New from the Institute for Free Speech
Facebook and Twitter Become Arbiters of Truth
By Scott Blackburn
After years of claiming otherwise, Facebook and Twitter have succumbed to partisan pressure and begun openly deciding what is and is not true.
This is the sad result of this week’s dust up over a New York Post story detailing explosive allegations about Vice President Biden and his son, Hunter…
It is futile, stupid, and wrong for these platforms to deliberately slow the spread of a news story because some unnamed person within the company hierarchy has decided that story is false. That is true of any news story, but it’s particularly the case for one concerning a presidential candidate within weeks of the election.
Let’s start with the futility. Facebook and Twitter, despite their size and popularity, cannot control the news. This story was featured in a major American newspaper. And stories about the story, whether supportive or skeptical, were covered in every other newspaper. Those stories were shareable on Facebook and Twitter. And the most watched news network (Fox News) covered the story in every hour of its programming. The platforms’ lack of control was so obvious that, even after Twitter banned the story, it was, for a time, still trending … on Twitter!
Supreme Court
New York Times: Justice Kavanaugh Unlocked Ways to Fight Foreign Interference
By Ellen L. Weintraub
This summer, in U.S. Agency for International Development v. Alliance for Open Society International, Inc., the Supreme Court, in a 5-to-4 decision, with the majority opinion written by Justice Brett Kavanaugh, ruled that the U.S. government can compel overseas public health organizations that receive U.S. foreign aid to publicly oppose prostitution.
Yet Justice Kavanaugh’s decree – that “foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution” – is so expansive that it spills into election law, giving federal and state governments ample authority to defend us against the full range of foreign political warfare, without fear of violating the First Amendment…
I have longviewed the reach of the foreign-national political-spending ban to be broad. But some serious legal thinkers have lost sleep over whether a conservative Supreme Court would strike down aggressive efforts to limit such interference on free-speech grounds.
The source of this doubt was, ironically, a 2011 opinion written by Brett Kavanaugh when he was on the D.C. Circuit Court of Appeals. In Bluman v. Federal Election Commission, then-Judge Kavanaugh upheld the federal law banning political spending by foreign nationals but speculated that the ban might not survive constitutional scrutiny if applied to anything but contributions to U.S. candidates or communications that expressly advocate for or against a candidate’s election.
Washington Post: A 2009 Supreme Court ruling may require Barrett to recuse herself from 2020 election cases
By J. Michael Luttig
But as Barrett must already understand, her decision [about whether to recuse herself from 2020 election cases] was made exponentially more difficult by Caperton v. A.T. Massey Coal Co., an inartful and mischievous 5-to-4 case decided more than a decade ago by the court she will soon join. The ruling would seem to apply squarely to Barrett’s recusal decision and could well require, or at least counsel, her recusal.
Caperton involved a litigant who spent $3 million to help elect a West Virginia Supreme Court of Appeals justice, who then voted to reverse a $50 million damage award against his benefactor. The U.S. Supreme Court found that the judge should have recused himself. Writing for the majority, Justice Anthony M. Kennedy said that recusal may be constitutionally required even where a judge is not actually biased, if there is a “serious risk of actual bias.”
Based on its appraisal of the “psychological tendencies and human weakness” of all of us, the majority concluded that the campaign spending had “significant[ly] and disproportionate[ly]” influenced the judge’s election while the case was pending or imminent, resulting in a perceived serious risk that the judge was biased in favor of his contributor. “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when – without the other parties’ consent – a man chooses the judge in his own cause,” the court said.
FEC
By Brooke Singman
The Republican National Committee on Friday filed a complaint with the Federal Election Commission alleging that the censorship of the New York Post article about Hunter Biden’s overseas business dealings and former Vice President Joe Biden’s alleged knowledge of those dealings amounts to an “illegal corporate in-kind political contribution” to the Biden campaign, Fox News has learned.
The complaint, filed by the RNC on Friday…states that the RNC “believes that Twitter has violated FECA and the Commission’s Regulations by making corporate in-kind contributions to Biden for President.”
The RNC, in its complaint, said Twitter “is a partisan actor, run by partisan Democrats” and is “using its corporate resources to provide active support for Joe Biden’s campaign in violation of federal law” …
“[Twitter] is acting as Biden’s media operative, taking proactive steps to shield Biden from negative news coverage by blocking its distribution and muzzling those who try,” the complaint read. “If [Twitter] charged for this service, Biden no doubt would gladly pay a significant price.” …
[T]he complaint states, while adding that Twitter CEO Jack Dorsey and other executives “are prolific donors to the Democrat party and other left-wing causes, with 98.7% of the company’s total political contributions going to Democrats.”
The complaint also claims there is a “revolving door between the Biden campaign” and Twitter, saying Twitter’s public policy director recently left the company to join the Biden transition team, and Sen. Kamala Harris’ former press secretary is now serving as a senior communications manager at Twitter.
Law & Crime: ‘Yawn’: Experts Dismiss ‘Frivolous’ RNC Complaint Against Twitter Over Blocked Access to NY Post Biden Story
By Colin Kalmbacher
Campaign finance reform organization Issue One’s Legislative and Programs Counsel Danielle Caputo told Law & Crime the RNC’s legal claim [against Twitter] was “frivolous.”
“The FEC defines in-kind contributions as ‘[g]oods or services offered free or at less than the usual charge,'” she explained. “Twitter, as far as I’m aware, does not charge individuals to remove content from their site. Additionally, the article was removed because of their hacked material policy, which existed prior to the Hunter Biden story being published.” …
Common Cause campaign finance expert Paul Seamus Ryan agreed that the “complaint seems frivolous.”
“While I’m encouraged to see the RNC take such broad (and uncharacteristic for the RNC) view of what constitutes an in-kind contribution under federal campaign finance law, the complaint is thin on legal analysis and fails to allege the facts necessary to find the violation the RNC complains occurred,” he said in an email.
Ryan also focused on the monetary aspect (or lack thereof):
In order for there to be an illegal in-kind contribution here, Twitter would need to be spending money in cooperation or consultation with the Biden campaign, or at the request or suggestion of the Biden campaign (i.e., in “coordination” with the Biden campaign under 11 CFR 109.20), for the purpose of influencing the election. The RNC fails to allege with any specificity what Twitter is spending money on (i.e., what’s the “expenditure”) and how Twitter is coordinating this spending with the Biden campaign (i.e., what’s the “coordination” that turns the expenditure into an in-kind contribution).
Associated Press: Watchdog org: Trump ’16 campaign, PAC illegally coordinated
By Garance Burke
New documents from a former Cambridge Analytica insider reveal what an election watchdog group claims was illegal coordination between Donald Trump’s 2016 presidential campaign and a billionaire-funded pro-Trump super PAC…
The now-defunct British data analytics firm violated election law by ignoring its own written firewall policy, blurring the lines between work created for Trump’s 2016 campaign and the Make America Number 1 super PAC, according to an updated complaint the nonpartisan Campaign Legal Center filed Friday with the Federal Election Commission.
The complaint also alleges that Cambridge Analytica – which improperly acquired and used 87 million Facebook users’ profiles to predict their behavior – had a shared project calendar for both entities, among other evidence.
“The idea that this spending was at all independent is farcical and these emails underscore that,” said Brendan Fischer, an attorney for the government oversight group, whose new filing supplements a complaint filed four years ago. “Cambridge Analytica not only misused people’s personal data, but it was a conduit for the wealthy family that owned it to unlawfully support the Trump campaign in 2016.” …
The complaint alleges that Cambridge Analytica used information it gained from working with Trump’s campaign to develop and target ads for the super PAC supporting his candidacy, “constituting unreported in-kind contributions to Donald J. Trump for President, Inc. in the form of coordinated communications.”
The Media
New York Times: New York Post Published Hunter Biden Report Amid Newsroom Doubts
By Katie Robertson
The New York Post’s front-page article about Hunter Biden on Wednesday was written mostly by a staff reporter who refused to put his name on it, two Post employees said.
Bruce Golding, a reporter at the Rupert Murdoch-owned tabloid since 2007, did not allow his byline to be used because he had concerns over the article’s credibility, the two Post employees said, speaking on the condition of anonymity out of fear of retaliation…
The article named two sources: Stephen K. Bannon, the former adviser to President Trump now facing federal fraud charges, who was said to have made the paper aware of the hard drive last month; and Rudolph W. Giuliani, the president’s personal lawyer, who was said to have given the paper “a copy” of the hard drive on Oct. 11.
Mr. Giuliani said he chose The Post because “either nobody else would take it, or if they took it, they would spend all the time they could to try to contradict it before they put it out.”
Wall Street Journal: Partisan Sites Posing as Local News Expand Ahead of Election
By Emily Glazer and Keach Hagey
The Copper Courier is part of a network of eight sites launched in battleground states, backed largely by Acronym, a liberal nonprofit with close ties to Democratic donors. Acronym has been building out the network, called Courier Newsroom, over the past 18 months. As of May, the sites had an $11 million budget and aimed to publish around 300 original articles and videos a week that it would promote aggressively on social media…
The Decatur Times is part of Metric Media, a network of sites with ties to well-established Republican donors and operatives, including the head of the GOP small-dollar fundraising operation, according to Federal Election Commission records and people familiar with the matter. Metric Media already has more than 1,000 sites, including many in swing states, that blend right-leaning news stories with news releases and data scraped from public databases.
The digital news landscape is filled with outlets that have a slant on the news. What separates networks such as Courier and Metric Media is that they are targeting individual states and cities, hoping to capitalize on readers’ trust in local news sources for information on everything from coronavirus updates to politics. And they are doing that while playing down their partisan interests and often obscuring their donors.
New York Times: As Local News Dies, a Pay-for-Play Network Rises in Its Place
By Davey Alba and Jack Nicas
Maine Business Daily is part of a fast-growing network of nearly 1,300 websites that aim to fill a void left by vanishing local newspapers across the country. Yet the network, now in all 50 states, is built not on traditional journalism but on propaganda ordered up by dozens of conservative think tanks, political operatives, corporate executives and public-relations professionals, a Times investigation found.
The sites appear as ordinary local-news outlets, with names like Des Moines Sun, Ann Arbor Times and Empire State Today. They employ simple layouts and articles about local politics, community happenings and sometimes national issues, much like any local newspaper.
But behind the scenes, many of the stories are directed by political groups and corporate P.R. firms to promote a Republican candidate or a company, or to smear their rivals…
The Times uncovered details about the operation through interviews with more than 30 current and former employees and clients, as well as thousands of internal emails between reporters and editors spanning several years. Employees of the network shared emails and the editing history in the site’s publishing software that revealed who requested dozens of articles and how.
Independent Groups
The Verge: Oracle founder donated $250,000 to Graham PAC in final days of TikTok deal
By Makena Kelly
Oracle CEO Larry Ellison donated $250,000 to a super PAC supporting Sen. Lindsey Graham’s (R-SC) reelection campaign as his company closed in on a coveted position as TikTok’s US technology partner…
It’s an unusually large donation for Ellison, who also donated $5,200 to Graham’s Majority Fund in January. The timing of the larger donation is also remarkable, coming mere hours after Oracle officially announced that it had been chosen as TikTok’s technology partner for its US operations, beating out Microsoft in a high-profile bidding process to save the popular video app.
Online Speech Platforms
New York Post: Twitter blocks post from White House science adviser Scott Atlas
By Mark Moore
Twitter blocked a post from top White House coronavirus adviser Scott Atlas on Sunday that questioned the use of masks as a means of curbing the spread of the illness.
Atlas, who joined the White House in August, wrote, “Masks work? NO,” while adding that the widespread use of face coverings is not supported by evidence.
“Masks work? NO: LA, Miami, Hawaii, Alabama, France, Phlippines, UK, Spain, Israel. WHO: widesprd use not supported’ + many harms; Heneghan/Oxf CEBM: ‘despite decades, considerble uncertainty re value’; CDC rvw May:’no sig red’n in inflnz transm’n’; learn why,” the top doctor wrote.
A spokesperson for the social media company told the Associated Press that the tweet violated its policy of sharing false or misleading information about the coronavirus that could lead to harm.
Atlas, the former chief of neuroradiology at Stanford University Medical Center, said Twitter’s action amounted to censorship.
BBC: Anti-Trump TikTokkers not declaring paid content
By Sophia Smith Galer
TikTok has removed a number of videos after a BBC investigation showed creators were posting anti-Trump material without disclosing that they were paid for by a marketing company…
TikTok bans political ads and requires people to declare paid-for content. When we showed TikTok what we found, the company took several TikToks down – these had already got hundreds of thousands of views.
Guidelines from the US Federal Trade Commission (FTC) stipulate content creators should always disclose paid partnerships, usually by using ‘#ad’ in the caption.
A TikTok spokesperson said: “These guidelines also apply to paid content by influencers, and we rely on influencers and marketers to follow FTC guidelines.
“We remove paid influencer content that’s not disclosed as such as we become aware of it and are now taking action on this.”
Wall Street Journal: No Quick Fix for Social Media Bias
By Andy Kessler
First, if we repeal 230, we’ll end up with more censorship. Why? Because if platforms are suddenly liable for everything posted, the knee-jerk reaction will be to take down everything questionable, leaving us with giant receptacles of Baby Shark videos, which would diminish the channels small businesses use to reach customers. Then, say goodbye to competition. There are hundreds of smaller social media competitors that wouldn’t be able to afford the software, let alone the tens of thousands of humans, to take down posts.
There’s no simple way to “fix” Section 230 either. The feds could require nonpartisan, balanced views. But who decides what’s balanced? We’d be back to where we started. Any fix would open a can of worms of special interests, maybe even a new Digital Diction Department staffed by justice warriors deciding which phrases are no longer acceptable, like “master bedroom” or even “preference.” And then the law would get larded with special exceptions. The thinking would be, “Let politicians say what they want, for democracy’s sake, but protesters should also get a pass, depending on their grievances.” It would never end.
Wall Street Journal: How Mark Zuckerberg Learned Politics
By Deepa Seetharaman and Emily Glazer
Nick Clegg, a former British deputy prime minister whom Mr. Zuckerberg hired two years ago as global policy and communications chief, said the CEO has been “intimately involved” in deciding to bar new political ads the week before the election…
Mr. Zuckerberg, who is worth more than $90 billion, has contributed to a handful of Democratic and Republican causes and candidates, according to the Center for Responsive Politics. But some people close to Mr. Zuckerberg say the only party he belongs to is the party of Facebook. The one constant for him over the years has been his broad belief that free expression should be paramount and that Facebook is, on balance, good for the world, according to his public comments and people familiar with his views…
In late 2017, when Facebook tweaked its newsfeed algorithm to minimize the presence of political news, policy executives were concerned about the outsize impact of the changes on the right, including the Daily Wire, people familiar with the matter said. Engineers redesigned their intended changes so that left-leaning sites like Mother Jones were affected more than previously planned, the people said. Mr. Zuckerberg approved the plans. “We did not make changes with the intent of impacting individual publishers,” a Facebook spokesman said.
Candidates and Campaigns
Wall Street Journal: The Surprising Similarity Between Charitable and Political Giving
By Lisa Ward
A working paper from the National Bureau of Economic Research…suggests that the main motivation for political giving is the same as it is for charitable giving-the donor is driven by his or her desire for the positive feeling that comes from doing something good.
The researchers noticed that the two kinds of giving often act like substitutes. When someone gives more to a political campaign, in other words, they are likely to give less to charity. The converse was also found to be true…
[The researchers] looked at political ads on TV, which encourage people to give to certain candidates. Television viewers often see different advertisements, depending on their market. The authors found that viewers in counties that saw more political ads increased their political giving by about 9.2% relative to an adjoining county that saw fewer political ads, and decreased charitable giving by about 0.7%. While the second number is small, it does illustrate that there is a relationship between the two, the authors say.
The States
News 5 Cleveland : Painesville Issue 1: Grassroots group pushing to send message against corporate campaign contributions
By Jordan Vandenberge
On their ballots this November, Painesville voters will decide Issue 1, a proposed ordinance by petition that would declare the need for a constitutional amendment that would clamp down on political contributions by corporations, unions and Super PACs. The ordinance would also declare that money is not the equivalent of speech.
Issue 1 was put on the ballot after a local grassroots organization comprised of volunteers, Painesville Move to Amend, secured enough signatures.
Painesville Move to Amend is the local chapter of Move to Amend, a national organization based out of California.
“This is a group of citizens that are proclaiming that money is not speech and corporations are not people under the Constitution for the purpose of campaign finance,” said member John Deane. “All of these grassroots groups have chosen the resolution format on the local level… to send a message to our state government. Ohio is not one of the states that has adopted this yet and we’d like to see Ohio become the 21st state to get on this list.”
Twenty states have adopted similar declarations intended to show support for limiting political contributions by corporations, unions and Super PACs.
