In the News
State Policy Network: IFS asks Fourth Circuit to stop Maryland’s crackdown on online speech
By Matt Nese
Since the 2016 election, enemies of free speech have seized on concerns about foreign interference in campaigns to launch new attacks on the First Amendment. Among the most troubling is a law regulating online speech passed by the Maryland General Assembly last year. Rather than targeting foreign meddlers, the law makes it harder for Americans to use the Internet to speak about government, call out corruption, and organize with their fellow citizens.
The law is currently being challenged by a coalition of press organizations, including The Washington Post, The Baltimore Sun, and other local Maryland newspapers. They argue that it violates their First Amendment rights by forcing them to collect and publish information about their advertisers. Now before the Fourth Circuit Court of Appeals, the case, The Washington Post v. McManus, could be a crucial landmark for the First Amendment’s protections of a free press and free speech online.
The Institute for Free Speech (IFS) filed an amicus brief urging the Fourth Circuit to declare the law unconstitutional. The brief states that, despite the veneer of an election security measure, Maryland’s “law will do little to advance that cause while chilling political speech and association at the core of the First Amendment’s protections.”
“Indeed, Maryland’s law requires press entities and Internet advertisers to amass vast amounts of information – every buyer of advertisements and their underlying donors – in order to possibly find a Russian spy posing as an American,” the brief notes.
IFS asked the Fourth Circuit to affirm a lower court’s injunction barring Maryland from enforcing the law against online publishers.
Privacy
Wiley Rein Election Law News: The First Amendment Right to Political Privacy, Chapter 6 – Campaign Finance and Other Very Public Exceptions to Privacy
By Lee E. Goodman
Previous chapters have traced the origin and development since the 1940s of the First Amendment right to privacy in the political sphere. That right manifested as the right to associate, speak, and access information for political purposes free from government compelled exposure.
Over the same period of time, the U.S. Supreme Court was grappling with discrete realms of government-compelled exposure and carving exceptions to the constitutional protection. The exceptions were drawn narrowly upon the Court’s findings that “substantial” government objectives outweighed the constitutional right under one form or another of constitutional scrutiny. The most prominent exceptions were compelled disclosure of financial contributions to direct lobbying of members of Congress and contributions to candidates’ campaigns. This chapter summarizes the jurisprudence of exceptions to the right of political privacy.
Congress
Gizmodo: With Senate Inquiry Looming, Facebook Scrambles to Look Busy
By Bryan Menegus
“There’s been a general feeling from the platform companies of kind of playing rope-a-dope with the Congress,” Senator Ed Markey told a small audience gathered in the Federal Election Commission’s headquarters around 9am [yestereday] morning. Four hours later, Markey’s well-informed inference was proven true yet again when Facebook trotted out a new blog post titled “Combating Hate and Extremism,”
It’s surely no coincidence the image-troubled social giant is scheduled on Wednesday morning-along with representatives from Twitter and Google-to testify at the grimly titled hearing “Mass Violence, Extremism, and Digital Responsibility” before the Senate’s Commerce, Science and Transportation Committee (of which Markey is a member.)…
In an apparent attempt to further rebut likely questions over the platform’s lack of action tomorrow, Facebook also updated its “Dangerous Individuals and Organizations” policy, specifically its definition of terrorists…
Markey…concluded his remarks by telling platform companies that “at the end of the day frankly I think that’s going to be a huge business mistake-because we’re not going away.” He added, “we are, candidly, one significant event away […] from potentially Congress overreacting, because the next event could really be extraordinarily dramatic.”
Online Speech Platforms
Washington Post: The Technology 202: Snap launches political ads library
By Cat Zakrzewski
Snap told me it has launched a political ad library in recent days that will list all political and advocacy ads on its platform; so far, the library includes more than 1,000 ads purchased in 2019 promoting President Trump, and 2020 rivals former vice president Joe Biden and Sen. Elizabeth Warren (D-Mass.) The database also includes third-party ads touching on hot-button issues, including ads from Planned Parenthood and even ads about criminal justice restructuring from the ice cream company Ben and Jerry’s…
Snap said it didn’t find evidence that Russian actors bought ads on its platform after an internal audit following the 2016 election so it hasn’t confronted the same political blowback in Washington as larger platforms like Facebook, Twitter and Google, which have previously rolled out similar databases.
But it highlights a growing awareness that smaller social media companies are targets of malign influence operations, and need to be regulated like everyone else when it comes to political activity, according to lawmakers…
“It’s commendable that more companies are increasing transparency when it comes to political advertising; however, a patchwork of voluntary measures from tech companies isn’t sufficient – we need to pass the Honest Ads Act,” Sen. Amy Klobuchar (D-Minn.) told me.
“The goal of my legislation is to ensure that all major platforms that sell political advertisements are held to the same rules of the road, something that is already required for television, radio and print political advertising. Americans have a right to know who is paying to influence them regardless of where ads are sold.”…
“Under the Honest Ads Act, the threshold is a site having at least 50 million monthly active users and, to the extent Reddit sells political ads, it should follow the lead of other large platforms and establish a political ad library,” [Sen. Mark] Warner told me.
Cato: A First Look at Facebook’s Oversight Board
By John Samples
Today Facebook released a Charter for its Oversight Board. This institution may well face insuperable difficulties and come to nothing. But it is possible, perhaps likely, that the Facebook board will significantly influence the future of speech on the internet. The charter announced today offers a kind of constitution for the Oversight Board. What does the Charter mean for free expression?
First, some context. Facebook maintains Community Standards that users agree to abide by when joining the platform. Facebook censures or removes users who violate those standards. Such “content moderation” goes back almost to the founding of Facebook. Facebook may suppress speech in this way because the First Amendment does not apply to privately-owned forums like social media.
Facebook officials often say content moderation involves a tradeoff or as the Charter notes, “Free expression is paramount, but there are times when speech can be at odds with authenticity, safety, privacy, and dignity.” This statement is both ominous and reassuring. It suggests ominously that free expression will frequently give way to other values. It is reassuring because free expression is “paramount” which means “more important than anything else.”…
The Facebook Board’s impact on free speech will be determined over time, decision by concrete decision. Free expression could have been treated as just another competing value in this Charter and related documents. It is more than that. Free expression is paramount. Now will the Facebook Board live up to its Charter?
Political Parties
New York Times: The Changing Shape of the Parties Is Changing Where They Get Their Money
By Thomas B. Edsall
A pair of major developments give us a hint about how future trends will develop on the partisan battleground.
First: Heading into the 2020 election, President Trump is on track to far surpass President Barack Obama’s record in collecting small donor contributions – those under $200 – lending weight to his claim of populist legitimacy.
Second: Democratic candidates and their party committees are making inroads in gathering contributions from the wealthiest of the wealthy, the Forbes 400, a once solid Republican constituency. Democrats are also pulling ahead in contributions from highly educated professionals – doctors, lawyers, tech executives, software engineers, architects, scientists, teachers and so on…
In their paper, “Increasing Inequality in Wealth and the Political Expenditures of Billionaires,” Adam Bonica and Howard Rosenthal, political scientists at Stanford and N.Y.U., track the partisan contribution patterns of the Forbes 400 from the 1981-82 election cycle through the 2011-12 cycle.
For that three-decade period, the level of giving to Republicans and Republican Party committees by members of the Forbes 400 followed a steady downward trajectory…
“The 400 have trended steadily to the left,” conclude Bonica and Rosenthal…
Raymond J. La Raja, a political scientist at the University of Massachusetts-Amherst, also emailed me:
It is not too surprising that Trump has outpaced others, even Obama, in raising money from small donors. Individual donors – big and small – tend to be much more polarized compared to the rest of the electorate. They give because of strong ideological preferences and passions. People like Trump ignite those passions.
FEC
Bloomberg Government: Social Media Giants Warned ‘Wild West’ Era on Rules Is Over
By Kenneth P. Doyle
Major internet platforms are overdue for regulation, including possible removal of liability protections Congress put in place in the 1990s, warned a lawmaker crafting legislation to rein in social media giants.
“The Wild West is over,” Mark Warner (D-Va.) said in a keynote address at a conference at the Federal Election Commission on how to fight digital disinformation.
Facebook Inc., Alphabet Inc.’s Google, Twitter Inc. and Microsoft Corp. sent representatives to the forum organized by FEC Chairwoman Ellen Weintraub…
On the liability issue, Warner was referring to Section 230 of the Communications Decency Act of 1996 (Public Law 104-104) which protects online platforms from being sued for content issues.
The senator, who’s the ranking Democrat on the Senate Intelligence Committee, has called for legislation (S. 1356) to disclose funding of online political ads and another proposal to require campaigns to report any offers of foreign help…
Weintraub (D) has been using her position as a bully pulpit to press the need for cybersecurity safeguards, particularly now that the panel lacks a quorum needed to write regulations or take enforcement action…
Russia violated campaign finance laws by secretly spending millions of dollars to influence the 2016 election, but the nation’s campaign finance agency can’t counter such efforts alone, Weintraub said in introductory comments.
Weintraub said she was hosting the event as an individual commissioner and that it wasn’t an official hearing.
Commissioner Caroline Hunter (R) attended the event but didn’t speak. She said in an email that she was “heartened that several participants cautioned against trampling on First Amendment rights and warned of government overreach – an approach I have taken at the FEC.”
Washington Post: The Technology 202: Senators grill agency officials over infighting in push to regulate big tech
By Cat Zakrzewski
The United States was not adequately prepared for foreign disinformation threats during the 2016 elections and isn’t equipped for election integrity challenges in the 2020 campaign, experts and policymakers warned during a symposium Tuesday on information and election security, my colleague Michelle Yee Hee Lee reports for the Technology 202.
There has not been enough meaningful progress in the United States on protecting from foreign disinformation threats, and it remains difficult for policymakers and private companies to create systemic changes that do not impinge on freedom of expression, the speakers said.
The event, co-organized by PEN America, the Global Digital Policy Incubator at Stanford University’s Cyber Policy Center and Ellen Weintraub, chairwoman of the FEC, emphasized the need for lawmakers, public policy organizations, technology companies and the media to fulfill their responsibilities in ensuring election integrity and fight the spread of disinformation online, including new regulations, transparency on user data, increased fact-checking in news coverage, and more, Michelle writes…
U.S. institutions were “caught flat-footed” in 2016 by Russian efforts, which used routine online fraud activities such as audience-building and exploiting algorithms and recommendations on social media, said Sen. Mark Warner (D-Va.), vice chair of the Senate Intelligence Committee.
“We’ve seen how the misuse of technology threatens our democratic systems, our economy, and increasingly, our national security,” Warner said. “The truth is, the United States was caught flat-footed in 2016, and our social media companies failed to anticipate how their platforms could be manipulated and misused by Russian operatives. Frankly, we should’ve seen it coming.”
Meanwhile, one of those regulatory bodies remains defanged. The FEC, which enforces federal election regulations and laws, has been unable to conduct official business since it lost its voting quorum late last month.
Candidates and Campaigns
By Brian Schwartz
Before Sen. Elizabeth Warren took the stage in front of a raucous crowd in New York on Monday, she unveiled a plan that called on lobbyists to be banned from contributing and fundraising to their preferred campaigns.
“My plan not only bans lobbyists from making political contributions, it also bans them from bundling donations or hosting fundraisers for political candidates,” Warren said in her Medium post.
This plan represents the latest phase of an apparent shift from Warren, who accepted at least $95,000 from federally registered lobbyists during her campaigns for the U.S. Senate, according to records reviewed by CNBC…
A $10.4 million transfer from her Senate political committee helped fund the early stages of Warren’s presidential campaign…
“For nearly two years, Elizabeth’s campaign operation has screened and rejected federal lobbyist donations. For over a year, she has rallied candidates and Members of Congress to support her legislation to ban federal lobbyist donations,” Warren’s deputy press secretary, Saloni Sharma, told CNBC. “Instead of cynically attacking a handful of old donations dwarfed by millions of grassroots contributions in order to deflect from their own practices, every candidate for President should step up, reject federal lobbyist contributions, and support Elizabeth’s comprehensive anti-corruption platform, which would end it permanently.”
Still, Warren’s policy has triggered criticism from lobbyists who supported her in the past.
“I’m not happy with the overall plan. I think the whole thing is silly,” Warren donor Robert Crowe, of lobbying firm Nelson Mullins, said Tuesday.
Independent Groups
Daily Caller: Survey: 32 Percent Of Democrats Want NRA Labeled A Terrorist Organization
By Peter Hasson
A Rasmussen survey released Monday found that 32 percent of likely Democratic voters want their local communities to follow the example of San Francisco and designate the NRA as a terrorist group…
The Rasmussen survey also found that 28 percent of Democrats think it should be illegal to join gun rights groups like the NRA, despite the First Amendment’s freedom of association protections.
The States
St. Louis Post-Dispatch: In post-Greitens Missouri, new campaign fundraising rules going into effect
By Kurt Erickson
Out-of-state groups seeking to influence Missouri politics will have to register with the state under a new rule designed to address a controversial practice highlighted during former Gov. Eric Greitens’ 2016 run for office.
The change, which is in effect for a series of special elections in November, was spurred by the secretive, big money contributions received by the disgraced former chief executive that included millions of dollars from so-called “dark money” nonprofits with connections to Nick Ayers, the former chief of staff to Vice President Mike Pence.
The new rule is one provision of the “Clean Missouri” ballot initiative approved by voters last year as a way to bring more transparency to election-time spending…
Other changes to the constitution that were part of the ballot question included capping contributions to individual candidates at $2,500 to curtail a practice in which candidates like Greitens were receiving seven figure contributions from groups that were not required to disclose their donors.
The change affects candidates running for seats in the Missouri House and Senate, but does not cover statewide candidates.
Courthouse News Service: California Senate Approves Anti-Deepfake Bill Despite Free Speech Concerns
By Nick Cahill
Shunning free speech concerns brought by civil liberties groups, the California Senate on Friday approved a bill meant to protect political candidates from deceptive social media videos known as deepfakes…
Assembly Bill 730 would give candidates the ability to sue people or organizations that share deepfakes without warning labels near Election Day…
The bill specifically bars individuals and entities from sharing deepfakes of candidates within 60 days of an election. Radio and broadcast stations would still be allowed to share the videos as long as they include a disclosure stating that it has been manipulated. In addition, outlets would not be held liable for airing paid political advertisements that were deceptively edited.
The media exemptions weren’t enough to sway the California News Publishers Association, which opposed AB 730 along with the California Cable and Telecommunications Association. The media groups say candidates can already pursue existing defamation and false light views to fight deepfakes, and cast the proposal as a free speech threat.
“Ultimately, better education and advances in technology will allow individuals to better understand whether an image or recording has been manipulated, without burdening First Amendment rights,” the publishers association said in its opposition letter…
Erwin Chemerinsky, dean of the School of Law at the University of California, Berkeley, agrees that deepfakes present a real threat to the democratic process and that AB 730 is likely constitutional.
“Most importantly, the U.S. Supreme 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,” Chemerinsky wrote in support of the bill. “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.”
