New from the Institute for Free Speech
By Barnaby Zall
There’s a new book out on “the appearance of corruption” – a fundamental issue in First Amendment law – written by two professors who have been studying this issue for 20 years. This obscure phrase allows government regulation of political expression if public “awareness” of possible “inherent” “opportunities for abuse” might “reduce confidence in Government.” This test for a “trust deficit” affects millions of Americans’ political activities every year. If you’re a litigator in this area, you should read this book; it will be cited.
For more than 40 years, courts have been applying the “appearance of corruption” standard on the basis of political consultants’ testimony, public opinion polls, and media coverage. Because actual corruption in government is very rare, the “appearance of corruption” standard has become the principal basis for regulating financial support of political candidates. An entire constellation of groups has emerged to argue that limiting campaign contributions is the way to remedy a “trust deficit” in government, and most Americans believe it.
“But what if the conventional wisdom is fundamentally wrong?”asks Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters, the new book from Professors David Primo and Jeffrey Milyo and the University of Chicago Press. In other words, what if the public’s “trust deficit” in government is based on ignorance or wrong information? Or what if the restrictions on speech imposed in the hope of restoring faith in government actually make things worse? Primo and Milyo show that the public’s information is wrong, and these restrictions do make things worse.
Supreme Court
Politico: Amy Coney Barrett to begin meeting Senate Republicans
By Marianne Levine
Judge Amy Coney Barrett, President Donald Trump’s nominee to the Supreme Court, will begin meeting with senators on Tuesday, including Majority Leader Mitch McConnell, according to a senior administration official.
In addition to McConnell (R-Ky.), Barrett will also meet with several Republicans on the Senate Judiciary Committee, including Chair Lindsey Graham of South Carolina and Sens. Ted Cruz of Texas, Chuck Grassley of Iowa, Mike Lee of Utah and Mike Crapo of Idaho. She will also meet with Senate Majority Whip John Thune of South Dakota and Sens. Cory Gardner of Colorado and Rick Scott of Florida.
Political Parties
The Hill: Big donors fund state parties at record levels
By Reid Wilson
Big donors and the two national party committees are funneling hundreds of millions of dollars to state Democratic and Republican political parties, representing huge investments in organizations that will spend heavily to turn out voters on Election Day.
A review of campaign finance reports filed with the Federal Election Commission shows state party organizations have collected more than $370 million through the end of August. In many battleground states, they are raising amounts comparable to a well-financed Senate candidate.
That money, experts and party operatives say, is spent more efficiently by state party organizations than by individual candidates.
“It’s almost like the Costco of Democratic campaigns. When it comes to sending mail, for example, you can do it at a cheaper rate than anybody else. You can print larger runs,” said Manny Garcia, executive director of the Texas Democratic Party. “Because of the scale, you can do things in a way that other organizations or individual campaigns simply cannot.”
Small Business Administration
Fox News: Conservative group to argue that Media Matters should have been ineligible for PPP loan
By Brian Flood
A conservative group will file a complaint with the Small Business Administration Tuesday alleging that liberal nonprofit organization Media Matters for America was ineligible to receive a federal Paycheck Protection Program loan because the group functions as a political organization.
“Media Matters is a political organization, as everyone who has ever followed them knows,” Patriots Foundation president Craig Robinson told Fox News in a statement Monday.
“Other political organizations, like campaigns and state parties, returned their PPP loans,” Robinson added. “We are asking the SBA IG to investigate this matter to ensure that taxpayer dollars were not improperly sent to an organization primarily engaged in political activities when SBA rules specifically prohibit it.”
Online Speech Platforms
New York Times: What’s the Plan if Trump Tweets That He’s Won Re-election?
By The Editorial Board
Imagine: It’s midnight, and the electoral map looks quite red. But news networks and election officials aren’t calling the swing states, as this year’s record numbers of mail-in and absentee ballots have yet to be fully counted. Mr. Trump, leading in the popular vote, decides he’s seen enough. He takes to his social media platforms and declares that he has won re-election and will accept no other result. He tells his tens of millions of followers that the Democrats and the press will try to change the result and steal the election. The door to unrest and constitutional crisis swings wide open.
Facebook, Twitter and YouTube have all pledged to crack down on misinformation around voting and electoral outcomes. Perhaps in the above scenario they append a label to the president’s posts saying that the information is disputed and that the results are not in. They could introduce friction into the algorithms to slow the reach of the posts.
But pro-Trump lawmakers and pundits most likely would have picked up the argument by then, amplifying the president’s message. What started as one prominent piece of voter disinformation easily could become widespread in the Republican Party and among a large segment of Americans. What would the platforms do then?
NBC News: While Facebook works to create an oversight board, industry experts formed their own
By Olivia Solon
Some of Facebook’s most vocal critics are tired of waiting for its independent oversight board – so they’re starting their own.
A group of about 25 experts from academia, civil rights, politics and journalism announced Friday that they have formed a group to analyze and critique Facebook’s content moderation decisions, policies and other platform issues in the run-up to the presidential election and beyond.
The group, which calls itself the Real Facebook Oversight Board, plans to hold its first meeting via Facebook Live on Oct. 1. It will be hosted by Recode founder Kara Swisher, a New York Times contributing opinion writer…
The new board started by the critics is a project developed by The Citizens, a U.K.-based advocacy group founded by Guardian and Observer journalist Carole Cadwalladr, whose March 2018 investigation into Facebook’s data sharing practices made Cambridge Analytica a household name.
“This is an emergency response,” Cadwalladr said. “We know there are going to be a series of incidents leading up to the election and beyond in which Facebook is crucial. This is a real-time response from an authoritative group of experts to counter the spin Facebook is putting out.”
Politico: ‘”Holy s—” is what we’re thinking’: Inside Facebook’s reckoning with 2020
By Nancy Scola
As public complaints mounted that Facebook was refusing to police dangerously deceptive U.S. political ads, the company stuck for nearly a year to a hard line CEO Mark Zuckerberg had drawn: “I don’t think it’s right for a private company to censor politicians or the news in a democracy.”
This month has been an about-face: First, Facebook announced it is banning new political ads in the week before Election Day to prevent last-minute attempts to deceive voters. Then this week the company took it further, saying it will reject ads that claim victory prematurely as worries rise that President Donald Trump might do just that.
The path was neither direct nor swift. Those involved in the discussions over political ads say Facebook officials spent nearly a year wavering between its founder’s declarations on free expression and a desire to avoid becoming a presidential-election villain yet again.
A look into that year of deliberations reveals a company holding back from big public moves while it searched for a solution that would satisfy both its critics and its CEO – until a sense of emergency kicked in.
Candidates and Campaigns
Wall Street Journal: What to Know About Tuesday’s Debate Between President Trump and Joe Biden
By Tarini Parti
President Trump’s unconventional political instincts will compete with Joe Biden’s more traditional debate preparations Tuesday night, as the candidates meet each other for the first time on stage.
The candidates will face off in Cleveland as polls show Mr. Biden leading in several key states and early voting already under way in parts of the country. In an election year that has been roiled by the pandemic, the three scheduled debates between the candidates will be a rare standard event, with the candidates making their final pitches to voters.
“Fox News Sunday” host Chris Wallace will serve as the moderator and recently set the topics: the candidates’ records, the Supreme Court, the pandemic, the economy, race and violence in cities and the integrity of the election.
The debate is scheduled to start at 9 p.m. ET and run for 90 minutes. You can watch live video of the debate and follow Wall Street Journal analysis starting about an hour ahead of the event. The debate will also be shown live on channels including ABC, CBS, Fox, NBC, CNN, Fox News, MSNBC and C-Span, or can be streamed on YouTube.
Channel 4 News: Revealed: Trump campaign strategy to deter millions of Black Americans from voting in 2016
By Job Rabkin, Guy Basnett, Ed Howker, Janet Eastham and Heidi Pett
Channel 4 News has exclusively obtained a vast cache of data used by Donald Trump’s 2016 presidential campaign on almost 200 million American voters.
It reveals that 3.5 million Black Americans were categorised by Donald Trump’s campaign as ‘Deterrence’ – voters they wanted to stay home on election day.
Tonight, civil rights campaigners said the evidence amounted to a new form of voter “suppression” and called on Facebook to disclose ads and targeting information that has never been made public.
New York Times: Meet a Secret Trump Voter
By Bret Stephens
Chris is a registered Democrat in her 50s who lives in Manhattan. She’s well-educated, well-traveled and well-informed. She has voted for candidates of both parties over the years and was enthusiastic for Bernie Sanders in 2016.
She’s asked me not to publish her last name. It would not go down well for her at the store where she works as a manager if her colleagues knew that she plans to vote for Donald Trump.
Chris is also gay. “Being a lesbian who’s voting for Trump is like coming out of the closet again,” she tells me.
Readers of this newspaper who conjure an image of a Trump voter probably think of people like Mark and Patricia McCloskey, the couple who pointed guns at protesters outside their St. Louis home in late June. But if Trump defies current polling and wins again, it’ll be thanks to a discreet base of support from voters like Chris, who fit into none of the cultural or demographic stereotypes of the Trump base.
The States
Reason (Volokh Conspiracy): High School Student “Says Teacher Threatened To Kick Him Out Of Virtual Class Over Trump Flag”
By Eugene Volokh
CBS 13 (Laura Haefeli) reported last week (including video of part of the incident that had been recorded by another student):
“You can sit up, remove the [Trump] flag, or reposition your camera within the next 15 seconds or I’m kicking you out of class,” the teacher said during their virtual class.
[The student’s mother, Tiffany] says the teacher then began to count and did not make it to 10 before Tiffany’s son waved goodbye and exited the virtual classroom….
The teacher apparently then apologized, but the school board has declined to explain what the rules are…
It’s pretty clear that a student’s having a political message as a background in one’s Zoom, just like wearing a T-shirt or an armband, is constitutionally protected. The government may sometimes restrict such speech, if it’s likely to cause a serious disruption (such as fights); but that’s not likely to be applicable here, especially as to distance learning.
And while of course political messages may be distracting, or could lead to in-class arguments that the teacher might need to restrain, that would have been equally true of black armbands to protest the Vietnam War-yet the Court found that such “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression”[.]
Illinois Policy: Taking a Photo of Your Filled-In Ballot is a Felony in Illinois
By Austin Berg
Snapping a photo of your filled-in ballot and posting it on Facebook or Instagram is technically a Class 4 felony in Illinois, which comes with a prison sentence of one to three years and a maximum fine of $25,000. According to the Illinois Election Code, anyone who “knowingly” casts his or her ballot in a way that “can be observed by another person” is breaking the law.
It appears the state has never charged an Illinois voter for taking a photo of their ballot and sharing it on social media. So why is this law still on the books?
The intent behind the law is straightforward. It’s meant to deter vote-buying: showing the photo in exchange for cash. But there are other laws in Illinois that explicitly outlaw vote-buying.
And there can be First Amendment issues with outlawing this kind of political speech.
In 2016, a federal judge struck down New Hampshire’s ballot selfie ban, deciding in response to vote-buying concerns that the ban was “burning down the house to roast the pig.” …
Illinois came close to overturning its ban in 2017. State Rep. Emanuel Welch, D-Hillside, filed a bill that allowed voters to take photos of their ballot as long as they didn’t accept any money in exchange. The House passed it overwhelmingly. But the Senate never took a vote.
