Ed. note: The Media Update will return Tuesday, February 22.
In the News
Politico (Influence): To the FARA Unit, with love
By Caitlin Oprysko
Last Friday’s deadline for submitting recommendations to the Justice Department for its impending rulemaking on FARA regulations — the first substantial revisions to the Nazi-era statute in decades — has come and gone, and while it looked for a bit as though the comment period had inspired a lackluster interest in weighing in, the advance notice of proposed rulemaking drew a flurry of comments at the last minute, the nearly three dozen of which were finally posted to the federal register on Tuesday afternoon…
A good deal of the comments on DOJ’s advance notice appear to reflect growing pains as DOJ has more aggressively enforced FARA over the past half-decade, highlighting its many ambiguities. “What we’ve seen is that … you have this, this really kind of archaic act that was passed back in 1938 for a world that just doesn’t really match the world today,” Nick Robinson, who submitted comments on behalf of the International Center for Not-for-Profit Law, said in an interview.
The ICNL, which warned of a trend in weaponizing FARA within the U.S. against political opponents, also signed on to a comment with groups ranging from the American Civil Liberties Union to the conservative Americans for Prosperity warning the department about infringing on activities protected by the First Amendment. The Committee to Protect Journalists urged the department to be wary about compelling foreign-owned media outlets to register under FARA, and to be cognizant of the fact that authoritarian nations have used FARA to justify crackdowns on “legitimate news outlets around the world.”
[Ed. note: See the Coalition Letter, co-signed by the Institute for Free Speech, below.]
New from the Institute for Free Speech
Coalition Letter Regarding Foreign Agents Registration Act Regulations
We the undersigned organizations write in response to the Advance Notice of Proposed Rulemaking (ANPRM) issued by the Justice Department to solicit feedback for potential amendments to the regulations of the Foreign Agents Registration Act (FARA). We believe that FARA raises clear First Amendment concerns that should be central to the Justice Department’s considerations as it proceeds in the rulemaking process…
A wide range of expressive and associative activity protected by the First Amendment could, in theory, fall under the Act’s vague and sweeping provisions. For example, a U.S. nonprofit that arranges a public speaking event in the United States on human rights in Sudan at the request of a pro-democracy Sudanese advocate might be engaging in “political activities” as defined by FARA. FARA might similarly be interpreted to cover a journalist in the United States writing a story about U.S. COVID policy, at the request of their Canadian newspaper, that is accessible online by the U.S. public. Or a U.S. group responding to a request for information from an overseas partner about U.S. climate change policy might be considered a “political consultant” under FARA. Many entities and individuals that prefer not to register will be chilled from engaging in any expression that might trigger the Act’s criminal penalties even if that expression is protected by the First Amendment.
Donor Exposure
By Jon Woodward
The director of communications in the Ontario ministry responsible for enforcing the law is out of a job after she was tied to a $100 donation supporting the convoy blockading Ottawa streets.
Marion Isabeau-Ringuette is among several government staffers and associates under scrutiny after their names or identifying information were found in a pair of leaks of some 100,000 donations to American crowdfunding website GiveSendGo.
“For the communications director to be financially supporting an unlawful, illegal occupation is definitely concerning,” said NDP MPP Catherine Fife.
“Who was donating, why were they donating, and did this contribute to the non-action that happened on the ground in Ottawa?” she said…
Even small donors to the blockade, should they continue donating, run the risk of frozen bank accounts, due to the federal government’s invocation of the Emergencies Act, said Toronto lawyer Nainesh Kotak.
“Under this enactment I would suggest the government could freeze bank accounts if they chose to do so,” he said. “That’s concerning. The targets should be the bigger players.”
Toronto Sun: Trudeau minister threatens to seize accounts of ‘pro-Trump’ convoy donors
By Brian Lilley
The justice minister in Justin Trudeau’s government has said that if you hold the wrong political views, you should be worried about your bank account.
David Lametti, a lawyer and former law professor who is now the government’s lead legal authority, made the comments when questioned about whether people who made donations to the trucker convoy will have accounts seized.
When they invoked the Emergencies Act on Monday, the Trudeau government made clear that they were not just going after the crowdfunding of Freedom Convoy organizers but would also target individual bank accounts.
“A lot of folks said, ‘I just don’t like your vaccine mandates and I donated to this, now it’s illegal, should I be worried that the bank can freeze my account?’” Evan Solomon, host of CTV’s Power Play, asked Lametti.
Lametti, who had previously in the interview compared what is happening to terrorism, said yes, donors should be worried.
“If you are a member of a pro-Trump movement who is donating hundreds of thousands of dollars, and millions of dollars to this kind of thing, then you ought to be worried,” Lametti said.
The Courts
Slate: Sarah Palin Wasn’t the Point
By Seth Stevenson
Sitting in the observer section at the trial—along with Sarah Palin’s boyfriend, James Bennet’s wife, a bunch of journalists, and a few curious members of the public—there was one especially intriguing figure. Charles Harder was the lead attorney when Hulk Hogan sued Gawker out of existence. And Harder watched every minute of the testimony in this trial, taking copious notes on a legal pad. He wasn’t working with Palin’s legal team (though he’d worked with them before, in that Gawker case). He was just watching.
During breaks in the proceedings, I peppered Harder with questions…
Then I asked Harder one last thing: Why exactly was he here? He was taking all those notes—was it for an article he’s writing, or a book? No, he said, “I’m just here to observe and learn.”
That was the most chilling thing I heard in that courtroom. What exactly did he learn from Sarah Palin’s (so far) failed effort to sink the Times? How exactly is he planning to apply those lessons? My fear is that, before long, we’ll all find out.
Candidates and Campaigns
Brookings: The First Amendment can help stop dark patterns in campaign fundraising
By Daniel N. Jellins
In recent years, political campaigns have deployed dark patterns—innovative, but tricky and deceptive design techniques in emails and on web pages—to extract more donations from their supporters. With the use of prechecked boxes, small print, hard-to-understand language, and other tactics, campaigns have reaped millions when donors unknowingly give more than they intend. These deceptive techniques separate us from our money without our informed consent.
Courts have not settled concerns about how the First Amendment may or may not limit regulations of this sophisticated practice; how governments can stop dark patterns remains an open question. Current constitutional law about political speech also makes regulating this gray area even more critical…
In this post, I argue that the Supreme Court’s view of money as a form of political speech should lead to an even greater call for a potential regulatory authority charged with curtailing the harmful practice of dark patterns in campaign fundraising. Put simply, to protect political free speech—the political donor’s participation in democracy—the government should curtail dark patterns where they apply to fundraising speech.
