Ed. Note: We hope our readers are doing well during this difficult time. Here is an article that can help us all stay safe and healthy
Reason (Volokh Conspiracy): Masks For All: Sensible and Helpful
By David Kopel
Fast reduction of the COVID-19 pandemic is necessary for public health, re-opening the American economy, restoration of rights and liberties, and prevention of large second or third waves. There is one very helpful step everyone can take to reclaim our country from the viral invasion: All Americans should wear masks in public. Masking is contrary to what the federal government has been telling the public for months. The government’s bad advice is one of the many ways that the U.S. government, like many European governments, has worsened the pandemic.
To be clear, I’m not telling you to swipe a N95 mask from a health care worker. Many types of masks, including those you can make at home, will be helpful.
The first part of this essay observes the differing rates of infection and death in nations that have pro-mask policies and those that do not….Part V addresses three arguments against universal mask wearing. First, it is said that only symptomatic people should wear masks. This is among the worst public health advice ever given; people who are asymptomatic or presymptomatic are still contagious.
In the News
Law Street: Amicus Briefs Supporting Respondent filed in SCOTUS TCPA Case Ahead of April Argument
By Emily Ashcraft
Nine amicus curiae briefs were filed in the Supreme Court case regarding the Telephone Consumer Protection Act (TCPA) on April 1. Facebook Inc., the United States Chamber of Commerce, the Institute for Free Speech, the Institute for Justice, the Cato Institute, Midland Credit Management, the Retail Energy Supply Association, Portfolio Recovery Associates, and healthcare companies all filed briefs in support of the Respondents, the American Association of Political Consultants. The American Association of Political Consultants filed their brief last week saying the TCPA should be eliminated completely.
The case concerns the constitutionality of a statute which limits calls and text messages made through automatic dialing systems and specifically addresses the exception for government debt collection or other government communications. The briefs filed by debt collectors, healthcare companies, and utility companies argue that unsolicited communication is important to their purposes and the TCPA is hindering their work or causing them to risk legal action.
New from the Institute for Free Speech
Biden’s Comments Ignore the Dirty Truth About “Clean Money”
By Tiffany Donnelly
Each election cycle debunks another myth about money in politics: when opponents of free speech stoke fears about billionaires buying elections and “corporate takeovers” of democracy, voters expose the sham by proving that our votes must be earned.
But some politicians continue relying on these tired tropes to push policies that are harmful to free speech. For example, at the most recent Democratic debate, former Vice President Joe Biden played into the disproven narrative that taxpayer-financed campaigns improve democracy. Biden’s platform calls for complete federal funding of all campaigns and a total ban on Americans’ ability to independently support their preferred candidates. In order to make this a reality, he would have to pursue a constitutional amendment.
At first glance, such a policy might seem like a good idea, particularly when it is peddled as a magical cure-all for our nation’s ills. But contrary to advocates’ claims, tax-financed campaigns fail to decrease the incidence of public corruption, fail to reduce lobbyist influence, fail to improve electoral competitiveness, and fail to increase voter turnout or trust in government.
As Mark Twain said, never let the truth get in the way of a good story. Hawking these schemes as an antidote to inequality tugs on the heartstrings of many Americans, who rightly want the average person to have as much opportunity to participate in campaigns as anyone else. But forcing candidates to rely on taxpayer dollars – and forcing taxpayers to fund the campaigns of candidates they may vehemently oppose – is counterproductive to this noble goal.
Supreme Court
Cato: How the Telephone Consumer Protection Act Unconstitutionally Privileges Government Speech
By Trevor Burrus
In this time of crisis, the Supreme Court still soldiers on … somewhat. The Court cancelled its March oral argument sitting and will likely cancel the April one too. But petitions are still being filed-deadlines have been extended-and there are still cases to be decided.
One of those cases concerns the Telephone Consumer Protection Act, a statute that is appreciated by many because it helps stop robocalls. The law makes businesses who violate the many consumer-oriented provisions liable to private lawsuit. This is no idle threat, either; in the last ten years 21 TCPA cases have settled for over $10 million. It is also a favorite of states’ attorneys general, who earn popularity for targeting the sources of unwanted calls.
The 1991 law was all-encompassing. Auto-dialers and pre-recorded calls were prohibited for political activists, local businesses, debt collectors, and charities alike. Unless a consumer has released their number willingly, they could not be called by such annoying methods. But in 2015, Congress passed a budget that contained an amendment exempting from the statute any calls made “solely to collect a debt owed to or guaranteed by the United States.”
That exemption engendered a constitutional challenge from the American Association of Political Consultants (AAPC), arguing that the law had become a content-based restriction that is presumptively invalid under the First Amendment. Content-based restrictions are those that ban speech based on the content of the communication. Calls to collect government debt are different from other types of calls because of what is said on the call. The Fourth Circuit agreed that the restriction was content based but oddly “fixed” that problem by striking down the debt-collection exemption, which means the statute now bans more speech than before.
Media
By Ted Johnson
Two prominent House Democrats want the FCC to give stations assurances that their licenses won’t be in jeopardy, after Donald Trump’s presidential campaign suggested as much in a legal threat sent to outlets airing a pro-Joe Biden Super PAC ad critical of the president’s response to the coronavirus crisis.
Rep. Frank Pallone (D-NJ), the chairman of the House Energy and Commerce Committee, and Rep. Mike Doyle (D-PA), who heads the communications and technology subcommittee, wrote in a letter to FCC Chairman Ajit Pai that “we believe the FCC has a duty to provide clear guidance to broadcasters and the public that threats by politicians about protected speech will not influence the agency or broadcaster licenses. To stay silent could undermine the First Amendment and the Communications Act.”
Washington Times: How to save the news industry beyond the COVID-19 pandemic
By Cal Thomas
In an age when fewer schoolchildren are taught civics, it is useful to recall that the press is the only profession mentioned in the U.S. Constitution’s First Amendment, which specifically forbids Congress from “abridging” freedom of the press.
The Founders were aware of newspapers’ tendency to print inaccurate, even outrageous, stories, but as Benjamin Franklin noted: “I am … for freedom of the press, and against all violations of the constitution to silence by force and not by reason the complaints or criticisms, just or unjust, of our citizens against the conduct of their agents.”
Newspapers then – and one could argue since, along with modern television – have been full of factual errors, innuendo and slanted coverage (check out the corrections section of The New York Times over the years, and those are only the mistakes they admit to), but no country has a freer press than the United States. Notice that the first entities totalitarians seek to shut down or take over are newspapers and television stations, which ought to tell us something.
Independent Groups
CNBC: Biden, Trump scale back campaigns as coronavirus spreads – but super PACs are going to war
By Brian Schwartz
While presidential candidates take their campaigns into the virtual realm and avoid buying television ads amid the coronavirus pandemic, super PACs are giving them a boost…
Biden, Trump and Sen. Bernie Sanders have called off in-person events to help prevent further spreading of the coronavirus.
Super PACs could potentially expand their messaging power in unprecedented ways while voters are stuck at home, according to political strategists. This could help Biden in particular. The former vice president has largely been on the sidelines as Trump and other political leaders, such as Democratic New York Gov. Andrew Cuomo, take on the coronavirus crisis.
“The theory is likely that voters who get their news from TV and are stuck at home will be able to engage,” longtime Democratic strategist Hank Sheinkopf told CNBC. “No TV, no campaign. No campaign, Biden disappears,” he added.
Guy Cecil, chairman of Democratic super PAC Priorities USA, said the group’s goal is not to take on the pro-Trump America First Action, but to provide a counterweight to Trump while he regularly holds nationally televised White House briefings on the coronavirus.
Axios: Scoop: Google to lift coronavirus ad ban
By Sara Fischer
Google will begin to allow some advertisers to run ads across its platforms that address the coronavirus, according to a Google memo sent to clients…
Democrats have argued that in banning attack ads targeting President Trump’s response to the coronavirus pandemic, including on YouTube, Google was shielding his campaign in a critical election year.
The broad ban had also stopped consumer advertisers, like retail and packaged goods companies, as well as corporate social responsibility advertisers like nonprofits, from running messaging about the virus.
According to the memo, sent from Google’s Head of Industry Mark Beatty to political advertising clients, Google is beginning to phase in advertisers who want to run ads related to COVID-19, prioritizing those advertisers that are working directly on this issue.
This week, Google will begin allowing ads from “government entities, hospitals, medical providers, and NGOs who want to get relevant information out to the public,” according to the memo…
Google says that it’s planning to allow other advertisers, including political organizations, to run ads related to the coronavirus, and will make an announcement about that in the next few days.
By Mike Masnick
Here we go again: content moderation at scale is impossible to do well — and, as we’ve discussed, things are especially tricky when it comes to content moderation and political advertising. Now, when you mix into that content moderation to try to stop disinformation during the COVID-19 pandemic and you run up against… politicians facing blocks in trying to advertise about Trump’s leadership failures in response to the pandemic:
[S]taffers of several Democratic nonprofits and digital ad firms realized this week that they would not be able to use Google’s dominant ad tools to spread true information about President Trump’s handling of the outbreak on YouTube and other Google platforms. The company only allows PSA-style ads from government agencies like the Centers for Disease Control and trusted health bodies like the World Health Organization. Multiple Democratic and progressive strategists were rebuked when they tried to place Google ads criticizing the Trump administration’s response to coronavirus…
That anti-conservative bias sure is a pain, eh?
This wasn’t just a one-off. Apparently other politicians have also been told they can’t use Google’s ad platform for those ads either…
But, of course, since federal government agencies are allowed to advertise on the platform, and this administration appears to view the entire apparatus of the federal government as solely part and parcel of the Trump re-election campaign, that basically means that Trump gets free reign over Google ads…
This isn’t about bias and it isn’t about malice. It’s about the simple fact that if you do content moderation, almost every “policy” you put in place will come back to bite you when you realize that, in practice, something will happen that seems insane even when you have a perfectly logical policy in place.
Candidates and Campaigns
New York Times: They’re Running for Office Without Health Insurance During a Pandemic
By Isabella Grullón Paz
Nabilah Islam, one of several Democrats running to replace Representative Rob Woodall, a retiring Republican, in a district north of Atlanta, has not had insurance since 2018.
“It was something that I forwent because running for office is cost-prohibitive, and it’s expensive to pay for health care,” she said. “I can’t even qualify for Medicaid, even if I wanted to.” …
“When you run for office, you can’t do this part time. The deck is stacked against you if you do it part-time,” Islam said. “And if you are a wealthier person, you have the advantages of not really having to worry about health insurance. You’re able to run more freely.”
The prospect of going without health insurance, pandemic or not, can deter people from running for office, particularly those who are political outsiders…
“The system wasn’t designed to elect people like me: working people, women of color,” Ms. Islam said. “And one of those structural barriers is health care.” …
Ms. Islam petitioned the Federal Election Commission in early January to be able to use campaign funds to pay for health insurance, seeking to level the playing field for candidates like her.
“I believe that if you’re on the campaign trail, you should be able to have health care,” Ms. Islam said. “Especially during a pandemic.”
She said she still hadn’t heard back.
Wall Street Journal: Candidates Scramble to Fund Payroll, Ads in Delayed Primaries
By Emily Glazer
When the Ohio primary was delayed last month, congressional candidate Kate Schroder went from primarily focused on winning her race to scrambling to make payroll.
Ms. Schroder’s campaign quickly pulled down its remaining television and digital ads, adding more than $10,000 to a bank account that was running dry.
“We suddenly had to fundraise for payroll and operations because we hadn’t expected to need primary resources for that,” said Ms. Schroder, a Democrat who also serves on the Cincinnati Board of Health.
More than a dozen states have delayed nominating contests in presidential and down-ballot races due to the new coronavirus outbreak, but Ohio’s move in mid-March was the most jarring for campaigns-the state’s governor decided to postpone in-person voting the night before the scheduled primary date.
That was disruptive to the presidential campaigns but much more so for operations such as Ms. Schroder’s. Many campaigns budget to the primary since fundraising typically gets easier once a candidate becomes the nominee and tends to receive more help from the political party. Campaigns are also only allowed to receive $2,800 per donor for the primary and cannot use general-election donations for the nominating contest, according to the Federal Election Commission. The FEC said campaigns affected by postponements can continue accepting primary contributions until the date of their rescheduled elections…
The current environment is difficult for fundraising, as companies are laying off or furloughing workers.
The States
Buffalo News: Final deals on new, coronavirus-slammed state budget come together in Albany
By Tom Precious
State lawmakers on Thursday were poised to approve a $178 billion budget that may or may not balance when the votes are cast.
All 3,197 pages of the budget are built on a financial house of cards that could see today’s promises fall apart in the coming weeks or months as the new coronavirus continues killing New Yorkers and the economy gets clobbered…
The final budget includes a new taxpayer-financed campaign finance system for statewide and state legislative races. A Niagara County judge recently struck down the system because lawmakers and Cuomo delegated the authority to create a new system to an outside panel, instead of themselves.
The budget essentially codifies the public financing system, starting in 2022. It will cost $100 million a year in the beginning. Democrats envision a tax write-off option by New Yorkers to fund it, but they acknowledge the general fund would pay for any difference in funding that taxpayers don’t voluntarily pay.
Assemblyman Edward Ra, a Long Island Republican, noted that a nationwide tax checkoff program to fund a presidential campaign finance system only raises $25 million from all U.S. taxpayers. “At the end of the day, this is going to come from the general fund,” he said.
Washington Examiner: Bill de Blasio exploits coronavirus to attack the First Amendment
By Nicole Russell
The coronavirus isn’t just a threat to public health. It might even pose a threat to the First Amendment, too.
On Sunday, New York City Mayor Bill de Blasio said that if churches and synagogues violate the city’s “shelter-in-place” order, they could be shuttered permanently.
“Everyone has been instructed that if they see worship services going on, they will go to the officials of that congregation, inform them they need to stop the services and disperse,” de Blasio said at a press conference. “If that does not happen, they will take official action up to the point of fines and potentially closing the building permanently.” …
Leave it to liberals such as de Blasio, or even some anxious conservatives, to respond to a pandemic with threats of permanently banning a person’s right to assemble or freely worship: a clear violation of the Constitution. (As opposed to neutral, temporary shutdowns, which may pass constitutional muster)…
Still, First Amendment advocates are concerned that the line between liberty and safety, which is admittedly delicate right now, is slowly being crossed.
