The Courts
Bloomberg Law: Watchdog Sues to Force Facebook to Reveal Political Ad Sponsor
By Kenneth P. Doyle
A watchdog group is seeking to force Facebook Inc. to disclose who paid for online political ads on the social media site in 2018 that promoted Green Party candidates in certain House and Senate races.
The Campaign Legal Center (CLC) has filed a lawsuit to enable it to subpoena Facebook for information on America Progress Now. The CLC sued the Federal Election Commission for failing to act on the group’s complaint about APN, which the suit alleges “is not a real entity.” The FEC currently lacks a quorum of commissioners and can’t act on any enforcement matters.
Chicago Tribune: Millennium Park isn’t an art gallery – it’s a park. So the city should stop its attempt to restrict free speech there.
By Blair Kamin
Millennium Park’s website calls the spectacular downtown public space “a new kind of town square.” It is indeed a new kind of town square – one where aesthetic busybodies from the city of Chicago and the foundation that supports the park are trying to severely limit the time-honored right to free speech in public spaces.
Last week, U.S. District Judge John Robert Blakey rightly blasted the city’s restrictions and issued a preliminary injunction that temporarily bars the city from putting unreasonable curbs on activists who hand out leaflets or hold demonstrations.
Congress
Bloomberg Government: Schakowsky Progresses on Section 230 Bill
By Rebecca Kern and Giuseppe Macri
Rep. Jan Schakowsky (D-Ill.) is moving forward with drafting legislation to limit tech’s broad liability shield by giving the Federal Trade Commission authority to pursue companies that allow third-party users to post content that violates the platform’s terms of service.
Schakowsky, chairman of the House Energy and Commerce Consumer Protection Subcommittee, expects to have a bill ready in March that would restrict the tech industry’s liability shield, derived from Section 230 of the Communications Decency Act, according to an interview yesterday with Bloomberg Government…
Schakowsky joins other lawmakers targeting Section 230, including Rep. David Cicilline (D-R.I.), chairman of the House Judiciary’s antitrust subcommittee, who announced earlier this week that he wants to limit the shield for online platforms that publish “demonstrably false” political ads.
Privacy
New York Times (LTE): Disclosure of Campaign Donors
By Floyd Abrams
Re “More Money, More Political Problems” (editorial, Feb. 2):
You offer a welcome response to a significant body of opinion from influential right- and sometimes left-leaning civil liberties organizations that have opposed more disclosure obligations of the identity of large donors to political nonprofits on First Amendment grounds.
You argue that “disclosure is crucial,” and you are not only correct but also in accord with recent Supreme Court rulings.
In case after case, the Supreme Court has rejected objections to such disclosures, relying in one ruling on the “First Amendment interests of individual citizens seeking to make informed choices in the political marketplace”; in another, on the critical interest of enabling the electorate “to make informed decisions and give proper weight to different speakers and messages”; and in a third, on disclosure offering “a particularly effective means of arming the voting public with information.”
To be sure, there are situations in which required public disclosure can lead to dangers to those who contribute to organizations that take unpopular political or social positions and that could thus be subjected to what the Supreme Court has referred to as “economic reprisals or physical threats.”
Exemptions to disclosure requirements can and should be granted in those cases. But the First Amendment is better served by more disclosure as to who is speaking rather than by less.
CommonWealth Magazine: Shining a light on dark money
By Margaret Monsell
“We cannot guarantee the sun will rise tomorrow, but we can guarantee our donors will never be disclosed.” So vowed Paul Craney, spokesperson and board member of the conservative Massachusetts Fiscal Alliance, in a 2018 CommonWealth op-ed that protested efforts by “powerful politicians, bureaucrats, unions, and far-left interest groups” to force the organization to reveal its funders.
As a non-profit organized under IRS Code 501(c)(4), he argued, the Fiscal Alliance is protected by the First Amendment rights of free association and free speech from the disclosure requirements that apply to candidates’ committees, PACs, and other more overtly political groups.
Media
National Review: Trump’s Curious Libel Lawsuit against the New York Times
By Andrew C. McCarthy
It is hard to imagine a worse moment for the president (through his 2020 campaign) to file his libel suit, the gravamen of which is a March 2019 op-ed by the New York Times’s former executive editor, Max Frankel.
The defamation claim is patently meritless. As a matter of law, opinion cannot be defamation, period. And Frankel’s essay was an opinion piece: It was expressly written as the author’s opinion and published in the opinion section of the paper…
Of course, the president is entitled to his opinion, just as he is entitled to opine that Speaker Pelosi is “incompetent” and that the Times is the “fake news” “enemy of the people.” In this great country, you have the right to draw your own conclusions from reported information, and to express your views…
But see, Max Frankel has the same right. What’s more, Frankel was engaged in political speech, just as the president frequently is when he unburdens himself. For the Framers, political speech was the species of expression that deserved the most robust First Amendment protection of all.
Online Speech Platforms
Reason: ‘Conservatives Will Cease To Exist Online’: CPAC Speakers Fret About the Tech Bogeyman
By Billy Binion
Plenty of conservatives still hold tightly to free speech absolutism and limited government, but anyone watching CPAC could easily forget that.
The anti-tech fervor took center stage on Friday morning, with Sen. Josh Hawley (R-Mo.), Rep. Kevin McCarthy (R-Calif.), and Donald Trump, Jr., each of whom presented their case against social media with claims of censorship and bias against conservatives.
“With our base, across the country, this is probably a top 3 issue,” Trump Jr. declared. “It’s not free market, because they’re getting so many benefits and protections from the federal government that they cannot discriminate so flagrantly the way they have against conservatives.” …
This was a reference to Section 230 of the Communications Decency Act, which lets companies remove user-generated content without being held liable for the millions of daily third-party posts on their platforms. Anti-230 activists often claim that dead-tree publishers are legally responsible for the posts they put out, so Section 230 draws an unfair distinction between publishers and platforms. But that dichotomy is entirely false and remains one of the biggest misconceptions about the law. Section 230 does not delineate between “publishers” and “platforms”; it applies to anyone who runs a site with user-generated content.
Business Insider: Facebook COO Sheryl Sandberg says the company just isn’t ‘capable’ of fact-checking political ads
By Ben Gilbert
Facebook is embroiled in yet another controversy, but this time it’s not about your data: It’s about foreign interference in American elections, and partisan politics, and freedom of speech.
It all stems from a relatively simple announcement Facebook made last year about how its advertising works: Facebook refuses to fact-check political ads that run on its platform…
In Sandberg’s latest interview, with NBC News’ Byers Market podcast, she makes a new argument: Facebook is incapable of fact-checking political ads.
Washington Post: Tech firms take a hard line against coronavirus myths. But what about other types of misinformation?
By Craig Timberg, Tony Romm, and Jay Greene
If tech companies can move to promote truth on a fast-moving public-health crisis, why do they struggle to do the same on other important issues?
Such questions have been particularly pointed when it comes to how technology companies handle misleading political claims, which Facebook and other social media companies have been wary of policing, even when information is demonstrably false. While tech companies often express reluctance to act as “arbiters of truth,” their response to the coronavirus outbreak makes clear they are willing to arbitrate some truths – so long as they are seen as uncontroversial and not politically charged.
“This is what it looks like when they really decide to take a stand and do something,” said Danny Rogers, co-founder of the Global Disinformation Index, a research group. “They haven’t had the policy will to act [on political misinformation]. Once they act, they can clearly be a force for good.”
The Hill: There’s no election law about social media disclosures – but there oughta be
By Mark MacCarthy
The Federal Trade Commission requires advertisers to ensure that their social media influencers “clearly disclose when they have been compensated in exchange for their endorsements.” …
But the FTC does not regulate political campaigns. The Federal Elections Commission does, and its current rules for social media companies do not require campaign influencer disclosures.
Congress can fix this, and at the same time close other social media loopholes that threaten the integrity of our electoral process.
Candidates and Campaigns
Washington Post: Amy Klobuchar: A conversation with the Washington Post Editorial Board.
By Editorial Board
Sen. Amy Klobuchar: Okay. So money continues to affect this race in many insidious ways. I am strongly in favor of overturning Citizens United. And also, I’m strongly in favor of public financing and to the point where it’s public financing that actually works so people do it. And that’s not just in the state races. I think [it] would be helpful in the House and Senate as well.
So what’s happened in this race is actually kind of shocking. So in this race, [former] vice president [Joe] Biden has a significant chunk of support. We know that. And then right when some of us were starting to gain some traction, then mayor [Mike] Bloomberg got in and ran ads to the point of making it really difficult for maybe voters that would not have supported the vice president to pick a different candidate, whether it was when Cory Booker was in, which coincided with some of that time, or Kamala. I’m not sure when Bloomberg got in versus when Kamala [Harris] got out. But Tom Steyer was running humongous ads all the time in those early states. And it just makes it harder for those of us who are running with more traditional means to be able to compete.
[…]
Sen. Amy Klobuchar: So I’m actually working on a bill right now. And you know, you have the First Amendment. So it’s, it’s a very hard thing to figure out how to do, but to try to put some truth standards in place for this. And some of it gets to the liability issue, which I know you’ve discussed before, and so that you can have more truth in advertising on the Internet. And you’re right, the disclaimers and the disclosure is part of it, but it is still a big part of it. It’s an absolutely outrageous fact that they are not held to any kind of disclosure or disclaimers. And how they’ve handled it is, is Twitter isn’t doing political ads at all. Facebook has their own way of doing it.
Washington Free Beacon: Iowa Dem Theresa Greenfield Violates Own ‘Campaign Coordination’ Pledge, Experts Say
By Joe Schoffstall
Iowa Democrat Theresa Greenfield has pledged to stop “coordination” between campaigns and outside groups if elected to the Senate, but it appears Greenfield herself has already violated that pledge.
Greenfield’s candidacy received a boost earlier this week when the Senate Majority PAC (SMP), the super PAC responsible for electing the Democratic establishment’s preferred Senate candidates, announced it would pour $1 million into ads backing Greenfield. One SMP ad mirrors the subject matter of a document that Greenfield’s campaign uploaded as an “important update” just weeks prior. The ad also uses footage that the campaign website linked alongside the document, raising concerns from ethics watchdogs that Greenfield illegally coordinated with the super PAC.
Washington Post: How to un-break the primaries
By Christopher Shea
The Democratic Party’s power to choose its nominee is over, too. There are many reasons for this, but the biggest change has been the rise of small-donor money.
Once, if the party’s big-dinner donors all moved behind the establishment front-runner, the front-runner was guaranteed to become the nominee. That all changed with Howard Dean’s campaign, which I managed in 2004. With very primitive online fundraising tools, we broke the record for the most money raised by a Democrat to that point. The establishment rallied to stop Dean, and won. But four years later, Barack Obama rolled over the pro-Clinton establishment, raising close to half a billion dollars from small online donations. In 2020, Joe Biden’s reliance on the establishment donor base puts him at a disadvantage relative to candidates who can outraise him online (not to mention the billionaires).
Voters hold the power now. But the one area where a party can exert some control is its primary calendar.
The Stranger: Election Regulators Scrap Settlement with Facebook, Send Political Ad Case to Washington State Attorney General
By Eli Sanders
The Washington State Public Disclosure Commission on Thursday rejected a settlement Facebook hoped to sign concerning charges the tech giant “repeatedly violated” state campaign finance law.
Instead, the PDC’s commissioners voted to refer the matter to Attorney General Bob Ferguson for further investigation and possible prosecution.
In a statement after the vote, Ferguson said: “I appreciate the referral from the PDC. Facebook needs to follow Washington’s campaign finance laws, just like everybody else.”
Nodding to the fact that he sued Facebook over similar alleged violations in 2018, Ferguson added: “We take repeat violations of our campaign finance laws very seriously.”
The scrapped settlement would have allowed Facebook, which is worth around $550 billion, to walk away from the current charges with a $75,000 fine, no admission of guilt, and no written promise to fully comply with this state’s nation-leading political ad disclosure law going forward.
Nonprofit Quarterly: Hiding Behind a Shield: Nonprofit Status Helps Conceal Political Money
By Martin Levine
In a recent series of articles, San Jose Inside shows how the misuse of nonprofit status is alive and well in California. According to data compiled by CalMatters, “nonprofits affiliated with California legislators or caucuses grew from at least three in 2010 to at least 12 last year, with total revenue of about $2.9 million.” Behested payments-donations made to nonprofits at the request of politicians-have increased in California from $105,000 in 2011 to $2.9 million last year.
Richard Hasen, a professor of law and political science at the University of California, sees these politically controlled nonprofits as providing lawmakers “another way…to wield influence as well as a way for those who seek to influence the legislator to curry favor. This gives a donor some potential extra influence that they couldn’t buy through a campaign contribution.”
Misuse of nonprofit status appears alive and well…
Two years ago, the Brennan Center proposed a way to take on the problem by establishing a mechanism for identifying nonprofits with close ties to politicians. For these organizations, they proposed “two rules that are standard components of campaign finance and conflict of interest laws: donor disclosure and donation limits.” Their approach would not burden the entire nonprofit world for the sins of a few political players.
Maryland Matters: Bill to Rescind Ban on Developer Contributions in Prince George’s County Is Back
By Samantha Hawkins
Lawmakers considered myriad campaign finance bills Thursday afternoon, including an attempt to repeal a decade-old Prince George’s County ban on developer contributions, a law to expand the state’s public financing program and a measure to add enforcement positions to the State Board of Elections…
Politicians in Prince George’s County say the [developer ban] law is unfair because it places limits on a candidate’s ability to raise money – but only in Prince George’s County, a majority-black jurisdiction.
Tri County Sentry: Measure B debate has Nguyen Starr and Percell offering different perspectives
By Chris Frost
[Oxnard City Manager Alex] Nguyen outlined that Measure B would… prohibit elected city officials and planning commissioners from accepting gifts from lobbyists, contractors or developers…
[Aaron Starr from Moving Oxnard Forward] said that… state law already prohibits most gifts totaling $500 a year.
“Officials are already required to report on Form 700 gifts that exceed $50 a year,” Starr said. “Measure B applies to any gift from any person who knowingly attempted to influence any legislative or administrative act. Any gift from any person–did you ever speak at a council meeting? They’re lobbyists. Have you ever complained to the mayor about the city streets, or asked them to fix the homeless problem? You’re a lobbyist.”
He pointed out that any neighborly act, such as a free car ride or inviting someone to a neighborhood barbeque, is a gift…
“One week before the council voted to place Measure B on the ballot, the governor signed AB 571 into law,” Starr said. “Starting this year, every local office is subject to contribution limits. Measure B is blatantly unconstitutional. It prohibits a candidate from donating more than $500 to his own campaign, and it imposes contribution limits on ballot measure committees. Both provisions have been declared unconstitutional.”
