In the News
Wall Street Journal: Notable & Quotable: Twitter’s Political Ad Ban
Bradley A. Smith writing for City Journal, Nov. 1:
Twitter will no longer accept any political ads. . . . “This isn’t about free expression. This is about paying for reach,” explained [CEO Jack] Dorsey. . . . Dorsey seeks to draw a distinction between those who have “earned” influence and those who “pay for reach.” Presumably, under Twitter’s new policy, a campaign will be able to pay a celebrity $50,000 to tweet out an endorsement or mention. However, a candidate without celebrity fans will be unable to spend $5,000 to promote a tweet. The paid ad may be truthful, while the celebrity tweet may contain what Dorsey calls “unchecked, misleading information,” but only the former will be banned. Or will Twitter disable the accounts of celebrities who accept payments for their tweets, or who relay “unchecked, misleading information?” As determined by whom?
Dorsey says that he wants to “level the playing field.” Perhaps he, with 4.2 million followers, should shadow-ban himself. Why does being a highly visible CEO mean one has “earned” more political influence than Walmart, the AFL-CIO, or any other entity that seeks to promote its political ideas? Dorsey spent his cash to start Twitter. They want to spend theirs to advertise on Twitter. How does this new policy “level the playing field?” . . .
Twitter will ban not just candidate ads, but “issue ads,” because they “present a way to circumvent.” Does this mean that an ad promoting a documentary warning about (or dismissive of) climate change should be banned? How about an ad promoting a magazine profile of a candidate? Does a Gillette commercial lecturing men on the dangers of “toxic masculinity” qualify as an issue ad?
New from the Institute for Free Speech
IRS Should Adopt Proposed Privacy Rule
The Institute for Free Speech filed comments with the Internal Revenue Service late yesterday in support of a proposed agency rulemaking to protect the personal information of nonprofit donors.
The proposed rule would end a requirement that all nonprofits provide the IRS with a list of their contributors’ names and addresses. Under the proposal, only political committees and organizations whose donors receive a tax deduction would continue to report this information.
“The IRS should not look over your shoulder every time you support a nonprofit. Collecting donor information is not necessary to enforce the tax law and deters support for worthy causes,” said Institute for Free Speech President David Keating.
The proposed rule would also prevent inadvertent disclosures of confidential donor information. It would not affect any publicly available information, which does not include donor names and addresses.
“Warehousing large amounts of private donor information increases the risk of inadvertent or illegal disclosure. Lifting this burden from the IRS decreases the likelihood of donor exposure, which is significant in light of disclosures of sensitive contributor information in recent years,” reads the Institute’s comments.
The IRS initially announced a revenue ruling in July 2018 that it would no longer require nonprofits, other than 501(c)(3) nonprofits and 527 organizations, to report donor names and addresses. Montana Governor Steve Bullock filed a lawsuit challenging that decision, and a federal district court ruled that the IRS must implement its policy change through the standard rulemaking process. The IRS then announced this rulemaking on September 10, 2019.
To read the Institute’s comments, click here.
Comments to IRS on REG-102508-16
By Allen Dickerson
Amending tax regulations so that only section 501(c)(3) and section 527 organizations must continue to provide the names and addresses of contributors on their tax filings is a positive step for the freedoms of speech and association. The IRS should be commended for this action.
Compelled disclosure of donors to civil society groups offends the First Amendment. When the government compels disclosure of a private organization’s financial supporters, it intrudes on the First Amendment’s protection of free association. Since NAACP v. Alabama, the Supreme Court has held that unjustified “state scrutiny” of a private organization’s membership is inconsistent with all Americans’ right “to pursue their lawful private interests privately and to associate freely with others in so doing.” Indeed, the Supreme Court has “repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.” “[I]t is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters … state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.” After all, “[a]n individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were also not guaranteed.”
Accordingly, when the government seeks to obtain private donor information from organizations, it must pass the “strict test” of exacting scrutiny. Under exacting scrutiny, the government must justify its disclosure demand, not force citizens to explain why the vast accumulation of private, constitutionally-protected information is harmless. It is not enough for the government to simply invoke a general interest; it must show that its disclosure regime is properly tailored to that interest. Simply asserting a generalized law enforcement interest, for instance, is not sufficient. As the Supreme Court has explained, “[i]n the First Amendment context, fit matters.”
First Amendment
Wall Street Journal: Alexandria Ocasio-Cortez Apologizes for Blocking Twitter Critic
By Jacob Gershman and Betsy Morris
The New York Democrat was set to testify in Brooklyn federal court on Tuesday in support of her right to block people on Twitter, a cause of growing importance to elected officials. Like other politicians facing similar suits, including President Trump, Ms. Ocasio-Cortez had argued in court papers that her @AOC handle is essentially a private soapbox outside the control of government and fundamentally different from her official accounts, @repAOC.
But on Monday, she changed course, settling a lawsuit brought by Dov Hikind, a former Democratic state assemblyman from New York City. Ms. Ocasio-Cortez had blocked Mr. Hikind from her @AOC Twitter feed in July after he had repeatedly assailed her for likening southern border detention centers to concentration camps.
“I have reconsidered my decision to block Dov Hikind from my Twitter account,” she said in a statement Monday. “Mr. Hikind has a First Amendment right to express his views and should not be blocked for them.”
She added: “In retrospect, it was wrong and improper and does not reflect the values I cherish. I sincerely apologize for blocking Mr. Hikind.”
Ms. Ocasio-Cortez said she reserved the right to block users “who engage in actual harassment” or exploit her @AOC account “for commercial or other improper purposes.” …
Her case was the latest in a burgeoning number of lawsuits challenging the right of elected leaders to curate their social-media audience and censor their toughest critics. Already Mr. Trump, at least two governors and other local government figures face similar First Amendment lawsuits.
Congress
The Hill: Ethics panel reviewing freshman Democrat over campaign finance complaint
By Cristina Marcos
The House Ethics Committee announced on Monday that it is extending a review of Rep. Lori Trahan (D-Mass.) related to how she made personal loans to her campaign during a contested primary last year.
The ethics complaint was made by the Foundation for Accountability and Civic Trust (FACT), a conservative watchdog group, in April. The House Ethics Committee has until Dec. 17 to announce its next course of action, but Monday’s announcement is its first public acknowledgment of reviewing the complaint against Trahan…
FACT, in its complaint, questioned whether her campaign violated campaign contribution limits. While candidates can make unlimited contributions or loans to their own campaigns, other individuals – such as Trahan’s husband – are limited to $2,700.
Trahan explained in a Medium post last week that she and her husband, Dave, signed a prenuptial agreement giving each other authority to spend and manage their pooled resources. She pointed to Federal Election Commission (FEC) precedent finding that candidates can use money from joint accounts with their spouses to support their own campaigns…
But Trahan admitted that the way she and her husband moved money around to support the campaign could have been done differently to avoid entering “a gray area in campaign finance law.”
Trahan also acknowledged that her campaign made errors in personal financial disclosure statements and federal election reports, noting that she has since hired a law firm to handle all future campaign reports.
“For many first time candidates like myself, this is common,” Trahan wrote. “I regret that there were inadvertent omissions and errors in my initial filings.”
Online Speech Platforms
Washington Post: The Technology 202: Mark Zuckerberg just dined with civil rights leaders hoping to change his mind on political ads
By Cat Zakrzewski
An intimate dinner at Mark Zuckerberg’s Palo Alto home could mark a turning point in civil rights’ leaders ongoing feud with Facebook.
Some activists say they’re hopeful that their concerns about Facebook’s decision to exempt politicians’ ads from fact-checking are getting through to the chief executive.
Zuckerberg “did imply that it was an evolving kind of policy” even though he’s remained firm publicly in his decision on the policy during weeks of broad backlash, Al Sharpton, president of the National Action Network, told me…
Zuckerberg has previously said Facebook will take action against politicians’ ads that can lead to violence or allow voter supression…
Kristen Clarke, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law, said last night’s dinner was “not the end of the conversation.”
Her organization sent an open letter today to Zuckerberg outlining the way Facebook’s policy on politicians’ speech could open the company up to lawsuits. She copied Federal Trade Commission officials, Justice Department leaders and states attorney general who have been increasing their scrutiny of Facebook…
Democratic lawmakers wrote to Twitter CEO Jack Dorsey calling on the platform to ban false information about the 2020 Census. Unlike rival Facebook, Twitter has been silent on how it is preparing to deal with misinformation about the upcoming census…
Zuckerberg, who also received a copy of the letter, has promised to ban misinformation related to the 2020 Census. He told Congress last month that the company is still working on fully rolling out a policy for census content.
Lawmakers also expressed appreciation for Twitter’s recent ban on paid political ads in an attempt to cut back on misinformation on the platform, but urged the company to make sure that census outreach efforts could still reach users.
Reason: Aaron Sorkin, Mark Zuckerberg Feud Over Political Ads. Here’s Why Sorkin’s Wrong.
By Elizabeth Nolan Brown
Twitter’s decision to ban paid political content may sound sensible at first-that’s the company’s own ad money to lose, after all-but the logistics will be a nightmare. What makes an issue or idea “political”? Who decides?
Private internet companies can of course “censor” and censure and deplatform pretty much whomever they wish. But tough-on-content policies, attempts to censor ideas (not just obviously illegal content), and many of the excessively hands-on approaches that people advocate these days are a recipe for ensuring that grassroots voices, minority communities, and outside-the-status-quo ideas stay marginalized…
Meanwhile, bigger players (including those with nefarious goals) have little problem complying with new policies like these, and they can usually pay to find workarounds for major shifts. From search engine optimization to increasing social reach to building brands on TikTok and whatever’s next, big players (in politics, business, entertainment, or whatever) have employed-and will continue to-whole teams of scientists, journalists, consultants, and others to figure out how to game algorithms, increase the appearance of “organic” reach, and so on.
On Twitter, major political players will find ways to get their messages seen regardless of whether they can promote posts. Smaller and less mainstream voices who may need a little paid promotion to get started or to stand a chance against massive entrenched industry groups or political parties will be the ones who lose out.
R Street: Five myths about online content moderation, from a former content moderator
By Daisy Soderberg-Rivkin
Content moderators review and analyze user reports of abusive content found on platforms and decide, based on a predetermined set of rules and guidelines as well as the law, whether the content should stay up or come down.
The debates stirring in Congress and society relating to the role of content moderators have fueled many a baseless claim. Here are five of the most repeated myths.
Independent Groups
New York Times: Democratic Strategists Set Up $75 Million Digital Campaign to Counter Trump
By Shane Goldmacher
A progressive organization is plunging itself into the presidential campaign, unveiling plans to spend $75 million on digital advertising to counter President Trump’s early spending advantage in key 2020 battleground states.
The effort, by a nonprofit group called Acronym and an affiliated political action committee, is an outgrowth of growing concern by some Democratic officials that Mr. Trump could build an insurmountable edge in those key states through massive early advertising efforts…
[Tara McGowan, the founder and chief executive of Acronym,] said that for months her group had been raising the alarm about Mr. Trump’s early online spending advantage.
“It started to feel as though we were really screaming into the abyss,” she said. So they decided to take matters into their own hands…
The spending will be made across two groups, Acronym, which is a nonprofit that does not disclose its donors, and Pacronym, a political action committee, which does.
Candidates and Campaigns
Roll Call: Amid troubles, Trump has huge cash advantage for 2020
By Kate Ackley
Even as the Trump campaign spends big on lawyers, political consultants and digital advertising, some campaign finance experts say the law of diminishing returns in presidential races can be a factor and that once a candidate has saturated the country with a message, money at some point doesn’t offer much more bounce.
“You don’t need as much as he has,” said Michael J. Malbin, executive director of the nonpartisan Campaign Finance Institute and a political science professor at the University at Albany, State University of New York…
“While I don’t think money is directly going to determine who is the next president, controversy over money could well be a campaign issue,” said Rick Hasen, a professor of law and political science at the University of California, Irvine…
Even domestic sources of campaign money may become an issue in the 2020 general election.
Top contenders among the Democrats – including the elder Biden and Sens. Elizabeth Warren of Massachusetts and Bernie Sanders of Vermont – reject donations from registered lobbyists and from the PACs of corporations. Warren also said she won’t accept donations in excess of $200 from the executives of fossil fuel companies as well as those working for large pharmaceutical, banking, technology and private equity companies.
Most other presidential candidates, though, do not put such limitations on individual donations, and those contributions could offer Republicans an opportunity for criticism, though GOP candidates aren’t taking steps themselves to limit political money from corporate executives.
The States
The Hill: Free speech rights don’t stop at the voting booth
By Erin Wilcox
Free speech may be one of our nation’s bedrock civil liberties under the First Amendment, but some states appear to have decided it has no place in the voting booth.
Texas is a case in point. The Lone Star State’s restrictions on polling place speech are particularly stringent – and likely unconstitutional. When they enter a polling place, Texans can’t wear anything related to a candidate, issue or political party, including anything that has been on the ballot in the past, is currently on the ballot or might be on a future ballot. But it turns out that could mean almost anything, as repeated cases have illustrated…
It seems absurd to think that a mere “Black Lives Matter” or “Support Our Troops” t-shirt might be considered a threat to peace and decorum, but polling place restrictions know few sensible boundaries…
But all these states that place speech restrictions on voters are likely to find that they’re running afoul of the Constitution. Here’s why: In 2018, the Supreme Court struck down a Minnesota law that banned all political apparel in the polling place. The Minnesota law was so all-encompassing that even a voter wearing a Boy Scout leader’s uniform could be in violation, given the political debate surrounding that organization. Apparel supporting the American Civil Liberties Union, the World Wildlife Fund, AARP and even Ben & Jerry’s were deemed problematic, since those organizations take political stances.
In Minnesota Voters Alliance v. Mansky, the court held that such laws must be reasonable, with some rational basis for determining what is allowed and what isn’t. Otherwise, the laws violate voters’ First Amendment right to free speech. Broad bans on speech at the polling place fail that test.
Albany Times Union: Public Campaign Finance – Keeping it Local
By John T. McDonald III, Member New York State Assembly
The Public Campaign Finance Commission, established earlier this year, must look at ways to amplify the voices of our communities.
New York has an opportunity to stop outside forces from having an outsized influence in our elections. The Commission must seriously consider limiting public matching funds only to in-district donations. Limiting to in-district match would give a louder voice to poor communities so they can decide who they want to represent them without undue influence from forces beyond their neighborhoods. As one who supported public financing, the goal has always been to elevate local voices. A program that only creates a match on small, in-district donations will ensure that the bulk of what candidates raise is from their constituents so that the voices of the people in the community they represent are heard…
Wealthy donors should not be allowed to determine what is in the best interest of communities where they do not live or determine who would best serve those constituents. We would not allow them to vote in a district they do not live in, so why should their donations and their influence be inflated by matched funds in a district they do not live in? The commission should also lower the ceiling on contributions from those who do not participate in the public campaign finance system. Overall, I believe it is in our best interest to lower contribution limits in general. I have for over a decade lamented the fact that campaign contributions, while legal, do influence elected officials and a lowering of the ceilings will keep things in check and provide equal opportunity for all who consider public office.
If we want a public campaign financing system in New York State that truly supports the voices of the voters, it cannot allow outside influences to pour money into our elections and then multiply it with matching funds. If that happens, our taxpayer dollars will essentially become an extension and multiplier for the influence of wealthy donors which is the opposite of what public financing seeks to accomplish.
Tennessean: Judge orders state officials to reduce Jeremy Durham’s record-setting campaign finance penalty to $110,000
By Joel Ebert
The initial fine was the single-largest civil penalty ever assessed by the state’s Registry of Election Finance.
Durham, who as of July remains under federal investigation, appealed the civil penalty, which is what led to the administrative law judge’s ruling…
Pointing to the state’s campaign finance law, [Administrative Law Judge Steve] Darnell wrote that the legislature did not “give the registry an unbridled right to dole out civil penalties.”
Darnell pointed to legal precedent while saying that prohibitions on excess civil penalties are covered by the U.S. Constitution…
Although an audit found Durham had spent campaign money on sunglasses and dry cleaning, Darnell says in his ruling that such expenditures are not explicitly prohibited by the state’s campaign finance law.
“The Disclosure Act’s definition of what makes a legitimate campaign is very broad,” he wrote. “It is conceivable that all of these vendors supplied goods or services to (Durham’s) campaigns or were expenditures to defray the cost of his office.”
Darnell laid blame on the registry for failing to prove that Durham had spent the campaign money on sunglasses and dry cleaning inappropriately.
Darnell even gave Durham the benefit of the doubt when he used campaign money to pay for his handgun carry permit and continuing education fees, two other purchases deemed illegal by the audit.
“(Durham’s) need for a carry permit could be for his personal protection while campaigning or as an officeholder and/or the right and ability to carry a weapon may be part of his political platform,” the judge wrote.
State law explicitly prohibits members of the Tennessee General Assembly from spending campaign money for personal purposes.
