New from the Institute for Free Speech
Statement on Mark Zuckerberg’s Address on Free Speech
The Institute for Free Speech released the following statement in response to today’s speech by Facebook CEO Mark Zuckerberg at Georgetown University on the importance of protecting free expression.
“Good for Mark Zuckerberg for speaking out for free speech. He’s right to stand up to politicians who want Facebook to censor speech they don’t like,” said Institute for Free Speech President David Keating.
“Social media has become a Fifth Estate that is a vital tool to hold government accountable. Facebook and other online platforms should embrace free speech and reject calls from Washington to try to control debate. Americans deserve to judge for themselves the statements made by politicians.
“Overall, Zuckerberg’s speech was a strong defense of free expression, but Facebook has a long way to go on the details. It backed a Maryland law that a federal court found violated the First Amendment. It continues to back other legislation that will harm free expression. And its moderation policies are still too restrictive and need improvement,” Keating said.
Free Speech
Wall Street Journal: Facebook Stands for Free Expression
By Mark Zuckerberg
The power of individuals to express themselves has expanded rapidly in recent decades. But in times of social turmoil, there’s often an impulse to pull back on free expression…
Today, in another time of social tension, the impulse to restrict speech is back. We face a choice: We can stand for free expression, understanding its messiness but believing that the long journey toward progress requires confronting ideas that challenge us. Or we can decide the cost is too great.
I believe we must stand for free expression…
I’ve considered whether we should ban political ads altogether. They are a small part of Facebook’s business and the controversy they create isn’t worth it. But advertising is an important component of free expression. Banning political ads gives an unfair advantage to incumbents and media favorites. It’s also unclear where the line should be drawn. Many ads are about issues, not elections. Would we ban ads about immigration or women’s empowerment? If not, would it really make sense to give everyone but candidates a voice in political debates? There’s no simple answer, and I believe we should err on the side of allowing greater expression…
Some say free speech is dangerous because it may lead to outcomes they find unacceptable. Others believe the stakes are so high that they can no longer trust their fellow citizens with the power to communicate or decide what to believe for themselves.
I believe these views are more dangerous for democracy than any speech could be. You can’t impose tolerance from the top down. It has to come from people opening up, sharing experiences, and developing a common understanding of the society in which they live.
First Amendment
Reason: Will Joe Biden Challenge Elizabeth Warren’s Constitution-Shredding Proposals?
By Ira Stoll
[Warren] has been out on the campaign trail promising to, as she puts it, “end lobbying as we know it.”
“The right of every person in this country to petition their government does not protect a multi-billion-dollar influence industry whose sole purpose is to undermine democracy and tilt every decision in favor of those who can pay,” is the way she put it at one recent rally. It’s great to see Warren acknowledge the First Amendment’s right to petition the government for redress of grievances. But if she’s so dismissive of the right of petition, imagine how she feels about the First Amendment rights of speech, of the press, and of assembly-all of which would be similarly trampled by her series of proposals to curtail political speech…
Unfortunately, rather than challenging Warren on the constitutionality of her plans, Biden is imitating them, at least when it comes to the assault on the First Amendment. This week, Biden announced an effort to amend the Constitution “to entirely eliminate private dollars from our federal elections.” Biden served for 36 years in the Senate without enacting such an amendment. His campaign did offer as precedent that he had backed a failed constitutional amendment that said, “Congress shall have power to set reasonable limits on the amount of contributions that may be accepted by, and the amount of expenditures that may be made by, in support of, or in opposition to, a candidate for nomination for election to, or for election to, Federal office.”
Congress
Republican National Lawyers Association: Shield Act Would Regulate Americans’ Political Speech Instead Of Preventing Foreign Election Interference
By Lisa Dixon
Yesterday, the Committee on House Administration marked up the SHIELD Act…
The RNLA sent a letter to the House opposing the SHIELD Act:
[T]he Honest Ads Act requirements would not prohibit most of the disruptive activities engaged in by foreign nationals leading up to the 2016 election. Those activities, such as the efforts by the Russian Internet Research Agency, were largely accomplished through free social media posts, not the paid advertisements that would be regulated by the Honest Ads Act, and many did not reference a candidate. Those foreign posts that were paid advertisements that referenced a candidate are already subject to reporting and disclaimer requirements that the foreigners violated.
As Ranking Member Rodney Davis pointed out during yesterday’s markup, foreign actors’ intent on interfering with our elections did not comply with the existing requirements in 2016, and they would similarly not comply with the requirements of the SHIELD Act if it were passed. Instead, the regulatory burdens would fall on law-abiding American candidates, citizens, and organizations and the liability for foreign advertisements would be placed on American media and advertisement platforms.
The letter noted that Maryland and Washington already passed laws similar to the Honest Ads Act, causing both Facebook and Google to stop selling political ads for Washington elections and Google to stop selling ads for Maryland elections. After a group of newspapers led by The Washington Post sued, a U.S. district judge enjoined the law for violating the First Amendment under both strict and exacting scrutiny analyses:
Our federalist system allows the states to be incubators for democracy: individual states can try a particular system or reform to evaluate how it works in practice, allowing other states and the national government to learn from their mistakes and successes before implementing a similar policy. In the Honest Ads Act portion of the SHIELD Act, instead of learning from the experience of the states, Congress is attempting to replicate their mistakes on a national level.
ACLU: Our Online Speech Rights Are Under Threat
By Kate Ruane and Jennifer Stisa Granick
Congress on Wednesday [examined] a little-known law that has made the internet the space for self-expression and connection that it is today. The law, Section 230 of the Communications Decency Act (CDA 230), is one of the most speech protective laws Congress has ever enacted and it is now under threat…
If it weren’t for CDA 230, no website owner would permit public posts knowing that the site could be investigated, shut down, sued, or charged with a felony over one user’s speech. Avoiding legal risk would require even the smallest blog to hire an army of lawyers to assess in real-time all content created and uploaded by users. It’s unaffordable. Instead, sites would avoid legal liability by simply refusing to host user-generated content at all…
While the biggest social media companies, responsible for hosting the speech of billions, should resist calls to censor lawful speech, CDA 230 allows sites to delete abusive accounts, remove content that violates the site’s terms of service, or refuse to carry pornography without risking liability for the speech that they do host.
Despite these safeguards, the obvious good CDA 230 has done in creating a free, vibrant forum for speech in the modern era, and the clear harm that would result for the speech of billions should it no longer exist, some lawmakers are considering rolling the law’s protections back in ways that are poorly informed and even dangerous. One lawmaker has introduced a bill that would require a federal agency to decide whether a platform complies with a “political neutrality” requirement as a precondition for immunity. Others have proposed revoking platforms’ immunity when moderating “objectionable” content while retaining immunity for moderating “unlawful content” in good faith.
Setting aside the obvious constitutional problems with a government entity judging the political content of speech, or dictating the censorship decisions of online platforms, these proposals would make it far less palatable for online services to host others’ speech at all. If enacted, the internet’s marketplace of ideas – and our freedom to communicate online – would suffer.
Online Speech Platforms
New York Times: Defiant Zuckerberg Says Facebook Won’t Police Political Speech
By Cecilia Kang and Mike Isaac
Mark Zuckerberg on Thursday gave a full-throated defense of Facebook as a champion of free expression, fighting the idea that the social network needs to be an arbiter of speech even as it has faced blowback for leaving up false political ads going into the 2020 presidential election.
In a winding, 35-minute speech at Georgetown University’s Gaston Hall – where presidents and foreign heads of state have delivered addresses – the Facebook chief executive said the social network had been founded to give people a voice and bring them together, and that critics who had assailed the company for doing so were setting a dangerous example…
The address by the tech billionaire was an unusually public doubling down on free expression online as debate over that stance has ramped up. It was a sign that Mr. Zuckerberg was going on the offense against critics who have accused Facebook of being an amplifier of disinformation, hate speech and violent content.
Mr. Zuckerberg made his stand as Facebook has grappled with a firestorm over political speech in recent weeks…
On Thursday, Mr. Zuckerberg’s speech was also lambasted.
“Zuckerberg attempted to use the Constitution as a shield for his company’s bottom line, and his choice to cloak Facebook’s policy in a feigned concern for free expression demonstrates how unprepared his company is for this unique moment in our history and how little it has learned over the past few years,” said Bill Russo, a spokesman for the presidential campaign of Joseph R. Biden Jr. …
Neil Chilson, a senior research fellow at Stand Together, an organization within the Koch Network, said Facebook’s free speech position was “a very reasonable policy choice.” When Mr. Trump speaks, reporters then fact-check what he says, showing “that the cure to a politician’s misstatement is more speech, not to shut it down,” Mr. Chilson said.
[Full speech available here.]
Washington Post: Facebook CEO Mark Zuckerberg says in interview he fears ‘erosion of truth’ but defends allowing politicians to lie in ads
By Tony Romm
Facebook chief executive Mark Zuckerberg said in an interview he worries “about an erosion of truth” online but defended the policy that allows politicians to peddle ads containing misrepresentations and lies on his social network…
“People worry, and I worry deeply, too, about an erosion of truth,” Zuckerberg told The Washington Post ahead of a speech Thursday at Georgetown University. “At the same time, I don’t think people want to live in a world where you can only say things that tech companies decide are 100 percent true. And I think that those tensions are something we have to live with.”…
Zuckerberg framed the issue as part of a broader debate over free expression, warning about the dangers of social networks, including Facebook, “potentially cracking down too much.” He called on the United States to set an example for tailored regulation in contrast with other countries, including China, that censor political speech online…
He revealed that Facebook has been “working through what our policy should be” on deepfake videos. “I think we’re getting pretty close to at least rolling out the first version of it,” Zuckerberg said…
But Zuckerberg stood behind the way Facebook, which has long eschewed fact-checking political ads, handles political ads. “I think we’re in the right place on this,” he said. “In general, in a democracy, I think that people should be able to hear for themselves what politicians are saying.”…
Speaking at Georgetown later Thursday, Zuckerberg acknowledged the company once considered prohibiting political ads but decided against it, believing it “favors incumbents and whoever the media covers.”…
“Often, the people who call the most for us to remove content are often the first to complain when it’s their content that falls on the wrong side of a policy,” Zuckerberg said. “These are very complex issues, and in general, unless it is absolutely clear what to do, I think you want to err on the side of greater expression.”
Reason: Kamala Harris Demands That Warren Promise To Ban Trump From Twitter
By Billy Binion
When it comes to politics, Democratic presidential hopeful Sen. Kamala Harris (D-Calif.) is “For The People.” When it comes to Twitter, though, she would like to put the fate of President Donald Trump’s account in the hands of one powerful man: CEO Jack Dorsey.
“He and his account should be taken down,” said Harris during Tuesday night’s debate, facing off against Sen. Elizabeth Warren (D-Mass.) who declined to support the move…
So how should Trump be held accountable for his tweets, many of which could merit support for impeachment? Should lawmakers be able to access them? Should the American people be allowed to decide what they think of his erratic rants, many of which contain policy prescriptions? Or should one man have the power to press a button and erase it all?
Certainly not the latter.
There are plenty of First Amendment implications here. It’s true that private companies are under no obligation to provide anyone a platform on which to speak-a point I have made on multiple occasions. For instance, Rep. Tulsi Gabbard (D-Hawaii) currently has a nonsensical lawsuit filed against Google; she accused the company of violating her free speech rights when it temporarily froze her campaign fundraising account after the first Democratic debate. The First Amendment prohibits the government from suppressing speech, not corporations.
But it is for that same reason that Harris’s request is absurd; she is a senator seeking the highest office in the land. Meanwhile, she is pressuring someone to block the president’s speech.
What’s more, if Harris had it her way, conservatives would have endless fodder for their claims of tech censorship, which have been a thorn in Democrats’ sides as they try to fend off Republican attempts to regulate speech online.
Independent Groups
The Hill: Wealth, philanthropy and politics – considering ‘wealth tax’ proposals
By Ellen P. Aprill
The impact of private wealth on public policy through tax-exempt organizations has garnered much attention of late . . . Recent critiques, however, fail to emphasize sufficiently the role of wealth in campaign finance. Citizens United and the rise, in its wake, of Super PACS able to solicit and spend unlimited amounts make such consideration crucial…
On Sept. 5, as part of the Brookings Papers on Economic Activity, Emmanuel Saez and Gabriel Zucman presented an important new paper on progressive wealth taxation. The Saez-Zucman paper describes a wealth tax as a means of reducing wealth concentration needed because of such concentration’s effect on democratic institutions and policy-making. (The paper notes that political contributions are extremely concentrated, with 1.01 percent of the population accounting for over a quarter of all such contributions.) According to those present, discussion at the session included whether a wealth tax would reduce billionaires’ political influence.
To prevent abuses of a wealth tax, the Saez-Zucman paper proposes that donor advised funds … and funds in private foundations controlled by funders “should be subject to the wealth tax until the time such funds have been spent or moved fully out of the control of the donor.”…
The paper, however, does not discuss other organizations exempt under section 501(c). Most importantly, it neglects section 501(c)(4) social welfare organizations. . . Wealthy donors could well control such section 501(c)(4) organizations. Thus, under the reasoning of the paper, the wealth tax should apply to these and possibly other 501(c) entities as well…
[T]hose designing a fully articulated wealth tax must decide whether it should reach, in certain configurations of control, Super PACS, section 527 organizations and possibly even candidate campaign committees. In short, section 501(c)(3) organizations are not the only category of exempt organizations where control by the wealthy can matter and can influence policy.
DOJ
CNN: Two men plead not guilty in alleged campaign finance scheme tied to Giuliani associates
By Erica Orden
Two men charged in a federal campaign finance case involving associates of Rudy Giuliani pleaded not guilty Thursday in Manhattan federal court.
The two defendants arraigned Thursday, David Correia and Andrey Kukushkin, are each charged with one count of conspiring to funnel foreign money into the US election system.
Two additional defendants in the case, Igor Fruman and Lev Parnas, are set to be arraigned next week. They have not yet entered a plea…
In court Thursday, prosecutor Nicolas Roos told the judge that the Justice Department intends to produce “fairly voluminous” discovery material that includes 10 search warrant applications, email and other communications from more than 10 accounts and financial records from more than 50 bank accounts.
Asked by the judge if the Justice Department intends to file a superseding indictment, a tool that would allow prosecutors to file additional charges or add defendants to the case, Roos didn’t answer directly.
“I think it’s fair to characterize the government’s investigation as ongoing,” he told US District Court Judge Paul Oetken. Roos added that no decision has been made on additional charges.
The judge set the next court date for all four defendants for December 2.
Candidates and Campaigns
Los Angeles Times: California billionaire Tom Steyer spent $47 million in 84 days on presidential bid
By Seema Mehta
“Typically self-funding doesn’t lead to success, in part because candidates’ fundraising helps candidates become better at connecting with voters,” said Rick Hasen, a campaign-finance law professor at UC Irvine. He added that Steyer’s “$47 million hasn’t bought him very much. He could pay off the fines of all the ex-felons in Florida to make sure they are re-enfranchised for the next election and probably have a lot more influence on the next election.”
While Biden and Harris have devoted large chunks of their time headlining events for big donors in California and across the nation, the candidates who raised and banked the most money were those who have sworn off these ritzy fundraisers.
The States
NBC Montana: Cooney wants governor candidates to limit outside money
By Associated Press
Montana Lt. Gov. Mike Cooney is asking his opponents in the Democratic primary for governor to sign a pledge to limit outside spending and self-funding their campaigns.
Cooney signed the pledge Wednesday promising to donate to charity half of the value of any independent expenditures made by outside organizations, individuals or corporations that benefit his campaign.
Candidates who sign also promise to donate to charity 50 cents for every $1 they give to their own campaigns.
Cooney took in more than $250,000 over the last fundraising quarter, far more than House Minority Leader Casey Schreiner or ex-legislator Reilly Neill. Whitney Williams, the fourth 2020 Democratic candidate for governor, launched her campaign after the last reporting deadline.
Campaign finance records show no independent expenditures have been made in the gubernatorial election campaign as of last month.
WBFO Buffalo NPR: Public finance commission begins discussing details
By Karen Dewitt
New York state’s public campaign finance commission met for several hours on Columbus Day to discuss the nuts-and-bolts details of how to implement a matching public donor system for statewide races…
They reached consensus on a few issues that give an indication of how the final proposal, due in December, might look.
They discussed contributions beginning at $5 and up to $250 could be matched by the public fund at a 6-to-1 ratio.
A candidate for governor who opts in to the system could receive up to $18 million in matching funds — $8 million for a primary and $10 million for a general election. That number is significantly lower than the $30 million spent by Gov. Andrew Cuomo, who was the winning candidate in 2018.
The commissioners also discussed a $4 million cap for matching funds for candidates for attorney general and comptroller.
Senate and Assembly seats might be limited to matching funds of $750,000 per candidate.
Commissioners said contributions to political parties might continue to be unlimited. The commission is also powerless to regulate independent expenditures, or Super PACs, due to Supreme Court decisions limiting regulation of independent expenditures.
Commissioner Henry Berger, an election law attorney appointed by Cuomo and the leaders of the Legislature, said the aim is to set the amounts high enough to attract only serious candidates, but not make it so difficult as to discourage legitimate candidates.
“What we’re creating is meant, among other things, to change behavior,” said Berger. “We want people going out and seeking the smaller contributions. And we want them seeking them within their district.”
Baltimore Sun: Ex-Maryland lawmaker pleads guilty to misusing campaign funds
By Michael Kunzelman
A former Maryland state lawmaker pleaded guilty Thursday to a charge that she illegally used campaign funds for her personal benefit.
Tawanna Gaines faces a sentence of up to 20 years following her plea to one count of wire fraud. U.S. District Court Judge Theodore D. Chuang is scheduled to sentence her Jan. 3. Chuang said guidelines call for eight to 33 months in prison, depending on the court’s calculation of her criminal history.
The plea agreement with prosecutors also calls for Gaines, a Democrat from Prince George’s County, to pay back at least $22,565.
Gaines spent campaign money on personal expenses including fast food, hair styling, dental work, a cover for her swimming pool and an Amazon Prime membership, Assistant U.S. Attorney Thomas Windom said…
Since June 2002, Gaines had used a campaign committee called “Friends of Tawanna P. Gaines” to raise money for her political campaigns. It was a regulated state election campaign committee with a designated bank account. Separately, Gaines controlled a PayPal account for donations that weren’t disclosed in state campaign finance filings, a court filing said…
Gaines’ plea marks the latest legal trouble for former or current state legislators in Maryland in recent years.
Last year, former Sen. Nathaniel Oaks, a Democrat, pleaded guilty to two federal counts of fraud for accepting $15,300 in bribes. His indictment in 2017 came amid a flurry of state and federal charges against would-be, former and sitting lawmakers who ended up in legal trouble.
Gary Brown, a Democrat, was indicted by state prosecutors on charges of making illegal campaign contributions, one day before he was scheduled to be sworn in as a Baltimore delegate. A day later, federal prosecutors announced a former delegate, William Campos, had pleaded guilty to bribery and conspiracy in a public corruption case involving the liquor industry in Prince George’s County. And the day after that, just before the legislative session began, another Prince George’s County Democrat, Del. Michael Vaughn, abruptly announced his resignation. Vaughn was indicted in the same federal case as Campos.
