through videos, this time on BitChute.
Reclaim the Net: Reddit’s largest conspiracy community launches independent forum after increased Reddit censorship
By Tom Parker
With the level of censorship continuing to escalate on Reddit, its most popular conspiracy community, r/conspiracy, has launched a new independent forum where users can freely post and discuss their ideas without being subject to Reddit’s increasingly strict rules…
Recent discussions on the new forum have focused on topics that are often heavily censored by Big Tech such as the coronavirus irregularities in the 2020 US presidential election…
Many of the forum’s users are welcoming its creation and noting its necessity in the face of mounting Reddit censorship. Several of these users have described how they were banned on Reddit for discussing a Hunter Biden laptop story which alleged that Democratic presidential nominee Joe Biden and his son Hunter had engaged in a corruption scandal…
This cross-platform censorship of such a major and influential story highlights why independent platforms such as Conspiracies.win are becoming increasingly crucial for users that want to post, discuss, and spread the word about stories that are subject to a Big Tech blackout.
Biden Transition
The Washington Post: The Technology 202: The Biden administration inherits a major challenge in addressing coronavirus misinformation
By Cat Zakrzewski
[E]xperts warn that falsehoods circulating online are undermining confidence in the coronavirus vaccine, as the first doses in the United States shipped yesterday. There’s growing pressure on Biden to come up with a strategy to address the misinformation and to ensure a smooth rollout of the vaccine when he enters office.
A group of Democratic lawmakers wrote a letter to Biden last week to urge that he add an expert to his coronavirus task force to address misinformation…
Tech companies have promised to take steps to combat the spread of misinformation. Facebook has said it will take down false claims that could include misinformation about the safety, efficacy, ingredients or side effects of the coronavirus vaccines…
But for years, accounts promoting the anti-vax movement and other dubious health information have flourished on such services. Just last week, Facebook removed a dozen of pages that were coordinating to share content from websites that posted falsehoods about the flu vaccine, covid-19 and other health issues. These websites had ten times more engagement than leading public health authorities on Facebook, including the Centers for Disease Control and Prevention and the World Health Organization.
Candidates and Campaigns
Politico: Trump antagonizes Republicans with Georgia fundraising ploy
By Alex Isenstadt
President Donald Trump couldn’t make it any clearer: He needs his supporters to fork over cash for the all-important Georgia Senate runoff elections.
“We MUST defend Georgia from the Dems!” he wrote in one recent text message. “I need YOU to secure a WIN in Georgia,” he said in another. “Help us WIN both Senate races in Georgia & STOP Socialist Dems,” he pleaded a few days later.
There’s just one hitch: Trump’s new political machine is pocketing most of the dough – and the campaigns of the Georgia senators competing in the Jan. 5 races aren’t getting a cent.
Trump’s aggressive fundraising blitz appears to be devoted to helping the party defend Georgia’s two Senate seats and, with them, the Senate majority. But the fine print shows that most of the proceeds are going toward Trump’s newly launched PAC, which he plans to use to fund his future political activities. Only a fraction is going to the Republican National Committee, which is investing $20 million into the runoffs…
Trump’s fundraising ploy has rankled senior Republicans, who worry small-dollar donations are being redirected away from the runoffs. The National Republican Senatorial Committee has reached out to the White House and RNC to express its concern and to question the decision, according to two people familiar with the discussions.
One America News Network: Sen. David Perdue Calls Out Jon Ossoff Over Out Of State Campaign Donations
By OAN Newsroom
Sen. David Perdue attacked his opponent Jon Ossoff and Kelly Loeffler’s opponent Raphael Warnock for taking the majority of their funding from out of state donors. It’s a strategy for Georgia Democrats, following Stacy Abrams’ run for governor.
In a statement, Perdue said he resents this form of campaign finance because Georgian’s should not have out-of-state residents meddling in their affairs. Critics have been quick to point out that Perdue and Loeffler have also received the majority of their…campaign financing from out of state donors, though there’s one major difference.
The Democrat candidates in Georgia have received more than double the funding received by Perdue and Loeffler. However, when it comes to funding within the state of Georgia, Perdue and Loeffler have received slightly more in funds than their opponents.
Political scientists argue this is a major red flag for Jon Ossoff and Raphael Warnock as many learned this election cycle, the candidate who spends the most money does not always win.
The States
Tampa Bay Times: Secret donor name in Florida Senate races wiped from records, replaced
By Samantha J. Gross and Ana Ceballos
The name of the mystery donor behind a $550,000 effort that helped promote no-party candidates in three key Florida Senate races, including one that is under investigation, was changed in campaign finance reports over the weekend.
While making changes to fix errors in campaign finance reports is common, election attorneys, say it is unusual to see political committees change the name of their sole donor two months after the fact.
Even so, two political committees – Our Florida and The Truth – amended campaign filings and changed the name of the entity that funded the political mailers from Proclivity to Grow United Inc., a tax-exempt corporation that is also registered in Delaware and whose address is a post office box in Denver.
Unlike Proclivity, however, Grow United Inc. has made other donations in Florida politics, including to the Florida Democratic Party and other affiliated committees, including the one that led Senate Democratic campaigns.
The amount and date of the donations to the political committees that purchased the political mail are identical. Treasurers who update information on their campaign finance records are doing so under oath.
“The Division of Elections allows a political committee or candidate to amend reports in order to fix errors,” said Natalie Kato, a Tallahassee-based elections and campaign finance attorney. “However, completely changing the sole donor to a political committee after the election is arguably not in the spirit of the law, and could be the basis of a complaint.”
Boston Herald: Massachusetts GOP Chairman Jim Lyons calls for federal, state investigations into party spending
By Lisa Kashinsky
The chairman of the Massachusetts GOP, who is up for re-election next month, has asked U.S. Attorney Andrew Lelling, the FBI, and three other state and federal agencies to investigate the state Republican Party’s financial operations under his predecessors – including allies of Gov. Charlie Baker.
Chairman Jim Lyons sent letters to Lelling, the FBI, the Internal Revenue Service, the Federal Election Commission and the state Office of Campaign and Political Finance detailing his “concerns with the fundraising activities of the Massachusetts Republican Party” as far back as 2013, according to copies of the letters that were obtained Saturday by the Herald. Lyons, in the letters dated Nov. 30, said he would send “over 250 pages” of exhibits outlining his claims.
In “narrative summaries” obtained by the Herald, Lyons levels the majority of his allegations against John Cook, Baker’s former finance director, claiming Cook “operated freely and with no accountability” from then-MassGOP Chairwoman Kirsten Hughes, a Baker ally, and longtime party treasurer Brent Andersen. Among his claims, Lyons alleged that “Cook directed over $1,000,000 to entities that he owned or controlled. These payments lacked any contracts,” according to the documents.
No charges have been filed or IRS actions made.
San Francisco Chronicle: Newsom bans advisers from lobbying as criticism mounts of ties to interest group consultants
By Alexei Koseff
Gov. Gavin Newsom introduced a lobbying ban for his paid political advisers, after weeks of criticism over his close ties to consultants who also work for corporate clients and other influential interests at the state Capitol.
In a memo shared by the governor’s office, Newsom’s chief of staff, Ann O’Leary, announced a new ethics policy Friday barring any of his paid campaign or political consultants from directly lobbying the governor, his staff or state agencies under his control. Newsom also committed to not hiring any registered lobbyists as paid consultants.
“To protect the public’s trust, it is important that those who are not officially part of the governor’s team, but whom the governor consults for campaign or political advice, also meet a high ethical bar,” O’Leary wrote.
