New from the Institute for Free Speech
Cruz to Google: It’s Eleven O’clock, Do You Know Where Your Employees’ Political Contributions Are?
By Luke Wachob
At a Senate Commerce Committee hearing on Tuesday, Senator Ted Cruz grilled Google User Experience Director Maggie Stanphill on a subject that is neither his business nor hers: the political contributions of Google employees.
“The public records show that in 2016, Google employees gave to the Hillary Clinton campaign, $1.315 million dollars. That’s a lot of money. Care to venture how much they gave to the Trump campaign?” Cruz asked Stanphill in a clip that went viral after being tweeted by the Washington Examiner.
“I would have no idea, sir,” Stanphill answered.
“Well, the nice thing is it’s a round number. Zero dollars and zero cents. Not a penny, according to the public reports,” Cruz responded.
For starters, it’s not true that Google employees gave nothing to the Trump campaign in the 2016 election cycle. In fact, over thirty Trump donors named Google as their employer, some of whom gave on multiple occasions. Others listed Alphabet, Inc., and still others may have named a Google subsidiary. A few of these Google employees even gave the $2,700 maximum contribution to Trump for the general election. And more likely gave to independent groups that supported the President’s campaign.
Set all that aside. Senator Cruz’s questioning would be deeply troubling even if his facts were right.
Government should not treat people differently based on who they vote for; it also should not treat companies differently based on which candidates their employees support or oppose. Moreover, using employees’ political giving as a cudgel to attack their employer creates an incentive for companies to monitor and pressure their employees’ political contribution choices. Americans have the right to support who they want. Government leaders and corporate big-wigs have no business telling them to spread their donations around.
The Courts
Reporters Committee for Freedom of the Press: Maryland political ad law violates First Amendment, coalition argues
By Courtney Douglas and Katie Beth Nichols
A coalition of 17 media organizations, joined by the Reporters Committee for Freedom of the Press, is supporting arguments that a Maryland law regulating online political advertising violates the First Amendment.
Maryland’s Online Electioneering Transparency and Accountability Act was signed into law in 2019, prompted by concerns of online Russian interference related to the 2016 presidential election. The law requires anyone who publishes “political advertisements” online to keep intricate records of them and make detailed information about them publicly available within two days of their publication. Platforms that violate this law by hosting an ad without properly registering details about it would be subject to criminal penalties and injunctions without any notice, and would not be given an opportunity to object to them.
In a brief filed with the Fourth Circuit in support of a group of media organizations who have challenged the law, the media coalition argues that the state’s argument in support of the law is problematic for news organizations because it would diminish First Amendment protections for online speech…
The brief also notes the significant and adverse financial impact that the law will have on news organizations if they must comply with the disclosure requirements, noting that Google stopped accepting political advertisements in Maryland when the law went into effect…
The coalition argues that the law is more expansive than the issue it aims to resolve and that imposing its requirements on publishers, in addition to political candidates, makes it a “content-based regulation” that’s therefore subject to “strict scrutiny,” a legal test that requires the government to prove that a law serves a compelling interest and is narrowly tailored to serve that interest.
MediaPost: Google Says New Supreme Court Ruling Hurts Prager’s Censorship Claim
By Wendy Davis
The Supreme Court ruled 5-4 [last] Monday that the private company Manhattan Neighborhood Network, which operates a cable channel in New York, isn’t bound by the First Amendment’s prohibition on censorship.
Google is now telling the 9th Circuit Court of Appeals that the ruling protects companies like itself from lawsuits alleging “censorship.”
“YouTube is a private service provider, not a state actor, and its editorial decisions are not subject to First Amendment scrutiny,” Google writes in new court papers…
The tech company writes that the ruling “affirmed that the ‘Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property.'” …
Prager claimed its free speech rights were violated by Google, and that the company engaged in false advertising by promising “content neutrality.”
U.S. District Court Judge Lucy Koh dismissed the lawsuit last March, ruling that Google has the right to decide how to treat material on its platform.
Prager recently appealed that ruling to the 9th Circuit Court of Appeals, arguing that YouTube is a “public forum” — comparable to a park or other venue where people typically have free-speech rights — and that the company therefore isn’t allowed to censor lawful speech based on its content.
YouTube countered that the First Amendment only prohibits the government from censoring speech. “YouTube is not the government, and its efforts to regulate content posted to its private online service are not limited by the First Amendment,” the company wrote in papers filed in November.
The 9th Circuit is expected to hear arguments from both sides on August 27 in Seattle.
Congress
The Hill: Klobuchar, Warner introduce bill to limit foreign involvement in US political ads
By Maggie Miller
Sens. Amy Klobuchar (D-Minn.) and Mark Warner (D-Va.) introduced legislation on Tuesday aimed at preventing foreign nationals from purchasing political advertisements, the latest move by Senate Democrats pushing for election security legislation.
The Preventing Adversaries Internationally from Disbursing Advertising Dollars (PAID AD) Act would amend federal campaign finance laws to ban foreign nationals from purchasing ads that name a political candidate and appear on broadcast, cable, satellite or digital platforms.
The legislation would also make it illegal for a foreign government to purchase “issue advertisements” during an election year.
The senators argued that the Federal Election Campaign Act (FECA), first passed in 1972, should be expanded beyond its current “narrow” definition of what constitutes “electioneering communication.”…
In the House, a companion bill has already been introduced by Reps. Elissa Slotkin (D-Mich.) and Elise Stefanik (R-N.Y.) as an amendment to H.R. 1, the For the People Act.
National Review: Hawley’s Plan to Regulate Social-Media Giants Draws Muted Response on Capitol Hill
By John McCormack
Hawley’s proposal drew sharp criticism from several voices on the right, including our own David French, who wrote that the bill is both unconstitutional and unwise. On Capitol Hill, there hasn’t been a groundswell of support for Hawley’s legislation, which currently has zero cosponsors. But neither has there been much pushback from Hawley’s Republican colleagues.
Representative Justin Amash (R., Mich.), a frequent thorn in his caucus’s side, tweeted that the bill is “a sweetheart deal for Big Government. It empowers the one entity that should have no say over our speech to regulate and influence what we say online.” But only one of more than a dozen Republican senators contacted by National Review expressed any criticism of Hawley’s legislation: Nebraska’s Ben Sasse, who “is not a co-sponsor of this government-control approach and has concerns that this could open the door to the left for a new government Fairness Doctrine,” his spokesman, James Wegmann, tells National Review…
Some Democrats have shown themselves open to using the same threat as Hawley – amending Section 230 – to influence large tech platforms in different ways. House speaker Nancy Pelosi, for example, recently raised the possibility of doing so after social-media companies refused to take down a doctored video of her slurring her words. And one Senate Democrat tells National Review that he’s willing to hear Hawley out.
“I’ve not come to a conclusion on what the approach ought to be on Section 230,” says Democratic senator Mark Warner of Virginia, who teamed up with the Missouri Republican earlier this week to require tech companies to disclose to users how much their data is worth. “I think there should be a debate.”
Reason: Sen. Ron Wyden: Conservatives Are ‘Totally Wrong’ About Political Neutrality Under Section 230
By Eric Boehm
The debate over free speech on the internet has turned everything “tursy-turvy” says Sen. Ron Wyden (D-Ore.).
“I’m up against a group of big-government Republicans who seem to think the right answer is to push the private sector-users and consumers and shareholders and managers-push them aside and, in-effect, deputize the federal government as speech police in violation of the First Amendment,” Wyden tells Reason…
Sen. Josh Hawley (R-Mo.) has taken the lead by introducing a bill to amend Section 230 under the pretense of fighting tech companies’ supposed “bias” against Republicans….
[T]he notion that Section 230 has always included an implicit “deal” requiring platforms take a neutral political stance has become a talking point in some parts of the political right.
What does Wyden, the author of Section 230, think of that claim?
“Totally wrong,” says Wyden. “Section 230 has nothing to do with neutrality. Nothing. Zip. There is absolutely no weight to that argument.”
What the law does imply, according to Wyden, is that conservative blogs and websites can put their point of view out into the marketplace, “where users and consumers will make judgments about it.” In other words, you have a right to speech online, but not a right to get your speech hosted on anyone else’s website. The same is true for liberal perspectives online. “It’s about making sure that all the voices get heard,” Wyden says…
“For the life of me,” Wyden says, “I can’t understand how [rolling back Section 230] has become a big part of a political party that used to believe in less government.”
CBS News: House panel votes to subpoena Kellyanne Conway over political speech
By Emily Tillett and Kathryn Watson
The House Oversight Committee has voted to subpoena White House counselor Kellyanne Conway, after the Office of Special Counsel found she violated the law prohibiting government employees from engaging in political speech on the job so many times OSC suggested she be removed from office.
The 25-16 vote fell largely along party lines, with outspoken Republican Rep. Justin Amash being the only Republican to approve the resolution to subpoena the president’s top aide over her Hatch Act violations. The vote came after the hearing dissolved into shouting, with Republicans insisting Conway did not break the law by supporting and opposing candidates while Democrats insisting she did, repeatedly. Republicans claim OSC – run by Trump appointee Henry Kerner – is trying to quash Conway’s free speech because she’s an effective messenger for the president. Democrats insist she’s clearly violating the law…
The committee had invited Conway to testify about her own violations of the Hatch Act but the White House effectively blocked Conway from testifying about concerns that she had engaged in prohibited political speech while working for the administration. With Conway’s no-show, the committee moved forward with the subpoena vote.
Online Speech Platforms
National Review: What Is Facebook?
By Michael Brendan Dougherty
[S]ection 230 of the law, which allows proprietors of websites and forums to set standards – to edit and moderate their content without becoming a publisher of them – is now the legal remit under which social-media giants shadow-ban, block, and censor conservative speech. Many conservatives, and even my colleagues, defend this practice as part of Facebook’s free speech…
There are two conservative principles in tension here. On the one side, there is freedom. If you think Facebook simply is a platform – no different from a rented stage, or a web server, or a single post on an Internet forum – then the argument for the status quo is very straightforward. The user is the speaker, and if that user says something that is legally actionable, it is the user and not Facebook that is responsible. Facebook should be free to reject and moderate its content the way that forum hosts or stage companies can reject a speaker outright, but should not be in any way considered an endorser of those speech acts.
But on the other side is responsibility. Facebook may exist within existing conventions of speech law. But its revenue is generated in this strange legal zone where it is able to profit from media-like content, while disclaiming all the difficult parts of traditional-media judgment. In this way, it offends the primordial conservative conviction that right and responsibility go together. The result, I think, is calamitous to our public square…
I’m not sure that simply threatening to reclassify Facebook as a publisher, as Hawley’s proposed legislation would do, is the correct approach. It could, as its detractors say, lead to more stifling of speech on the platform rather than less. Though, again, this would merely be the consequence of saying that there would be more responsibility attached to speech, especially to the entity that profits the most from it.
The States
Portland Mercury: Oregon’s Carbon Emissions Bill Isn’t the Only Legislation Delayed by State Republicans
By Blair Stenvick
You have probably heard by now about the Oregon Senate Republicans’ big year-end field trip to deny Democrats a vote on a bill that would place new carbon emissions limits on businesses. But while House Bill 2020 is the reason 11 state senators are dodging the Capitol-and reportedly, the state-it isn’t the only bill delayed by their absence.
As the Oregonian reported on Saturday, the missing Republicans are keeping more than 100 different bills from passing a Senate vote. If the missing senators continue to deny the Senate a full quorum until June 30, the scheduled end of this legislative session, there’s a chance those bills won’t get a vote in 2019…
Here are a few other pieces of legislation that won’t get a vote…
House Bill 2716 takes on campaign finance reform. Specifically, the bill would require that when a political group puts out a TV ad, mailer, or other piece of campaign literature, it must clearly state the names of the people who paid for it. HB 2716 passed the House earlier this month, and has been pending a Senate vote ever since.
Gothamist: Four Political Takeaways From Albany’s Historic Legislative Session
By Fred Mogul, WNYC
On any given session day, demonstrations ring through the halls of the Capitol, most often (though not exclusively) calling for liberal goals, such as criminal justice reform or more healthcare spending. Sympathetic lawmakers sometimes participate.
That’s nothing new.
But what was new was the extent to which Democratic legislators were receptive to their pleas – and those demands worked their way through hearings, bill writing, and committee and floor votes.
Members of the Start Smart pro-legalization coalition helped draft the marijuana bill. Ditto for the New York Renews coalition and the climate change bill and the Upstate Downstate Housing Alliance on rent reform. Immigrant groups were crucial to bills granting them drivers licenses and workplace wage protections for farm workers and carwash workers.
Bill after left-leaning bill had input from activists, who joined politicians at rallies and then kept the pressure on.
The influence of campaign donors and lobbyists, including those representing landlords and developers, medical marijuana, labor unions and mobile sports betting, meanwhile, was relatively weak…
[W]hen asked what the overhaul said about the influence of the real estate industry’s multi-million donations on him and legislators, [Governor Andrew Cuomo] said the tenants’ victory proved that political contributions don’t affect him in any way.
“I think it would dispel any premise that there’s a connection between donors and legislative outcomes,” he said during a press conference, chuckling. “It sort of upends that whole theory.”
Baltimore Sun: Maryland Democratic Party accuses donors to Gov. Hogan of violations; Hogan lawyer calls complaint ‘false’
By Luke Broadwater
The Maryland Democratic Party on Monday accused nearly 100 donors to Gov. Larry Hogan’s successful reelection campaign of violating elections law by donating too much money to the governor.
Chris Ashby, an attorney for the Republican governor’s campaign, called the party’s complaint to the state Board of Elections “false” and “sloppy” and predicted it would be dismissed.
Under Maryland law, donors may not give more than $6,000 to a candidate every four years.
“It appears that there are 96 individuals and businesses who were in violation of the $6,000 donation limit during the last election,” Ben Smith, director of the state Democratic Party, wrote in a complaint to Jared DeMarinis, director of campaign finance for the elections board…
Ashby said the Hogan campaign already refunded some of the contributions from individuals and companies who gave more than the legal limit and would review others.
“This complaint is demonstrably false. Instead of rushing to tell the media about their shoddy political hit job, the Maryland Democratic Party’s operatives should have taken more time to examine all of our publicly available campaign finance reports and gather accurate information,” Ashby said.
“Our campaign always has been and will remain committed to operating within the limits established by Maryland law, to making full and timely campaign finance disclosures as the law requires, and to correcting any bookkeeping errors promptly, as we have done in the past. We look forward to the swift dismissal of this sloppy complaint.”
