In the News

USA Today: ‘Wild West:’ Florida legislators’ PACs amass hundreds of millions of dollars

By Mark Harper and Abigail Brashear, Daytona Beach News-Journal

The Institute for Free Speech, a Washington-based think tank that advocates for unlimited political spending, has taken the position that Florida’s system is too restrictive, rating it a C and calling it “partly cloudy in an comparison against laws in all 50 states.

The institute’s 2018 “Free Speech Index” report on “political giving freedom” notes that the $1,000 and $3,000 limits on campaigns are improvements over the $500 that had been in place prior to 2013, “but the state needs to go further – or simply index its limits to inflation – to improve its ranking in the Free Speech Index. Adjusting its limits for inflation to prevent the erosion of speech rights over time is a particularly easy – and smart – step that 30 states already take.”

Washington Post: Devin Nunes, Johnny Depp lawsuits seen as threats to free speech and press

By Justin Jouvenal

The true goals of the suits, the defendants argue, are to stifle critics, blunt aggressive journalism and settle scores. Some deride the legal maneuvers as “libel tourism” and see a growing trend not just in Virginia but in other states that similarly lack safeguards…

Liz Mair, a Republican political consultant who was named in the suits targeting the McClatchy Co. and Twitter for critical comments she made about Nunes on the social media platform, said she feels Nunes has weaponized Virginia’s legal system.

“He’s using litigation as a cudgel to try to stifle my and apparently quite a few other people’s free speech,” Mair said. “That is a right protected by the Constitution, which he has sworn an oath to support and defend.”…

Virginia has an anti-SLAPP law, but there is no special motion provision and defendants are not guaranteed legal fees if a case is dismissed…

Experts said a 2017 move to strengthen protections for defamation defendants in Virginia has not produced a much more robust law.

“I really have not seen the anti-SLAPP in Virginia successfully applied,” said Jennifer Nelson, co-director of the University of Virginia School of Law’s First Amendment Clinic. “It does not seem to be working the way it was intended to.”…

“The lawsuit represents a baseless attack on local journalism and a free press,” McClatchy said in a statement.

Washington Post: Michigan synagogue member sues anti-Israel protesters, city

By Associated Press

A member of a Michigan synagogue is suing anti-Israel protesters and Ann Arbor city leaders over 16 years of protests outside the Beth Israel Congregation, arguing the protesters have been uniquely provocative and that some restrictions on them would not violate free-speech protections in the U.S. Constitution.

The regular Saturday protests of up to a dozen people outside the synagogue, with signs the lawsuit describes as hateful and anti-Semitic, amount to harassment of worshipers, so don’t qualify for full First Amendment protections, according to the 85-page filing in U.S. District Court for Eastern Michigan.
“The First Amendment right of free speech does not entitle a speaker to use that right repeatedly to bludgeon, for weeks and years at a time, in the same location,” the lawsuit said…

The lawsuit filed on behalf of Marvin Gerber, a member of the Beth Israel Congregation, contends the protests violate Ann Arbor ordinances on such public gatherings. It seeks an order putting restrictions on the demonstrations and demands an end to what it calls “harassing conduct.” It also seeks unspecified damages for emotional distress.

Reuters: Next stop for first post-Janus challenge to mandatory state bar dues: Supreme Court

By Alison Frankel

The 7th U.S. Circuit Court of Appeals has cleared the way for two Wisconsin lawyers to head to the U.S. Supreme Court with their First Amendment challenge to the state bar association’s structure, which requires lawyers to join the bar group and pay mandatory dues in order to practice in Wisconsin.

The U.S. Supreme Court held in 1961’s Lathrop v. Donohue that states can require lawyers to join bar associations. And in 1990’s Keller v. State Bar of California, the court concluded that mandatory bar association dues comport with the First Amendment as long as the bar association uses money from dues to regulate the legal profession and improve the quality of legal services.

But Wisconsin lawyers Adam Jarchow and Michael Dean, represented by Baker Hostetler and the Wisconsin Institute for Law and Liberty, contend that Keller precedent cannot stand under the Supreme Court’s 2018 decision in Janus v. American Federation of State, County and Municipal Employees, which struck down a law requiring workers to pay mandatory “agency fees” to the union. They argue that mandatory bar association dues are just like the union “agency fees” the justices struck down in Janus.

First Amendment

Wall Street Journal: ‘Hate Crime’ Is Only a Step Away From Thoughtcrime

By Myron Magnet

Does it make sense that a person can burn an American flag with impunity but not a gay-pride flag? Earlier this month, a judge in Story County, Iowa, sentenced Adolfo Martinez to a preposterous 16 years in prison for swiping the rainbow flag from a nearby church and burning it in front of a strip club.
Mr. Martinez, 30, has a long criminal history, which partly explains the long sentence…

Mr. Martinez complicated his own defense by telling a local TV station that he had torched the flag because he didn’t like gay people and had “burned down their pride, plain and simple.” In response, the judge increased the misdemeanor arson charge to a hate-crime charge-a felony…

The First Amendment allows you to register disapproval of the government in whatever expressive way you choose, though watch out for the arson laws. Calling the cops “pigs” or singing “F- da Police”? Also no problem, legally speaking…

The idea that free speech means free speech is a jewel of American exceptionalism. It’s odious and moronic to deny the Holocaust, but it isn’t-and shouldn’t be-a crime. The New York Times didn’t clutch its pearls when Hillary Clinton dismissed Donald Trump’s supporters as a “deplorables” who are “irredeemable” and “not America.” Nor did the guardians of correct opinion blanch when Barack Obama disparaged a large number of Americans as troglodytes clinging to their guns and religion. Rep. Ilhan Omar is entirely at liberty to explain away support for Israel as being “all about the Benjamins, baby.” 

Citizens United

Salon: The Citizens United ruling broke American democracy at the start of the decade. It never recovered

By Igor Derysh

Though both parties have raised and spent hundreds of millions in outside money – and the Citizens United ruling has been criticized by both former President Barack Obama and Trump – researchers at the University of Chicago, Columbia University and the London School of Economics and Political Science found that the rise of dark money has resulted in a huge advantage for Republicans in state legislature races, particularly in “states with weak unions.”

“We find that Citizens United increased the GOP’s average seat share in the state legislature by five percentage points. That is a large effect – large enough that, were it applied to the past twelve Congresses, partisan control of the House would have switched eight times,” the researchers wrote in a Washington Post op-ed. “In line with a previous study, we also find that the vote share of Republican candidates increased three to four points on average.”

The result has been a shift much further to the right in numerous state legislatures and an increase in “ideological extremism,” which was more prevalent among Democrats, according to the study…
“Without Citizens United every frontline Congressional race of the last two cycles are TOTALLY different,” Fordham Law Professor Zephyr Teachout tweeted. “A billion in outside spending in 2018. And that is just a tiny fraction of the impact.”

Online Speech Platforms

Wall Street Journal: Facebook, Twitter Remove AI-Powered Fake Accounts With Pro-Trump Messages

By Jeff Horwitz and Robert McMillan

Facebook Inc. and Twitter Inc. have taken down a global network of fake accounts used in a coordinated campaign to push pro-Trump political messages, including some that used artificial intelligence tools to try to mask the behavior, the companies and outside research firms they worked with said on Friday.

The move targeted a U.S.-based media company that also operates out of Vietnam called The BL, which, Facebook alleges, used computer-generated profile pictures to cover up the orchestrated nature of its activities. Facebook linked the company to the Epoch Media Group, which has had ties to the Falun Gong movement, a spiritual movement based in China which has clashed with the Chinese government and supported President Trump’s reelection…

The use of AI-generated photos to pass off the accounts as real represents a new tool for those trying to use fake accounts to amplify their message…

[Facebook] said the BL, which the social-media company has now banned from its platform, ran 610 accounts, 89 pages, 156 groups on Facebook-in addition to 72 accounts on Facebook-owned Instagram. The fake accounts accrued more than 55 million followers, Facebook said, adding most of them were outside of the U.S. The accounts targeted people in Vietnam as well as global audiences speaking Chinese and Spanish, Facebook said.

Reuters: Twitter system ‘outage’ briefly blocked Trump whistleblower tweet

By Heather Timmons

In recent days, Trump shared an unsubstantiated media report and a second post that appeared to name the intelligence community member.

However, the second tweet, from the president’s personal account, was not visible on Saturday to all of his 68 million followers. It was visible again on Sunday afternoon, although the original account that shared the alleged whistleblower’s name had been deleted.

“Due to an outage with one of our systems, tweets on account profiles were visible to some, but not others,” Twitter Support said. “We’re still working on fixing this and apologize for any confusion.” A spokeswoman for the social media platform confirmed that the U.S. president’s account was among those affected.

The spokeswoman added that, per Twitter policy, any tweets that included private information about an individual, including the alleged whistleblower, would be in violation of its rules. Names are not considered private information, she said.

Democrats, some Republicans, and members of the U.S. intelligence community have strongly objected to the effort to reveal the whistleblower’s identity, calling it inappropriate and possibly illegal.

AdAge: Spotify To Suspend Political Ads In 2020

By George P. Slefo

Spotify said in a statement that it will pause political advertising in early 2020 across its ad-supported tier-which boosts 141 million users- as well as the streaming giant’s original and exclusive podcasts, some of which include “The Joe Budden Podcast” and “Amy Schumer Presents.” The move only applies to the U.S., as Spotify doesn’t run political ads in other countries.

“At this point in time, we do not yet have the necessary level of robustness in our process, systems and tools to responsibly validate and review this content,” the company said in a statement to Ad Age. “We will reassess this decision as we continue to evolve our capabilities.”

Presidential hopefuls such as Bernie Sanders and organizations such as the Republican National Committee have both advertised on Spotify. Though the company declined to share how much revenue it generates from political ads, a person familiar with its advertising business said it’s not a significant revenue generator for the company, especially when compared to Spotify’s largest money makers, such as entertainment ads for movies or shows.

Fundraising

Politico: Trump campaign plagued by groups raising tens of millions in his name

By Maggie Severns 

As President Donald Trump raises money for his reelection campaign, he’s competing for cash with a growing mass of pro-Trump PACs, dark money groups and off-brand Facebook advertisers neither affiliated with nor endorsed by Trump’s campaign. And they have pulled in over $46 million so far.
The groups mimic Trump’s brand in the way they look and feel. They borrow the president’s Twitter avatar on Facebook pages, use clips of Trump’s voice in robocalls asking for “an emergency contribution to the campaign” and, in some cases, have been affiliated with former Trump aides…

The unofficial pro-Trump boosters number in the hundreds and are alarming the actual operatives charged with reelecting the president: They suck up money that Trump aides think should be going to the campaign or the Republican National Committee, and they muddy the Trump campaign’s message and make it harder to accumulate new donors, Trump allies say.

“There’s nothing we can do to stop them,” said Kelly Sadler, a spokeswoman for America First, the one super PAC authorized by Trump. “This is a problem for the campaign, as well as us, as well as for the RNC.”

Candidates and Campaigns

Wall Street Journal: Warren Vows Lobbying Crackdown, But It Could Hit Roadblocks

By Joshua Jamerson, Brody Mullins and Sabrina Siddiqui

Sen. Elizabeth Warren has put a crackdown on Washington’s lobbying industry at the heart of her 2020 candidacy…

Among Ms. Warren’s most ambitious ideas: A ban on presidents, vice presidents, members of Congress, federal judges and cabinet secretaries from ever becoming lobbyists-a popular next step for former government officials…

Advocates of restricting lobbying say Ms. Warren’s policies would pack a punch. Virginia Canter, an attorney with the left-leaning Citizens for Responsibility and Ethics in Washington, said Ms. Warren had “thrown down the gauntlet in terms of setting up structure and restrictions regarding personal financial interests and conflict of interest” in Washington.

Howard Marlowe, a registered lobbyist and a former president of the American League of Lobbyists, said that the right to petition the government is protected by the First Amendment, and that people who spend more than 20% of their time lobbying must register and file regular reports on their activities.
“It can be very dangerous to say that lobbyists can do this or can’t do that, because it does infringe on First Amendment rights,” Mr. Marlowe said.

Ms. Warren’s vision would likely run into court challenges on constitutional grounds. The Supreme Court has been wary of limiting free speech by corporations and interest groups, such as in the 2010 Citizens United decision, when the court said the First Amendment protected corporate speech.

Wall Street Journal: Political Revenge in Seattle

By The Editorial Board

The progressives at Amazon decided to support moderate candidates after the City Council passed an annual $275-per-employee tax in 2018 on business. Voters recognized the head tax as a penalty on job creation and forced a repeal. But Kshama Sawant of the Socialist Alternative party, who won re-election last month, has never given up on the idea and on Jan. 13 will launch a “Tax Amazon 2020” campaign. The left always responds with such grace to political competition.

Councilwoman Lorena González wants to ban contributions to Super PACs from any company in which a foreigner holds 1% or more of shares. Her ordinance, up for a vote next year, ostensibly seeks to prevent “foreign intervention” in Seattle elections. But Ms. González admitted in a November radio interview that “the fact that Amazon cut a $1 million check in one day is an example of the problem we’re trying to fix.”

The ordinance would also cap individual contributions to candidates and committees at no more than $5,000 an election cycle. Ms. González would impose no such caps on labor spending, though unions and union-affiliated political committees spent more than $1.2 million on the 2019 Seattle elections.