New from the Institute for Free Speech
California’s “Deepfake” Bill is a Bad Omen
By Luke Wachob
California Assemblyman Marc Berman’s A.B. 730 would make it illegal to “knowingly or recklessly distribute deceptive audio or visual media” of a political candidate within 60 days of an election “with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate.”
The bill was quickly opposed by the ACLU of California and several press rights organizations, citing free speech concerns. Mark Powers, Vice President of the California Broadcasters Association, said the bill would be impossible to comply with for radio and television broadcasters. “By passing this bill, you put your broadcasters in extreme jeopardy,” he told the Senate Elections and Constitutional Amendments Committee. Broadcasters may choose not to accept any ads about candidates rather than risk liability for disseminating deepfakes, if verifying each ad’s authenticity proves too costly.
California News Publishers Association Staff Attorney Whitney Prout called the bill “an ineffective and frankly unconstitutional solution that causes more problems than it solves,” noting that A.B. 730 would impose content-based restrictions on speech that must survive strict scrutiny…
Free speech was a topic of discussion at a recent Congressional hearing on deepfake videos as well…
“The theme of this hearing is how scary deepfakes are, but I’ve gotta tell you, one of the more scary things I’ve heard this morning is your statement that the Pelosi video should have been taken down,” [Congressman Jim Himes (D-CT)] said in reference to Professor Citron’s comments. “As awful as I think we all thought that Pelosi video was, there has to be difference if the Russians put that up, which is one thing, versus if MAD Magazine does that as satire… We don’t have a lot of protections as public figures with respect to defamation… [I want to] hear more about where that boundary lies and how we can protect that long tradition of free expression.”
The Courts
Bloomberg: The Courts Still Don’t Understand Trump’s Twitter Feed
By Noah Feldman
Here’s the basic problem: The U.S. Court of Appeals for the 2nd Circuit assumed in its opinion that Trump’s Twitter account was either “private” – in effect, Trump’s own property to do with as he wishes – or else “public,” in the sense that the account was a government-controlled space in which the First Amendment should apply.
Once the court determined that Trump uses his Twitter account for all sorts of public purposes, it concluded that the account should be treated as “public.” According to First Amendment doctrine, the government isn’t allowed to discriminate against speakers on the basis of their viewpoint in a public forum. By blocking critics from his account, Trump was excluding them from this “otherwise open online dialogue.”
The reality, however, is that Trump’s Twitter account isn’t his private property or a government-controlled space. It’s something else: property controlled by Twitter Inc…
The upshot is that what the court considers a public forum for discussion is in fact not available to the public. The government that supposedly controls the forum is in fact subordinated to Twitter’s content rules.
Now think about what the government could do in the future: It could open supposedly “public” forums for discussion on social media platforms, with the full knowledge that in doing so it can effectively restrict the viewpoints of speakers. The government can piggyback on the social media platforms’ content rules – which would be unconstitutional if the government itself adopted them.
In other words, the appeals court’s decision rests on a conceptual confusion that has serious negative implications for the freedom of speech. The government shouldn’t be able to get away with designating a public forum for speech where the speech isn’t constitutionally free.
The Supreme Court should revisit this issue and get it right – to protect freedom of speech in the long run.
Wall Street Journal: Trump, Cohen Maintained Regular Contact While Hush Payments Were Arranged
By Rebecca Ballhaus
Donald Trump and his onetime lawyer Michael Cohen were in particularly close contact while Mr. Cohen was working to arrange a hush-payment scheme before the 2016 presidential election, according to newly public documents that provide the most detailed account to date of discussions among members of Mr. Trump’s inner circle in the final weeks of the campaign.
The documents describe in detail the sequence of conversations Mr. Cohen had with Mr. Trump, National Enquirer editor Dylan Howard, American Media Inc. chief executive David Pecker and campaign spokeswoman Hope Hicks as he was working to arrange payments to two women who alleged affairs with Mr. Trump…
Democratic lawmakers on Thursday called for Mr. Trump to face charges for his involvement in the hush-payment scheme. Justice Department policy bars charging a sitting president.
“The inescapable conclusion from all of the public materials available now is that there was ample evidence to charge Donald Trump with the same criminal election law violations for which Michael Cohen pled guilty and is now serving time in prison,” Rep. Adam Schiff (D., Calif.), the chairman of the House Intelligence Committee, said Thursday…
U.S. District Judge William H. Pauley III ordered the previously redacted materials to be made public Wednesday, after the Manhattan U.S. attorney’s office advised the court that it had concluded the aspects of its campaign-finance investigation that justified redacting those materials.
IRS
Bloomberg Tax: IRS Under Pressure Year After Easing Nonprofit Disclosure Rule
By Kelly Zegers
Two Democratic senators hope to hear from the IRS in coming days about the agency’s rollback of nonprofit disclosure requirements, a move that has drawn scrutiny for the last year.
The letter Sens. Ron Wyden (D-Ore.) and Bob Casey (D-Pa.) sent to IRS Commissioner Charles Rettig calls on him to explain why the IRS Criminal Investigation division wasn’t consulted on the policy change and to explain how it came about. The letter is the first step for the lawmakers, who are working on a plan of what to do next, a Democratic aide said…
Rettig was asked to respond by July 24. The agency didn’t return a request for comment…
States have questioned the policy shift since it was issued last year, too.
New York and New Jersey sued the IRS and Treasury in May in an effort to find out what prompted the change. The states argue that the change was made without pubic notice, and that it hampers their ability to oversee in-state organizations.
New York and New Jersey must file any motion for summary judgment by July 29 and the IRS and Treasury must file opposition by Aug. 19. The parties are directed to confer after July 19, the judge ordered late last month…
Montana Gov. Stephen Bullock (D) and the Montana Department of Revenue sued the IRS in July 2018. The state also argued that the IRS made the change without proper notice-and-comment time. New Jersey joined the lawsuit…
The IRS moved to dismiss the case in February, arguing that Montana didn’t suffer actual harm and has never sought the donor information that it now claims to need…
A bill (S. 276) introduced by Sen. Jon Tester (D-Mont.) this session would repeal the disclosure change. Rep David Price (D-N.C.) introduced a House companion bill (H.R. 918). Neither measure has moved forward.
Congress
Reuters: House Intelligence chief presses social media companies on deepfake policies
By Elizabeth Culliford
U.S. House of Representatives Intelligence Committee Chairman Adam Schiff on Monday pressed major social media companies on how they plan to handle the threat of deepfake images and videos on their platforms ahead of the 2020 elections.
The Democratic congressman wrote letters to the chief executives of Facebook Inc, Twitter Inc and Google, which owns YouTube, asking about the companies’ formal policies on deepfakes and their research into technologies to detect the doctored content…
“As we look ahead to the 2020 election, I am gravely concerned the experience of 2016 may have just been the prologue,” Schiff wrote in the letters.
“Social media platforms can catapult a compelling lie into the conversations of millions of users around the world before the truth has a chance to catch up,” the California congressman wrote.
There has not been a well-crafted deepfake video with major political consequences in the United States, but the potential for doctored videos to sow misinformation was recently highlighted by a more manually doctored viral clip of House Speaker Nancy Pelosi, slowed down to make her speech seem slurred.
Schiff’s letters also asked the California-based social media companies about their responses to this ‘cheapfake.’ YouTube took down the video, citing policy violations, but Facebook left it up, only limiting its distribution and adding fact-checking warnings.
Online Speech Platforms
Wall Street Journal: Google’s Tool to Tame Election Influence Has Flaws
By Emily Glazer and Patience Haggin
Google set up a searchable database of political ads last summer, following calls for greater transparency in the wake of Russia’s interference in the 2016 presidential election.
Nearly a year later, the search giant’s archive of political ads is fraught with errors and delays, according to campaigns’ digital staffers and political consultants. The database, the Google Transparency Report, doesn’t always record political ads bought with Google’s ad tools and in some instances hasn’t updated for weeks at a time, they say.
Several campaigns, including those of Democratic presidential hopefuls Bernie Sanders and Elizabeth Warren, have run ads in recent weeks that didn’t appear in the Google archive, people familiar with the campaigns’ ad-buying said. Such mistakes have occurred for presidential and congressional candidates in both parties…
“If even the political advertisers that expect to be included in the archive are not seeing their ads made publicly available, how much is escaping disclosure by actors who want to stay secret?” said Brendan Fischer, director of federal reform at the nonpartisan Campaign Legal Center…
For the political campaigns, including a crowded field of 2020 presidential hopefuls, database inaccuracies are making it harder to track rivals at a time when digital advertising is central for campaigns looking to target voters more economically than through television advertising…
Google’s archive tracks ads by candidate but not by political issue, such as illegal immigration or gun control-a point of frustration for advocates of stricter disclosure laws, since some ads bought by Russia-affiliated entities in 2016 were issue-focused. The Google spokeswoman said the company is looking to expand coverage to issues advertising.
Facebook, on the other hand, faced criticism not for missing political ads, but for casting its net too wide.
Fundraising
Politico: ActBlue’s ‘green wave’ continues with $246 million second quarter haul
By Zach Montellaro
ActBlue, the online fundraising platform used by most Democratic candidates and outside groups, announced that 3.3 million donors contributed $420 million through the platform in the first six months of the year. ActBlue’s first filing of the year with the Federal Election Commission, which covers the same time period, is due at the end of the month.
The group said $246 million came through ActBlue during the second quarter of 2019. Nearly 8,700 campaigns, committees and organizations use the platform, and 1.1 million donors gave via ActBlue in the final 10 days of the second quarter alone.
The numbers demonstrate the incredible growth of online fundraising in recent years, especially among Democrats. The party broke fundraising records in 2017 in response to President Donald Trump’s inauguration, but this year’s numbers far outstrip that pace: Donors gave $249 million through ActBlue in the first six months of 2017…
Mobile contributions are also on the rise: 56 percent of contributions given in the second quarter were given over mobile platforms, the second time ever a majority of contributions came in through mobile devices.
Republicans have been trying to play catch-up to ActBlue for years, with party officials and Trump’s campaign all backing one centralized platform, WinRed, that launched late last month. The Republican National Committee and the party’s Senate and gubernatorial arms threatened legal action against a WinRed competitor and have been trying to muscle the competition out of the potentially lucrative market.
Candidates and Campaigns
The Hill: Democrats fret over Trump cash machine
By Amie Parnes
In February, Sen. Elizabeth Warren (D-Mass.) said she would abandon her long-standing rule of not hosting high-dollar fundraisers should she win the nomination, given Trump’s expected fundraising prowess.
“We’ll be up against a Republican machine that will be hell-bent on keeping the White House,” Warren wrote in a Medium post. “They will have PACs and Super PACs and too many special interest groups to count, and we will do what is necessary to match them financially.”
Democrats say that’s a smart move, considering the financial ammunition Trump will have in the general election…
In 2016, Donald Trump was outspent by Democratic nominee Hillary Clinton by roughly $235 million. But while she spent more on paid media, Trump ran circles around her in earned media, [Democratic strategist Brad] Bannon said.
“His skill in commanding media coverage of his campaign neutralized Clinton’s financial advantage,” he said. “Lots of money helps but the priority for the Democratic nominee will be to make the media coverage work for her or him, not the president.
“In a presidential race, voters react more to media coverage than they do the paid ads,” Bannon said.
But even financially, Robert Zimmerman, a Democratic National Committeeman and Democratic donor, said he feels confident his party can still pull it off against Trump.
“Is he going to have more money? Of course, he’s going to have more money,” Zimmerman said. “But last time I checked, it’s not the most money that wins elections, it’s the most electoral votes.”
The States
Sacramento Bee: ‘Deepfake’ videos threaten our privacy and politics. Here’s how to guard against them
By Erwin Chemerinsky
Assembly Bill 730 would prohibit a person or entity, within 60 days of an election, from knowingly or recklessly distributing deceptive audio or visual media of a candidate with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate, unless the media includes a disclosure stating that the media has been manipulated. The bill would define “deceptive audio or visual media” to mean an image or audio or video recording that has been intentionally manipulated in such a manner that it would falsely appear to a reasonable observer to be authentic.
The Supreme Court has often explained that freedom of speech is protected as a fundamental right so as to further the marketplace of ideas. Rather than have the government determine what ideas can be said, the alternative is for all views to be capable of expression. But “deepfakes” add nothing to the marketplace of ideas and, indeed, detract from it…
[H]aving a candidate seem to express words they never said risks deceiving voters and deciding elections on the basis of misinformation. There is no assurance that those who heard the false statements will hear the denials or that will be enough to cure the harms created by the “deepfakes.” …
False speech, at times, is protected, but often the government is allowed to prohibit it without running afoul of the Constitution. For example, lying in court under oath – perjury – is not protected by the First Amendment even though it is speech. The Supreme Court has been clear that false and deceptive advertising has no constitutional protection.
Most importantly, the court has said that speech which is defamatory of public officials and public figures has no First Amendment protection if the speaker knows the statements are false or acts with reckless disregard of the truth. The Court has explained that the importance of preventing wrongful harm to reputation and of protecting the marketplace of ideas justifies the liability for the false speech.
Reason: How ‘Ag-Gag’ Laws Stifle Free Speech
By John Stossel
Recording events from public land shouldn’t be a crime.
Yet when a woman in Utah, standing by a public road, filmed farmworkers pushing a cow with a bulldozer, the farmer drove up to her and said, “You cannot videotape my property.”
Soon the police came and local prosecutors charged her with “agricultural operation interference.”
They dropped the charges several months later since she was on public land.
But what if she’d posed as a farmworker, got a job on the farm, and then secretly recorded what she saw?
Increasingly, activists do that. More than 100 such undercover investigations have been done.
They then distribute video that sometimes shows animals being cruelly abused. In my video this week, we see calves being hit, kicked, and thrown.
Farmers, upset about such recordings, are now asking politicians to outlaw them, and several state legislatures have obliged. They’ve passed “ag-gag” laws-bans on sneaking onto farms to secretly record what they see.
