New from the Institute for Free Speech
Facebook’s Political Ad Blackout Is Terrible for Democracy
By Alec Greven
This week, Facebook began shutting out thousands of voices from discussions on political or social issues. The company’s blackout on new political and issue ads in the lead-up to, and aftermath of, Election Day on November 3 is a dangerous experiment in censorship.
Facebook claims to be politically neutral and a supporter of free speech. Banning political ads tilts the playing field to favor incumbents and restricts speech. Politicians who rely less on advertising to get their message out – typically incumbents and celebrities who have high name recognition – gain an advantage over new candidates and grassroots challengers who are not as well known.
The Courts
Courthouse News: Cruz Fights to Get Back Money He Loaned Campaign
By Megan Mineiro
GOP Senator Ted Cruz is calling on a federal court panel to strike down a Federal Election Commission rule limiting post-election donations to pay back money he loaned his 2018 campaign, in a case heard in Washington on Wednesday…
Cruz gave two loans to his campaign in the last run for reelection. The donations totaled $260,000 – $5,000 from his personal bank accounts and $255,000 originating from a loan on personal assets.
But a campaign finance law caps the amount of money a campaign committee can repay a candidate for personal loans at $250,000.
Cruz sued last year, accusing the commission of limiting the First Amendment right to political speech for candidates, their campaign committees and donors by setting a time limit on donations and on a candidate’s ability to spend personal funds for campaign speech.
Attorney Charles Cooper, representing Cruz, argued to a three-judge district court panel on Wednesday that candidates will be deterred from loaning money to their campaign because of the rule…
“This is a very targeted restriction,” FEC attorney Harry Summers said.
Congress was out to limit the appearance of corruption when it passed the law in 2002. Campaigns can make the choice to pay back candidates’ loans from money in hand after Election Day, rather than rely on post-election donations, the FEC attorney argued…
“It’s really not a matter of speech, but a matter of financial decision making,” Summers said.
FEC
The Hill: Trump announces intention to nominate two individuals to serve as FEC members
By Maggie Miller
President Trump on Wednesday announced his intent to nominate Sean Cooksey and Shana Broussard to serve as members of the Federal Election Commission…
Cooksey currently serves as general counsel to Sen. Josh Hawley (R-Mo.), previously having served as Hawley’s lead staffer on the Senate Judiciary Committee. Cooksey also previously served as deputy chief counsel for Sen. Ted Cruz (R-Texas), has worked as a litigation associate at Washington, D.C., law firm Gibson, Dunn and Crutcher, and served as a law clerk for Judge Jerry Smith of the U.S. Court of Appeals for the 5th Circuit.
Broussard currently serves as counsel to FEC Vice Chair Steven Walter, an independent. Broussard previously served as an attorney-adviser at the Internal Revenue Service and as deputy disciplinary counsel at the Louisiana Attorney Disciplinary Board, along with previously serving as a New Orleans assistant district attorney…
“Clearly having a quorum restored would be great for us, there is plenty of work for us to do, there have been plenty of complaints that have been generated by the 2020 cycle, looking forward to getting to address those,” [FEC Chairman Trey] Trainor told The Hill on Wednesday.
Law360: Reforming The FEC: Bipartisan Compromise Is Essential
By Robert Lenhard
At the time I was at the FEC, the agency finished the rulemakings that followed the passage of the Bipartisan Campaign Reform Act of 2002, generated substantial enforcement matters, passed regulations regarding use of the internet in federal elections, and addressed the consequences of the U.S. Supreme Court decision in Wisconsin Right to Life v. FEC in 2007, as well the the U.S. District Court for the District of Columbia decisions in Emily’s List v. FEC in 2008 and Shays v. FEC in 2004.
Today, the agency has before if similarly weighty issues. How should it address use of the internet, the disclosure of the sources of money spent in federal races, the presence of foreign nationals in American politics, the scope of the media exemption in the digital age, how data is used and reported, and the rules for super political action committees are but a few examples. How the agency interacts with the courts and the U.S. Department of Justice will also be an important substantive issue for the commissioners.
But whether they are able to address any of these issues, or others of their own choosing, will turn on a more fundamental question: How do they work together?
ProPublica: Top FEC Official’s Undisclosed Ties to Trump Raise Concerns Over Agency Neutrality
By Mike Spies and Jake Pearson
Debbie Chacona oversees the division of the Federal Election Commission that serves as the first line of defense against illegal flows of cash in political campaigns. Its dozens of analysts sift through billions of dollars of reported contributions and expenditures, searching for any that violate the law. The work of Chacona, a civil servant, is guided by a strict ethics code and long-standing norms that employees avoid any public actions that might suggest partisan leanings.
But Chacona’s open support of President Donald Trump and her close ties to a former Republican FEC commissioner, Donald McGahn, who went on to become the 2016 Trump campaign’s top lawyer, have raised questions among agency employees and prompted at least one formal complaint. Chacona, a veteran agency staffer who has run the FEC’s Reports Analysis Division, or RAD, since 2010, has made her partisan allegiance clear in a series of public Facebook posts that include a photo of her family gathered around a “Make America Great Again” sign while attending Trump’s January 2017 inauguration.
Congress
Washington Post: Facebook, Google, Twitter CEOs clash with Congress in pre-election showdown
By Tony Romm, Rachel Lerman, Cat Zakrzewski, Heather Kelly and Elizabeth Dwoskin
Democrats and Republicans grilled Facebook, Google and Twitter at a highly partisan congressional hearing Wednesday that exposed differing views and deep distrust about the power of Silicon Valley to police the web.
Senate lawmakers had invited the three tech giants’ top executives to testify as part of a broad review of decades-old federal laws known as Section 230 that spare social media sites from being held liable for the posts, photos and videos they allow or remove. Many members of Congress increasingly have come to see the rules as outdated, and Facebook chief executive Mark Zuckerberg on Wednesday also said he believes it is necessary to “update the law.”
But the hearing instead left Facebook, Google and Twitter facing conflicting pressures — from Democrats who say they should patrol their sites and services more aggressively and Republicans who felt the companies should have a more hands-off role with most political speech.
Politico: Twitter CEO’s Section 230 ‘expansion’ ideas add to signs tech may be open to changes
By Cristiano Lima
A proposal by Twitter CEO Jack Dorsey on Wednesday for an “expansion” of the online industry’s legal shield is the latest sign that some of Silicon Valley’s biggest players are open to departing from the industry’s once-solid opposition to revising a crucial 1996 statute.
Elaborating on his written remarks to the Senate Commerce Committee, Dorsey used his public testimony at Wednesday’s hearing to propose “three solutions” to address concerns raised by lawmakers about how tech companies use the immunity granted to them by Section 230 when moderating user content. Dorsey said the changes could come in the form of “expansions to Section 230, new legislative frameworks or a commitment to industry-wide self-regulation best practices.”
The Media
The Hill: CNN won’t run pro-Trump ad warning Biden will raise taxes on middle class
By Jonathan Easley
CNN has informed the largest outside group supporting President Trump’s reelection that it will not run one of its new ads, saying the ad is false because it warns Democratic nominee Joe Biden will raise taxes on the middle class and implies that Speaker Nancy Pelosi (D-Calif.) supports socialist policies…
In addition to CNN, the ad will not be able to run on other Turner Broadcast stations, including TNT, TBS and TCM.
FIRE: First Amendment News 276: Abrams, Strossen and Glasser respond to Bazelon NYT magazine article
By Ronald K. L. Collins
In the last issue of FAN, I posted several excerpts from Emily Bazelon’s New York Times Magazine article titled “Free Speech in an Age of Disinformation.” …
Now enter Floyd Abrams, Nadine Strossen, and Ira Glasser…
Floyd Abrams:
I was disheartened by the piece which seemed to me to adopt, almost as if the conclusions were both obvious and incontrovertible, a view of the First Amendment which ignores the ‘no law’ articulation in it.
So, too, Nadine Strossen voiced her dissent, which is set out below:
I was disappointed and surprised by Emily Bazelon’s NYT piece, and didn’t find it persuasive or even new….
Likewise, Ira Glasser voiced his own objections, which are set out below: …
Omission 1: In discussing the impact of the Supreme Court’s decision in Citizens United, and its effect on “corporate” speech, the article implies, as most liberals mistakenly assume, that the corporate speech restricted by the McCain Feingold law was the speech of mega-business corporations like Exxon or J.P. Morgan Chase.
In fact, the law also restricted the speech of corporations like the American Civil Liberties Union and Planned Parenthood, while not restricting the speech of “media” corporations like the New York Times and Fox News and Breitbart.
Had Citizens United not struck down these restrictions, Fox News would have been left free to demonize Planned Parenthood or the ACLU while the latter would have been legally restricted in its ability to respond. Why “progressives” would favor such an outcome remains a mystery.
Online Speech Platforms
Politico: Facebook missteps stoke fears of long political ad blackout online
By Elena Schneider and Zach Montellaro
When Facebook and Google announced plans to ban new political ads around the end of the election, they left one key thing out of the new policies: an end date.
Now, as Facebook’s pre-election blackout on new ads begins and a total post-election freeze on Google and Facebook ads looms, digital strategists in both parties are worried that ads on the biggest digital platforms may never come back – or, at the very least, they’ll be down so long that they paralyze campaigns in major races set to stretch beyond Nov. 3.
Those fears spiked in recent days after Facebook’s blackout started Tuesday with the social media giant taking down ads that groups in both parties said had been pre-approved. A day and a half later, many groups said they are still struggling to resolve these inconsistencies with the companies’ advertising reps.
Democrats, in particular, are concerned that the undefined timeline for restarting online ads could hamper efforts to raise money and voter awareness around potential Senate runoffs in Georgia and Mississippi in January. Others noted that the policies will make it more difficult for campaigns to raise legal funds for recounts.
Wall Street Journal: Facebook Warns of Foreign Operators Exaggerating Their Election-Interference Abilities
By Jeff Horwitz and Dustin Volz
Facebook Inc. said it took down a small network of fake accounts and pages tied to the Iranian government, while also warning that foreign actors are attempting to exaggerate their ability to influence the U.S. election in a way that itself could affect the vote.
Protocol: Reddit worries it’s going to be crushed in the fight against Big Tech
By Emily Birnbaum
[Benjamin Lee, Reddit’s general counsel]: What’s missing currently [from the Section 230 debate] is how important and critical Section 230 is to allowing competition against Big Tech, and encouraging platforms like Reddit to moderate in good faith and ultimately fulfill the promise and potential of the open internet. Section 230 was drafted in this really elegant way to protect not just providers of these services, but users of these services as well.
Section 230 reads, “No provider or user of an interactive computer service shall be treated as the publisher or speaker,” so Section 230 protects the decisions of our users, Reddit users, as much as it protects Reddit’s decisions themselves. It protects the decisions of our volunteer moderators, it protects the decisions of our users every time they vote on content, it protects their everyday decisions to curate content for our communities and protect their communities from unwanted content.
Candidates and Campaigns
Center for Responsive Politics: 2020 election to cost $14 billion, blowing away spending records
The total cost of the 2020 election will nearly reach an unprecedented $14 billion, making it the most expensive election in history and twice as expensive as the previous presidential election cycle.
That’s according to an estimate from the Center for Responsive Politics. The Center previously estimated the election would see nearly $11 billion in total spending. But an extraordinary influx of political donations in the final months – driven by a Supreme Court battle and closely watched races for the White House and Senate – pushed total spending past that $11 billion figure with weeks yet to go before Election Day.
Even amid a pandemic, everyone is giving more in 2020, from ordinary individuals making small donations to billionaires cutting eight-figure checks to super PACs. Women are smashing donation records, and Americans are increasingly donating to candidates who aren’t running for office in their state.
Washington Post: In campaign’s closing days, disinformation arrives via text message and email
By Isaac Stanley-Becker and Tony Romm
These deceptive, 11th-hour messages are not finding their way to Americans via the now well-trodden paths of Facebook and Twitter. Instead, they’re arriving in waves of text messages and emails, making use of a more intimate and less heavily scrutinized vector of disinformation than the social networking services manipulated four years ago as part of the Kremlin’s sweeping interference in the 2016 election.
Texts and emails “have the potential to be more believable than social media,” said Darren Linvill, a specialist in social media at Clemson University who has studied millions of tweets sent by the Kremlin-linked Internet Research Agency. “I think people are more ready to accept information that comes through their phone than social media, where we’re trained in many ways to be more on guard.”
The States
Palo Alto Weekly: Palo Alto nixes plan to ‘muzzle’ commissioners
By Gennady Sheyner
Facing community backlash, the Palo Alto City Council reversed course Monday and nixed contentious proposals that would have restricted the ability of local commissioners to talk to the media while giving the council more power to remove these volunteers at any time and for any reason.
