Supreme Court
Washington Post: The Supreme Court’s Janus decision merits an encore
By George F. Will
The State Bar Association of North Dakota, which has neglected some recent developments in constitutional law, will have its memory refreshed if the U.S. Supreme Court decides, as it soon might, to hear a case that is germane to the Janus decision the court rendered less than two years ago. The matters at issue – the First Amendment guarantees of freedom of speech and association – are momentous…
If the court grants certiorari in [Arnold] Fleck’s case, it will decide whether, as a condition of employment, attorneys can be compelled to join a politically active trade association, and whether that association can presume members’ acquiescence in the association’s spending on political activities that are not germane to the association’s core function, which is to be neutral guardians of the legal profession’s proprieties…
Whatever else bar associations might do, they should not unconstitutionally abridge freedom of speech by disregarding another freedom that is entailed by it – freedom from compulsory speech. Furthermore, the court should find that freedom of speech does not neglect a corollary freedom – freedom from compulsory association with a politically engaged organization.
The Courts
Hollywood Reporter: YouTube Isn’t a Public Forum, Rules Appeals Court in Conservative Censorship Case
By Ashley Cullins
YouTube may have more than a billion users, but it’s not a public forum run by the government and therefore its decision to moderate content isn’t a violation of the First Amendment, an appellate court has ruled.
Radio talk show host Dennis Prager sued Google in 2017, claiming that his conservative PragerU videos weren’t getting the same treatment as liberal ones, like Real Time With Bill Maher clips, in violation of the First Amendment. A California federal judge dismissed the complaint in March 2018 on the grounds that YouTube isn’t a public forum run by a state actor and can regulate videos uploaded to the site as it sees fit.
On Wednesday, the 9th U.S. Circuit Court of Appeals upheld that decision and rejected PragerU’s contention that the site has become a digital-era public forum and its power to moderate content is a threat to fair dissemination of conservative viewpoints on public issues.
RealClearPolitics: Third Parties Deserve Shot at Debate Stage
By Ann Ravel
Next week, the Court of Appeals for the District of Columbia will hear a lawsuit against the Federal Election Commission, which I used to chair. The suit, filed by the non-profit group Level the Playing Field, argues that debate access rules set by the Commission on Presidential Debates (CPD) favor Democratic and Republican nominees and systematically exclude independents and third-party candidates. The law requires that the CPD use non-partisan, objective criteria.
The suit, which I support, will determine if any qualified American can ever successfully run for president outside the two-party nominating system…
Voters consistently say they prefer a more inclusive debate…
When the major candidates debate only each another, rather than also having to respond to the ideas of other contenders, they can ignore any issues on which they already agree. The result is that voters are hindered from learning where the candidates stand on the full range of issues and, more generally, from encountering innovative policy ideas they may not have considered before.
Free Speech
Wall Street Journal: Internet Shutdowns Become a Favorite Tool of Governments: ‘It’s Like We Suddenly Went Blind’
By Feliz Solomon
From autocratic Iran to democratic India, governments are cutting people off from the global web with growing frequency and little scrutiny. Parts or all of the internet were shut down at least 213 times in 33 countries last year, the most ever recorded, according to Access Now, a nonprofit that advocates for a free internet and has monitored the practice for a decade. The shutdowns were used to stop protests, censor speeches, control elections and silence people, human-rights advocates said.
IRS
Breitbart: Watchdog Firm Asks IRS to Investigate Mike Bloomberg Charities for Political Work
By Joel B. Pollak
A non-profit watchdog legal firm wrote to the Internal Revenue Service (IRS) Wednesday, asking it to investigate charities linked to billionaire Mike Bloomberg for allegedly securing political support for his presidential run.
The group, Government Accountability and Oversight (not to be confused with the Government Accountability Office), lays out its concerns in a 10-page letter that accuses Bloomberg of using his non-profit charities in “for-profit, political use.”
The letter states:
Several documents obtained under public records laws reveal coordination between Bloomberg charitable expenditures and the for-profit, Bloomberg L.P. Certain records suggest this overlap between the work of senior “Bloomberg Philanthropies” officials and for-profit Bloomberg advisors (including Mr. Bloomberg’s current presidential campaign chairman) is significant, and understood among political beneficiaries.
Media
Reuters: Trump campaign files libel suit against New York Times over Russia story
By Steve Holland
President Donald Trump’s re-election campaign said on Wednesday it filed a libel lawsuit against the New York Times, accusing the newspaper of intentionally publishing a false story last year related to the investigation into Russian interference in the 2016 U.S. election.
In an escalation of the Republican president’s long-running battle with the news media, campaign officials said the lawsuit was being filed in the New York State Supreme Court, the state’s trial-level court…
The lawsuit relates to a March 27, 2019, article published by the Times.
Section 230
By Mike Masnick
What is it with politicians (and other commentators) who keep confusing the 1st Amendment with Section 230? The latest is Rep. David Cicilline, who wants to remove Section 230 protections from internet platforms that host “demonstrably false” political ads…
This has been an issue a bunch of folks have been raising of late. Elizabeth Warren and Nancy Pelosi have both expressed anger that Facebook has chosen not to fact check political videos. However, as we’ve noted repeatedly, there are all sorts of problems with a proposal like this.
First, and perhaps biggest, is the 1st Amendment…
The second issue with such a law is that while “demonstrably false” seems like an easy classification, it’s not at all easy in practice. As we’ve discussed many, many times in the past, content moderation at scale is impossible to do well, and it only seems easy until you actually have to do it.
Reason (Volokh Conspiracy): Ratchet to Disaster
By Stewart Baker
In the news, Nick Weaver, Gus Hurwitz, and I take a quick pass at the Internet content regulation problem and Section 230 of the Communications Decency Act. I’ve written that Section 230 needs to be reconsidered, and I predict that the Justice Department, which held a workshop on Section 230 last week, will propose reforms. Gus and I offer two different takes on Facebook’s recent white paper about content moderation. Gus is more a fan of Twitter’s approach. And Nick reminds us that there are some communities on the Internet whose content causes real harm, including to innocent children.
Online Speech Platforms
Vox (Recode): Why Twitter says Bloomberg’s fake Sanders tweets don’t break its rules
By Shirin Ghaffary
On Monday, presidential hopeful and former New York City Mayor Mike Bloomberg’s campaign posted – and then deleted – several controversial tweets about rival Sen. Bernie Sanders that prompted confusion and tested the rules of what political campaigns can share on social media.
The tweets, which Bloomberg’s campaign called satire, featured fictitious quotes attributed to Sanders, in which Sanders appeared to praise dictators like Kim Jong Un, Bashar al-Assad, and Vladimir Putin, with the hashtag “#BernieonDespots.” …
To many, it was obvious these tweets were an attempt at a joke. But others criticized the Bloomberg campaign for posting what they saw as a misleading attempt to smear Sanders using fabricated quotes.
The Hill: Twitter falling short on pledge to verify primary candidates
By Emily Birnbaum, Chris Mills Rodrigo, and Maggie Miller
Twitter has pledged to proactively verify new candidates’ accounts this election cycle, but an analysis by The Hill shows that effort falling short.
Nearly 90 primary candidates in the five states holding congressional and gubernatorial primaries on Super Tuesday still have not received the company’s coveted “blue check,” with only a week until the vote.
Twitter in December promised it would attempt to level the playing field between little-known challengers and established incumbents by verifying all House, Senate or gubernatorial candidates who qualify for primaries in 2020.
Business Insider: Facebook is banning ads that promise to cure the coronavirus
By Rob Price
Facebook is tightening up its rules on ads that reference the novel coronavirus, in an attempt to curtail misinformation and fearmongering about the outbreak.
The social network will now ban ads that mention it if they promise to cure or prevent the virus, or attempt to “create a sense of urgency” about it.
Candidates and Campaigns
Washington Post: Barack Obama demands South Carolina stations pull misleading ad attacking Joe Biden
By Michael Scherer and Anu Narayanswamy
Former president Barack Obama is calling on South Carolina television stations to stop running an ad from a pro-Trump super PAC that uses his words out of context in a misleading attack on former vice president Joe Biden.
The Committee to Defend the President, a group devoted to supporting Trump, reported to the Federal Election Commission on Tuesday spending more than $250,000 in South Carolina to oppose Biden.
The group, which placed a similar amount of anti-Biden advertising in Nevada earlier this month, circulated an ad that falsely suggests that words Obama spoke in the narration of his own book were meant to describe Biden.
“This despicable ad is straight out of the Republican disinformation playbook, and it’s clearly designed to suppress turnout among minority voters in South Carolina by taking President Obama’s voice out of context and twisting his words to mislead viewers,” said Katie Hill, Obama’s communications director. “In the interest of truth in advertising, we are calling on TV stations to take this ad down and stop playing into the hands of bad actors who seek to sow division and confusion among the electorate.”
New York Times: Russia Wants to Meddle in Our Election. We’re Helping.
By Charlie Warzel
Last week, The Times and others reported that intelligence officials warned House lawmakers that Russia was trying to get President Trump re-elected. On Friday we learned… that Senator Bernie Sanders was briefed by U.S. officials that Russia was “attempting to help” his campaign as well.
Both reports were understandably alarming and dominated headlines…
But there’s a lot more we don’t know about this Russian interference, including: What exactly do these intelligence officials mean by “interference”? Is it an uptick in the garden-variety attempts to sow discord via fake social media accounts or large, hyperpartisan Facebook groups or pages? Or is it a deeper, more sophisticated attempt at infiltrating electronic elections systems?
Ad Age: The Media Buyers Behind The 2020 Presidential Race Revealed
By Lindsay Rittenhouse
Finding out who’s buying what ads for which political candidate can be tricky, as many agencies operate under pseudonyms.
The reason for the cloak-and-dagger is a matter of practicality and legality. First, agencies are often wary of disclosing work for political candidates for fear of alienating their other clients or drawing attacks from opposition supporters. But there is also legal logic as to why media agencies operate under aliases.
According to the Federal Election Commission, candidates and PACs are not allowed to work together. So to protect both the PAC and candidate, some agencies create offshoot operations, called “firewall agencies,” so as not to suggest the two are coordinating.
Rolling Stone: Bloomberg Brags of Buying Congress in South Carolina Debate
By Tim Dickinson
As a post-Citizens United megadonor stepping out of the wings and onto debate stage, [Mike] Bloomberg has a tricky track record to tout. It’s obviously to his benefit to brag of having helped fund Democratic victories. But Bloomberg went farther than that on Tuesday night, momentarily bragging that his $100 million in spending for Democrats last election cycle had “bought” the party control of Congress. (Barely had the word “bought” escaped his mouth than Bloomberg backtracked to substitute in the word “got” instead.) …
“All of the new Democrats who came in, who put Nancy Pelosi in charge and gave the Congress the ability to control this presidency,” Bloomberg added, “I bought- I, I got them.”
Bloomberg’s momentary boast was a classic Washington gaffe, as defined by the journalist Michael Kinsey: “When a politician tells the truth – some obvious truth he isn’t supposed to say.”
The States
New York Daily News: Public financing needs a downpayment now: Gov. Cuomo needs to prepare New York for a new era of fairer democracy
By DeNora Getachew
As one of the commissioners who created New York’s new voluntary public campaign financing program, I am shocked and troubled that Gov. Cuomo’s amended budget, issued Friday, omits crucial funding to build the infrastructure necessary to launch the program on schedule. I urge the governor and the legislative leaders to appropriate the funds the state Board of Elections needs to build a successful program.
Our commission drew criticism, some of it fair. And, while I did not always agree with my colleagues, we worked hard to craft the system. I am proud that we created a voluntary, small-donor public financing program that will match small contributions, amplify voices that historically have been marginalized in politics, and reduce barriers for new candidates to seek public office…
Pending litigation over small parties’ ability to qualify for the ballot – lawsuits that sprang from the commission process – need not endanger the small-donor public financing program.
Albany Times Union: Lawmakers seek to bypass Cuomo, overhaul state ethics panel
By Brendan J. Lyons
An increasing number of state legislators are seeking to bypass Gov. Andrew M. Cuomo by pursuing a constitutional amendment, leaving it to New York’s voters to replace a state ethics panel that has been accused of brushing aside wrongdoing – including allegations of sexual harassment and government corruption.
The latest push to dismantle the Joint Commission on Public Ethics comes after the Times Union reported in November that Cuomo was allegedly briefed on the details of the commission’s closed-door deliberations early last year, around the time the panel voted whether to investigate the misuse of government resources by Joseph Percoco, a former top aide to the governor who is in federal prison for a bribery conviction.
Seattle Times: Tim Eyman violated campaign finance law, concealed nearly $800,000 in payments, judge rules
By David Gutman
Tim Eyman has been in violation of Washington campaign finance laws for at least the last seven years, concealing nearly $800,000 in political contributions, a Thurston County Superior Court judge ruled Friday.
Since 2012, Judge James Dixon ruled, Eyman has raised more than $766,000 to compensate himself for the political work he does – serially running anti-tax ballot initiatives. But he didn’t report any of that money to the Washington Public Disclosure Commission, as is required for political donations.
“Undisputed fact establishes that Defendant Eyman has an expectation of receiving funds toward electoral goals, which requires reporting,” Dixon wrote in granting partial summary judgment to state Attorney General Bob Ferguson, in his long-running lawsuit against Eyman. “This Court hereby finds that Defendant Eyman is a ‘continuing political committee’ as that term is defined” in state law.
Dixon’s ruling did not address the original allegations that Ferguson made against Eyman – improperly using political donations for personal use and concealing the source of other political contributions. Those issues remain unsettled and a trial is scheduled for July…
“Contributions to a politically outspoken individual intended and used to survive the AG’s attacks on him and his family are not reportable under the statute,” Eyman’s attorney, Richard Sanders, a former state Supreme Court justice, said. “It is an effort to ruin Mr. Eyman’s reputation and prevent him from speaking out. Moreover, it also violates Mr. Eyman’s First Amendment right to freedom of speech and association.”
CalMatters: State opens investigation following CalMatters’ report on tech foundation
By Laurel Rosenhall
California’s political watchdog is investigating fundraising practices by Democratic Assemblyman Evan Low after CalMatters reported that he had stopped disclosing donors to a nonprofit organization affiliated with the Legislature’s technology caucus, which he chairs…
It’s one of a growing number of nonprofits that lawmakers and their staff have launched in the last decade, many of which are funded by corporations and unions that lobby the Legislature. Unlike campaign donations, which are capped at $4,700 for legislative candidates, there is no limit on the amount of money donors can give to nonprofits.
Though federal law does not require nonprofits to publicly disclose their donors, most California legislators have reported donations to their affiliated nonprofits as “behested payments” – publicly showing from whom they solicited funds.
Boston Institute for Nonprofit Journalism: AG Healey’s Office Blocks Accounts On Social Media, Shields Bad Actors Across State
By Maya Shaffer
Last winter, Crit News was blocked by the Chicopee Police Department social media pages after we published articles critical of the department’s affiliation with anti-LGBTQ brand Chick-fil-A and its likely unconstitutional social media policy.
Prior court rulings strongly suggest that these blocks violate the First Amendment, so we filed a complaint with Mass. Attorney General Maura Healey’s civil rights division. In the time since, we have become dismayed by the AG’s office’s failure to address the blocks. But now records we have received from Healey’s shed light on why her office may be avoiding the issue-her office is also guilty of the same kind of questionable social media management…
Healey’s abuse of the First Amendment and refusal to protect the rights to information are why agencies like the CPD argue that they can block people, effectively silencing criticism in order to enforce their arbitrary rules.
Los Angeles Times: Big spending from outside groups bolsters L.A. City Hall incumbents and favorites
By Emily Alpert Reyes and Dakota Smith
Technology entrepreneur Andrew Lee was barred from donating more than $800 to the campaign to help re-elect Los Angeles City Councilman David Ryu – a city restriction meant to curb the influence of wealthy donors.
But Lee could give as much as he wanted to an independent committee backing the councilman, which is not bound by the same rules. Last month, Lee poured $100,000 into the Golden State Leadership Fund PAC, which has blanketed households with mailers that praise Ryu as a reformer and tout his record on homelessness.
Independent expenditure committees are not allowed to coordinate with the candidates or their campaigns, but can raise and spend unlimited amounts to support their chosen candidates, making them a muscular force in local elections. As of Tuesday, such committees had shelled out more than $1 million in Los Angeles City Council races…
The bulk of the outside spending has gone to candidates who already had an edge in political fundraising, most of them incumbents like Ryu.
