Ed. Note: The Media Update is going on vacation and will return on Thursday, Jan. 2. Happy holidays from all of us at the Institute for Free Speech!
The Courts
New York Times: Prosecutors Oppose Early Prison Release for Ex-Trump Lawyer Cohen
By Reuters
Michael Cohen, a former personal lawyer for U.S. President Donald Trump, should not be released from prison early for cooperating with authorities, federal prosecutors told a judge Thursday, saying he had repeatedly lied to them…
Cohen last week asked a judge to cut his three-year sentence to a year and a day, saying he deserved credit for helping federal, state and Congressional investigators on matters related to Trump…
Cohen, 52, pleaded guilty in 2018 to crimes that included violating campaign finance laws by directing hush-money payments shortly before the 2016 election to two women who said they had sexual relationships with Trump. The president has denied the relationships.
Wall Street Journal: Where’s the Liberal Outrage?
By Daniel Henninger
On Tuesday, in one of the most astounding public documents in years, the Foreign Intelligence Surveillance Court in Washington announced that its relationship with the FBI is broken.
The simple, direct title of the court order is In Re Accuracy Concerns Regarding FBI Matters Submitted to the FISC. What follows is the obliteration, by a federal court, of the FBI’s reputation. The order ends with a demand that the government submit in detail what it plans to do to restore that reputation…
The Horowitz report described in detail the flaws and even malfeasance in the FBI’s four warrant applications to the FISA court, from 2016 through mid-2017, to conduct electronic surveillance of-in the court’s pointed words this week-“a U.S. citizen named Carter W. Page.”
The court continues, “In order to appreciate the seriousness of that misconduct,” it is necessary to review the FBI’s legal obligations under [FISA].
The law provides that an application for a warrant requires “probable cause.” The agent filing it “swears to the facts in the application,” which “cannot be solely based on activities protected by the First Amendment.” A primary purpose of these rules is “to protect the fourth amendment rights of U.S. persons.” And because “the government does not face an adverse party”-the target isn’t represented in court-the government “has a heightened duty of candor.”…
The order, signed by Presiding Judge Rosemary Collyer, gives the government until Jan. 10 to provide a “sworn written submission” of what it intends to do to ensure the accuracy of future FBI applications to the court. It demands “an explanation of why, in the government’s view, the information in FBI applications submitted in the interim should be regarded as reliable.”
The Advocate: BRPD officer injured in Alton Sterling protest can pursue negligence claim against organizer
By Joe Gyan Jr.
A Black Lives Matter organizer cannot be held liable for the conduct of an unidentified person who seriously injured a Baton Rouge officer during a protest after the 2016 killing of Alton Sterling, but the officer’s negligence claim against the organizer can go forward, a divided federal appeals court said late Monday in its third ruling in the case this year.
Fifth U.S. Circuit Court of Appeals Judge Don Willett, the dissenting member of the three-judge panel, said he originally agreed with denying DeRay Mckesson’s First Amendment defense but has since had a “judicial change of heart.”
Willett took issue Monday with some of the reasoning of his colleagues.
“Such an exotic theory would have enfeebled America’s street-blocking civil rights movement, imposing ruinous financial liability against citizens for exercising core First Amendment freedoms,” Willett wrote in a partial dissent.
Reason (The Volokh Conspiracy): Negligence Claims Brought Against Protest Organizers: More on the Tort Law Side of Doe v. Mckesson
By Eugene Volokh
In an earlier post, I suggested that the lawsuit in Doe v. Mckesson should lead to a victory for Mckesson-but on a legal theory (the professional rescuer’s doctrine, which sharply limits negligence claims brought by police officers) that hadn’t been raised in the case, though it still might be in later phases. The opinion, though, raises an interesting and complicated question that can’t always be dealt through that doctrine. Let me talk about this, in the context of a hypothetical.
Say that John Smith organizes an illegal protest in an abortion clinic’s parking lot-illegal because it’s a trespass (analogously to how Mckesson’s protest was, according to the Fifth Circuit, plausibly pleaded to be an illegal blocking of a public street). Unsurprisingly, and thus foreseeably, some clinic employees come out to try to get the protesters to leave, and even use lawful defensive force (pushing) to eject the protesters. Unsurprisingly, and thus equally foreseeably, one of the protesters (Mary Baker) punches the employee who is pushing him. (Indeed, perhaps this has happened before at this group’s protests, so it is indeed foreseeable.)
Would Smith be liable under normal tort law negligence principles for the injury to the employee? Yes, I think so. By organizing the protest, he caused a foreseeable risk that an employee will be injured. And because the protest involved trespass, it’s pretty likely that this would be viewed as unreasonable conduct.
Reason (The Volokh Conspiracy): When Does First Amendment Preempt Negligence Liability?
By Eugene Volokh
I blogged yesterday about the tort law questions raised by Doe v. Mckesson. As I understand it, DeRay Mckesson has a total defense to the lawsuit against him, simply because it was brought by a police officer and the Professional Rescuer’s Doctrine thus applies-it’s just that Mckesson’s lawyers haven’t yet raised that argument. But if the lawsuit weren’t brought by a police officer, then there would have been a solid case for allowing the case to go forward on a negligence theory…
But should First Amendment limit negligence law here, as it has limited the torts of libel, intentional interference with business relations, intentional infliction of emotional distress, and the like? That turns out to be a complicated question, which the Supreme Court hasn’t addressed, and which lower courts have occasionally touched on but haven’t fully resolved. Let me offer some tentative thoughts (the embryo of a law review article I’m planning).
[A.] Negligence claims sometimes must be sharply constrained by the First Amendment. Say, for instance, an author with a huge readership harshly condemns some group (capitalists, Communists, Jews, blacks, whites, police officers, abortion providers, etc.), in a way that foreseeably leads some listeners to attack members of that group, or perhaps vandalize their property.
Under standard negligence principles, one can imagine an injured party suing the speaker for that: The speaker’s speech has foreseeably caused a harm. That the harm came through the voluntary act of a third party doesn’t block liability, so long as that act was foreseeable (see my earlier post). Therefore, tort law might suggest, a jury should decide whether the speaker was acting unreasonably in giving his speech.
First Amendment
Wall Street Journal: The University’s New Loyalty Oath
By Abigail Thompson
Seventy years ago the University of California introduced a loyalty oath, requiring employees to swear they were “not a member of the Communist Party.” After a contentious period in which 31 faculty were fired for refusing to sign, the requirement was reconsidered. An eventual consequence was the current Standing Order of the Regents 101.1(d): “No political test shall ever be considered in the appointment and promotion of any faculty member or employee.”…
Now the university appears to be abandoning this principle. In the past few years “Diversity, Equity and Inclusion” statements, in which applicants for faculty positions profess their commitment to these social goals, have become required on eight UC campuses and at colleges across the country…
This spring the university issued guidelines instructing each campus to develop and use a scoring system, called a “rubric,” for applicants’ diversity statements. No longer will faculty hiring committees use their own judgment about how best to create a diverse and inclusive environment in their fields.
Instead, each candidate’s commitment to diversity will be assigned points. To score well, candidates must subscribe to a particular political ideology, one based on treating people not as unique individuals but as representatives of their gender and ethnic identities…
Rather than helping achieve inclusion, these DEI rubrics act as a filter for those with nonconforming views.
Washington Post: Trump has made it nearly impossible to formulate a policy against disinformation
By Editorial Board
The lies and propaganda that ran amok on the Internet during the last election cycle still appear to be sprinting: Misleading political posts have already topped 158 million views this year. The New York Times reports that few, if any, 2020 candidates have employed teams devoted to rooting out this malicious content. The reality is a little more complicated…
The problem is that tracking disinformation has become one of those essentials, with foreign enemies following in Russia’s meddling fingerprints, and domestic actors who refuse to respect free and fair elections close behind. That puts campaigns in a tough spot. It’s also discouraging to mount a truth offensive when companies refuse to fact-check even the political advertisements they accept money to promote: Former vice president Joe Biden did report an ad relying on a conspiracy theory, after all, and Facebook didn’t help…
The [Democratic National Committee] is helping by providing campaigns with trainings, disinformation detection tools and points of contact at social media companies…
President Trump has made it nigh impossible for the government to formulate a comprehensive policy…Campaigns, committees and companies now must figure out for themselves how best to safeguard democracy.
Daily Caller: Former FEC Chair Who Sought To Regulate Drudge: Big Tech Should Approve Political Ads
By Rudy Takala
The former federal official who sought to regulate online media outlets would like Facebook, Google and Twitter to start fact-checking political content on their platforms ahead of the 2020 election, suggesting that while Facebook has taken some measures to that effect, the public is “outraged” over the failure to do more.
“Amidst the outrage, Facebook is considering changing how political ads are targeted and labeled,” former FEC Chair Ann Ravel wrote in a Dec. 18 op-ed for CNN. “But as long as it stands by its no fact-checking policy – which it so far has done – Facebook has given tacit approval to those running for office to say anything they like, while not granting the same privilege as others.”
Facebook has said that while it will not fact-check ads from political candidates, it will fact-check ads from other groups. Ravel similarly criticized Google and Twitter…
As a member of the FEC from 2013-17, Ravel fought to enact rules that would have regulated unpaid political content online, a move that Republicans viewed as a backdoor effort to regulate conservative media such as the Drudge Report. The effort extended to deadlocked votes over Twitter and YouTube.
Los Angeles Times: Facebook to tackle efforts to interfere with 2020 U.S. census
By Associated Press
Facebook Inc. plans to clamp down on attempts to use its services to interfere with the 2020 U.S. census, including the posting of misleading information about when and how to participate, who can participate and what happens when people do…
Facebook said Thursday that it will prohibit advertisements that portray taking part in the census as “useless or meaningless” or that encourage people not to participate. The company also said it will try to identify and remove misleading census posts before people see them. But it will also remove any posts it misses after the fact, using both technology and humans to spot violations. The company said it will begin enforcing the census policy in January…
False and inaccurate information is already circulating online about the census. For example, posts in neighborhood chat groups warned that robbers were scamming their way into people’s homes by asking to check residents’ identification for the census. That was a hoax, but it left Census Bureau officials scrambling to get the posts removed from Facebook.
The Hill: Facebook to ban misleading census content
By Maggie Miller, Emily Birnbaum and Chris Mills Rodrigo
Advertisements that “portray census participation as useless or meaningless or advise people not to participate in the census” will also be barred starting next month under the new policy, even if they come from political figures, which are normally exempt from fact-checking…
The social media giant’s new policy comes after discussions with civil rights groups who have raised concerns that content Facebook allows on the platform could hurt vulnerable communities.
Some of the those groups praised the company’s announcement, calling it the “most comprehensive policy to date to combat census interference efforts on its platform.”
“The Leadership Conference and other civil rights groups have long raised serious concerns about this issue, and it appears that Facebook has finally listened,” Vanita Gupta, the president and CEO of the Leadership Conference on Civil and Human Rights, a coalition representing more than 200 national organizations, said in a statement…
Morning Consult: Could Influencers Help Campaigns Sidestep Social Media Crackdown on Political Ads?
By Sam Sabin
[T]here’s at least one advertising tool that marketing experts say campaigns can use to combat new industry rules: social media influencers…
A Twitter spokesperson confirmed that while political advertising is banned, political influencer marketing is still allowed on the platform, so long as no paid promotion is attached to it. And a Google spokesperson said the platform approaches influencer marketing on YouTube in the same way it does editorial content, and all creators are asked to check a box if their videos include any paid product placements or endorsements.
Although campaigns on Google can still target audiences in other ways, Simpson, who previously led creative at Las Vegas-based influencer marketing agency Influential, said the company’s micro-targeting ban could mean partnerships with YouTube influencers will become more valuable to campaigns as an alternative.
The crackdown on political ads comes at a time when industry experts say influencer marketing was already starting to attract more attention from political campaigns looking to target younger voters. For example, NextGen America, the progressive political action committee founded by Tom Steyer to mobilize young voters, was already planning before the digital ad policy changes to work with 3,000 micro-influencers, primarily on Instagram, in 2020.
Vox (Recode): The 14 charts that explain tech in 2019
By Rani Molla
All eyes are on digital platforms for 2020
Ahead of a presidential election year, all eyes are on technology and social media platforms, whose effects on the 2016 election still are not fully understood. Digital political ad spending is expected to hit about $3 billion next year or about one-third of overall campaign ad spending. Some tech platforms have sought to mitigate election interference and misinformation through an outright ban on political ads (Twitter) or by limiting candidates’ ability to microtarget voters (Google). Facebook, however, the largest platform for digital campaign ad spending, has failed to make significant changes. Facebook has even stood by its controversial stance of not touching political ads, even if they contain lies. It remains to be seen how these choices will affect the next election.
The Guardian: The dark side of tech: why the Guardian asks tough questions about Silicon Valley
By Julia Carrie Wong
Over the past week alone, Donald Trump’s re-election campaign has run more than 16,000 different advertisements on Facebook. And that’s just one week, just one candidate, and just Facebook! At any given moment, the Trump campaign will have between 1,000 and 5,000 different ads running simultaneously. If you want to take a peek, head to this link and start scrolling. Chances are you’ll give up – or the page will freeze – before you get to the bottom.
Many of these ads are minor variations on a single theme, targeted at narrow slices of the electorate in ways that are opaque. This lack of transparency reveals the dishonesty in Zuckerberg’s claims that Facebook supports the democratic process by allowing people to “see for themselves what politicians are saying”.
Candidates and Campaigns
Rolling Stone: Warren, Buttigieg Had Themselves a Real Spicy Fight Over Campaign Finance
By Tessa Stuart
Is the Democratic Party supposed to serve the interests of wealthy, well-connected donors? Or is it supposed to serve the interests of working people? The candidates who hold exclusive, expensive fundraisers argue they can accept money from rich people without becoming beholden to them; while both Warren and Sanders insist the country ended up in the dire position it is today because politicians have catered to the interests of the wealthy and well-connected…
[Buttigeg said to Sen. Warren],”Senator, your net worth is 100 times mine. Suppose you went home and felt the holiday spirit… and gave the maximum donation allowable by law, would that pollute my campaign because it came from a wealthy person? No. I would be glad to have that support.”
Warren doubled-down. “I said to anyone who wants to donate to me, if you want to donate to me, that’s fine. But don’t come around later expecting to be named ambassador.” She went on: “Here’s the problem. If you can’t stand up and take the steps that are relatively easy, can’t stand up to the wealthy and well connected when it is relatively easy, when you are a candidate, then how can the American people believe you will stand up to the wealthy and well-connected when you are president and it is really hard?”
Buttigieg snapped back, noting that Warren transferred money to her presidential campaign that she raised as a senator in the kinds of fundraisers she was now condemning. “Did it corrupt you, Senator? Of course not.”
The Week: Pete Buttigieg endorses corruption
By Ryan Cooper
Elizabeth Warren and Bernie Sanders attacked Pete Buttigieg over his gigantic big-dollar fundraising…
In response, Buttigieg endorsed political corruption, arguing that it was good to rake in tens of millions of dollars from American oligarchs. It’s a false argument, and a horrible look for a 2020 Democratic candidate…
Buttigieg then went on to argue that taking big checks from the billionaire class is fine, actually: “If you decided to go to [his campaign website] and give the maximum allowable by law, $2,800 would that pollute my campaign because it came from a wealthy person? No, I would be glad to have that support! We need the support from everybody who is committed to helping us defeat Donald Trump.”
This is risible nonsense that undermines years of progressive organizing…
More importantly, Buttigieg casually skates past reams of evidence and argument about the festering cancer of money in politics. For instance, the Citizens United Supreme Court decision released a flood tide of money into American politics – indeed, as economist Thomas Philippon writes in his book The Great Reversal, there is today fully 50 times as much political campaign spending in the United States as in comparable European countries, and the top 0.01 percent of U.S. donors account for 40 percent of all spending.
Are we really to think that wealthy Americans are not getting something for all that money – or that Europe’s far more restrictive regulations on political spending have nothing at all to do with their more equal economies? Please.
HuffPost: Fighting Corruption Is The Most Electable Thing A Democrat Can Do In 2020
By Kevin Robillard
To Warren and her team, a believable promise to battle corruption is the best way to win over swing voters. Both recent political history and polling suggest they might be right: A survey conducted for the Democratic campaign finance reform group End Citizens United found that 89% of voters in 26 congressional swing districts rated cracking down on political corruption as either a “top” or “major” priority…
“Trump isn’t going to quit lying about how he drained the swamp,” said Tiffany Muller, the president of End Citizens United, which is neutral in the 2020 presidential primary. “It’s up to Democrats to make the case about how they’re going to reform the system and how it impacts their day-to-day life.”…
Democratic officials and candidates have with Warren’s push to crack down on the influence of lobbyists, corporations and money in politics. Of the 40 (mostly moderate) Democrats who won Republican-held House seats in 2018, 27 of them had sworn off money from corporate PACs – a point nearly all of them emphasized in television advertising.
Brennan Center: 19 Things We Learned About Money in Politics in 2019
By Ciara Torres-Spelliscy
6. The Federal Election Commission remains nonfunctional…
5. You can’t pay for five – count them – five mistresses with campaign funds. Rep. Duncan Hunter’s (R-CA) criminal campaign finance case got a lot racier with allegations that five mistresses and one pet rabbit were involved. In December, he pleaded guilty to using over $150,000 in campaign funds for personal use.
4. Crime with a soon-to-be president doesn’t pay. Trump’s former lawyer Michael Cohen reported to jail in May 2019 for breaking campaign finance laws…
3. No things of value from foreigners are allowed (example 1). In June, the New York Times reported that a Ukrainian Russian named Pavel Fuks said he paid $200,000 to attend the Trump 2017 inaugural but says he was duped…
2. No things of value from foreigners are allowed (example 2). Rudy Giuliani associates Lev Parnas and Igor Fruman were arrested…
1. No things of value from foreigners are allowed (example 3). President Trump’s looming impeachment swirls around a possible foreign thing of value. This time alleged the thing of value is “dirt” on Joe Biden in exchange for military aid for Ukraine.
The States
NJ.com: 5 N.J. officials and candidates charged in sweeping public corruption investigation
By Ted Sherman, NJ Advance Media
Five current and former public officials and political candidates were charged Thursday with taking tens of thousands in bribes disguised as campaign contributions in return for steering lucrative legal work to an unnamed tax attorney working as an informant.
Envelopes and paper bags filled with cash and even a coffee cup stuffed with cash were delivered by the unidentified cooperating witness in restaurants, parking lots, a political fundraiser, and a campaign headquarters, according to Attorney General Gurbir S. Grewal, all as part of an undercover sting that began in early 2018.
Those targeted were both Democrats and Republicans, and included the Jersey City school board president and a former state assemblyman.
Prosecutors said the cooperating witness at the center of the investigation also offered checks from illegal “straw donors” – individuals reimbursed to write checks to the defendant’s campaign in amounts that complied with the legal limit on individual donations. The complaints alleged that overall, more than $70,000 in bribes were paid.
Catholic News Agency: Texas Right to Life fined for illegal funding of political ad
By CNA Staff
Pro-life group Texas Right to Life has been issued a $7,500 fine by the Texas Ethics Commission for illegally funding a political radio ad for the 2018 re-election campaign of a Republican state senator, Texas sources have reported.
The ethics commission’s general counsel, Ian Steusloff, told The Dallas Morning News that corporations are normally banned by state law from politically funding candidates or representatives currently in office.
The commission issued the fine to Texas Right to Life, the state affiliate of National Right to Life, in November after it was found that the group’s corporate branch, not its political action committee, had paid $37,915 for a radio ad for the campaign of Senator Bob Hall.
Kimberlyn Schwartz, director of media and communication for Texas Right to Life, told The Dallas Morning News that the group had already “self-corrected and self-reported” the error, and said that the ethics commission “is known for targeting citizens and nonprofits, including Texas Right to Life.”
“Due to the commission’s web of rules aimed at limiting free speech, average citizens find it very difficult to be engaged in the political process without incurring hefty fines and lengthy court battles,” Schwartz added.
Anchorage Daily News: Laid-off Alaska arts council employee threatens lawsuit, saying recall support doomed her chances for rehire
By James Brooks
Keren Lowell lost her job at the Alaska State Council on the Arts when Gov. Mike Dunleavy vetoed the agency’s budget earlier this year. When the Alaska Legislature restored the council’s funding and Dunleavy agreed, it appeared she would get her job back.
Instead, she received an email saying she would not be rehired because she supports a campaign seeking Dunleavy’s recall from office…
“My role with the state as a public servant does not mean I have to surrender my First Amendment rights,” she said by phone Thursday morning…
[ACLU legal director Stephen] Koteff said the position of the ACLU is that the state “doesn’t have the right to make determinations about who will work for state government based upon whether they think their politics are acceptable.”
The organization is already suing Dunleavy and his former chief of staff in federal court over the firings of three former state employees. The state says those employees failed to properly sign documents during the transition from former Gov. Bill Walker. The ACLU says the documents amounted to a political loyalty pledge, thus any firings based on them are illegal. A fourth employee has filed a separate lawsuit in state court.
