In the News

Wall Street Journal: The Threat to Privacy of Opinion

By Bradley A. Smith

[O]n June 30, 1958, the Supreme Court held that Alabama’s demands for the NAACP’s member and donor information violated the organization’s and its members’ freedom of association. “It is hardly a novel perception,” wrote Justice John M. Harlan II, “that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective . . . restraint on freedom of association.” Alabama’s demand, he continued, “may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs.”

Today politicians routinely demand that the law be changed to require disclosure of names and personal information of donors to any organization that is involved in public affairs. Concerns about privacy are brushed off with the response that such donors no longer face any substantial threat. And it is true that few causes today generate the potential for violence that faced civil-rights protesters 60 years ago in the deep South.

But NAACP v. Alabama wasn’t a one-off. It was merely the most dramatic of a series of midcentury decisions that protect the right of Americans to support causes without fear of retaliation. The parties protected against compulsory disclosure include union members and organizers (Thomas v. Collins, 1945), those paying for flyers critical of business practices (Talley v. California, 1960), donors to charities (Bates v. Little Rock, 1960), and public-school teachers (Shelton v. Tucker, 1960), among others.

Retaliation from compelled disclosure remains a live risk in the contemporary political scene. Vandalism, boycotts and bullying by both online and real-life mobs are well-documented. In some cases, elected officials have used disclosure information to retaliate against citizens for their lawful support of organizations critical of those same officials.

Washington Post: FEC struggles to craft new rules for political ads in the digital space

By Michelle Ye Hee Lee

The Federal Election Commission released two proposals in March for how political advertisers who are running small digital ads on mobile apps and new technological platforms could run truncated disclosures without obfuscating who paid for the ad.

After two days of hearings this week and more than 165,000 public comments and signatories, there was no clear consensus on which proposal to choose or how to meld the two, commissioners said Thursday.

“We’re going to some new place if we’re going anywhere” with the proposals, said Ellen Weintraub, the FEC’s Democratic vice chairwoman. “I’m not exactly sure where that place is.” …

Currently, all political committees that pay to run ads on a website must report their spending in public filings and include disclaimers on the ads that state the ads’ sponsors – just as they do for television ads.

But the commission has not drawn clear lines on what is required of small political ads online…

During the public hearings this week, those pushing for expanded disclosure requirements urged the agency to fast-track new rules to prevent malicious actors who may try to run political ads…

Others said expanding disclaimer requirements for small digital ads could impede on political free speech.

“If [the FEC] requires disclaimers that would objectively swallow a speaker’s underlying message, the commission will, in essence, be banning certain forms of political advertisements,” said Allen Dickerson, legal director of the Institute for Free Speech, which opposes limits on political speech and advertising.

NPR: Federal Election Commission Might Make Disclaimers Mandatory For Online Political Ads

By Peter Overby

ELLEN WEINTRAUB: On their phone, on their desktop, on their laptop, on their tablets. However they are seeing information, they’re entitled to know where it’s coming from.

OVERBY: Commission Chairman Caroline Hunter, a Republican, was more cautious.

(SOUNDBITE OF ARCHIVED RECORDING)

CAROLINE HUNTER: I know we all share the desire to try to come up with a rule in this case, and I know we’ll work hard together to try to do so.

OVERBY: But the goal is limited to require disclosure only on ads that directly support or oppose a candidate. So take the Russian ads, the messages on Facebook and Google that sought to influence the 2016 presidential election. The newspaper USA Today did an analysis of some 3,500 Facebook ads from one Russian advertiser. There were more ads about race than about the presidential candidates. Lawyer Allen Dickerson of the deregulatory Institute for Free Speech cited that example to challenge the FEC’s approach.

ALLEN DICKERSON: At most, according to USA Today, only 100 Russian-backed Facebook ads supported or opposed candidates.

OVERBY: He said the proposed disclaimers would have had little impact on the Russian advertising.

DICKERSON: It would have added a disclaimer to some subset of those 100 ads worth perhaps a few thousand dollars.

Supreme Court

Wall Street Journal: White House Narrows List for Supreme Court Nomination

By Jess Bravin

Mr. Trump’s ultimate choice to succeed Justice Anthony Kennedy, who this week announced his retirement after 30 years on the court, is unlikely to be a complete surprise: as a candidate he pledged to select Supreme Court nominees from lists prepared by leaders of conservative organizations, a commitment he kept with Justice Gorsuch and reaffirmed by publishing the current pool on the White House website.

Those 25 potential nominees include federal district and circuit judges, state supreme court justices and a U.S. senator, all of whom were carefully vetted by leaders of the conservative Federalist Society and the Heritage Foundation for ideological reliability. But the favorites are all federal appeals judges, starting with last year’s runners-up-Thomas Hardiman of the Third U.S. Circuit Court of Appeals in Philadelphia, and Raymond Kethledge, of the Cincinnati-based Sixth Circuit.

Additional finalists likely include Brett Kavanaugh, of the District of Columbia Circuit, and Amy Coney Barrett of the Chicago-based Seventh Circuit, along with another Sixth Circuit judge, Amul Thapar, these people said.

Internet Speech Regulation 

Facebook Newsroom: A New Level of Transparency for Ads and Pages

By Rob Leathern and Emma Rodgers

You can now see the ads a Page is running across Facebook, Instagram, Messenger and our partner network, even if those ads aren’t shown to you. Just log into Facebook, visit any Page and select “Info and Ads.” You’ll see ad creative and copy, and you can flag anything suspicious by clicking on “Report Ad.” …

You can also learn more about Pages, even if they don’t advertise. For example, you can see any recent name changes and the date the Page was created. We’ll be adding more Page information in the coming weeks…

The vast majority of ads on Facebook are run by legitimate organizations – whether it’s a small business looking for new customers, an advocacy group raising money for their cause, or a politician running for office. But we’ve seen that bad actors can misuse our products, too. These steps are just the start – we’re always looking for more ways to improve. By shining a bright light on all ads, as well as the Pages that run them, we’ll make it easier to root out abuse – helping to ensure that bad actors are held accountable for the ads they run.

TechCrunch: Twitter launches its Ads Transparency Center, where you can see ads bought by any account

By Anthony Ha

Twitter says that with this tool, you should be able to search for any Twitter handle and bring up all the ad campaigns from that account that have run for the past seven days. For political advertisers in the U.S., there will be additional data, including information around billing, ad spend, impressions per tweet and demographic targeting.

Everyone should be able to access the Ads Transparency Center, no login required.

As part of  the political ad guidelines that Twitter announced last month, the company says it will be visually identifying ads that are tied to federal elections in the United States. Over time, it plans to develop a policy specifically around “issue ads” (i.e. political ads that aren’t explicitly promoting a candidate) and looking for ways to expand these policies internationally.

Congress

Bloomberg: Democrats Take Aim at ‘Dark Money’ With Eye on Midterms

By Bill Allison

Senator Sheldon Whitehouse of Rhode Island and all 48 of his Democratic colleagues introduced the [Disclose Act] Wednesday. A House version, sponsored by Representative David Cicilline, also of Rhode Island, garnered 147 supporters.

No Republican in either chamber backed the measure, and its chances for passage before the November midterm elections are slim. But the Democrats plan to use the bill as a progressive theme…

The measure would require all groups that spend $10,000 or more on elections to provide the names of their donors to the Federal Election Commission. That would include disclosure of the owners of limited liability corporations that contribute to politically active organizations.

Supporters of the bill say that Russian influence in the 2016 election could galvanize support for the measure, which has been introduced in every Congress since 2010…

Under one of the bill’s provisions, American subsidiaries of foreign corporations couldn’t contribute to super PACs and other organizations that spend on elections. The subsidiaries could, however, continue to have political action committees that are financed by donations of employees…

The legislation would also give the Securities and Exchange Commission the authority to require publicly traded companies to tell shareholders about their political spending…

The bill would extend “stand by your ad” provisions that require political candidates to state their names and that they approve their advertisements, to outside spenders as well.

Online Speech

The Atlantic: The Age of Reverse Censorship

By David A. Graham

Today, the greatest danger is not that speech is scarce and endangered, but rather that enemies of open debate have found ways to combat free speech that the First Amendment was never intended to address-and so far is failing to address, according to Tim Wu, a law professor at Columbia…

Where once the greatest threat to the American press was censorship, the bigger challenge now is what could be called reverse censorship. Authoritarian governments, led by Russia and China, have devised methods of taking advantage of the internet to stifle speech without directly blocking it. The prevailing tactics of each of those countries have now found a home in the United States, and Wu believes the U.S. First Amendment tradition needs revamping to handle it.

As the internet spread, the regimes in Moscow and Beijing concluded that simply blocking the web would be unworkable, but they were unwilling to surrender their existing control over speech. China’s answer was flooding the zone: paying people to create content that supported the government and effectively drowned out any critics…

Wu has fewer answers for how First Amendment jurisprudence can rise to the challenge of those who pursue the Chinese zone-flooding model. Wu, like other commentators, argues that tech giants like Facebook need to acknowledge that they are now media companies. With that burden, they need to work to stem the flow of fake news and to adopt journalistic ethics about spreading rumors and libel…

When I asked Wu what the government could do to stop zone flooding-independent of private companies doing the right thing-he acknowledged that many possible solutions quickly run into complications. “Almost all of the ideas are horrible,” he told me.

The Atlantic: Reddit’s Case for Anonymity on the Internet

By Rachel Gutman

Reddit, the self-described “front page of the internet,” may have a key tool in its arsenal as Americans begin to question their relationship with social media: anonymity. According to Steve Huffman, the site’s co-founder and CEO, “privacy is built into Reddit.”

All that’s required to create an account and post on any of Reddit’s 1.2 million forums is an email address, a username, and a password. You don’t need to tell the company your birthday, your gender, or even your real name…

Huffman argued that anonymity on Reddit actually makes using the site “more like a conversation one has in real life” than other exchanges on the internet. “When people detach from their real-world identities, they can be more authentic, more true to themselves,” he claimed…

Redditors maintain one consistent identity through their usernames, with an associated score called “karma” that tells other users how often they’ve been upvoted or downvoted-essentially a proxy for how informative, trustworthy, and civil the community has found them in the past. “People care about their reputations on Reddit,” Huffman said on Thursday. “There’s some stake to it.” …

Reddit’s favoring of aliases over actual personal information could help it avoid data-breach scandals like those that have befallen Facebook, Yahoo, and Equifax in recent years, or tap into users’ most sensitive identities…

“We are extremely proud to have created this enriching experience where people can be themselves,” Huffman said. The question is whether these anonymous online personas are really the selves we want to be.

FEC

Campaigns & Elections: FEC Weighs New Rules to Govern Political Ads Online

By Benjamin Barrett

The FEC’s Notice of Proposed Rulemaking (NPRM) and call for public comment this March centered around two alternative rulemaking approaches: Alternative A carries over existing print, radio and broadcast disclaimer regulations into the realm of “internet communications” largely intact; Alternative B applies a general rule that disclaimers be “clear and conspicuous” to all online advertising and makes room for an “adapted disclaimer,” among other exceptions, when such rules are deemed burdensome.

The commission noted the final version of the rule could incorporate elements of both approaches. A crucial part of the debate this week before commissioners centered on whether “one click” or “face of the ad” disclaimers strike the right balance between free speech and the goal of greater transparency.

“If there’s a question about whether an ad will be struck down by the FEC, usually the answer is we’re not going to run that ad,” said Doug Hochberg, Chief Digital Officer at the Republican National Committee. “We would like to advocate for a ‘one click’ rule-the disclaimer for who’s running the ad is never more than one click away.” …

In a joint opening statement on Thursday, the NRCC and NRSC warned some of what the FEC was mulling would be an unnecessary burden on digital ad makers.

“The proposal to extend ‘Stand By Your Ad’ requirements to online videos is not compatible with the 6 second online bumper ad, which has proven to be an effective way to capture people’s attention and drive efficiency,” said Thomas Reiker, Deputy Digital Director at the NRSC, “If we have to devote 4 seconds to the disclaimer, we simply won’t run 6 second ads.”

Kansas City Star: Dark-money groups that helped elect Eric Greitens now facing FEC complaint

By Jason Hancock

A liberal government watchdog called Citizens for Responsibility and Ethics in Washington, or CREW, alleges two political action committees and two nonprofits violated federal campaign law by directing money into the 2016 campaign in such a way as to deliberately hide the identity of the donors.

“Millions of anonymous dollars were funneled through multiple organizations to help elect Eric Greitens while keeping the citizens of Missouri from finding out where the money was coming from. This isn’t right and it isn’t legal,” said Jordan Libowitz, CREW’s communications director. “Voters deserve to know how their elections are bought and paid for.” …

CREW’s complaint focuses on the 2016 campaign and the actions of two federal PACs – LG PAC and SEALs for Truth – and two nonprofits – American Policy Coalition and Freedom Frontier.

Intimidation 

CNN: Maxine Waters says she’s faced increased threats, cancels attending 2 events

By Ashley Killough

Rep. Maxine Waters said Thursday she’s seen an increase in threats since she made controversial comments last week encouraging protesters to heckle and harass members of Trump’s Cabinet in public spaces.

The California Democrat canceled two scheduled appearances in Alabama and Texas this weekend after saying she got threatening messages and “hostile mail” at her office, including “one very serious death threat” on Monday from an individual in Texas.

“As the President has continued to lie and falsely claim that I encouraged people to assault his supporters, while also offering a veiled threat that I should ‘be careful’, even more individuals are leaving (threatening) messages and sending hostile mail to my office,” she said in a statement.

“There was one very serious death threat made against me on Monday from an individual in Texas which is why my planned speaking engagements in Texas and Alabama were cancelled (sic) this weekend,” she continued. “This is just one in several very serious threats the United States Capitol Police are investigating in which individuals threatened to shoot, lynch, or cause me serious bodily harm.” …

“I believe in peaceful, very peaceful protests,” she said Monday on Capitol Hill. “I have not called for the harm of anybody. This President has lied again when he’s saying that I’ve called for harm.”

Also on Monday, Waters said she receives death threats “all the time.” In April, a man pleaded guilty to threatening Waters last year.

“I don’t cry about protests,” Waters said earlier this week. “People protest me all the time. People come to my district office. That’s their right. The only time I have anything to say about protests is when they threaten to kill me, then I turn that in. Otherwise, protests is the American way.”

The States

Williamson Daily News: Teachers fuel grassroots campaign finance

By Bishop Nash

During the thick of the statewide protests, Matt Stead and Don Scalise founded the Future of 55 political action committee as a means for educators and their supporters to put their money where their mouth is in the ongoing pursuit of better pay, benefits and policy for the state’s school employees.

“After talking to people in the state Legislature, many seemed to not understand the problems many teachers face financially and they didn’t seem to understand education policy altogether,” Scalise said. “We thought that we needed to get more involved.”

Political action committees are organized funding pools made by contributions from members and donors under a unified cause. The money is then used to support candidates who best represent that organization’s cause. PACs are common at all levels of government and can support any number of focuses.

The Future of 55 PAC will endorse candidates locally and statewide based on how their platform aligns with the causes of school employees. The PAC is bipartisan and has financially supported dozens of Republicans and Democrats across West Virginia, Scalise added.