In the News
Overlawyered: Free speech roundup, campaign and political speech edition
By Walter Olson
“New legislation aimed at curbing foreign influence in U.S. elections also appears to be aimed at curbing Americans’ influence in U.S. elections.” [Cato Daily Podcast with Caleb Brown and Scott Blackburn of the Institute for Free Speech on SHIELD Act]…
“That unlimited right to lobby the lawmakers who make decisions that affect your life, your family, and your fortune is one that Sen. Elizabeth Warren (D-Mass.) thinks American businesses should not have.” [Peter Suderman; Bradley Smith and Luke Wachob, NRO] A federal appeals court says an independent Missouri activist doesn’t have to register as a lobbyist to talk to lawmakers [Cato Daily Podcast with Caleb Brown and Zac Morgan of the Institute for Free Speech]
FEC
The Hill: Election experts urge Trump, congressional leaders to end stalemate at FEC
By Alex Gangitano
Lobbyists and lawyers who specialize in U.S. elections wrote to President Trump and congressional leaders on Monday, urging the confirmation of another federal election commissioner to end “an untenable situation.”
The Federal Election Commission (FEC), the government’s campaign watchdog organization, only has three out of six commissioners, one shy of a quorum. Former FEC Vice President Matthew Peterson resigned in August and, since then, the organization has been unable to do its job…
Lobbyists and lawyers from Berke Farah, Foley & Lardner, Holtzman Vogel Josefiak Torchinsky, Miller and Chevalier, and Steptoe & Johnson, among others, sent a letter to Trump, Senate Majority Leader Mitch McConnell (R-Ky.), Senate Minority Leader Charles Schumer (D-N.Y.), Speaker Nancy Pelosi (D-Calif.) and House Minority Leader Kevin McCarthy (R-Calif.).
“Now that we are in the 2020 election year, with voting in presidential and congressional elections commencing in only a few weeks, it is critical to maintain public confidence in our national election systems,” they wrote.
The group identified themselves as lawyers who represent organizations and candidates regulated by federal campaign finance law on both sides of the aisle…
“This is an untenable situation. We urge you to work together and immediately identify, nominate, and confirm a full slate of qualified individuals to serve as Commissioners of the FEC,” the group of lawyers wrote.
IRS
By Frank Camp
On Friday, President Trump traveled to Miami, Florida, to attend a rally at King Jesus International Ministry church…
In a public letter dated December 31, Freedom From Religion Foundation Legal Director Rebecca S. Markert asked the Internal Revenue Service (IRS) to “commence an immediate investigation” into King Jesus International Ministry for alleged violations of their 501(c)(3) tax exempt status.
The letter reads in part:
“In urging congregants to come to a political rally, and in hosting the political rally, King Jesus Ministry appears to have inappropriately used its religious organization and 501(c)(3) status…”…
The Daily Wire spoke with FFRF’s co-founder Annie Laurie Gaylor, who said that “it’s hard to imagine a more flagrant violation of the Johnson Amendment than a church hosting a political rally for a presidential candidate…”
The Daily Wire also reached out to University of San Diego Professor Miranda Fleischer, who specializes in non-profit law and tax, in order to verify the legality of the “Evangelicals for Trump” rally.
Fleischer stated:
“From what I can gather from the story, this would blatantly violate the prohibition against all 501(c)(3) organizations (including, but not limited to churches) intervening in a political campaign. From what I can tell, not even a close call as to whether it violates the law, but of course, whether the IRS will do anything is another matter.”
Lobbying
Reason: Elizabeth Warren Wants To Tax Lobbying
By Peter Suderman
Among the freedoms guaranteed by the First Amendment is the right “to petition the Government for a redress of grievances.” You have a right, in other words, to communicate with the government, to complain about its current policies, and to advocate for new and different ones without fear of punishment or censor. You might call it a right to lobby.
That unlimited right to lobby the lawmakers who make decisions that affect your life, your family, and your fortune is one that Sen. Elizabeth Warren (D-Mass.) thinks American businesses should not have. The candidate for the Democratic presidential nomination has proposed taxing corporate lobbying. Expenditures between $500,000 and $1 million would be taxed at 35 percent. Spending over $1 million would face a 60 percent tax rate, which would jump to 75 percent above $5 million. Some nonprofits would be exempt, but the tax would hit trade associations as well as corporations…
But the point isn’t really to generate new funds from taxation. It’s to eliminate much of the advocacy that happens in Washington…
The point of the tax is thus to eliminate, or at least severely degrade, a fundamental provision of the Bill of Rights. It is probably unconstitutional and certainly anti-constitutional, in the sense that it is contrary to the spirit of the First Amendment.
Free Speech
Washington Post: Why policymakers must act to preserve information freedom at home and abroad
By Diana Lemberg
In the field of broadcasting, the Fairness Doctrine – instituted in 1949, at the nadir of U.S.-Soviet hostilities – gave the Federal Communications Commission a mandate to ensure the balanced presentation of political issues on radio and television. The federal government also pursued anti-monopoly action in the film and telecommunications industries and subsidies for public-interest media through the Public Broadcasting Act of 1967…
Likewise, present-day discussions of the regulation of social media in many countries – including the United States – are animated not by the desire to stifle freedom, but by a common concern for public goods including individual privacy and secure elections. There is a sense that regulation of social media is actually necessary to preserve freedom. After all, if these platforms are left unregulated, they will continue to be weaponized for illiberal ends, as Facebook was by the Russian government in the 2016 U.S. election or by Myanmar’s military in the recent ethnic cleansing of the country’s predominantly Muslim Rohingya population. These challenges are shared by liberal democracies around the world and suggest the value of dialogue around information issues, if not completely identical solutions…
Washington should support the universal protection of information freedom and other civil liberties, at home as well as in Hong Kong and elsewhere. But policymakers should also remember how the U.S. used regulation to advance the public good during the Cold War, despite corporate resistance.
Washington Post: A top Google exec pushed the company to commit to human rights. Then Google pushed him out, he says.
By Nitasha Tiku
For years, Google tasked Ross LaJeunesse with executing its plan to protect human rights in China, after Google announced a decade ago it would stop censoring search results there to safeguard security and free speech.
LaJeunesse took the mission to heart: He later devised a human rights program to formalize Google’s principles supporting free expression and privacy. He began lobbying for it internally in 2017 – around the time when the tech giant was exploring a return to China, in a stark reversal of its 2010 move that made its search engine unavailable there.
Now, the 50-year-old is alleging that Google pushed him out for it in April.
“I didn’t change. Google changed,” LaJeunesse, who was Google’s global head of international relations in Washington, told The Washington Post. “Don’t be evil” used to top the company’s mission statement. “Now when I think about ‘Don’t be evil,’ it’s been relegated to a footnote in the company’s statements.”
New Ideal: Defending Free Speech, from Rushdie to Charlie and Beyond
By Steve Simpson and Tom Bowden
[O]n the fifth anniversary of the horrific slayings at Charlie Hebdo’s editorial offices -one of the many atrocities that followed the West’s failures in the Rushdie affair – we are reprinting Simpson’s introduction to Defending Free Speech…
Meanwhile, our politicians increasingly use the “muscle” they possess-the power of physical force, which is the essence of government power-to threaten free speech directly and to choke it off through the use of regulation and litigation. Recent examples include the IRS’s targeting of Tea Party groups for attempting to speak out during the 2012 election cycle, the constant calls by politicians and intellectuals for greater controls on political speech in the form of campaign finance laws, demands that the United States enact European-style “hate speech” laws, and the investigations by state attorneys general of Exxon and various advocacy groups for challenging climate change orthodoxy…
In [Ayn Rand’s] 1960 essay “For the New Intellectual,” [Rand] elaborated on this point: “Intellectual freedom cannot exist without political freedom; political freedom cannot exist without economic freedom; a free mind and a free market are corollaries.”
New York Times: Coincidence That Fake News Law Applied to Politicians, Singapore Minister Says
By Reuters
Singapore’s communications minister said on Monday it was a coincidence that the first few cases brought under a new fake news law were against political figures and parties.
The law came into effect in October amid concern among rights groups and opposition politicians it could be used to silence criticism of the government ahead of a general election expected within months.
The government has denied such suggestions saying the law, the Protection from Online Falsehoods and Manipulation Act (POFMA), only tackles falsehoods and that legitimate criticism and free speech would not be affected…
Since the law was invoked on Nov. 25, three figures linked to the opposition and an opposition party have been told their online posts must carry a banner stating that they contain false information.
In one case, the opposition Singapore Democratic Party has appealed against the decision and said it is prepared to take legal action in what would be a first under the law.
The Fulcrum: Promises by 2020 Democrats mean nothing without a constitutional amendment
By Rena Goldman
The top three Democratic presidential candidates have each released plans to enact campaign finance reform, according to the Center for Responsive Politics. Proposed changes include new laws, the restructuring of the Federal Election Commission, and the overhaul of federal election rules to eliminate the influence of corporations and wealthy donors…
And, while it’s something Americans want, it’s not what Americans will get.
First, most of these changes have one thing in common: They can easily be overturned, eliminated or revised. Laws and policies often change with election cycles. For example, take the McCain-Feingold law. Signed in 2002, the Bipartisan Campaign Reform Act was a victory for campaign finance reform – banning soft money, linking campaign contribution limits to inflation, creating disclosure requirements and requiring candidates to stand by their political ads by stating their approval at the beginning or end of the message. It wasn’t long before court cases began to strip the law. In 2007, Wisconsin Right to Life v. FEC opened the doors for more union and corporate money spent in elections. The next year, the so-called millionaire’s amendment in McCain-Feingold was ruled unconstitutional…
Campaign finance reform is the most important issue of our time as it is the root cause of a federal government that’s no longer responsive to the people. It demands no less than a Constitutional amendment.
Fundraising
The Week: Which Democrats can credibly call out Trump’s corruption in 2020?
By Conor Lynch
The vast majority of Americans believe that political corruption is a major problem that must be confronted for the sake of our democracy. According to one study from a nonpartisan research group at the University of Maryland, three-fourths of Americans – including 66 percent of Republicans – support overturning Citizens United, while 88 percent want to “reduce the influence [that] large campaign donors wield over lawmakers.” Pew Research Center has similarly found that nearly 8-in-10 Americans agree that there should be “limits on the amount of money individuals and organizations” can spend on political campaigns…
Political corruption was perhaps the key issue during the 2016 election, and it ironically ended up benefiting Donald Trump, the corrupt billionaire who had previously bragged about buying off politicians (including his Democratic opponent, who he donated to years earlier). One of the major appeals of Trump in 2016 was his supposed ability to self-finance his own campaign, which he claimed made him incorruptible and immune to the influence of lobbyists and corporate interests…
More than three years later, of course, only the most blinded partisans continue to believe that Trump is going to clean things up in Washington or attempt to reform the corrupt campaign finance system (in fact, both of Trump’s Supreme Court nominees are committed defenders of money in politics).
Vox (Recode): Inside the secretive Silicon Valley group that has funneled over $20 million to Democrats
By Theodore Schleifer
A secretive group led by Stanford University academics has unleashed millions of dollars in political spending from Silicon Valley and is now convincing some of its biggest donors to spend millions more to back Democrats in 2020.
Mind the Gap, a network formed less than two years ago, has been quietly routing millions of dollars to Democratic candidates and groups across the country in the 2018 and 2020 election cycles, emerging as a new power center in the Silicon Valley political scene…[S]o far, it has avoided public detection…
Mind the Gap, whose efforts haven’t previously been reported, has recently petitioned some donors for at least $100,000 to support its efforts. Backers include people like Facebook co-founder Dustin Moskovitz, former Google CEO Eric Schmidt, San Francisco power broker Ron Conway, and a coterie of major Democratic donors from across Silicon Valley…
The group operates in a cone of secrecy, often exhorting its donors to keep their information secure. It has no website or presence on social media, and its leaders don’t mention their involvement in their professional biographies on sites like LinkedIn. That’s not by accident.
“The raison d’être is stealth,” one person with ties to the organization told Recode.
A core strategy of Mind the Gap has been to hide which candidates and groups it is backing until it’s too late, so to speak…
That means Mind the Gap has been covert about which campaigns it is directing donors to support.
Online Speech Platforms
New York Times: Facebook Says It Will Ban ‘Deepfakes’
By David McCabe and Davey Alba
Facebook said on Monday that it would ban videos that are heavily manipulated by artificial intelligence, known as deepfakes, from its platform.
In a blog post, a company executive said Monday evening that the social network would remove videos altered by artificial intelligence in ways that “would likely mislead someone into thinking that a subject of the video said words that they did not actually say.”
The policy will not extend to parody or satire, the executive, Monika Bickert, said, nor will it apply to videos edited to omit or change the order of words.
Ms. Bickert said all videos posted would still be subject to Facebook’s system for fact-checking potentially deceptive content. And content that is found to be factually incorrect appears less prominently on the site’s news feed and is labeled false…
The announcement comes ahead of a hearing before the House Energy & Commerce Committee on Wednesday morning, during which Ms. Bickert, Facebook’s vice president of global policy management, is expected to testify on “manipulation and deception in the digital age,” alongside other experts.
Washington Post: Facebook bans deepfakes, but new policy may not cover controversial Pelosi video
By Tony Romm, Drew Harwell and Isaac Stanley-Becker
Facebook has banned users from posting computer-generated, highly manipulated videos, known as deepfakes, seeking to stop the spread of a novel form of misinformation months before the 2020 presidential election…
The policy does not appear to cover the infamously altered “drunk” video of Pelosi that was viewed millions of times on Facebook last year. Though her speech was slowed and distorted in the video to make her sound inebriated, the effect was accomplished with relatively simple video-editing software. To contrast with more sophisticated computer-generated “deepfakes,” disinformation researchers have referred to these kinds of videos as “cheapfakes” or “shallowfakes.”…
Nor does the policy seem to restrain other simpler forms of video deception, such as mislabeling footage, splicing dialogue or taking quotes out of context, as in a video last week in which a long response Joe Biden delivered to an audience in New Hampshire was heavily trimmed to make him sound racist.
Those omissions prompted sharp criticism from Biden’s campaign on Tuesday. Bill Russo, the former vice president’s 2020 spokesman, said Facebook’s handling of deepfakes is inadequate and offers only the “illusion of progress.”
“Facebook’s policy does not get to the core issue of how their platform is being used to spread disinformation,” he said, “but rather how professionally that disinformation is created.”
Wall Street Journal: Facebook Bans Deepfakes but Permits Some Altered Content
By Betsy Morris
Facebook Inc. is banning videos that have been manipulated using advanced tools, though it won’t remove all doctored content, as the social-media giant tries to combat disinformation without stifling speech…
Facebook’s move could also expose it to new controversy. It said its policy banning deepfakes “does not extend to content that is parody or satire, or video that has been edited solely to omit or change the order of words.” That could put the company in the position of having to decide which videos are satirical, which aren’t and where to draw the line on what doctored content will be taken down.
Facebook has already been trying to walk a thin line on other content moderation issues ahead of this year’s presidential election.
Washington Post: Russian trolls are targeting American veterans, and Trump’s government isn’t helping, group says
By Alex Horton
Memes, over-the-top political comments and false news articles created by adversarial governments and foreign troll farms intentionally sowed social chaos by championing veterans and denigrating liberals and minorities,[Vietnam Veterans of America]’s November report found, and many carry pro-Trump messages aided by common perceptions that the military leans conservative…
The pages are often wildly popular, with some followings numbering in the hundreds of thousands…
The House Veterans’ Affairs Committee held a hearing on foreign disinformation in November, but “none of these agencies have done enough to stop it,” committee spokesperson Jenni Geurink said. The committee will privately meet with the FBI this month on the issue, Geurink added…
For instance, the Russian Internet Research Agency – a troll factory with Kremlin ties and the target of U.S. indictments and cyberattacks – bought at least 113 online ads aimed at U.S. veterans and followers of veterans advocacy groups during and after the 2016 election, according to VVA’s report.
Many pages are operated from Asia and Eastern Europe, and some even have Iranian ties, Goldsmith said.
