In the News
Washington Examiner: Mark Zuckerberg wants government to control speech on Facebook
By Scott Blackburn
President Trump has said that he is “monitoring the censorship of AMERICAN CITIZENS on social media platforms,” a not-so-subtle threat that government may one day impose its own standards for content moderation on private companies. Trump has an unlikely ally: Sen. Elizabeth Warren, D-Mass., also thinks the feds should regulate Facebook and other social media companies, going so far as to call for a break-up of the Big Tech companies.
Shockingly, another prominent supporter of government regulation of speech on Facebook is Facebook CEO Mark Zuckerberg. Zuckerberg has bemoaned the “immense responsibilities” his company has as a major internet platform. He wants the government to take those responsibilities off his hands…
If Facebook actually supports free expression, if it actually wants users to have an open forum that celebrates the infinite possibilities of the internet, then it has two options. One, Facebook can embrace the principles of the First Amendment in America and trust its users to deal with hate-filled speech the American way: ignoring it, criticizing it, mocking it, and answering it with more speech.
Or two, Facebook can, as a private company, ban, suspend, and censor whomever it likes. The company simply must accept that these bans will often be viewed through a political lens, and learn to take the heat from the public and the press. The cost of a kinder platform may very well be a less universal one.
But handing over the reins to government will destroy free expression on Facebook. In the best-case scenario, Congress and the president will be in charge of regulating and enforcing the universe of online political speech. If the past is any indication, it will attempt, through 10,000 regulatory paper cuts, to limit and reduce speech politicians dislike. In the worst-case scenario, the radically restrictive speech standards of Europe, or even the Middle East, will be imported to American Facebook users.
Reason: Why the Arkansas Law Aimed at Boycotts of Israel Is Generally Constitutional
By Eugene Volokh
[H]ere’s our brief (PDF) (you can also read a brief from other leading First Amendment scholars on the other side, as well as still more briefs on that side, including ones from the Foundation for Individual Rights in Education, the Institute for Free Speech, and the Reporters Committee for Freedom of the Press, groups with which I usually agree):
Summary of Argument
Decisions not to buy or sell goods or services are generally not protected by the First Amendment. That is the necessary implication of Rumsfeld v. FAIR, 547 U.S. 47 (2006), and it is the foundation of the wide range of antidiscrimination laws, public accommodation laws, and common carrier laws throughout the nation…
But as a general matter, a decision not to do business with someone, even when it is politically motivated (and even when it is part of a broader political movement), is not protected by the First Amendment. And though people might have the First Amendment right to discriminate (or boycott) in some unusual circumstances-for instance when they refuse to participate in distributing or creating speech they disapprove of-that is a basis for a narrow as-applied challenge, not a facial one. For this reason, Ark. Code Ann. § 25-1-503 is constitutional.
The Courts
KRTV Great Falls News: Judge hears arguments concerning dark money lawsuit
By Margaret DeMarco
A federal judge in Great Falls heard arguments Wednesday over a lawsuit involving dark money.
Montana Governor Steve Bullock, the Montana Department of Revenue, and the state of New Jersey are suing the Internal Revenue Service over the IRS’ decision to stop collecting donor information from dark money groups.
The term “dark money” refers to spending on advertisements, mailers and other material to influence campaigns, and whose source is difficult to trace.
The state argued the decision has interfered with their ability to gather data.
The IRS is asking the court to dismiss the suit due to a lack of jurisdiction and failure to state a claim.
The plaintiffs asked Wednesday for the judge to make a summary judgment arguing the IRS should have held a notice and comment period on the matter.
Judge Brian Morris took the arguments under advisement and will make a decision at a later time.
Free Speech
National Review: Do We Still Want Free Speech?
By Charles C. W. Cooke
There is an ugly paradox at play here: that, at the very same time that we have been making enormous advances in the courts, a whole host of America’s private institutions have been rendering it more difficult – and more costly – to speak freely. This paradox should seriously temper our triumphalism, for in the long run, a society that has a bulletproof legal right to speak but that has no meaningful culture of free speech will end up, in practice, without either…
There are two reasons for this. The first is that, for most people, the bigger threat to speech comes not from the government, which tends to censor capriciously, but from their employer, from their peers, or, increasingly, from the Internet. It won’t matter much that Ruth Bader Ginsburg is happy to defend the legal speech rights of literal neo-Nazis or that Clarence Thomas is comfortable protecting the right of Klansmen to say appalling things about African Americans if citizens who hold innocuous, and even mainstream, views are pilloried for departing even marginally from the present consensus…
The second reason is that culture eventually becomes politics, and the private eventually becomes the public. A certain portion of Americans believe to their core that “free speech” is a euphemism for “intolerance”; that one must filter all individual-liberty claims through the latest iteration of the hierarchy of grievances; and even that the First Amendment represents some sort of clever plot to keep marginalized people down. That this gets the history of speech entirely backward – ask the rebel colonists, the abolitionists, and the NAACP whether they benefited or suffered from free speech – is beside the point. What matters is that it has become fashionable as an idea, that it is spreading, and that it is being enforced voluntarily within the towering heights of American culture by people who believe that they are the rebels and that the free-speech crowd is the Man.
Cato: Free Speech and Identity Politics
By John Samples
I think Arnold Kling is one of the most insightful bloggers around so I am pleased that he likes my latest Cato policy analysis. He remarks:
My worry is that American culture no longer supports free speech…But hurting someone’s feelings should not count as direct harm. Racist remarks or Holocaust denial may be uncouth, but in a culture of free speech they should be permitted.
I agree with Kling about extreme speech. I am not sure that the culture for free speech has changed all that much. We first learned in the 1950s that while Americans overwhelmingly supported the First Amendment in the abstract, majorities or significant minorities often opposed freedom of speech in concrete cases (like letting unpopular minorities speak). But beyond America’s general culture of free speech, things have changed. In the past elites supported free speech. Now I wonder if they do.
Some attribute the problems of free speech (especially among elites) to the rise of identity politics. In his excellent book Identity, Francis Fukuyama sees identity politics as the demand for public recognition of the dignity of each person’s inner self. That inner self should be authentic rather than imposed by society. Authenticity in turn implies connections to a group and to history. Speech that offends this dignity of the inner self contravenes identity politics.
But need identity and free speech be at odds?
Congress
New York Times: Russia Could Unleash Fake Videos During Election, Schiff Says
By Julian E. Barnes
The Russian government is likely to try to influence the 2020 presidential election, not through the release of stolen emails and other documents but through faked videos, the chairman of the House Intelligence Committee said on Tuesday…
“The Russians may feel if they are too overt about it, the risk of blowback is simply too great,” Mr. Schiff said at the Council on Foreign Relations. “But there are other ways to have potentially even bigger impact than hacking and dumping.”
Mr. Schiff said he was particularly worried about the effect of falsified videos, known as deep fakes. Such videos could be easily introduced into social media, where they will spread rapidly.
A carefully crafted, controversial fake video, Mr. Schiff said, would be “hugely disruptive and hugely influential.” The risk is amplified because if a video is executed carefully, it can be hard to both prove it is fake and show where it came from…
“The public will be left to doubt,” Mr. Schiff said.
Even fake videos can have a pernicious effect, he said. “You will never completely shed the negative lingering impression you have,” he added.
The House Intelligence Committee is expected to hold a hearing on the deep fake videos on June 13…
“I cannot imagine anything more corrosive to a democracy than an environment where no one can tell what is true anymore,” Mr. Schiff said. “You simply retreat to your tribe and view everything as true or false depending on what party you belong to or what group you belong to.”
FEC
Bloomberg Government: Lax Campaign Law Enforcement May Empower Big Money in 2020
By Kenneth P. Doyle
The 2020 election faces few campaign finance guardrails as the main enforcer of funding limits remains paralyzed by partisan rifts on how aggressively to enforce the law.
Federal Election Commission inaction means that dozens of candidates now running for president are freer to raise money for super PACs and other outside groups, in part because the commission didn’t clamp down on fundraising in the last presidential election. Super PACs can raise and spend unlimited amounts but are not supposed to coordinate their activities with candidates.
“FEC dysfunction has made it more difficult for candidates trying to follow the law, and easier for those willing to break it,” according to a report released in April by the nonprofit Brennan Center for Justice at New York University.
The commission faces a backlog of nearly 300 enforcement cases that could provide a legal roadmap for candidates on key issues such as outside group spending and foreign influence on campaigns. The release of the report by Special Counsel Robert Mueller has put a greater spotlight on foreign election interference.
But if the past is any guide, the politically split four member commission will struggle to garner the unanimous votes necessary to clarify or enforce the law as the campaign season gets underway.
Cases facing the commission in the months ahead include dozens of alleged violations of the longstanding ban on foreign spending in U.S. campaigns, according to Chairwoman Ellen Weintraub, one of the two Democratic appointees to the panel. The FEC recently voted to impose fines for a Chinese company’s contribution to a super PAC but many other cases remain pending.
New York Times: Election Rules Are an Obstacle to Cybersecurity of Presidential Campaigns
By Nicole Perlroth and Matthew Rosenberg
One year out from the 2020 elections, presidential candidates face legal roadblocks to acquiring the tools and assistance necessary to defend against the cyberattacks and disinformation campaigns that plagued the 2016 presidential campaign.
Federal laws prohibit corporations from offering free or discounted cybersecurity services to federal candidates. The same law also blocks political parties from offering candidates cybersecurity assistance because it is considered an “in-kind donation.”
The issue took on added urgency this week after lawyers for the Federal Election Commission advised the commission to block a request by a Silicon Valley company, Area 1 Security, which sought to provide services to 2020 presidential candidates at a discount. The commission is expected to decide on Area 1’s request at a public meeting on Thursday.
Fundraising
Washington Post: How much money comes from outside House districts? We crunched the numbers.
By Philip Bump
Our analysis found that about 73 percent of winning congressional campaigns took in a majority of their individual contributions from outside the district. About 62 percent of losing campaigns did.
On average, winning campaigns took in about 24 percent of their individual contributions from within the district (or about 37 percent from within or ZIP codes adjacent to the district). About 63 percent came from outside the district. Among losing campaigns, the numbers were generally similar.
Interestingly, the percentages for incumbents and non-incumbents broadly matched the percentages above. That makes some sense, of course: Incumbents tend to win their races.
Overlaying those two, though, things shake out a bit differently. Incumbent winners took in less money from outside the district than non-incumbent winners. Non-incumbent losers took in less outside money than incumbent losers.
The differences are even sharper when considering the type of district. Using Cook Political Report’s final race ratings from last November, we identified toss-up districts. In those contests, candidates received an average of more than 70 percent of individual contributions from outside the district…
Overlaying the results of the contests is again informative. An average of nearly 8 out of every 10 dollars that came in to winning candidates in toss-up seats came from outside the district. Overall, 81 percent of money raised across all of these contests came from outside the respective districts.
On average, Democrats took in more money from outside of their districts than did Republicans.
Online Speech Platforms
Wired: The Return Of Fake News-And Lessons From Spam
By Renee DiResta
Can we devise solutions that aren’t reactive and ad hoc, and aren’t bogged down by accusations of partisan bias? One idea is to treat fake news as a distribution problem, treating it more like spam. Spam is something the platforms already understand and deal with. In the early days of the web, industry players introduced tools like DNS blacklists. The Spamhaus Project has been compiling anti-spam registries for over a decade. Back then, it wasn’t controversial to suggest that we could use signals to determine whether or not a domain was low quality. There was a consensus that not all information was worth pushing directly into people’s inboxes. Today, the vast majority of email that’s clearly crap is stopped at the source-and no one mourns the free speech rights of spammers. Content that is borderline makes it into a designated Spam folder, where masochists can read through it if they choose. And legitimate companies that use spammy email marketing tactics are penalized, so they’re incentivized to be on their best behavior.
Examining distribution more closely allows for a balance of free expression and a healthier information ecosystem. It’s debatable whether Facebook was right to leave up the Pelosi video, though it’s becoming clearer that, much like in past examples, the creator coordinated distribution across several sites he managed. The video likely should never have gone viral in the first place. Once it did, it should have been clearly and unambiguously been labeled an edited video, in-platform-not with an interstitial telling people they can go read an article for more information. In a Lawfare essay, the authors put it eloquently: “It may be best to embrace a more-aggressive combination of demotion and flagging that allows the content to stay posted, yet sends a much louder message than the example set by Facebook.”
Forbes: Will Increasing Government Censorship Lead To A Fragmented Web?
By Kalev Leetaru
As governments across the world increasingly seek to extend their reach to control what is said and seen online, the idea of governments actively censoring the Web has become normalized. While free speech advocates once condemned government intrusion into online communications, those same organizations and activists are increasingly cheering the idea of governments constraining digital speech in order to prevent speech they themselves disagree with. Emboldened by this growing support, governments are increasingly looking beyond their own borders to censor speech globally. As these trends collide, the inevitable result will be a fragmented Web.
In the beginning of the modern Web, its decentralized nature meant there were no global rules on what could be said or seen within its digital borders. Each country developed its own locally enforced rules reflecting its distinct cultural and political necessities.
In turn, the rise of social media created centralized walled gardens that transcended geographic borders and led the to the rise of parallel digital states momentarily unbeholden to physical governments.
This brief era of internet freedom meant Silicon Valley could forcibly export American ideals of free speech to the world, giving voice to those living under repressive regimes and autocratic democracies.
Predictably, this brief moment did not last as governments moved swiftly to silence nascent dissent and prevent the freedoms of this new digital medium from interfering with their control over the informational landscape.
The early decentralized era of the Web meant that the repressions of one government had no impact on the speech of another. In the centralized Web of social media, all speech worldwide suddenly had to be acceptable to every other government.
The centralized platforms that once forced free speech upon the governments of the world now found themselves on a race to the bottom to ensure that the speech of every individual worldwide was acceptable to every government worldwide.
Reason: YouTube Punishes Steven Crowder for Homophobic Speech, a Confused Approach to an Unsolvable Problem
By Robby Soave
YouTube declined to punish conservative content creator Steven Crowder for homophobic speech directed at a gay Vox journalist, then debuted a far-reaching ban on extremist videos, and then changed its mind about Crowder and temporarily de-monetized his channel.
It was a series of actions that satisfied exactly no one-least of all Carlos Maza, a producer for Vox’s Strikethrough video series who contends that YouTube has refused to stop Crowder from harassing him. But the video platform is in a tough position: If it bans Crowder, conservatives will complain that YouTube is out to silence them, but if it leaves his channel intact, liberals will complain that YouTube is turning a blind eye toward abuse. And its broader policy change-a ban on “videos alleging that a group is superior in order to justify discrimination, segregation or exclusion”-is bound to run into problems, since reviewing the nearly 500 new hours of video content that appear on YouTube every single minute is an impossible task.
Indeed, the ban has already ensnared one undeserving account: Ford Fischer, an independent journalist and co-founder of News2Share.com. Fischer covers fringe political events, but he is not himself engaged in the kind of behavior YouTube has declared verboten…
As a private company, YouTube isn’t bound by the First Amendment and is well within its rights to apply its rules selectively and arbitrarily-but doing so will only play into the hands of people like Sen. Josh Hawley (R-Mo.), who see all evidence of anti-conservative bias in Big Tech as justification for government involvement…
As for policing harassment, the plain truth is that it’s frustratingly difficult to do so in a manner that seems fair to most everyone. As platforms consider prohibiting broader categories of speech-unlike, say, doxing, which is quite specific and rightly disallowed-they will undoubtedly struggle.
Vox: Why does Washington suddenly seem ready to regulate Big Tech? Look at the polls.
By Theodore Schleifer
Part of the answer seems to be that beating up on Silicon Valley is suddenly good politics…
Take the Harris Poll, which surveys Americans on the corporate reputations of various companies. Google’s reputation fell 13 spots in Harris’ most recent poll issued in 2019, one of most precipitous declines in the survey. One of the few companies that saw more reputational damage? Facebook, which fell 43 slots on the 100-company list to be about as popular – or unpopular, depending on how you look at it – as other scandal-plagued companies like Wells Fargo and the Trump Organization.
And when you dive into other survey research, you see that critiques of Google and Facebook are surprisingly bipartisan.
Facebook’s favorability plunged from late 2017 to early 2018, surveys show – a decline driven largely by Democrats and Democratic-leaning independents deciding that they no longer felt positively about the social media giant…
While conservatives typically celebrate big business, Republicans’ critiques of Silicon Valley giants center on accusations of political bias at Facebook, YouTube, and Twitter. Conservatives have harangued tech executives on Capitol Hill over these questions, which they flatly deny.
And Trump has given oxygen to these claims of anti-conservative bias…
But, as the polling shows, it is Democrats’ about-face on tech that has led the charge. Democrats, once the party of Silicon Valley’s modern progressivism, now seem just plain exhausted by its excesses. Despite the tech industry’s constant deflection that their platforms are apolitical, progressives have grown increasingly unsatisfied at each new revelation of election interference, each new data leak, and each new report of extremist views propagating on these sites.
Candidates and Campaigns
The Hill: Bullock introduces plan to keep foreign money out of US elections
By Tal Axelrod
Montana Gov. Steve Bullock (D), who is running for president, released a plan Wednesday evening to keep foreign money from being donated to candidates in U.S. elections.
Bullock’s “Check the Box” proposal would add a checkbox to IRS and Federal Election Commission forms that super PACs and so-called dark money groups must fill in to certify they are not using foreign money in their political contributions. Dark money groups are not required to disclose their donors.
“Ridding foreign money from American elections could be as simple as checking a box,” Bullock said in a press release. “There can be no free passes for those deliberately seeking to undermine our democracy.”
“‘Check the Box’ is a small, yet powerful tool to fight back against the corrupting influence of foreign money in American politics, and will ensure that our government represents one thing: the voice of every American.”
Under Bullock’s plan, corporate officers could face up to 10 years behind bars and a $250,000 fine for lying on the forms.
The plan is part of the Montana Democrat’s overarching policy of getting “big money out of politics,” which would ban super PACs, empower watchdogs to enforce campaign finance laws and work to overturn the Citizens United Supreme Court decision that lifted restrictions on campaign donations from corporations.
The States
Portland Tribune: Voters could get a say in campaign finance limit fight
By Mark Miller
Following the 2020 election, for the first time in more than 20 years, people could see limits on the amount of money they’re allowed to donate to candidates for state and local office in Oregon.
Oregon is one of 11 states with no cap on how much individuals can donate to a candidate’s campaign, aside from the federal limits that apply to congressional and presidential candidates.
The Oregon Supreme Court decided in 1997 that the constitutional right to free speech protected election activity…
This month, the Legislature is poised to send a constitutional amendment to voters, hoping to make clear that, in Oregon, limiting campaign money is constitutional. But some legislators want to immediately pass campaign contribution limits and donor disclosure requirements so they’re ready if voters do decide to change the constitution…
[Rep. Dan] Rayfield, a Corvallis Democrat, is sponsoring what he describes as a “historic” trio of campaign finance reform bills, which the House is set to consider Thursday, June 6. They would limit campaign contributions, require disclosures on some political ads, and compel nonprofits that spend large amounts of money on an election to publicly identify their biggest donors…
To craft the proposal, Rayfield and other Democratic lawmakers have worked with reform advocates outside the Legislature, including Dan Meek, who helped craft campaign finance limits that voters adopted in Multnomah County and Portland, and Patrick Starnes, former gubernatorial candidate.
But they don’t all agree on how to reform the campaign finance system. “It’s the details that make the difference,” Meek said. “You can pass anything that looks good, but if it’s got a giant loophole in it, then it doesn’t matter.”
Georgia Public Broadcasting: Abrams Probe Highlights Wide Reach Of State Ethics Commission
By Stephen Fowler
A Georgia government agency tasked with enforcing campaign finance laws is drawing scrutiny for how it is investigating former Democratic gubernatorial candidate Stacey Abrams.
Lawyers for Abrams say the Georgia Government Transparency and Campaign Finance Commission didn’t follow its own rules in its investigation, including when it issued subpoenas in April to the campaign and a number of independent advocacy groups that supported Abrams.
However, an analysis of documents obtained by GPB News and a review of state law and rules governing the commission suggest the agency is within the bounds of the law in how it is asking for information, even if the investigation might eventually be found fruitless.
Last week, the Abrams campaign handed over 3,632 pages of financial records to the state ethics commission.
That was in response to one of nine subpoenas seeking a range of things, including communications between the political advocacy groups and Abrams’ campaign manager Lauren Groh-Wargo.
The ethics commission alleges illegal coordination between the Abrams campaign and four outside organizations: PowerPAC, Care In Action, Higher Heights and Gente4Abrams.
Groh-Wargo called the investigation a fishing expedition that is targeting minority-focused groups…
She called the subpoenas “nakedly political” with no factual basis. Letters to the commission reviewed by GPB News from Abrams’ lawyers also argue that the commission failed to follow its rules for opening an investigation and sharing probable cause for the allegations.
But, according to state law, the ethics commission is following the rules.
Washington Post: PAC funded by George Soros pumps nearly $1 million into local races for prosecutor
By Justin Jouvenal and Rachel Weiner
The Justice and Public Safety PAC has donated about $583,000 to Parisa Dehghani-Tafti, a candidate for Arlington County commonwealth’s attorney, and $392,000 to Fairfax County commonwealth’s attorney candidate Steve T. Descano ahead of the June 11 primary…
The largesse of Soros’s PAC has allowed the challengers to outstrip the $191,000 and $251,000 hauls of incumbent Commonweath’s Attorneys Theo Stamos (Arlington) and Raymond F. Morrogh (Fairfax County), respectively….
“It really is a staggering amount of money and it’s remarkable to me,” said Stamos, who began the race with $29,000 left over from her previous campaign. “To suggest that [Dehghani-Tafti is] running a grass-roots campaign is laughable. She’s trying to buy the election, and I don’t think Arlingtonians are going to go for that.”
Dehghani-Tafti’s campaign manager, Michelle Woolley, said otherwise. “The idea that this election is being bought is fearmongering, aimed at silencing questions of how [our] opponent runs her office,” she said.
Morrogh said such donations should not be allowed.
“In most states, this type of direct coordination between a campaign and a Super PAC would be illegal, and it should be in Virginia as well,” Morrogh said in a statement.
Dehghani-Tafti and Descano said the donations show their campaigns are moving in the right direction.
“Had we not spent the last year building that serious local campaign, we would not be getting any national support now,” Dehghani-Tafti said in a statement.
Descano welcomed the support.
“I think the level of investment by reform-minded groups shows just how high-priority of a race this is,” Jack Kiraly, campaign manager for Descano, said in a statement.
