In the News
Washington Examiner: Without Citizens United, that new Borat movie would be illegal
By Eric Wang
Fans of the new Borat sequel should thank the Supreme Court’s much-maligned and misunderstood Citizens United decision. Without that ruling, America would resemble the autocratic regime in Borat’s Kazakhstan in the government’s ability to literally ban the Subsequent Moviefilm from release before the election.
The Citizens United ruling was about a movie. Shortly before the 2008 Iowa caucuses, a nonprofit corporation called Citizens United released Hillary: The Movie. As the Supreme Court described the film: “The movie, in essence, is a feature-length negative advertisement that urges viewers to vote against Senator Clinton for President. … The film would be understood by most viewers as an extended criticism of Senator Clinton’s character and her fitness for the office of the Presidency. … The movie concentrates on alleged wrongdoing during the Clinton administration. … There is no reasonable interpretation [of the film] other than as an appeal to vote against Senator Clinton.”
Before Citizens United, the government could essentially put corporations (including nonprofit organizations) in a cage, like the women in Borat’s Kazakhstan, if they even mentioned candidates’ names, including in a movie. Unless the Federal Election Commission or a court recognized a corporation as a “legitimate press entity” performing a “legitimate press function,” a corporation was prohibited from distributing any speech deemed to be a campaign “expenditure” or “electioneering communication.” In one fell swoop, Citizens United changed all that. The ruling freed corporations to distribute literature, movies, and other forms of speech about candidates and elections.
Supreme Court
Courthouse News: Justices Hand Win to Black Lives Matter Activist
By Brad Kutner
The Supreme Court on Monday threw out a Fifth Circuit decision that allowed a Louisiana police officer to sue the organizer of a Black Lives Matter protest for injuries he suffered at the demonstration.
While local authorities have yet to identify the man involved in the shooting of an unnamed Baton Rouge officer in July 2016, a federal judge dismissed the officer’s claim against Maryland-based Black Lives Matter leader DeRay Mckesson for failure to state a claim.
But the New Orleans-based appeals court revived the claim last year, finding the officer sufficiently alleged that his injuries were the result of Mckesson’s “own tortious conduct in directing an illegal and foreseeably violent protest.”
The nation’s highest court vacated the Fifth Circuit’s order Monday morning in an unsigned opinion remanding the case.
“The Fifth Circuit should not have ventured into so uncertain an area of tort law-one laden with value judgments and fraught with implications for First Amendment rights- without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court,” the opinion states.
[Ed. note: The Institute for Free Speech filed an amicus brief in support of the petitioner.]
The Courts
Reason (Volokh Conspiracy): President Trump’s § 230 Executive Order Doesn’t Do Enough To Be Challengeable
By Eugene Volokh
From Judge William Orrick’s opinion yesterday in Rock the Vote v. Trump (N.D. Cal.):
Executive Order No. 13,925 … announces a policy position expressing concern over allegedly biased content management by online platforms such as Twitter and Facebook and directs federal agencies to take various actions to attempt to combat this purported bias…
Plaintiffs’ novel First Amendment claims are a step removed from the typical kind. It is not that plaintiffs claim that their rights to free expression have been violated; instead, it is that the speech of on-line platforms like Twitter and Facebook have been chilled by the Executive Order, and as a result plaintiffs’ missions are frustrated and they have had to divert resources to combat misinformation on social media. As discussed below, I conclude that plaintiffs have failed to adequately allege a concrete or personalized injury to themselves traceable to the Executive Order or to show that enjoining or invalidating the Order would redress their alleged injuries.
Trump Administration
The White House: Two Nominations Sent to the Senate
NOMINATIONS SENT TO THE SENATE:
Shana M. Broussard, of Louisiana, to be a Member of the Federal Election Commission for a term expiring April 30, 2023, vice Ann Miller Ravel, term expired.
Sean J. Cooksey, of Missouri, to be a Member of the Federal Election Commission for a term expiring April 30, 2021, vice Lee E. Goodman, term expired.
Washington Post: Trump’s crackdown on training about white privilege draws broad opposition
By Jena McGregor and Eli Rosenberg
The Trump administration has united a surprisingly broad swath of American business groups, nonprofits and civil rights organizations in opposition to an executive order that prohibits federal contractors and other entities from using “blame-focused” diversity training that it says stereotypes groups based on race or sex.
The Sept. 22 executive order has met pushback from groups across the political spectrum, including the U.S. Chamber of Commerce and the NAACP Legal Defense and Educational Fund. On Thursday, the NAACP LDF filed a lawsuit on behalf of two civil rights groups, the National Urban League and the National Fair Housing Alliance, against President Trump and the Labor Department, claiming the order violates First Amendment protections…
Few federal contracting companies have spoken out individually against the executive order, which also applies to executive agencies, the military and recipients of federal grants, in the heated political environment leading up to the election, relying instead on trade groups to condemn the new rules.
The Information Technology Industry Council, a software and technology industry group that includes Apple, Samsung and Amazon co-signed a letter earlier this month with 10 other groups warning that the order raises concerns about businesses’ First Amendment rights.
The Media
RealClearPolicy: Trump Defeat Would Be the Culmination of Media’s Undoing of American Culture
By Patrick Maines
When, as now, the media incorporate one-sided opinion in their news and feature stories they are no longer practicing journalism, they are practicing propaganda. And the damage in that is not just to the election process, momentous as that is.
In the midst of their journalistic malpractice the media have also given uncritical coverage to social movements like identity politics and the “cancel culture,” both of which are little more than sociological mumbo jumbo, but that nevertheless have all but killed free speech in this country.
Independent Groups
Center for Responsive Politics: ‘Pop-up’ super PACs meddle in key races and hide donors from voters
By Karl Evers-Hillstrom
Super PACs are required to disclose their donors, but by launching a new super PAC just before an election, political actors are able to leave voters in the dark about who is trying to influence them.
Emboldened by ancient disclosure rules, two of these “pop-up” super PACs are attempting to boost support for Libertarian Senate candidates to siphon off votes from Republican incumbents.
That’s a continuation of a trend in the 2020 election cycle where super PACs meddled in several high-profile primaries while keeping their donors secret. These groups spent at least $39.5 million to influence primaries in the 2020 election cycle without disclosing their donors to primary voters. Now, brand new super PACs are emerging to influence closely watched general election contests.
Fundraising
Politico: How ActBlue has transformed Democratic politics
By Elena Schneider
Amid all the once-in-a-lifetime features of this election, the explosion of online fundraising may be the one that truly transforms politics over time. And at the center is ActBlue, whose staff carefully grew a small startup over 16 years, enticing more and more Democratic campaigns to use it, making donating as easy as possible and guaranteeing that the platform essentially never crashes, especially in the most important and high-traffic moments – like if a Supreme Court justice dies unexpectedly and small donors rush to give a combined $70 million to candidates and causes in 24 hours.
Some Democrats already worry about a different kind of crash, questioning what happens to the online fundraising machine they’ve built when Trump is no longer president. But those nagging concerns are nothing compared to the disbelief, confusion or even anger from some Republicans, who have struggled to come to grips with the idea that this many online donors are really lining up against them.
South Carolina Sen. Lindsey Graham, who has voiced interest in investigating online fundraising platforms since Democratic opponent Jaime Harrison raised a record-smashing $57 million in the third quarter, said recently of ActBlue: “This thing’s weird to me.”
“It’s transformed Democratic politics, and it’s enabled us to compete with the big bucks boys on the other side,” said former Vermont Gov. Howard Dean, whose 2004 presidential run pioneered grassroots online fundraising. But Dean warned that if Trump is ousted, “it will be harder to raise money.”
“Rage gets people to the polls and to give,” Dean noted.
Online Speech Platforms
The Guardian: Facebook leak reveals policies on restricting New York Post’s Biden story
By Alex Hern
Facebook moderators had to manually intervene to suppress a controversial New York Post story about Hunter Biden, according to leaked moderation guidelines seen by the Guardian.
The document, which lays out in detail Facebook’s policies for dealing with misinformation on Facebook and Instagram, sheds new light on the process that led to the company’s decision to reduce the distribution of the story…
Facebook’s AI looks for signals “including feedback from the community and disbelief comments” to automatically predict which posts might contain misinformation. “Predicted content is temporarily (for seven days) soft demoted in feed (at 50% strength) and enqueued to fact check product for review by [third-party factcheckers],” the document says.
But some posts are not automatically demoted. Sites in the “Alexa 5K” list, “which includes content in the top 5,000 most popular internet sites”, are supposed to keep their distribution high, “under the assumption these are unlikely to be spreading misinformation”.
Those guidelines can be manually overridden, however. “In some cases, we manually enqueue content … either with or without temporary demotion. We can do this on escalation and based on whether the content is eligible for fact-checking, related to an issue of importance, and has an external signal of falsity.” The US election is such an “issue of importance”.
Buzzfeed News: Facebook Quietly Suspended Political Group Recommendations Ahead Of The US Presidential Election
By Ryan Mac and Craig Silverman
During a contentious presidential election in the US, Facebook quietly stopped recommending that people join online groups dealing with political or social issues.
Mentioned in passing by CEO Mark Zuckerberg during a Senate hearing on Wednesday, the move was confirmed to BuzzFeed News by a Facebook spokesperson. The company declined to say when exactly it implemented the change or when it would end.
“This is a measure we put in place in the lead-up to Election Day,” said Facebook spokesperson Liz Bourgeois, who added that all new groups have been filtered out of the recommendation tool as well. “We will assess when to lift them afterwards, but they are temporary.”
Politico: Union-linked group spending big to target swing states on Facebook
By Mark Scott and Zach Montellaro
A recently formed nonprofit with prominent connections to the U.S. labor movement has vaulted into the upper ranks of Facebook political ad buyers in several crucial swing states, an analysis by POLITICO found – showing the social network’s continued role as a conduit for hard-to-trace online spending.
WorkMoney, which says its mission is to offer nonpolitical financial advice for people suffering from the coronavirus, has spent $4.5 million on these social media ads since its Facebook page was created in March. Those ads almost exclusively target people in election battleground states…
Its ads include calls for voters to fill out online polls, which request personal information like cellphone numbers, employment status and addresses. But some of the group’s communications, including text messages to people who have signed up for its members’ list, also include criticisms of how the Trump administration and Congress have handled the pandemic…
“Many people near you … have already called on President Trump to quit the word games and get this done,” read a text sent on Oct. 13. “The Senate’s spending all its time on hearings, doing absolutely nothing on more stimulus or pandemic unemployment.” …
When asked for comment on WorkMoney’s activities, Facebook said it had taken steps to make political ads more transparent. It also called for updates to U.S. campaign finance laws, adding in a statement that “we can’t solve this alone.”
Wall Street Journal: Twitter’s ‘Living’ Censorship
By The Editorial Board
When social-media companies sanction political speech they don’t like, they always point to one policy or another that was supposedly violated. The truth is they are often making up the rules as they go.
Twitter admitted as much Friday when it finally agreed to unlock the New York Post’s account after freezing it on Oct. 14 as punishment for reporting on Hunter Biden’s business dealings that were exposed on his abandoned laptop computer.
“Our policies are living documents,” the company said in explaining its decision to stop blocking the newspaper.
Wall Street Journal: Political Groups Elude Facebook’s Election Controls, Repost False Ads
By Jeff Horwitz
Political groups are getting around Facebook Inc.’s system for blocking false political advertising by reposting ads found to violate its policies, exposing a loophole in the company’s efforts to contend with misinformation.
Three political groups backing President Trump’s re-election have adopted the tactic, repeatedly uploading with little or no alteration ads that Facebook had pulled down after its fact checkers judged them to be inaccurate, according to researchers on misinformation and a public archive Facebook maintains of ads run on its platform. Some of those reposted ads have been shown millions of times in swing states during the waning days of the U.S. presidential campaign, a period when Facebook has said it is taking extra care to stamp out misleading political ads.
Washington Post: Trump allies, largely unconstrained by Facebook’s rules against repeated falsehoods, cement pre-election dominance
By Isaac Stanley-Becker and Elizabeth Dwoskin
In the final months of the presidential campaign, prominent associates of President Trump and conservative groups with vast online followings have flirted with, and frequently crossed, the boundaries set forth by Facebook about the repeated sharing of misinformation.
From a pro-Trump super PAC to the president’s eldest son, however, these users have received few penalties, according to an examination of several months of posts and ad spending, as well as internal company documents. In certain cases, their accounts have been protected against more severe enforcement because of concern about the perception of anti-conservative bias, said current and former Facebook employees, who spoke on the condition of anonymity because of the matter’s sensitivity.
Candidates and Campaigns
Politico: Biden discloses top campaign rainmakers
By Elena Schneider
Joe Biden’s campaign released a list of his biggest fundraisers Saturday night, the first update to the list since he won the Democratic presidential nomination.
Biden, who raised a record-shattering $383 million for his campaign and allied committees last month, named 817 “bundlers” – high-dollar donors who have tapped into their personal networks to raise at least $100,000 for the candidate, typically after giving their own maximum contribution to the Biden campaign.
Protocol: Beyond the megadonors, Silicon Valley is still stingy about donating to politicians
By Issie Lapowsky
While the past decade has made millionaires and billionaires of loads of tech founders and Big Tech leaders, most of them remain deeply reluctant to donate to politicians…
“There are a large number of uber-wealthy people who just don’t want to get hit,” said one top Democratic fundraiser who asked to remain anonymous. “For them to have such large checks under their name would put their companies needlessly in harm’s way by the Republicans. There’s no point.”
Business Insider: Federal records say these journalists gave Democratic politicians money. The journalists say the records are wrong.
By Dave Levinthal
Washington Post media columnist Margaret Sullivan said she would never give money to political campaigns and causes. So she was surprised to learn from Insider that she was listed in federal records as having contributed $500 in 2017 to the campaign of Rep. Rosa DeLauro, a Democrat from Connecticut.
“That’s an error,” Sullivan said.
Reached by phone Monday, DeLauro campaign manager Sarah Locke concurred: They made a clerical mistake.
“We’re definitely working to fix that,” Locke said…
Although campaign-finance paperwork mistakes with Federal Election Commission filings may seem like a painfully technical matter, bogus contribution records have the potential to be massively embarrassing, and even weaponized for political purposes…
Several journalists also told Insider they made their political contributions through ActBlue – a digital fundraising platform widely adopted by Democratic political committees and left-leaning nonprofit organizations – and believed they were donating money to nonprofits.
The States
Cordova Times: Commentary: The empty promises of Ballot Measure 2
By Loren Leman
Ballot Measure 2 offers the seductive promise that it will “…take back power from dark money special interests and give it to regular Alaskans.” Yet the irony is that it instead protects the power of Outside special interest groups to spend dark money. How so? Because it specifically exempts ballot measure groups from the rigorous disclosure requirements it would impose on groups that seek to affect the outcome of races for school board, assembly or council, State Legislature, and other offices.
