New from the Institute for Free Speech
Honest Ads Act Might Not Harm Facebook, But What About Everyone Else?
By Meghan Brandabur
At the Institute for Free Speech, we have repeatedly expressed concerns about the dangers of the so-called “Honest Ads Act” (H.R. 2592 and S. 1356). Originally introduced in 2017, the bill has recently been thrust back into the spotlight, and Facebook CEO Mark Zuckerberg reiterated his support for it at the Aspen Ideas Festival in late June.
It comes as no surprise that Zuckerberg would promote this bill. After all, Facebook is a large company that can afford to comply with the costly regulations the Honest Ads Act would impose. As for its smaller competitors? Not so much…
Among its many onerous requirements, the Honest Ads Act would require both online companies and purchasers of advertisements to keep lengthy “public files,” if they run ads about any “national legislative issue of public importance” – an undefined category that would seem to include most speech about government, public policy, and political controversies. This file would need to include a number of items, such as the name, address, and phone number of the individual or organization that purchased the advertisement. The file would also need to have information concerning the target audience for the advertisement, its cost, the number of views it generated, and the dates and times the ad was first and last displayed.
Gathering and reporting this information will cost both time and money, making it harder for start-ups, volunteer-run groups, and those with little media savvy to comply. These new costs will hit platforms as well, likely raising ad prices and making it much more difficult for individuals and small grassroots organizations to spread their message. If these regulations are not closely followed, both the speaker and the online platform could be punished and face hefty fines.
The Courts
Wall Street Journal: Trump Made Twitter Account a Public Forum
By Floyd Abrams
Your editorial criticism “Trump, Twitter and the First Amendment” (July 12) of the recent unanimous decision of the Second Circuit Court of Appeals that concluded that President Trump’s Twitter account is a sort of public forum from which his critics could not be blocked undervalues the considerations that led to the ruling. The White House itself has characterized assertions by the president via that account as “official statements by the president of the United States” and the National Archives treats his tweets as “official records.”
The president announced by tweet official actions such as his choice of Christopher Wray as FBI director and his firing of Secretary of State Rex Tillerson. Indeed, the president stipulated in the case that he uses his account “to announce, describe, and defend his policies.” Yet the president insisted that he could permit supporters of his administration to comment favorably on his account about his policies at the same time he blocked critics from doing so “as a result of their criticism.” This is, as the Court of Appeals correctly determined, viewpoint discrimination, precisely what the First Amendment most unequivocally bars.
While a good deal of law remains to be determined about social-media platforms, you are undoubtedly correct that the First Amendment will continue to prohibit government but not private entities from burdening speech. But the president’s account is governmental in nature because he has made it so.
Congress
Slate: Congress Wants to Solve Deepfakes by 2020
By Nina Iacono Brown
The first federal bill targeted at deepfakes, the Malicious Deep Fake Prohibition Act, was introduced in December 2018, and the DEEPFAKES Accountability Act followed this June. Legislation targeting deepfakes has also been introduced in several states, including California, New York, and Texas. During a House Intelligence Committee hearing on the subject in June, legislators signaled that more governance is coming, likely in the form of social media regulation.
Deepfakes are frightening, but so is Congress’ rush to regulate them. Legislation requires careful deliberation, particularly when it is targeted at an emerging technology. This is particularly true where, as here, there are positive uses for the technology, such as entertainment and satire, that come with strong First Amendment protections. For a legislative solution to work, it would need to balance these factors and account for the fact that the technology-and likely the way it is used-will continue to evolve. Shortcutting this process risks enacting laws that not only fail their policy goals, but threaten First Amendment interests…
Even if Congress crafted a perfectly tailored bill balancing the threat of deepfakes and First Amendment interests, it might not make a difference. Laws are unlikely to deter those outside the jurisdiction of U.S. courts (say, a foreign power intending election interference) or those who have the technological ability to remain anonymous. And those sophisticated enough to engage in online criminal activity often have the ability to remain anonymous. If perpetrators can avoid detection, and thus sanctions, even the most narrowly tailored law would be of minimal consequence. To really have an impact, the law would need an enforcement mechanism-some way to identify and target those responsible for its creation or distribution.
This explains the rationale behind Congress’ latest and most dangerous idea: combating deepfakes through social media regulation.
Ad Age: Sen. Mark Warner On Regulating The Platforms: ‘There Is More We Can Do’
By Garett Sloane
Do bad political ads and online disinformation remain threats?
Don’t take my word for it. Take the director of national intelligence and the head of the FBI. They’ve both said Russians and others will be back because it’s cheap and effective.
Have you found Facebook and Google to be hiding anything now that you’ve been investigating for two years?
For the first year, they were very slow to really screen for the fake accounts. And if I’m going to give them the benefit of the doubt, it took them awhile for their tools to sort this out. I think they picked up as these things became evident, that Congress was not going to go away, that this attention was not going to go away, that they really needed to take this issue seriously.
They said, “OK, we’re going to be willing to help” work on our so-called Honest Ads Act, [which would require] the same kind of disclosure on online political advertising as you have in TV and radio. But they were at first unwilling to move beyond straight candidate ads to issue-related ads, so there are disclosure requirements on issue-related ads. They finally got around to that, but they dragged their feet.
Do you not think they’re operating in good faith?
For them to say, “Well, it’s hard,” I don’t buy that. These are companies that are the world’s most sophisticated in terms of making user experiences easy if they want to make them easy. So I think they’ve been slow on that.
Privacy
Wiley Rein Election Law News: The First Amendment Right to Political Privacy, Chapter 5 – Talley, McIntyre, Jehovah’s Witnesses and the Right to Speak Anonymously
By Lee E. Goodman
So far, this series has traced the jurisprudential seeds and growth of the First Amendment’s protection against forced disclosure of members of private associations, beginning with American communists and following the doctrine through a series of diverse organizations. In Chapter 4, we considered the Supreme Court’s unanimous, full-throated ruling in NAACP v. Alabama that the First Amendment protects associational privacy. In this Chapter 5, we will pick up with the first significant doctrinal extension of NAACP, to protect anonymous speech, in Talley v. California and follow that doctrine through a series of opinions decided over the next four decades by solid Court majorities…
As definitive as the right to political privacy became, however, a parallel line of First Amendment jurisprudence was evolving which authorized government infringements of the right. Buckley and its progeny recognized overriding governmental interests in certain contexts, particularly financial contributions and expenditures to elect candidates. Consequently, as important as the right to political privacy has become, many complicated debates over the metes and bounds of the constitutional protection it actually affords, and the strength of governmental interests that might justify its infringement, persist today. The legal, policy, and political debates are intensifying. Chapter 6 of this series will look at some of the more complicated and controversial contexts, including the difficult issue of campaign finance disclosure.
Online Speech Platforms
Buzzfeed News: Silicon Valley’s Right Wing Is Angry And Punching Back
By Alex Kantrowitz
On Jan. 16, Republican lawmakers turned on one of the world’s biggest tech companies.
A month earlier, Google CEO Sundar Pichai told the House Judiciary Committee that his company hadn’t been manually altering search results. But now, Breitbart had published an article that claimed to contain “smoking gun” evidence that Google had indeed. And the Republican members of Congress erupted in anger…
Conservative employees inside Google cheered. The leak that hung Pichai out to dry came from one of their own…
The conservatives’ intent was to generate external pressure on Google – and the Republican lawmakers’ response was exactly what they were hoping for. “There’s a growing sense that the problems can’t be fixed internally because of the political monoculture,” the former Googler said. “They feel more comfortable leaking.” …
Those frustrations spilled out on the anonymous workplace forum Blind – where entry into the subforum community specific to Google requires a corporate Google email address – last month in complaints about the perceived lack of space for their ideology at Google in response to a post asking for signups to an internal Google listserv: “If you’re a real patriot, join the republican email group.”
“This job is too important to me. Joining that list is putting a target on your own back,” replied one Google employee. “Yep. Not risking my livelihood over politics. The extremists rule the roost and I’m just here for the paycheck,” wrote another. “You mean if you want to be targeted and harassed by these outrage mobs and put in a list by HR. Even if I were Republican, I wouldn’t join that,” wrote yet another…
These frustrations have real-world consequences.
“Things that were unthinkable in the past, like changing or repealing [Section 230 of the Communications Decency Act], like antitrust, they’re all on the table for Republicans now in Congress,” the former employee said.
Cato: Misleading Project Veritas Accusations of Google “Bias” Could Prompt Bad Law
By Matthew Feeney
Project Veritas’ film is intended to give credence to the conservative concern that culturally liberal tech firms develop their products to exclude and suppress the political right. While largely anecdotal, this concern has spurred hearings and regulatory proposals…
Although we’re living in the midst of a new tech-panic, we should remember that questions about bias in machine learning and attempts to answer them are not new, nor are they merely a concern of the right. Rep. Alexandria Ocasio-Cortez (D-NY) and the International Committee of the Fourth International have expressed concerns about algorithmic bias. Adequate or correct representation is subjective, and increasingly a political subject. In 2017, the World Socialist Web Site sent a letter to Google, bemoaning the tech giant’s “anti-left bias” and claiming that “Google is “‘disappearing’ the WSWS from the results of search requests.” …
Despite the insider’s claim that “they would never admit this publicly,” (9:45) Google is quite open about its efforts to prevent algorithmic bias. The firm maintains a list of machine learning fairness resources, including an extensive glossary of terms describing different sorts of bias, and sample code demonstrating how to train classifiers while avoiding bias. These public resources are, frankly, far more extensive, and reveal more about Google’s efforts to prevent machine learning bias, than anything in the latest Veritas video.
The fact that Google News is not an organic, unfiltered search product (11:30) is not news either. Google’s news content policies are open to the public, and Google gives further public guidance to publishers as to what their algorithms prioritize in news pages.
Fundraising
New York Times: Trump Campaign Invests Big in Small Donors, and Reaps Rewards
By Kenneth P. Vogel, Maggie Haberman, Rachel Shorey and Annie Karni
Democrats have traditionally trounced Republicans when it comes to raising money from small donors, but President Trump’s 2020 re-election campaign is spending heavily to try to change that.
As they prepare for a re-election fight in which grass-roots Democratic fund-raisers are expected to be particularly energized to defeat the president, Mr. Trump’s three campaign committees have spent a combined $7.9 million on digital advertising, direct mail and telemarketing – techniques used to target and cultivate low-dollar donors – over the past three months, according to campaign finance reports filed on Monday evening with the Federal Election Commission…
At the same time, Mr. Trump has worked more assiduously to cultivate major Republican donors of the sort he disparaged his rivals for courting during his first campaign…
The reports highlighted how Mr. Trump’s re-election campaign differs from his first run for office, when the rookie candidate, who sold himself as a self-made billionaire, initially pledged to self-fund his campaign and paid little attention to its infrastructure.
While Mr. Trump eventually began raising money from outside donors of all sizes, he was significantly outraised by Hillary Clinton’s campaign. Mrs. Clinton, the 2016 Democratic presidential nominee, raised $585.7 million, compared with $350.7 million brought in by his campaign, which included $66 million of his own money.
This time, Mr. Trump’s team has not spent any of his money, and his campaign has worked hand-in-hand with the Republican National Committee since shortly after he was elected to continue cultivating a small-donor base that has been more fervent than those of past Republican candidates.
Independent Groups
Politico: Pro-Booker super PAC raised $1.1 million in first half of 2019
By Maggie Severns
The PAC, Dream United, was formed late in 2018 by donor and activist Steve Phillips, an early supporter of Barack Obama’s run for the presidency who ran an outside group supporting Obama during the 2008 primary. This year, Phillips’ effort to back Booker with big money has faced anti-super PAC headwinds, as many Democratic candidates – including Booker himself – say they don’t want the support of super PACs formed to back them.
In a statement, Phillips said his work to raise money for Dream United is carrying on as planned.
“Over the past six months, I have traveled across the country meeting with dozens of Cory Booker supporters, and based on those conversations, I am confident we will be able to conduct a $5-$10 million voter mobilization effort in support of Booker’s candidacy,” Phillips said.
The States
North Jersey Record: NJ bill highlights clash over Israel and anti-Semitism on college campuses
By Hannan Adely
The backers of an anti-Semitism bill that would prohibit certain criticisms of Israel at public schools and colleges in New Jersey say the bill would not infringe on free speech, but similar measures in other states have been used to try and shut down events on college campuses.
Several examples were cited in a letter sent to New Jersey lawmakers by 15 organizations Monday, including attempts to censor a talk by an American Civil Liberties Union lawyer and to block a panel about censorship of Palestinian views.
“In our experience defending civil rights on college campuses, we have seen first-hand how the redefinition that the [Anti-Semitism] Act would codify has been used as a tool to silence students, faculty and staff who advocate for Palestinian rights,” the organizations wrote in the letter.
Those experiences, they wrote, make clear that the goal is to censor critics of Israeli government policies and could lead to viewpoint discrimination…
Last week, [Sen. Robert] Singer said he did not believe the bill would impact free speech.
“I don’t think it’s a First Amendment issue,” he said. “I really don’t. We’re talking about vindictive comments.”
But the “vague and broad” language of the bill leaves room to challenge or suppress nearly any form of activism for Palestinian rights, the groups wrote…
In a separate statement, the National Coalition on Censorship said the bill was unconstitutional and likely to face a legal challenge.
“If the bill becomes law, it could be used to silence political activists, including many Jewish activists, in New Jersey’s schools,” spokeswoman Nora Pelizzari said in a statement.
San Francisco Examiner: Voters to decide on increased campaign finance disclosures, new limits on contributions
By Joshua Sabatini
Voters will have a chance in November to increase the restrictions on political contributions in the latest campaign finance proposal aimed at pay-to-play politics in San Francisco.
The “Sunlight on Dark Money” ballot initiative, which was placed on the ballot by members of the Board of Supervisors, requires greater disclosure of who is behind campaign ads paid for by political committees known as independent expenditures or Super PACs. Instead of the committee names the largest donors who contributed to those committees and the amounts will have to go on the ads…
The measure requires the top three largest donors of the committee paying for the advertisement to disclose their name and the amount contributed to the committee. If any of the three belong to another committee, they must disclose the top two donors of that committee as well.
The measure would also prohibit top executives in development companies from contributing to candidates running for, or current office holders, of the Board of Supervisors, mayor and city attorney while a project they have financial interest in is pending approval, or for 12 months after The City renders a final decision on the project…
The measure also closes a loophole that allowed Limited Liability Corporations or Limited Liability Partnerships to contribute to candidates despite an existing ban on those donations from corporations.
