Ed. Note: The media update is going on vacation and will return Wednesday, May 27.
In the News
FIRE: First Amendment News
By Ronald K. L. Collins
Pending petitions:
The Courts
Arkansas Democrat-Gazette: Ruling ends wait for political donors
By Linda Satter
Candidates for state offices are no longer barred from accepting campaign contributions more than two years before elections.
U.S. District Judge James Moody Jr. made that declaration Tuesday in issuing a permanent injunction to replace his earlier temporary order declaring the two-year waiting period unconstitutional.
Moody’s order was welcomed Wednesday by both sides of a relatively short-lived debate about the constitutionality of Arkansas Code 7-6-203(e), which was adopted by voters in 1996 as part of a package of amendments to campaign-finance laws. The amendments were an effort to combat corruption…
Plaintiff Peggy Jones complained that the law infringed on her right of political expression by preventing her from donating money in 2019 to people she wanted to support in the 2022 election cycle…
A three-judge panel of the 8th Circuit said individuals exercise a right to participate in public debate through political expression by contributing money to candidates. The panel said any effort to restrict political contributions requires the state to establish that the restriction “advances a sufficiently important state interest” without unnecessarily abridging First Amendment freedoms.
The panel opinion, written by U.S. Circuit Judge David Stras of Minneapolis, also said there was no evidence indicating that early contributions present a greater risk of corruption than later contributions.
New York Law Journal: Conservative Activist Appeals Decision Rejecting Challenge to City’s Shutdown Order
By Tom McParland
Attorneys for controversial conservative activist and blogger Pamela Geller are appealing a Manhattan federal judge’s ruling earlier this week that New York City’s ban on public gatherings did not violate her First Amendment right to protest COVID-19 shutdowns.
The lawsuit, filed earlier this month in the U.S. District Court for the Southern District of New York, sought a temporary restraining order to block Mayor Bill de Blasio and the New York City Police Department from enforcing a March 25 executive order, which banned all nonessential gatherings due to the pandemic…
U.S. District Judge Denise L. Cote, however, upheld the constitutionality of de Blasio’s order on Monday, saying that it was “narrowly tailored” to stop the spread of the novel coronavirus in the city…
Central to Cote’s decision was her finding that de Blasio’s order did not target free speech itself, but rather the “harmful secondary effects” of public gathering during the pandemic. Because the order was “content neutral,” Cote’s ruling applied “intermediate scrutiny,” a more relaxed standard for assessing government actions than the onerous “strict scrutiny” review.
On appeal, Geller’s attorney, David Yerushalmi, argues that strict scrutiny should apply because the mayor’s order still allowed individual protesters, acting independently of one another, to take to the streets. The only way for police to differentiate between the two groups, he said, was to examine the content of their messages.
WTVQ: Judge Denies Protest Injunction, Four Appeal Decision
By Steve Rogers
A federal judge has denied an injunction of the state’s mass gathering rule and says he can’t address constitutional issues raised by four protest organizers because they haven’t yet suffered any harm.
The four [plaintiffs] have filed a request for a stay of the judge’s ruling so they can appeal to the United States Court of Appeals for the Sixth Circuit…
The protest the four and others plan for Saturday on the Capitol grounds can go forward. And any issues over how that should be carried out still should be worked out under rules that have been in place even before the coronavirus outbreak.
Courthouse News: Journalists Challenge Puerto Rico’s ‘Fake News’ Law
By Izzy Kapnick
Two journalists claim a Puerto Rican law, which makes it a crime to create a false alarm during a state of emergency, is so vague that it could be used to prosecute reporters for breaking-news stories about the coronavirus outbreak.
In a federal lawsuit filed Wednesday, Sandra Rodriguez Cotto and Rafelli Gonzalez Cotto claim their First Amendment rights are put in jeopardy by the Puerto Rican law that carves out criminal penalties for raising a false alarm and spreading rumors in connection with a large-scale disaster.
The two reporters say that the law’s wording is unconstitutionally vague. One provision establishes a maximum six-month jail sentence and $5,000 fine if, during a disaster, a person spreads a rumor or raises a false alarm regarding “non-existing abnormalities,” a confusing term that has yet to be defined.
The law was amended April 6 to include a section that makes it a crime to “transmit … by any means, through social media or mass media, false information with the intention of creating” panic or confusion over emergency government orders…
Penalties under the April 6 amendment can reach the level of a fourth degree felony if an alleged spread of false information results in property damage or physical injury.
The plaintiffs are represented by Fermin Arraiza-Navas and Brian Hauss of the American Civil Liberties Union.
“These ‘fake news’ laws violate the cardinal principle of the First Amendment, which is that the government cannot be trusted to regulate discussion on matters of public concern,” Hauss said in a statement.
Congress
Politico: Democrats propose limits on political ad targeting in backlash to Facebook
By Cristiano Lima
A Democratic House bill that would tighten restrictions on online political ad-targeting on platforms like Facebook is set to be introduced next week, bill sponsor Rep. David Cicilline told POLITICO Thursday.
The so-called Protecting Democracy from Disinformation Act would limit political advertisers to targeting users based only on age, gender and location – a move intended to crack down on a practice known as microtargeting, in which advertisers direct messages at subsets of users based on data ranging from their hobbies to their ethnic background…
Cicilline said the legislation, which he plans to introduce Tuesday, is essential toward stopping politicians from targeting voters who may be more susceptible to believing deceitful advertising.
“The microtargeting is where the real danger is,” he said in a phone interview.
The Rhode Island Democrat said that the practice also serves to shield what politicians say from public scrutiny.
“You lose the ability to be able to counter it in the open with a contrary assertion by someone else, because we don’t even know that people got those ads that said false things,” said Cicilline.
The incoming legislation would also set new disclosure requirements for political ads online, including their cost, how they were targeted and who saw them. And it would give regulators at the Federal Election Commission, tasked with overseeing its enforcement, the power to seek criminal penalties against online platforms that knowingly violate the measure.
FEC
Inside Political Law (Covington & Burling): Reopening the FEC
By Robert Lenhard and Robert Kelner
In a 49-43 vote along party lines, the Senate confirmed Texas attorney James “Trey” Trainor to the Federal Election Commission today. This gives the FEC a quorum for the first time since August 31, 2019, when former Commissioner Matt Petersen stepped down to enter private practice. What effect will this have on the FEC and the 2020 election? …
Advisory Opinions. There are four advisory opinion requests pending and the agency has agreed to decide those matters within 30 days of the Commission’s first open meeting after a quorum is established. So expect early decisions on these matters as well. They involve reasonably non-controversial topics:
- Can a candidate’s campaign committee pay for the candidate’s health insurance;
- Can a for-profit company hosting an on-line forum on politics avoid the FEC’s regulations when advertising using a candidate’s name;
- Can a PAC use a candidate’s initials in its name; and
- Can a PAC forwarding earmarked contributions retain a processing fee?
We expect others to seek advisory opinions in the run-up to the election, though the Commission has historically been reluctant to make significant changes to the rules shortly before an election, so most decisions should clarify the law in incremental ways.
Media
Bloomberg Law: Fox News Meets Feisty Judge in Case Over Virus ‘Hoax’
By Malathi Nayak
Fox News was confronted by a judge skeptical of its claim that the U.S. Constitution’s First Amendment bars a lawsuit alleging that a host on the network downplayed the danger of the coronavirus by calling it a “hoax.”
Brian McDonald, a Washington state judge, asked during a hearing Thursday whether it makes sense that the law allows people to sue others for harming their reputation with lies but gives a pass for falsehoods about threats to public health.
“As a policy rationale, it would seem an individual’s reputation is less valuable to society as a whole than making sure accurate information gets out about a life-threatening disease,” McDonald said during the hourlong virtual hearing, which aired on YouTube.
Michael Carvin, a lawyer for Fox, said that under the First Amendment, the best way to expose falsehoods is to allow all statements to flourish so that the truth emerges. He also said the idea that there is “infallible truth” about the virus is illusory and noted that the guidance from the Centers for Disease Control and Prevention changes all the time.
The idea that a court could say “this is the only truth that can be put forth in a marketplace of ideas would have an extraordinarily detrimental effect,” he said…
“There has never been a right to lie,” lawyer Catherine Clark said. “There has never been a right to make a patent false statement, particularly on something like a pandemic.”
Online Speech Platforms
National Review: Zuckerberg Calls for ‘Clear Regulatory Framework’ to Counter Chinese Internet Censorship
By Tobias Hoonhout
Facebook founder Mark Zuckerberg called China’s social-media censorship “really dangerous” during an online debate Monday, adding that “the best antidote” to the Chinese Communist Party’s model is “a clear regulatory framework that comes out of Western democratic countries.”
Speaking to the European Union’s internal market commissioner Thierry Breton, Zuckerberg said he was worried about China’s model “spreading to other countries.”
“The question is whose framework is going to win around the world”, the Facebook CEO posited. “That’s going to get decided in the next five to 10 years. A lot of other countries are looking at China and the companies coming out of there.”
In an October speech at Georgetown University, he slammed Chinese-owned platform TikTok for censoring news of the pro-democracy protests in Hong Kong.
“A decade ago, almost all of the major internet platforms were American. Today, six of the top ten are Chinese. We’re beginning to see this in social media too,” Zuckerberg stated. “While our services like WhatsApp are used by protestors and activists everywhere due to strong encryption and privacy protections, on TikTok, the Chinese app, mentions of these same protests are censored, even here in the US. Is that the internet that we want?”
Politico: Morning Tech
By Alexandra S. Levine
[Twitter] declined to say whether a Wednesday Trump tweet that falsely stated Michigan sent every registered voter in the state absentee ballots – when in fact it sent ballot applications – violated its election integrity policies. But a company spokesperson told POLITICO that the company did not take any enforcement action against the tweet, which was subsequently deleted, and that a later, similar tweet that corrected that discrepancy did not violate its rules. One civil rights leader said the incident highlighted weaknesses within platforms’ election integrity policies.
Candidates and Campaigns
Wall Street Journal (LTE): Biden Can Get Progressive Vote, but at a Cost
By James Fackler
[In “How Biden Can Win Over Progressives” (op-ed, May 18), Cenk] Uygur urges Mr. Biden to support a constitutional amendment to enshrine public financing of campaigns. How likely is this to pass? According to the Federal Election Commission’s Presidential Election Campaign Fund Tax Check-Off Chart, the participation rate among voters using their annual income-tax filing to allocate $3 to this fund has fallen from 11.5% in 2000 to 3.9% in 2019. Progressives may sincerely desire public financing, but the broad public does not. Mr. Biden’s support of such an amendment, along with support of the Green New Deal and Medicare for All, would be virtue signaling rather than a serious proposal.
The States
Explore Big Sky: Dark money group ordered to report Montana campaign spending
By Associated Press
A secretive group that aired election ads including images of Attorney General Tim Fox, who is running for governor, violated state campaign laws, [according to Commissioner of Political Practices Jeff Mangan.]
Ads by American Prosperity Group began airing on Spectrum cable television in late March, but the group has not registered with state or federal elections regulators, putting it at odds with state campaign laws intended to prevent anonymous spending in state politics[.] …
The Washington, D.C. law firm Dickinson Wright PLLC told Mangan it represents American Prosperity Group and argued the ad wasn’t considered an “electioneering communication” because the spending occurred more than 60 days before the June 2 primary.
However, ballots were mailed to all registered voters on May 8 because counties decided not to open polls due to the coronavirus. Any ads that appeared after March 9 would have aired during the electioneering period for Montana’s 2020 primary, Mangan found.
APG spent nearly $29,000 to air the ads, plus whatever it spent on production costs, Mangan’s findings said, meaning it should have filed as a Montana political committee and filed campaign finance reports, which would include donations and expenditures.
New York Daily News: NYC pols mix coronavirus help, self-promotion
By Shant Shahrigian
New York City elected officials are mingling campaigning with the distribution of vital items like face masks and hand sanitizer.
A staffer for Assembly Speaker Carl Heastie (D-Bronx) passed out literature promoting his boss along with hand sanitizer and Census info last month…
Government watchdog Common Cause decried the activity.
“What we’re seeing is politicians using this crisis to promote themselves or their reelection instead of doing their jobs as lawmakers,” Susan Lerner, the group’s executive director, told the Daily News…
Heastie’s spokesman Michael Whyland rejected the criticism, noting the speaker is not facing a primary this year…
Scandal-plagued Councilman Mark Gjonaj (D-Bronx) recently offered free face masks – only to people who get emails from his reelection campaign…
In fact, Gjonaj’s campaign is yet to acquire any masks. And the mayor’s office provided his Council office – along with that of every other member – with 1,080 cloth masks and 1,100 paper mass to distribute within their districts.
Gjonaj’s email drew outrage from good government group Citizens Union…
“Campaigns do give away stuff. Generally, it’s not particularly valuable stuff,” she said. “It’s all new territory. It’s not white and black but I think [candidates] should check with their lawyers.”
Insider NJ: US Supreme Court Reversed Some Precedents in Citizens United But Not Those Involving Disclosure
By Jeffrey Brindle
Even as Citizens United rolled back the Austin precedent to permit unlimited corporate and union independent spending, the Supreme Court stood firm in a key area of campaign finance law by strongly upholding the need for disclosure.
New Jersey hopefully will soon benefit from the Supreme Court’s commitment to this principal.
There is a need in the state for legislation that requires disclosure by independent groups that have been spending significant dollars on electioneering communications. Hopefully, once things return to normal, the Legislature will address this need and require disclosure by independent groups participating in New Jersey elections.
By doing so, the Legislature will bring back a semblance of balance to an electoral system that has become increasingly dominated by outside groups rather than parties and the candidates themselves.
