The Courts
Bloomberg Law: Officer’s Suit Against Black Lives Matter Leader May Proceed
By Bernie Pazanowski
A panel opinion allowing a Baton Rouge, La., police officer to sue a Black Lives Matter leader for injuries the officer received during a demonstration won’t be reheard by the full Fifth Circuit.
ABC News: Federal employees want the right to discuss Trump’s impeachment trial at work
By Mychael Schnell
Federal workers are asking a court to redefine the rules blocking them from speaking out amid the ongoing impeachment trial of President Donald Trump, arguing it is a restriction of their First Amendment rights.
American Federation of Government Employees (AFGE), the nation’s largest federal workers union representing more than 600,000 employees, filed a motion on Friday in an effort to speed up an ongoing lawsuit against the Office of Special Counsel (OSC).
The motion asks OSC to rescind guidance it issued in 2018 as part of the Hatch Act, a law that bars government employees from political expression in the workplace that supports a political party or partisan group.
The guidance also restricts most federal employees from discussions related to impeachment or against the president.
“These restrictions not only harm the federal employees who are censored, but the public interest at large, as the restrictions restrict speech on topics over which federal employees have unique knowledge and expertise,” the motion reads. “The restrictions strike at the heart of the First Amendment.” …
[Ward Morrow, AFGE’s assistant general counsel] said impeachment-related content is all over the TV, even in federal offices, which makes it even more difficult for workers to avoid the subject…
OSC has clarified that the guidance did not restrict the employees from discussing impeachment — only from taking a side.
In a memo released on Friday, AFGE and American Oversight, the group representing AFGE members, expressed concern with the confusing nature of the OSC advisory. They said the rules outlined are convoluted and some employees have opted to not speak at all, out of fear of litigation.
Courthouse News: Panel Affirms Block of Arkansas Campaign-Finance Law
By Joe Harris
The Eighth Circuit upheld an injunction blocking enforcement of an Arkansas law limiting campaign contributions early in an election cycle, finding it is unrelated to the goal of preventing corruption.
The law prohibits campaign contributions more than two years before an election. It was passed by Arkansas voters in 1996 as part of a package of campaign-finance amendments designed to combat corruption.
Arkansas appealed to the Eighth Circuit after U.S. District Judge James Moody Jr. issued an injunction blocking enforcement of the law until its constitutionality could be decided.
U.S. Circuit Judge David Stras, an appointee of President Donald Trump, wrote for a three-judge panel Monday that the woman challenging the law was likely to succeed on the merits of her case…
Peggy Jones filed a federal lawsuit over the law, claiming that it infringes on her First Amendment rights by preventing her from donating now to politicians she wants to support in the 2022 election, namely state Senator Mark Johnson, R-Conway.
Brittany Edwards, arguing for the state in a hearing before the St. Louis-based appeals court last September, claimed the district court abused its discretion in granting the injunction. She told the panel that Jones lacked standing because Johnson had not officially announced his candidacy and Arkansas had a compelling interest in eliminating campaign-finance corruption…
Chad Pekron, who represented Jones, had argued during the hearing that whether Johnson has publicly announced his candidacy is irrelevant. He claimed that a private conversation between Jones and Johnson regarding his candidacy is an affirmative step towards running.
Trump Administration
New York Times: ‘Mere information’ wouldn’t violate campaign finance law, Trump’s lawyer says.
By Sheryl Gay Stolberg
President Trump was perfectly within his rights to solicit information about his political rivals from Ukraine and his effort to do so may not be construed as an illegal attempt to interfere with the 2020 election, his lawyer argued Wednesday night – an assertion that stunned and outraged Democrats.
“Mere information is not something that would violate the campaign finance law,” said Patrick Philbin, a deputy White House counsel. He asserted that while the law bars candidates from accepting foreign contributions and bars foreign citizens from voting, it does not bar candidates from taking information from a foreign government.
The assertion goes to the heart of Democrats’ accusations against the president, who said in an interview with ABC News that he saw no problem with taking information from a foreign power.
Moreover, Mr. Philbin added, “credible information, credible information of wrongdoing by someone who is running for a public office is not campaign interference.” He added, “The idea that any information that happens to come from overseas is campaign interference is a mistake.”
Washington Post: How the White House could keep John Bolton’s book buried – for now
By Greg Sargent
President Trump has manipulated the machinery of government to serve his naked personal and political interests in so many different ways that it is difficult to ascribe the benefit of the doubt to any given move – even if there are ways to interpret it innocently.
We had a new example of this on Wednesday, when we learned that the White House is placing obstacles in the path of the publication of former national security adviser John Bolton’s new book because of classification concerns…
“The manuscript may not be published or otherwise disclosed without the deletion of this classified information,” the letter read.
The letter to Bolton, whose book will recount that Trump linked military aid to Ukraine with his demand for sham investigations that would help him politically, is from the senior director for record, access, and information security management at the National Security Council (NSC)…
The White House has had Bolton’s book since late December. White House counsel Pat Cipollone, who is leading Trump’s impeachment defense, reportedly wasn’t briefed on its contents in advance, but the president’s legal team has refused to say whether other White House lawyers were briefed on them…
That claim could lay the groundwork for an overly protracted process.
Congress
The Verge: US House Ethics Committee is advising politicians against sharing deepfakes
By Jay Peters
The US House Ethics Committee informed House members yesterday that posting audio or video that has been altered for misleading effect on social media, also known as deepfakes, might be in violation of House rules.
The memo says that “manipulation of images and videos that are intended to mislead the public can harm that discourse and reflect discreditably on the House.” It doesn’t explicitly ban House representatives and staff from posting deepfakes on social media, but it does urge House members to exercise caution and make sure that a deepfake they may be posting isn’t something that could be intentionally misleading…
Still, it’s unclear exactly what might happen to a House member if they posted a deepfake that was intentionally misleading…
And even yesterday’s House memo recognizes that House members can contribute to public discourse through parody and satire on social media.
That “satire” line might be hard to enforce, both for social media platforms and the House Ethics committee, especially during the heavy social media activity expected around this year’s US elections.
IRS
Salon: Trump allies reportedly target black voters by offering envelopes stuffed with cash
By Igor Derysh
A charity run by prominent Trump supporter Darrell Scott, a Cleveland pastor, is holding events in black communities where organizers “lavish praise on the president as they hand out tens of thousands of dollars to lucky attendees,” …
The first giveaway took place in Cleveland last month. Winners were handed “increments of several hundred dollars, stuffed into envelopes,” …
The Cleveland event featured a $25,000 giveaway and an appearance from Trump aide Ja’Ron Smith, one of the highest-ranking black officials in the White House, and Fox News pundit Geraldo Rivera.
The events are organized by Scott’s Urban Revitalization Coalition, which is registered as a tax-exempt charitable organization. Scott is the co-chair of the Trump re-election campaign’s “Black Voices for Trump” initiative…
Some legal experts questioned the group’s tax-exempt status because it does not appear to screen winners for legitimate charitable need.
“Charities are required to spend their money on charitable and educational activities,” Marcus Owens, the former director of the Exempt Organizations Division at the IRS, told Politico. “It’s not immediately clear to me how simply giving money away to people at an event is a charitable act.” …
The Trump campaign denied any knowledge or ties to the events. Adav Noti of the election law watchdog Campaign Legal Center told Politico that it’s unclear whether the group’s pro-Trump events are allowed by law. Charities are barred from supporting or opposing candidates in elections.
“If they do it independently and it really is agenda focused, not electoral, yes that’s permissible under campaign finance law,” Noti said.
But determining what crosses the line into electoral speech can be a “fine line,” former Federal Election Commission counsel Larry Noble told the outlet.
Independent Groups
Center for Responsive Politics: Majority of top 2020 Democrats backed by outside groups as early primaries near
By Ilma Hasan
Democratic presidential candidates started their race to the White House with the promise to reject support from outside groups.
But with just a few days left till the early primaries, yet another TV ad campaign by an outside group — this time in support of former South Bend, Ind., Mayor Pete Buttigieg — indicates the 2020 Democrats are opening up to outside money. Three of the top five candidates are refusing to disavow outside groups spending on their behalf…
Almost all the presidential candidates had earlier distanced themselves from super PACs. But super PACs are supposed to be independent of campaigns, allowing candidates to distance themselves from the outside spending efforts.
“A candidate’s got no involvement in that sort of thing,” Buttigeig said when asked about potential spending on his behalf, according to The New York Times…
Among the other front-running Democratic presidential candidates, Sen. Elizabeth Warren (D-Mass.) and Sen. Amy Klobuchar (D-Minn.) are the only ones that are not being backed by major outside groups.
Citizens United
Pacific Legal Foundation: Seattle’s new campaign finance laws violate immigrant’s First Amendment rights in attempt to reverse Citizens United
By Ethan Blevins
The Supreme Court held that the government could not ban political speech simply because the speakers happen to organize themselves in the corporate form. Despite the case’s controversy, this was hardly a radical notion…
But the Seattle City Council won’t let the First Amendment stand in its way. The council has concocted several bills comprising a “Clean Campaigns” package that clashes with Citizens United – and the First Amendment – on every score. One bill prohibits “foreign-influenced corporations” from spending money on speech for or against a candidate. “Foreign influence” means that someone who owns at least one percent of the business isn’t a U.S. permanent resident or has an immediate family member who isn’t a U.S. citizen or permanent resident.
This is a bizarre notion of influence, since someone who owns a stiletto-thin slice of a business probably isn’t involved in the business’s political spending. And the bill strays into paranoid delusion by deeming a business to be under the thrall of “foreign influence” if a single owner has a grandparent from another country.
It’s disheartening to see a progressive city pass such an anti-immigrant bill. The law will mostly muzzle businesses owned by visa-holding immigrants and their descendants while having no genuine impact on nefarious “foreign interference” in Seattle elections. The city is ignoring Citizens United and the First Amendment while pandering to anti-immigrant fervor.
New York Times: Legalized Bribery by Elites Is Here to Stay. Now What?
By Talmon Joseph Smith
“Opportunity definitely died on election night 2016 for federal court reform,” said Scott Greytak, a lawyer who worked at Free Speech for People, a boutique litigation firm that, until then, was leading the charge against Citizens United. Now, he said, “All the energy and attention has been pushed down to the state and local level. And importantly, it’s no longer money in politics only.” …
Over the past three years, previously siloed reform organizations have been decentralizing, widening their network of collaborators…
Even as a national election begins, talk of “gearing hyperlocal solutions,” strengthening regional labor unions and re-establishing the states as “laboratories of democracy” abounds…
One solution being pushed by some activists is to create a system of public campaign financing parallel to the widened stream of private funds. Seattle has recently adopted a “democracy voucher” program, which distributes funds to voters who can then donate to the candidates of their choice. (Seattle has also recently restricted corporate involvement in local politics through foreign interference laws.) And New York State will match six to one donations by people who give less than $250.
If broadened to the federal level, public financing might free candidates from the disproportionate influence of affluent and corporate donors, while allowing much of the money currently geared toward electioneering to be rededicated to movement building.
Online Speech Platforms
Wall Street Journal: Twitter Adds Feature to Thwart Misinformation About U.S. Voting Process
By Betsy Morris
Twitter is giving users the ability to flag tweets that they believe contain misleading information about how to vote in this year’s U.S. presidential election, underscoring efforts to show it is trying to safeguard the process.
Social-media platforms are under particular scrutiny after a Senate committee report in October criticized U.S. tech companies for helping spread disinformation during the 2016 election. Lawmakers called for better coordination of efforts to prevent such activity in the 2020 election.
Twitter on Wednesday said the feature is aimed at helping prevent deliberately misleading messages from suppressing voter turnout. A Twitter user would be able to mark a tweet as “misleading about an election” by using a drop-down menu, a company spokeswoman said. A Twitter team will then review the claim, which, if found to be misleading, would be removed, she said.
Wall Street Journal: Facebook’s Relationship With Democrats Hits a Low Point
By Deepa Seetharaman, Joshua Jamerson, and Emily Glazer
Facebook officials say they try to avoid political bias. Try telling that to Democrats.
The relationship between the company and the political left is at an all-time low, more than a dozen Democratic operatives, campaign officials and leaders of progressive groups said in interviews, following a series of company policy decisions widely seen among their ranks as favoring President Trump. Many Democrats and campaign officials are increasingly criticizing Chief Executive Mark Zuckerberg in personal terms.
It is a stark departure from the 2016 campaign, when Facebook Chief Operating Officer Sheryl Sandberg endorsed Democrat Hillary Clinton…
On the campaign trail and in Democratic political circles, there is little love left for the Silicon Valley giant, even as presidential candidates on both sides of the aisle rely on Facebook as a valuable platform for political advertising…
Facebook representatives say the company is in an awkward position. Democrats want the company to fulfill its promise to combat misinformation, but conservatives argue that the fact-checking groups employed by Facebook are liberal and could unfairly limit their speech.
“People on both sides of the aisle disagree with some of the positions we’ve taken, but we remain committed to seeking outside perspectives and communicating clearly about why we make the decisions we do,” a Facebook spokesman said in an emailed statement.
Washington Examiner: Hillary Clinton: Zuckerberg’s an ‘authoritarian’ for refusing to referee political speech on Facebook
By Becket Adams
Facebook CEO Mark Zuckerberg’s refusal to regulate political speech on the social media platform he founded makes him not only Trumpian, but also authoritarian, according to Hillary Clinton.
Because if there is one thing that authoritarians are known for, it’s their unwillingness to police speech.
Clinton’s not-very-insightful commentary comes via the Atlantic’s Adrienne LaFrance, who likewise believes Zuckerberg is failing the republic by refusing to crack down on Facebook’s millions of users…
“[Zuckerberg] is immensely powerful,” Clinton told LaFrance. “This is a global company that has huge influence in ways that we’re only beginning to understand.”
What a funny thing to say. Politicos, especially Democrats, seemed to understand Facebook’s influence well enough back when co-founder Chris Hughes was brought on as a key strategist for the Obama 2008 campaign, spearheading its “highly effective Web blitzkrieg.” …
Also, pause for a moment to reflect on the fact that Clinton is upset that a lone tech oligarch who she alleges wields an enormous, seemingly unprecedented amount of power and influence is not doing more to regulate speech. Clinton is disturbed that a man who she claims has too much power does not exercise it more over the public.
Candidates and Campaigns
Washington Post: Warren issues new disinformation pledge, promising to hold Facebook, Google and Twitter responsible
By Tony Romm and Isaac Stanley-Becker
Democratic presidential candidate Elizabeth Warren pledged Wednesday that her campaign would not share falsehoods or promote fraudulent accounts on social media, part of a new plan to battle back disinformation and hold Facebook, Google and Twitter “responsible” for its spread.
Four years after Russian agents weaponized those services in a bid to undermine the 2016 election, Warren expressed fresh alarm that Silicon Valley’s efforts only “nibble around the edges,” failing to fully combat online threats that mislead voters or stoke conflict…
“Anyone who seeks to challenge and defeat Donald Trump in the 2020 election must be fully prepared to take on the full array of disinformation that foreign actors and people in and around the Trump campaign will use to divide Democrats, suppress Democratic votes, and erode the standing of the Democratic nominee,” said Warren, a U.S. senator from Massachusetts. “And anyone who seeks to be the Democratic nominee must condemn the use of disinformation and pledge not to knowingly use it to benefit their own candidacy or damage others.”
One of her Democratic rivals, former vice president Joe Biden, issued a similar pledge last summer…
Along with her personal commitment, Warren said Wednesday her presidency would push for civil and criminal penalties for those who seek to mislead people online about when, where and how to vote.
National Review: Elizabeth Warren Would Like to Be Appointed as the Arbiter of Truth
By Charles C. W. Cooke
Elizabeth Warren has proposed repealing the First Amendment. (Again.) Per CNBC:
Democratic presidential candidate Elizabeth Warren on Wednesday released a plan to fight disinformation to hold tech companies accountable for their actions in light of the 2016 election.
That’s one way of putting it, certainly. Another would be: Having bought into the conspiracy theory that the 2016 election was meaningfully affected by people arguing stupidly online, Elizabeth Warren has released a plan for the federal government to regulate the press, the publishing industry, and the Internet…
“I will push for new laws that impose tough civil and criminal penalties for knowingly disseminating this kind of information, which has the explicit purpose of undermining the basic right to vote,” Warren said in a press release.
It is difficult to know where to start here. No such “democracy” exemption exists within the First Amendment, and no such exemption should exist within the First Amendment…
Ironically enough, Warren’s proposal would represent a boon to precisely the sort of corruption and entrenchment of power that she insists she wishes to fight… There is simply no way for the federal government to superintend “domestic groups seeking to promote or oppose candidates and political or social issues” without the federal government controlling political speech.
The States
New York Daily News: The F(reedom) train: The MTA’s weak stand on free speech and ads
By Daily News Editorial Board
For five years now, the good men and women of the MTA have banned all political and message advertising, with the not-so-small exception of public service announcements that happen to boost incumbents like the mayor and governor. Transit system brass didn’t want to let rhetorical bomb-thrower Pamela Geller upset some straphangers by speaking harshly of Islam – and the only constitutional way to stop her was to say no to any and all ads expressing opinions on contentious moral, religious or social issues.
Hard cases make bad policy. Because now, the cash-strapped subway system is leaving money on the table. Paid political speech and message advertising is being prohibited in what is the city’s most vital public square, in an election year no less. And some politics is inevitably slipping through, disadvantaging speakers who don’t happen to fall under transitcrats’ good graces.
To wit: Internet dating service OKCupid’s just-released subway campaign encourages people to look for love based on political affiliation. “It’s OK to choose to only date someone who’s pro-choice,” reads one. “It’s OK to choose Mr. Right based on how far left he leans,” says another.
It’s not OK to enforce arbitrary distinctions and chill political speech in the process.
New York Daily News: Why is Cuomo undermining public financing just after championing it?
By Chisun Lee and Lawrence Norden
Here’s what you won’t find in Gov. Cuomo’s new budget: funding for New York’s new public financing program. That’s quite an omission, considering that the program wouldn’t exist if he hadn’t pushed for it.
Last spring, the governor, along with legislative leaders, established a commission to reform campaign finance laws. In December, the commissioners produced a solid, if imperfect, small-donor public financing plan designed to counteract the wealthiest donors’ power in Albany.
But the plan also contained entirely unnecessary restrictions on minor party ballot access, embedded at the last minute by the governor’s appointee and likely to endanger some of the governor’s most vocal critics. The governor, with the Legislature, should make a simple fix to save public financing from lawsuits challenging these restrictions. And he must provide the modest startup funds necessary to build out the reform that New Yorkers need and want.
There is no question the commission’s mandate was critically important. As Cuomo has said, “Every day, ordinary New Yorkers struggle to make their voices heard in our political system. No matter the issue, candidates are incentivized to focus on large donations over small ones. The only way to truly fix this problem is to institute a public financing system for political campaigns.”
CommonWealth Magazine: Commission documents flood of campaign cash
By Chris Lisinski
Massachusetts voters approved a ballot question by a 71 percent to 29 percent margin in 2018, creating a Citizens Commission and tasking it with recommending how the state can support U.S. constitutional amendments limiting the role of money in politics and the influence of corporations.
At an event marking release of the commission’s first report, co-chair Costas Panagopoulos said the panel is not ready to propose specific language for a constitutional amendment but that members agree about its importance…
While the first report affirmed that the commission – and many attendees at its several public hearings – believes amending the U.S. Constitution is the best way to create a fairer electoral system, the group plans to file a final report by June 30 digging into specific strategies for accomplishing that goal.
Members need to continue discussions on what the language of an amendment or amendments would say so they can ensure the proposal is legally sound and does not carry any unintended consequences, particularly around “this thorny legal question of corporations and their rights.”
“We don’t want to fix something and break something else,” Panagopoulos said. “We don’t want in our effort to impose restrictions on corporate rights to remove rights from other types of similar associations, churches and unions and things like that, that might prevent them from having access to rights like freedom of association and other things that might be implicated by our recommendations.”
Courthouse News: Appeals Court Rules California Must Release Police Misconduct Records
By Maria Dinzeo
California’s Department of Justice cannot withhold records related to officer-involved shootings, use of excessive force and other police misconduct, the First District Court of Appeal ruled Wednesday.
The ruling upholds an order by San Francisco Superior Court Judge Richard Ulmer requiring Attorney General Xavier Becerra’s office to comply with a 2019 law compelling state agencies to release misconduct records.
Enacted last year as Senate Bill 1421, the law amends Penal Code Section 832.7 to require the release of public records on police shootings, use of excessive force and confirmed cases of lying and sexual assault by on-duty officers under the California Public Records Act.
