In the News
Reason: Protest Organizers Shouldn’t Be Liable for Other People’s Crime
By Zac Morgan and Luke Wachob
Recent weeks have shown how easily troublemakers can infiltrate peaceful protests, as even President Donald Trump has admitted. These individuals do not support the cause of the protesters, but exploit the moment to commit acts of wanton destruction. Those few who smash up and loot high-end storefronts should not detract from the message of tens of thousands of peaceful protesters. So why should someone hurt by a lawbreaker be able to sue the person who organized the protest?
In most parts of the country, they could not. But the Court of Appeals for the Fifth Circuit…allowed such a lawsuit to proceed in December 2019. A policeman injured by an unknown attacker at a Black Lives Matter protest in July 2016 in Louisiana sued the protest’s organizer, DeRay Mckesson, for damages. Mckesson did not attack the officer or urge anyone to commit violence. He simply led the protest at which the attack happened…
If protest organizers can be dragged into court whenever an injury occurs in an otherwise peaceful assembly, only those backed by big groups or the wealthy would feel secure exercising their rights. This would chill protest activity for grassroots causes across the political spectrum…
(The Institute for Free Speech, for which the authors work, has filed an amicus brief in support of this case being heard by the Court.)
The Dispatch: A Victory for Free Speech at the IRS
By Ryan Morrison
Historically, the IRS has not been a guardian of our free speech rights. It has a long and troubling history of political abuses and targeting unpopular viewpoints, which includes the 2013 targeting of conservative and Tea Party groups. But a new tax rule indicates the IRS may have a newfound respect for Americans’ First Amendment rights.
The IRS recently amended its nonprofit donor reporting rules to protect the identities of contributors. From now on, nonprofits (except for 501(c)(3) charities and 527 political groups) are not required to disclose their largest donors on annual tax returns. The organizations must still maintain this information for a potential audit, but the IRS will stop routinely collecting these names.
Compelled disclosure of donors to nonprofit groups offends the First Amendment. As the Supreme Court acknowledged in Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam), compelled disclosure, in and of itself, can seriously infringe on privacy of association and belief. After all, an individual’s freedom to speak, to worship, and to petition the government for the redress of grievances cannot be vigorously protected from state interference unless the freedom to engage in a group effort to promote these interests is also guaranteed…
The new rule values Americans’ right to freedom of speech and associational privacy. It relieves the IRS of an unnecessary burden without compromising the agency’s tax enforcement mission. And it does not interfere, in any way, with campaign finance law enforcement or election security efforts of other government agencies.
MinistryWatch: States Considering Non-Profit Disclosure Rules
By Anne Stych
Several states have passed or are considering laws that further strengthen privacy protections for nonprofit donors after guidance released by the Internal Revenue Service and Treasury Department in late May altered reporting regulations.
Under the new rules, certain tax-exempt groups no longer need to include the names and addresses of their major donors to the IRS each year under section 6033 of the Internal Revenue Code…
Conservative groups and Republican politicians supported the change, arguing that it protects the First Amendment rights of donors who want to keep their philanthropic activities private to avoid political backlash or because their religious beliefs promote altruistic giving…
On May 22, Oklahoma passed the Personal Privacy Protection Act prohibiting public agencies from disclosing certain personal affiliation information. West Virginia’s Protect Our Right to Unite Act, approved in April, protects an individual’s constitutional right to privately associate with advocacy groups that represent his or her beliefs.
Utah’s Nonprofit Entities Amendments, signed into law in March, prohibits a public entity, with certain exceptions, from disclosing information that identifies a person as affiliated with a tax-exempt entity…
And Supreme Court appeals are underway for two cases involving California’s disclosure law Americans for Prosperity Foundation v. Becerra and Institute for Free Speech v. Becerra.
Supreme Court
Washington Times: Supreme Court mulls whether to take Black Lives Matter case
By Alex Swoyer
DeRay McKesson, a top activist in the Black Lives Matter movement, is asking the justices to hear his case after the 5th U.S. Circuit Court of Appeals ruled he was liable for an assault on a police officer at a rally outside a police station in Baton Rouge, Louisiana, in 2016 following the police shooting of Alton Sterling…
The case has been percolating in the courts for years but has taken on a new urgency with the rise of nationwide protest over George Floyd’s death last month.
The officer in the case, identified only as “John Doe” in court papers, sued Mr. McKesson after being struck in the head by a “rock-like” object when he began arresting unruly protesters. He said the protesters at the rally became aggressive toward law enforcement officers after Black Lives Matter activists whipped the crowd into an anti-police frenzy.
The police officer argued that the First Amendment doesn’t protect the protesters from “negligent, illegal, and dangerous activity that poses a risk of serious harm to others.” Though the individual who threw the object is unidentified, the officer sued Black Lives Matter and Mr. McKesson, hoping to hold someone liable for the assault…
Mr. McKesson contends that if the 5th Circuit’s ruling stays in place and holds organizers liable for other people’s conduct, it will curtail First Amendment rights to peacefully assemble and petition the government for a redress of grievances. He said people will be afraid to protest if they could be held liable for the unlawful acts of others.
The Courts
Politico: Bloomberg asks court to toss suit from former campaign aides
By Christopher Cadelago
Mike Bloomberg is asking a court to throw out a lawsuit brought by former aides to his failed presidential campaign who allege they were promised to be paid through the general election before he laid them off.
Bloomberg attorneys wrote in their Monday motion to dismiss that the former field organizers who brought the class-action lawsuit earlier this year signed offer letters and were provided employee handbooks that specifically stated they were “at will” workers and could be terminated “at any time.”
In the motion, Bloomberg’s lawyers wrote that the aides do not meet any of the requirements to bring such claims and contend that they also failed to meet the heightened standard for fraud. Bloomberg’s team argued that if the case isn’t dismissed outright, the court should nix the class-action allegations because the claims are “highly individualized and not suitable for class treatment.”
Three former Bloomberg field organizers in Georgia, Utah and Washington state filed the lawsuit in March, contending that they were fraudulently induced to accept jobs with the former New York mayor’s presidential campaign via promises of guaranteed pay through November…
Bloomberg, who initially shared plans about starting a super PAC that could have employed the former aides, decided instead to transfer $18 million of his own money to the Democratic National Committee to help the eventual Democratic nominee, presumably Joe Biden.
Congress
Roll Call: Democrats increase pressure on Facebook over content policies and Trump posts
By Dean DeChiaro
In a letter to [Facebook CEO Mark] Zuckerberg last week, Rep. Emanuel Cleaver II, D-Mo., and other House Democrats wrote that the company’s response to violent content and the spread of disinformation on its platform, such as Trump’s recent false statements about mail-in voting, “are extremely troubling.”
The company’s decision not to remove Trump’s post was met with opposition from within Facebook’s own ranks and stood in stark contrast to action by other social media platforms such as Twitter, which labeled both of Trump’s statements in violation of its content policies.
“This highlights a possible negligent obfuscation of responsibility to your team, your shareholders, and your users,” Cleaver and the other Democrats wrote. “It also underscores a likely pattern of practice in failing to appropriately balance free speech against public safety and the general welfare of users.”
Cleaver’s co-signers included Democratic Reps. David Cicilline of Rhode Island, who is leading an antitrust investigation of Facebook and other technology companies by the House Judiciary Committee, and Alexandria Ocasio-Cortez of New York, who questioned Zuckerberg about the spread of false information on the website when he testified on Capitol Hill last year.
The Democrats also questioned the company’s paid advertising policies and its “micro-targeting” practices, which allow advertisers to aim their messages at specific users based on data collected by Facebook. Sen. Elizabeth Warren, D-Mass., and others have derided the system as a “disinformation-for-profit machine” since Trump’s reelection campaign has spent millions on Facebook advertising.
Media
Wall Street Journal: America’s Newsrooms Face a Reckoning on Race After Floyd Protests
By Khadeeja Safdar, Jeffrey A. Trachtenberg and Benjamin Mullin
News organizations have dealt with a host of difficult questions regarding race and diversity in the wake of the protests sparked by the death of [George] Floyd…
From newspapers to cable news channels, the events have fueled debates in newsrooms over the extent and nature of protest coverage, how much editorial staffers should be able to express themselves publicly, news outlets’ commitment to diversity and conditions in the workplace for minorities.
At The Wall Street Journal, more than 150 journalists on Friday sent a letter to Almar Latour, the recently appointed chief executive of News Corp unit Dow Jones and publisher of the Journal, and Matt Murray, editor in chief of the Journal, expressing concerns about diversity, hiring and coverage, among other issues, according to people familiar with the letter.
“Many WSJ journalists, including many who are white, find the way we cover race to be problematic,” the letter says, according to a person who viewed it…
Some journalists want more freedom to express their views on social media or attend protests and rallies. In many newsrooms, including the Journal’s, social-media guidelines for staff members are meant to avoid any perception that reporting is biased. Whether a journalist’s commentary or activities constitutes a political statement-or simply a statement of social values-can sometimes be a subject of debate.
Online Speech Platforms
RealClearPolitics: Don’t Break Up Big Tech
By Stephen Moore
Last week, Tesla CEO Elon Musk blasted Amazon for being a “monopoly” and tweeted, “Time to break up Amazon.” Conservatives piled on. Republican Sen. Josh Hawley of Missouri has introduced new antitrust legislation against the tech companies. President Donald Trump has threatened to regulate social media platforms such as Twitter and Facebook “strongly.” Some in Congress want an investigation into Google’s search engine algorithms to make sure they aren’t discriminating against conservative websites.
I have been a loud critic of the anti-conservative bias of the big Silicon Valley tech firms, and conservative leaders must keep the pressure on these firms to level the playing field. New polling commissioned by a group I run, the Committee to Unleash Prosperity, and conducted by Remington Research Group revealed that a majority of conservative activists believe tech companies engage in censorship or display bias against conservatives.
When conservatives were asked, “Do you believe the federal government should be involved in regulating political speech on the internet?” the results were shockingly one-sided. Seventy-six percent of respondents said no, the government should keep its hands off regulating it, the technology companies and their platforms. The same poll asked conservatives which issue is most important to them when casting their vote for federal offices such as senator or representative. Just 1% said “online censorship.”
Washington Post: The Technology 202: New study reveals extent of hate speech on Reddit in right-leaning forums
By Cat Zakrzewski
A new study of abuse on Reddit found that more moderation is needed to stem racist and white supremacist content on the service – particularly in right-leaning political forums.
Sentropy, a start-up that makes content moderation tools, analyzed comments in some of the most popular political message boards on both sides of the aisle, such as “r/The_Donald” – which is dedicated to discussion of President Trump – and “r/WayOfTheBern” – a forum for fans of former presidential candidate Bernie Sanders.
The company found that right-leaning forums contained three times as much hate speech containing racist, sexist, religious and homophobic attacks as the left-leaning groups. These forums also contained six times as much hate speech containing white supremacist extremism.
“There’s more moderation that absolutely should be happening,” said Sentropy chief executive John Redgrave in an interview…
In general, Reddit has a more hands-off approach than social media services like Facebook and Twitter, and it relies much more heavily on community content moderators to prevent the spread of harmful content on its forums. That’s led to widespread complaints that the company has allowed violent and racist content to fester unchecked for years.
It’s now bringing more urgency to content moderation efforts in light of the Black Lives Matter protests. Earlier this month, Reddit chief executive Steve Huffman promised to update the company’s content policy, as it does not currently explicitly ban hateful or racist content.
Techdirt: Devin Nunes’ Lawyer Tells Judge To Ignore Section 230, Because Twitter Is Anti-Devin Nunes
By Mike Masnick
Twitter and [Devin Nunes’ lawyer] Steven Biss. . . were in court on Friday to continue Nunes’ frivolous SLAPP suit against a satirical internet cow who makes fun of Nunes. The current issue remains Twitter’s unwillingness to reveal who is behind the @DevinCow account. Twitter, correctly, continues to point out that it doesn’t need to give up the account info, that it’s protected from doing so under Section 230, that the Cow has engaged in 1st Amendment protected speech, and more. And Biss’s response appears to be… “but Twitter’s mean to us, so it’s not fair, it’s not, it’s not, it’s not.”
Needless to say, this is not a very good argument…
[T]here’s no evidence that Twitter is “banning conservative accounts” or “knowingly encouraging” anything involving an “anti-Nunes agenda,” but even if they were, that’s explicitly allowed (even encouraged) under Section 230, which flat out says that sites cannot be held liable for the moderation of constitutionally protected speech.
Candidates and Campaigns
Wall Street Journal: Political Groups Track Protesters’ Cellphone Data
By Emily Glazer and Patience Haggin
The protests continuing around the country are historic displays of social action. For political operatives, the mass gatherings are also a unique opportunity to harvest data on potential voters.
Advocacy and voter-registration groups are gathering a trove of data from protests by tracking the cellphones of participants and sending them messages about registering to vote or taking other actions. The tactics, which one user called “deeply spooky yet extremely helpful,” are the latest example of ways political groups are using cellphone data to target voters.
Tracking individuals through location data gathered by apps on their phones, often referred to as geofencing, has been used by businesses for years and has more recently caught on among political groups. That data allows firms to reach people’s phones with ads or other messaging-in real-time or later-without identifying individuals, proponents say.
Political groups say the protests following the killing of George Floyd while in police custody, along with earlier lockdown protests, are opening up fresh opportunities to reach people who may not be registered to vote or weren’t previously politically active.
“When these protests emerged, it was eye-opening for folks to understand, wow, people are gathering again,” said Quentin James, founder and president of the Collective, which works to elect African-Americans. Mr. James’s group is using the data gathered to target voter-registration messages to people who have been at protest locations. “We want to make sure we’re using all available tools in our toolbox to make sure we’re reaching the right people.”
New York Times: Ask Not What President Trump Can Do for You
By Michelle Cottle
For Trump’s triumphal return, his campaign has decided that no social distancing is required. He wants [his Tulsa rally] to be a spectacle, packed with as much noisy adoration as possible…
It is important to stress that there is nothing wrong with presidential photo ops per se. Politics is a performative business, especially the presidency. With skillful staging, presidents can signal their priorities, inspire the nation or simply model good behavior. Think about Ronald Reagan at the Berlin Wall; George W. Bush throwing out the first pitch in Game 3 of the World Series in Yankee Stadium not long after the Sept. 11 attacks; Barack Obama sitting alone on the Rosa Parks bus.
As tacky as it may sound, using people as props is also a presidential staple. What are the guests at the State of the Union address but a way to convey priorities? …
[O]n the whole, presidential theater is a powerful tool of the trade, one that Mr. Trump should understand better than most.
Center for Responsive Politics: No, that company cannot fund Trump’s campaign
By Karl Evers-Hillstrom and Brendan Quinn
Major corporations aren’t bankrolling President Donald Trump’s reelection campaign, despite viral social media posts that say otherwise. They also aren’t funding former Vice President Joe Biden’s White House bid.
That’s because corporations are barred from contributing directly to federal candidates’ campaigns or political parties. Only individuals and political action committees, which can include those funded by employees of a company, may contribute to candidates…
Social media users this month falsely claimed that fast food restaurant Wendy’s is funding Trump’s reelection campaign, spawning the “WendysIsOverParty” hashtag and prompting the company to donate $500,000 to social justice organizations.
Like any other company, Wendy’s cannot contribute directly to candidates. Those claims came about because an executive at MUY! Companies, which owns and operates hundreds of Wendy’s, Taco Bell and Pizza Hut locations, did give big to Trump. The company’s CEO, James Bodenstedt, gave $450,000 to Trump Victory, a joint fundraising committee benefitting Trump’s campaign. However, Bodenstedt does not own those restaurant chains; he owns individual franchises of the restaurants.
The States
Michigan Capitol Confidential: Township Officials Sue Tax Hike Opponents For Successfully Committing Politics Online
By Holly Matkin
Two Bloomfield Township officials have filed a class-action lawsuit against the social media platform Nextdoor for allegedly allowing local members to spread false information about a tax hike proposal, on the August 2019 ballot, for a special assessment. The officials blame the online postings for influencing a majority of voters to vote “no” on a measure that would have increased local property taxes by about 10%. They characterized the defeat as the equivalent of a $9 million loss to the township’s fire and police budgets.
The Yatooma Law Firm filed the lawsuit in Oakland County Circuit Court on May 5 on behalf of Bloomfield Township Supervisor Leo Savoie, Township Treasurer Brian Kepes, and “all others similarly situated.” …
Bloomfield Township residents Valerie Murray, who is running for a township trustee seat, and Kathleen Norton-Schock, the regional director responsible for enforcing Nextdoor’s guidelines and policies, are also named as defendants.
Norton-Schock allegedly allowed Murray and others to “monopolize posting boards with demonstrably false postings designed to fabricate fear and panic,” according to the lawsuit.
Nextdoor’s policies specify that postings must be “helpful, not hurtful,” and prohibit postings that “attack, shame, insult, bully or belittle” other members, according to the lawsuit.
Political comments are permitted in some areas, but are required to be “neutral in tone,” the plaintiffs noted.
The suit claims that Murray, “under the guise of being a ‘concerned’ citizen,” monopolized and intentionally spread misinformation “designed to defeat a ballot initiative” aimed at increasing funding to fill police and fire department vacancies.
The Fulcrum: Alaskans will decide on sweeping election reform plan in November
By Shirin Ali
A measure that would revamp Alaska’s elections will be put to a statewide vote in November.
The package cleared the last remaining hurdle to getting on the ballot Friday, when the state Supreme Court ruled unanimously that it met the requirement that referendums all relate to a single topic.
Adoption of the initiative would on a single day push Alaska to the forefront of states adopting central goals of the mainstream democracy reform movement. The proposal would replace traditional partisan primaries with a single contest open to all candidates; allow the top four finishers to advance to the November ballot; use ranked-choice voting to choose the winner; and bolster state campaign finance rules with strict new disclosure requirements…
The path for such a statewide vote in Alaska was cleared after the state’s top court decided in favor of Alaskans for Better Elections, the group pushing the referendum…
The final element of the plan would require additional disclosure of contributions to independent expenditure groups and about the sources of contributions in campaigns – generally when the amounts topped $2,000. The proposal would require a disclaimer on paid election communications by independent expenditure groups funded by mostly out-of-state money. Under current federal election campaign law, candidates benefiting from independent expenditures have no reporting obligations.
