In the News
Pacific Legal Foundation: Some politicians are trying to take away nonprofit donors’ First Amendment right to privacy
By Luke Wachob, Institute for Free Speech
The First Amendment protects your right to speak, assemble, and petition the government. Yet there are ways to limit and obstruct speech without banning it. When political leaders want to silence a critic or muzzle a burgeoning cause, they often do so by placing onerous conditions on those who dare to speak.
Today, one of the most dangerous conditions placed on speech is donor exposure. Politicians and bureaucrats seek to force groups that discuss government actions or public policy to expose their supporters’ personal information. Typically this includes the person’s name, home address, donation amount, and often their occupation and employer. The information is stored in an online, searchable database available to the public.
Donor exposure violates the long-held principle that transparency is for government, privacy is for people. It deters Americans from supporting worthy causes and forces nonprofits to choose between their right to speak and their members’ right to privacy. This is no accident. Political leaders like Senate Minority Leader Chuck Schumer boastrepeatedly of the “deterrent effect” donor exposure has on speech…
Fortunately, many Americans are pushing back against this effort to curtail their ability to organize and advocate for better government. Nonprofit donor exposure laws in New York and New Jersey recently suffered losses in the courts-and faced fierce bipartisancriticism in the legislative process. Other important cases continue in states like California, where both the Institute for Free Speech and Americans for Prosperity Foundation are fighting for their members’ privacy.
BTW: Fourth Circuit Rules Against Maryland Online Speech Law
By Molly Bond
On Friday, December 6, the Fourth Circuit Court of Appeals blocked a Maryland online speech law in The Washington Post, et al. v. McManus. In the ruling, the court affirmed a previous district court ruling that the law “singles out one particular topic of speech – campaign-related speech – for regulatory attention” and therefore violates the First Amendment…
In its ruling on Friday, the Fourth Circuit rejected Maryland’s argument that publishers can avoid any potential burden by simply choosing to opt out of agreements to publish political advertisements. The ruling stated, “Another way of saying ‘opt-out’ is ‘stop speaking’… To contend that news outlets forgo some of their free speech rights by accepting political speech turns the First Amendment on its head and does nothing to salvage the act.”…
Twenty organizations, including the News Media Alliance, the Reporters Committee for Freedom of the Press, and the Institute for Free Speech, filed amicus briefs in support of the legal challenge by the newspapers.
In a press release following the Fourth Circuit’s ruling, President of the Institute for Free Speech David Keating said, “The Fourth Circuit recognized what should have been clear all along. You can’t fight foreign propaganda by violating the First Amendment. Congress and other states should take note: the First Amendment protects online publishers from crushing regulatory burdens.”
The Courts
Baltimore Sun: Maryland law regulating electronic political ads violates First Amendment
By Walter Olson
Exposing foreign governments’ meddling in U.S. politics is a worthy goal. Infringing on First Amendment freedoms is no way to go about it.
A federal appeals court, confirming a lower-court ruling, has just struck down as unconstitutional key provisions of a Maryland law called the Online Electioneering Transparency and Accountability Act, passed by Annapolis lawmakers last year following alarms over the Kremlin’s use of social media to influence U.S. public political discussion…
Some of the terms of the law were vague, such as a definition of “campaign materials” to include material that relates to a “prospective candidate” or a position for or against either an actual or a prospective ballot measure. Lots of issues become the subject of prospective ballot measures, whether or not they ever make it through the process to reach the voters.
It’s true that under the series of Supreme Court cases kicked off by Buckley v. Valeo, the U.S. Supreme Court has upheld some restrictions on campaign speech. But it’s always been speech by those who are themselves seeking to influence election outcomes – i.e. candidates, donors and entities like PACs and parties. What it has not allowed in the name of campaign regulation is ordering media outlets, or third parties,to say one thing or refrain from saying another. (Broadcasters historically have come under different rules because they use airwaves, which are seen as a resource doled out by government.)
Washington Post: Judge blocks enforcement of LA law that takes aim at NRA
By Associated Press
A federal judge on Wednesday blocked enforcement of a Los Angeles law requiring businesses that want city contracts to disclose whether they have ties to the National Rifle Association.
The NRA’s request for a preliminary injunction was granted by U.S. District Judge Stephen V. Wilson in Los Angeles. It temporarily prohibits enforcement of the measure while the case unfolds. The next step could be an appeal by the city or an NRA request to make the injunction permanent.
The judge also threw out part of the lawsuit on technical grounds and removed the city clerk and Mayor Eric Garcetti as defendants but he refused to entirely dismiss the lawsuit…
The NRA argued that the measure violates the constitutional First Amendment right to free speech and association and the 14th Amendment right to equal protection. NRA attorney Chuck Michel called it “modern-day McCarthyism” that would force NRA supporters to drop their memberships for fear of losing their livelihoods.
In his ruling, the judge said the city contends that granting contracts to those “with business ties to the NRA invariably creates more NRA membership, which leads to more pro-gun advocacy, laxer gun laws, and inevitably more mass shootings.”
“Even if this chain of logic was supported by fact, the city is not permitted to restrict political speech as a means of achieving its goal of safer cities,” Wilson ruled.
Anonymous Speech
Courthouse News Service: Rights Groups Urge Secrecy for Nunes Parody Accounts
By Brad Kutner
A cadre of civil liberties groups filed an amicus brief in Devin Nunes’ defamation lawsuit against Twitter, claiming the Republican congressman’s attempt to unmask users behind parody accounts could lead to a First Amendment violation.
In the 39-page brief filed late Monday in the Circuit Circuit of Henrico County, Virginia, attorneys with Public Citizen Litigation Group and the American Civil Liberties Union argued that forcing Twitter to reveal the people behind an account called Devin Nunes’ Cow and a since-deleted account claiming to be the lawmaker’s mother would run afoul of the right to free speech.
“Full First Amendment protection applies to communications on the internet, and longstanding precedent recognizes that speakers have a First Amendment right to communicate anonymously, so long as they do not violate the law in doing so,” Paul Alan Levy of Public Citizen wrote. “Thus, when a complaint is brought against an anonymous speaker, courts must balance the right to obtain redress from the alleged perpetrators of civil wrongs against the right to anonymity of those who have done no wrong.”
Levy wrote the brief to address a motion to quash a subpoena filed by the Richmond-based Hawkins Law Firm, which Nunes claims handled money from a Go Fund Me campaign aiming to raise legal funds for the parody Twitter accounts. Nunes’ motion sought to compel the law firm to reveal the users’ identities, but Levy said that in addition to the First Amendment issues, the subpoena did not include evidence supporting the release of the identifying information.
ACLU: Devin Nunes’ Cow Has a First Amendment Right to Call Rep. Nunes a ‘Treasonous Cowpoke’
By Brian Hauss
Last year, Rep. Nunes sued a number of people who were mean to him online, including the Twitter parody accounts Devin Nunes’ Mom and Devin Nunes’ Cow. Now, he’s trying to unmask the Cow by subpoenaing the author’s identity from a local law firm. The ACLU and Public Citizen have filed a friend-of-the-court brief urging the court to block Nunes’ subpoena because it violates the First Amendment right to anonymous speech.
From Sam Adams to Mark Twain, Americans throughout history have used pseudonyms to criticize public officials. People adopt pseudonyms for a number of different reasons, such as protecting privacy and preventing official retaliation. The Supreme Court has made clear that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of freedom of speech protected by the First Amendment.”
[Rep. Nunes’] defamation claims against the Cow are based on constitutionally protected statements of opinion and political rhetoric, such as the contention that Rep. Nunes is a “treasonous cowpoke” whose “boots are full of manure.” Rep. Nunes may not like these characterizations, but the First Amendment vigorously protects the right to use creative expressions of contempt when criticizing government officials…
If [Rep. Nunes] succeeds, government officials, large corporations, and other powerful figures will have a readymade playbook for abusing the judicial process to identify, punish, and silence their critics.
Trump Administration
New York Times: Jared Kushner: President Trump Is Defending Jewish Students
By Jared Kushner
On Wednesday, the president will sign an executive order to combat the rise of anti-Semitism on American college campuses…
For the first time, a president is making clear that Title VI of the Civil Rights Act’s prohibition against discrimination based on race, color or national origin covers discrimination against Jews.
When news of the impending executive order leaked, many rushed to criticize it without understanding its purpose. The executive order does not define Jews as a nationality. It merely says that to the extent that Jews are discriminated against for ethnic, racial or national characteristics, they are entitled protection by the anti-discrimination law.
This new order adopts as its definition of anti-Semitism the language put forth in 2016 by the International Holocaust Remembrance Alliance, while also accounting for other forms of anti-Semitism.
For example, the alliance defines “the targeting of the state of Israel, conceived as a Jewish collectivity,” and those who deny “the Jewish people their right to self-determination, e.g., by claiming that the existence of a state of Israel is a racist endeavor” or those who compare “contemporary Israeli policy to that of the Nazis” as examples of anti-Semitism.
The Remembrance Alliance definition makes clear what our administration has stated publicly and on the record: Anti-Zionism is anti-Semitism.
DOJ
Wall Street Journal: FBI Spying Ruined My Good Name
By Carter Page
My name is Carter Page, and I wish you were hearing it for the first time…But my identity has been reduced to a series of false accusations. If something isn’t done to prevent future abuses of power by intelligence agencies, I won’t be the last to lose his good name this way.
In 2016-17 the government I once served investigated me on suspicion of being an intermediary between the Trump campaign and the Russian government. This week Inspector General Michael Horowitz detailed how officials committed troubling errors over the course of the probe. From the day news of the investigation broke, I have faced threats to my life and have been forced to live like a fugitive…
I still have many questions about the FBI investigation that ruined my life. If you value your privacy, reputation and right to political expression, you should too…
Mr. Horowitz’s report identified “at least 17 significant errors or omissions” in the application for a surveillance warrant against me…
My experience should be a warning…After all this testimony, and after more than a year of round-the-clock surveillance under FISA warrants, I have never been charged with any crime. If senators don’t demand answers, they’re practically inviting intelligence agencies to use their surveillance powers to target domestic political opponents…
As the Supreme Court warned nearly a half-century ago: “The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power.”
Washington Post: Attorney General Barr says DOJ is rethinking law that protects tech companies from liability
By Tony Romm
Attorney General William P. Barr on Tuesday signaled that the Justice Department plans to step up its scrutiny of Silicon Valley, exploring new legal tools to probe companies for their privacy abuses and the way they police content online…
The attorney general also said the Justice Department is taking a closer look at decades-old laws that spare tech companies from being held liable for content posted by their users. Those rules, known as Section 230, are considered some of the most prized legal protections in Silicon Valley, sparing them from some lawsuits and other punishments…
The attorney general later added: “We are thinking critically about how DOJ and our state partners can address other topics related to online platforms such as privacy, transparency, consumer fraud, child exploitation or public safety.”…
The attorney general stressed the department’s review of major technology companies would encompass far more than traditional antitrust concerns, exploring the extent to which their massive data stores offer them a competitive advantage and even their approach to political posts, photos and videos online.
Barr pointed to unnamed critics in raising concerns that social media sites may stifle some “third-party speech, including political speech, selectively and with immunity.”
Boston Globe: Trump administration defends students’ rights to discuss marijuana legalization on campus
By Marijuana Moment
While cannabis may be federally illegal, the Justice Department sided with a Mississippi student who filed a lawsuit against his school after he was allegedly prevented from talking about the issue earlier this year, arguing that the First Amendment protects students who discuss legalization and that restrictive policies prohibiting such free expression at public schools are unconstitutional.
The department said that when campus police were called to stop the student, who was polling his colleagues on marijuana reform in April, they crossed a line.
Mike Brown, the plaintiff in the suit filed against Jones County Junior College (JCJC) in September, said that after holding up a sign inquiring about where students stood on legalization, an official summoned the police, who confronted him, requested identification, and took him to campus police chief’s office.
“Some people get in trouble for smoking weed, but at Jones College, I got in trouble just for trying to talk about it,” Brown said in September when he first filed his case…
At the chief’s office, Brown was reminded of the policy at the center of the lawsuit, which stipulates that students must receive pre-approval for “all meetings and gatherings” from administrators at least three days in advance, regardless of the size or scope of the event. The Justice Department said in a Statement of Interest filed with the US District Court for the Southern District of Mississippi that the policy is unconstitutional and Orwellian.
FEC
Washington Free Beacon: FEC Questions Omar Campaign Over Accuracy of Small Dollar Donations
By Joe Schoffstall
The Federal Election Commission is inquiring about the accuracy of information provided by freshman representative Ilhan Omar’s (D., Minn.) campaign in relation to its small dollar contributions, according to filings.
Omar’s campaign reported $834,000 in small dollar contributions and $250,000 in large dollar contributions (donations of $200 or more per individual) during the third quarter of 2019. The FEC sent a letter to the Omar campaign in late November asking it to provide further clarification into its unitemized contributions-donations less than $200-during that time. The letter raises questions over whether the campaign shielded large donors by improperly classifying their contributions as small dollar donations.
“When contributions from an individual reach $200 for an election cycle, each subsequent contribution from that individual must be itemized, regardless of the amount,” the FEC’s letter states. “Please amend your report to provide [itemized contribution receipts] if necessary, or to clarify that for contributions received in the 2019-2020 cycle, the aggregate total for the election cycle for each contributor does not exceed $200.”
The letter from the commission does not accuse the Omar campaign of any wrongdoing, but is “reminding” the campaign “of its disclosure requirements,” according to an FEC press officer. The officer said that the FEC may send such letters to a campaign when its small dollar contribution totals are greater than the amount it pulls in from large dollar contributions.
Online Speech Platforms
New York Times: YouTube Takes Tougher Stance on Harassment
By Daisuke Wakabayashi
Facing longstanding criticism that they had not done enough to protect people from harassment, YouTube executives announced Wednesday that the video service would start policing material that insulted or demeaned others because of their race, gender or sexual orientation.
The policy applies to videos and comments directed at anyone, including public officials, private individuals and YouTube creators.
Enforcement will roll out over the coming weeks and months, the company said. Thousands of so-called raters eventually hired by YouTube will screen flagged videos for prohibited content. YouTube said it had put together guidelines for weighing the context of the videos and comments to properly identify harassment.
The new policy is one of a number of adjustments that YouTube has made over the last few years in an attempt to make the site less toxic. The company has introduced a range of policies restricting hate speech, extremist content and the exploitation of children…
Mr. Mohan said that YouTube wanted to protect free speech, but that unchecked harassment could curtail discussion if people were too intimidated to speak.
YouTube said the new policy expanded its definition of harassment – which has covered making explicit threats, inciting people to harass someone else and revealing confidential personal information – to include implied or veiled threats.
If YouTube finds a pattern over multiple videos or comments, channels that “repeatedly brush up against our harassment policy” could be punished even if no individual video violates its policy.
The Verge: YouTube expands anti-harassment policy to include all creators and public figures
By Casey Newton
YouTube today announced an expansion of its anti-harassment policy that will ban video creators from insulting one another on the basis of their race, gender expression, or sexual orientation – even if the person they are insulting is a popular creator, celebrity, politician, or other public figure. The new policy comes several months after YouTube was criticized for declining to remove videos posted by right-wing commentator Steven Crowder in which he repeatedly called Vox video host Carlos Maza a “lispy queer,” among other things. In the face of strong public outrage, YouTube said it would reconsider all of its harassment policies…
One, the policy expands the types of threats that are now banned. Historically, YouTube has banned direct threats like “I’m going to kill you.” Now, more veiled and implied threats will be banned as well…
Two, the policy now bans targeted harassment campaigns. In an interview, the company told me that harassment on YouTube often doesn’t come down to a single insult…Under the new policy, YouTube will now take a more holistic view of what a creator is saying on their channel…
Three, the policy now bans insults on the basis of a protected class, such as race, gender expression, or sexual orientation…
Finally, YouTube is expanding a program that uses machine learning to identify potentially offensive comments and stick them into a holding pen where creators can decide whether they want the comment to appear under their videos.
CNET: Twitter flags Trump, Biden, Warren campaigns, citing ad policy violations
By Queenie Wong
Twitter’s searchable online ads database is filled with confusing labels on accounts maintained by political campaigns, making it difficult for the public to assess whether the social network is enforcing its ban on political advertising.
Twitter flagged the campaign accounts of presidential candidates, including incumbent Donald Trump and rival Joe Biden, as “suspended” in the ads database, saying they’d violated the company’s policies. The accounts remain active on the social network, and it’s unclear whether any violations actually occurred. Twitter, which bans political advertising, changed the wording in the database to “ineligible for Twitter Ads” after CNET inquired about the labels…
Accounts for Elizabeth Warren, Bernie Sanders and 11 other Democratic candidates were also initially labeled as suspended in the database, Twitter’s Ads Transparency Center, which is designed to give users insight into who’s paying to promote tweets…
The Twitter database showed scores of tweets by the candidates’ campaigns as having been pulled down, giving the appearance that some had posted hundreds of messages that violated the social network’s rules after the ban…
“It certainly makes it look as if it’s the candidate who’s really run afoul of some guidelines and that they are being punished,” said Liz Woolery, the deputy director of the free expression project at the Center for Democracy and Technology, a nonpartisan advocacy group.
The Guardian: How Apple News editors quietly influence UK’s election reading
By Jim Waterson
On Monday night, millions of iPhones in Britain buzzed with a push notification encouraging their users to watch three video clips that were said to “sum up a difficult start to election week for the Tories”…
What many might not have known is why they received the push alert. They may have been surprised to learn that the clips were chosen not by an algorithm but by Apple News’s five-strong team of UK editors.
The service has around 11 million users a month in the UK, according to Comscore data, and the number of people receiving its notifications is even larger, offering a level of direct access that even the BBC struggles to compete with.
While newspapers and TV channels have to fight to reach audiences, Apple News comes pre-installed on iPhones. And while traditional news outlets come under enormous scrutiny for their coverage, there has been little scrutiny of how journalists employed directly by Apple can influence which news is seen by around a sixth of the UK population…
Journalists who work for Apple News have scrubbed the company’s name from their social media accounts, a move that reduces the risk of them being accused of bias but adds to the lack of transparency around their decisions.
Reuters: Thousands of UK political ads went missing from Facebook archive searches
By Elizabeth Culliford
Thousands of UK political ads went missing from Facebook Inc’s searchable advertising database on Tuesday, hampering researchers’ ability to track ads two days before Britain’s general election.
Facebook’s ad library, which it launched in the UK in 2018, is a public tool for users to view political advertising on the platform.
The problem, first reported by Sky News, affected ads from the ruling Conservative Party, the Brexit Party and the Liberal Democrats. It was not immediately clear if any Labour Party ads were affected.
“We have fixed the bug and all of the impacted ads in the UK are now back in the ads library,” Facebook said in a statement.
A spokesman also confirmed that some ads in the United States were affected, but declined to answer questions on the scale of the issue there.
Facebook’s ad library has been a cornerstone of the social media giant’s efforts to be more transparent about its role in elections, but researchers say it is poorly maintained and fails to provide detailed targeting data – for example, how political advertisers target UK voters geographically.
Tristan Hotham, a research consultant with WhoTargetsMe, an advocacy group that tracks digital political advertising, called the ads’ effective disappearance “a catastrophic failure.”
Candidates and Campaigns
The Intercept: Pete Buttigieg, In First Campaign For State Treasurer, Swore Off Bank Money Citing “Conflict of Interest”
By Aída Chávez, Ryan Grim
In his 2010 [Indiana state treasurer] campaign, Buttigieg zeroed in on the problem of banks currying favor with state treasurers, and then reaping lucrative money management contracts later, a practice that is banned in some states, but wasn’t in Indiana. “Very early on in this campaign, I made a decision that I wasn’t going to accept any money from a bank that could be doing business with the state treasurer’s office. I think it creates a conflict of interest. It creates an appearance at the very least that can smell like pay-to-play,” Buttigieg said then.
Though his argument is specific to a treasurer’s race, it’s an echo of the same argument now being made by fellow Democratic presidential candidate Sen. Elizabeth Warren, who has challenged him to release details about his fundraising and open his high-dollar events to the press. “It is even more important that candidates expose possible conflicts of interest right now,” she said recently. “And that means, for example, that the mayor should be releasing who’s on his finance committee, who are the bundlers who are raising big money for him, who he’s given titles to and made promises to.” Under pressure, Buttigieg has promised to release some of that information, but has rejected Warren’s demand that he pledge not to offer ambassadorships to donors.
The States
Las Vegas Review-Journal: Nevada Supreme Court rules shield law applies to digital journalists
By Bill Dentzer
Nevada’s 1970s shield law protecting journalists from having to reveal sources applies to digital as well as legacy media, the state’s highest court ruled in a decision released Thursday.
But the Supreme Court did not rule on whether a Storey County blogger who brought the case qualifies for that protection, sending the underlying matter back to the lower court for rehearing.
[B]logger Sam Toll called the decision “a major victory for journalists in Nevada and across the country.”
Toll writes about news in Virginia City. He was sued for defamation by Lance Gilman…for stories Toll wrote claiming that Gilman did not live in Storey County and was therefore ineligible to serve on the county commission.
Toll moved to dismiss Gilman’s case on free speech grounds under the state’s law against so-called SLAPP lawsuits – Strategic Lawsuits Against Public Participation. The lower court ruled that Gilman had a possible viable claim and allowed Gilman to depose Toll.
As part of the deposition process, Gilman moved to compel Toll to reveal his sources, arguing that the shield law didn’t apply to bloggers.
The district court sided with Gilman, finding that while Toll was a reporter, he and his blog were not covered by the law because Toll was not a member of the state Press Association and his blog did not qualify as a newspaper because it runs only online.
Ruling unanimously, the top court said that the drafters of the shield law…could not then have anticipated the rise of digital media and found that “just because a newspaper can exist online, it does not mean it ceases to be a newspaper.”
New York Post: Cuomo’s no-cost-to-him campaign finance reform chutzpah
By Post Editorial Board
Just days after praising the Public Campaign Finance Commission for slashing maximum donations to candidates for state office, there he was at a huge $25,000-a-table fundraiser for his birthday.
The new limits, you see, won’t kick in for him until after November 2022 – when he’ll have run his last race under New York’s current election laws…
Meanwhile, the “reform” that came out of nowhere at Cuomo’s behest starts kicking in next year: Third parties will need to win many more votes in 2020 statewide elections to automatically keep their ballot lines.
The commission has arguments for all of this, notably that Cuomo and other pols have already started fund-raising for their next runs, and it’s odd to change the rules mid-campaign. But the commissioners – chosen by Cuomo and the Legislature’s leaders – plainly didn’t look too hard for other ways around that issue.
They also left in some other gaping loopholes in their scheme for taxpayer funding of political campaigns – such as setting no limits on donations to party committees. Big money won’t even have to sneak around the limits – as long as it’s going to candidates who have party bosses’ support.
“Make me chaste – but not yet,” ran one famous sinner’s prayer. Cuomo’s done one better: Even as he takes credit for virtue, his system won’t require him to embrace campaign-finance chastity.
