Supreme Court
The Hill: Supreme Court weighs lawsuit pitting climate scientist against skeptics
By John Kruzel
The Supreme Court on Friday will consider whether to take up a prominent climatologist’s defamation suit against a venerated conservative magazine…
The dispute between scientist Michael Mann and the National Review has drawn attention from lawmakers, interest groups, academics and media, as the court weighs adding a potentially blockbuster First Amendment showdown to an already politically charged docket…
The case has made for strange bedfellows, with the National Review receiving backing from the Center for Investigative Reporting, which has produced award-winning coverage of climate change; Senate Majority Leader Mitch McConnell (R-Ky.); The Washington Post; and the American Civil Liberties Union (ACLU).
“The only way to protect free speech for our allies is to protect it for our adversaries,” Arthur Spitzer, ACLU D.C.’s legal director, told The Hill. “Today it’s unacceptable to deny climate change, but yesterday it was unacceptable to deny that homosexuality was sinful, and tomorrow it may be unacceptable to deny that robots are better parents than humans.” …
Twenty-one senators, including McConnell, Sens. Marco Rubio (R-Fla.) and Ted Cruz (R-Texas), warned the justices that a failure to act would sharply curtail “vigorous debate” over public policy.
“It requires that speakers be given leeway to express their opinions forcefully and colorfully, without fear that hyperbole, analogy, or over-the-top rhetoric will land them in court,” the senators wrote. “The decision below lost sight of these basic principles. Left uncorrected, it will erode the freedom of political speech that lies at the foundation of our constitutional order.”
The ACLU sounded a similar note.
“Society can’t progress unless people are free to express and consider heretical ideas,” Spitzer said, “because there’s no way to predict which heretical ideas will be tomorrow’s truths.”
The Courts
The Hill: ACLU sues DHS for allegedly tracking, interrogating reporters
By Tal Axelrod
The American Civil Liberties Union announced Wednesday it is suing the Department of Homeland Security (DHS) for allegedly violating the First Amendment over claims it tracked and interrogated five journalists between 2018 and 2019.
The lawsuit highlights accounts from five freelance journalists who say they were stopped by Customs and Border Protection (CBP), which falls under DHS, while traveling to and from Mexico to report on a group of migrants who were traveling to the U.S.-Mexico border.
All five journalists in the suit – Bing Guan, Go Nakamura, Kitra Cahana, Ariana Drehsler and Mark Abramson – say they were sent to secondary inspection and interrogated about their reporting at least once.
“Plaintiffs were each impermissibly compelled to disclose information about their journalism work and activities when they sought to re-enter the United States. The border officers’ questioning aimed at uncovering Plaintiffs’ sources of information and their observations as journalists was unconstitutional,” reads the lawsuit, which was filed in the U.S. District Court for the Eastern District of New York.
“This questioning was unrelated to any valid immigration or customs purpose. Plaintiffs seek a declaratory judgment that such questioning and compelled disclosure of information violated the First Amendment.”…
The lawsuit comes months after reports surfaced in March that the government kept a database of journalists and activists who were associated with covering or raising awareness of one of the so-called migrant caravans last year. The database reportedly included headshots and other identifying information, such as date of birth and people’s “role” regarding the migrant caravan.
“When I saw my photo crossed out in a secret government database, I realized the secondary screening and interrogation weren’t random. I was being targeted by my own government for reporting on conditions at the border,” Guan said in a statement to CNN.
Online Speech Platforms
New York Times: Google Policy Change Upends Online Plans for 2020 Campaigns
By Daisuke Wakabayashi and Shane Goldmacher
Political advertisers will be able to aim their messages at people based on their age, gender or location. Google will also allow ads to be targeted to people based on the content of websites they visit. However, the ads can no longer be directed to specific audiences based on their public voter records or political affiliations categorized as “left-leaning,” “right-leaning,” or “independent,” the company said in a blog post…
Google said while it had never allowed any advertiser – including politicians – to make false assertions, it was clarifying its policy to explicitly ban ads that make “demonstrably false claims that could significantly undermine participation or trust” in the election process. Google noted, however, that it expects to take action on a “very limited” number of political ads…
In an email to campaigns, Google outlined the new rules in greater detail, including that election ads will no longer be allowed to target what is called “affinity audiences” that look like other groups that campaigns might want to target. Campaigns can also no longer upload their own lists of people to show ads.
In addition, there will be no more of what is known as “remarketing,” the process of serving ads to people who have previously taken an action like visiting a campaign’s website…
Keegan Goudiss, a Democratic digital strategist, worried about the implications beyond campaigns. “We are quickly transitioning to a world where corporate communications is prioritized over anything deemed ‘political,'” he said. “That’s dangerous for democracy.”…
Michael Duncan, a Republican digital strategist, called the announcement a “horrible” move that “that will hurt cash-strapped grass-roots campaigns,” which often rely on microtargeting to find success.
Washington Post: Google’s new political ad rules unite Democratic and Republican campaigns in opposition
By Tony Romm and Isaac Stanley-Becker
Google’s plan to restrict political advertisers from targeting their messages to narrow audiences left Democratic and Republican strategists in rare alignment, fearing that they had lost a key tool for identifying new supporters and gathering donations less than a year before the 2020 election…
It could be especially troubling for campaigns that seek to solicit a high volume of people for small-dollar donations, experts said.
“This is bad for everybody,” said one top aide on a 2020 Democratic presidential campaign, requesting anonymity because the person was not authorized to speak on the record. Without the ability to focus on likely supporters, political ad pitches on Google are poised to become “less effective and more costly,” the aide said.
That could create additional headaches for Democrats vying for as many eyeballs – and dollars – as they can just as the primary voting season gets underway. The first-in-the-nation Iowa caucuses are scheduled for Feb. 3, weeks after the new Google rules will start to take effect around the world…
Experts said Google’s new political ad restrictions actually would affect both political parties equally. But it could be especially problematic for “down-ballot campaigns, the small organizations, [who are] not going to be able to afford. . . a true advertising program,” said Betsy Hoover, a Democratic strategist and co-founder of Higher Ground Labs, an incubator for campaign-tech startups…
“Rhetoric in this space has vastly outpaced what we know,” said David Lazer, a professor of political science and computer and information sciences at Northeastern University. One argument goes that the presentation of different messaging to narrow slices of the electorate is “essentially manipulative,” while the alternative case holds that such segmentation “allows for collective action of peripheral groups in society.”
Wall Street Journal: Facebook Weighs Steps to Curb Narrowly Targeted Political Ads
By Emily Glazer
Facebook Inc. is considering making changes to its political-advertising policy that could include preventing campaigns from targeting only very small groups of people, people familiar with the matter said, in an effort to spurn the spread of misinformation.
The company in recent weeks has weighed increasing the minimum number of people who are targeted in political ads from 100 to a few thousand, the people said…
“As we’ve said, we are looking at different ways we might refine our approach to political ads,” a Facebook spokesman said Wednesday night and reiterated Thursday…
Though it is unclear if or when Facebook could roll out any changes, it has hinted that modifications to its political ad policy could be possible. It left the door open again in response to Google’s announcement Wednesday.
Morning Consult: Banning Online Political Ads Is Not a Solution
By Jesse Blumenthal
For starters, we see little agreement on what constitutes a political ad – not a surprise when seven out of 10 Americans say that those on opposite sides of the political spectrum can’t agree on basic facts. Some consider posts by companies touting any of their activities as inherently political. Was Nike’s ‘Just Do It’ ad starring Colin Kaepernick an effective way to promote a clothing brand – or a political statement about injustice in America?
Now that Twitter has positioned itself as the referee, it can expect to be lobbied by politicians who can regulate them and activists on the left and right who can stir up bad press to change the definition of a political ad and silence certain groups.
Twitter also believes that the new policy will level the playing field, preventing anyone from buying reach (retweets and follows) and forcing them to “earn” it.
But will it?
Paying to reach an audience doesn’t tell us anything about the validity of that message. That’s how many lesser-known candidates get their message out. Well before Twitter existed, concerned Americans took out ads in their local newspapers, printed and distributed pamphlets, donated to advocacy organizations and in countless other ways engaged in a public debate by spending money to reach an audience. Banning those ads from Twitter will benefit those who already have large followings – often incumbent politicians and those with the loudest or most extreme voices…
Twitter is free to make its own choices but as one of the world’s biggest social media companies, it can help make the internet either a freer or more restrictive place. We hope company officials will rethink their recent decision, trust their users and opt for more speech – not less.
Search Engine Land: Misquoted and misunderstood: Why many in the search community don’t believe the WSJ about Google search
By Barry Schwartz
It’s Friday morning. I am stepping into an Uber from outside of the Google NYC offices after a meeting with Google employees who work directly on Google search, and my phone starts lighting up. The Wall Street Journal has published a bombshell story named “How Google Interferes With Its Search Algorithms and Changes Your Results.”
At first, I thought maybe the Wall Street Journal had uncovered something. But as I read through page after page while being shuttled down the West Side Highway towards my office in West Nyack, New York, I was in disbelief. Not disbelief over anything Google may have done, but disbelief in how the Wall Street Journal could publish such a scathing story about this when they had absolutely nothing to back it up.
The subtitle of the story read, “The internet giant uses blacklists, algorithm tweaks and an army of contractors to shape what you see.” This line alone shows a lack of understanding on how search works and why the WSJ report on Google got a lot wrong, as my colleague Greg Sterling reported last week.
The truth is, I spoke to a number of these Wall Street Journal reporters back in both March and April about this topic, and it was clear then that they had little knowledge about how search worked. Even a basic understanding of the difference between organic listings (the free search results) and the paid listings (the ads in the search results) eluded them. They seemed to have one goal: to come up with a sensational story about how Google is abusing its power and responsibility for self gain.
Google is not certainly perfect, but almost everything in the Wall Street Journal report is incorrect. I’ll go through many of the points below.
Techdirt: Masnick’s Impossibility Theorem: Content Moderation At Scale Is Impossible To Do Well
By Mike Masnick
As some people know, I’ve spent a fair bit of time studying economist Kenneth Arrow whose work on endogenous growth theory and information economics influenced a lot of my thinking on the economics of innovation in a digital age. However, Arrow is perhaps most well known for what’s generally referred to as Arrow’s Impossibility Theorem, which could be described most succinctly (if not entirely accurately) as arguing that there is no perfect voting system to adequately reflect the will of the public. No matter which voting system you choose will have some inherent unfairness built into it…
I was thinking about that theory recently, in relation to the ever present discussion about content moderation. I’ve argued for years that while many people like to say that content moderation is difficult, that’s misleading. Content moderation at scale is impossible to do well. Importantly, this is not an argument that we should throw up our hands and do nothing. Nor is it an argument that companies can’t do better jobs within their own content moderation efforts. But I do think there’s a huge problem in that many people — including many politicians and journalists — seem to expect that these companies not only can, but should, strive for a level of content moderation that is simply impossible to reach.
And thus, throwing humility to the wind, I’d like to propose Masnick’s Impossibility Theorem, as a sort of play on Arrow’s Impossibility Theorem. Content moderation at scale is impossible to do well. More specifically, it will always end up frustrating very large segments of the population and will always fail to accurately represent the “proper” level of moderation of anyone. While I’m not going to go through the process of formalizing the theorem, a la Arrow’s, I’ll just note a few points on why the argument I’m making is inevitably true.
Candidates and Campaigns
NPR: Why Money (Usually) Can’t Buy You A Successful Campaign
By Jessica Taylor
[H]istory shows that whether running for the White House or another office, candidates bankrolling their own bids are rarely successful.
“Money is not going to cast a ballot on Election Day,” said Sheila Krumholz, the executive director of the Center for Responsive Politics. “You still have to have people out there that are hearing the message your money is buying and making a connection to their own lives and to their own future.”
President Trump’s success may have been unique given that it wasn’t his money that gave him a leg up, but rather his ubiquitous name and image. He ended up using a fraction of his own fortune to pull off the upset in 2016, and he doesn’t appear likely to dip into his own pockets at all for 2020.
“Really what drove his campaign was not the money he was spending, but rather the media coverage he was getting and his ability to generate an enormous amount of public attention,” said Anthony Corrado, a campaign finance expert and professor at Colby College. “He entered the race as a major celebrity, and therefore he didn’t really need to spend money to become known to the electorate.”…
Ultimately, failure is far more common than success among self-funding candidates for any office. Among candidates who bankrolled at least half of their own House or Senate campaigns in 2016, only about a quarter ended up winning. In 2018, that success rate plummeted to just 18%.
The States
Seattle Times: In Olympia, an idea to help voters easily track campaign-ad money and zero in on who’s being targeted
By Joseph O’Sullivan
[O]n Wednesday, state campaign-finance officials discussed the idea of giving Washington’s campaign-disclosure system a boost: building a searchable digital archive that collects campaign ads and information related to them.
At a Wednesday meeting of the Senate State Government, Tribal Relations & Elections Committee, officials for the state Public Disclosure Commission (PDC) said a digital archive could shine sunlight on political ads bought through social-media companies like Google and Facebook. A searchable database could also help voters make sense of a dizzying amount of election messaging and the sources behind it.
“So that all Washingtonians can go and see what ads are in a race that’s relevant to them, what the spending was like, who was targeted, who was reached by that ad,” PDC Director Peter Lavallee told lawmakers Wednesday.
For now, a digital archive is just a broad idea, according to PDC officials, and Lavallee described it as a “heavy lift.” They hope to study the issue in the coming year and possibly approach state lawmakers in the 2021 legislative session…
A handful of other states are exploring the concept of such an archive, according to PDC officials, who have been in contact with one government actually using one. The New York City Campaign Finance Board, which oversees election disclosure for local races there, archives independent expenditure ads…
In Washington, a digital archive could require ad buyers to submit to the PDC any online political ads appearing on social-media platforms, including Facebook and Google.
Those two companies said last year they would stop selling political ads in Washington after a lawsuit accused them of not following state public-disclosure laws.
WFSU: Elections Commission Fines 2018 School Board Candidate For Campaigning As Republican
By Ryan Dailey
The Florida Elections Commission is fining a former Escambia County school board candidate for campaigning as a Republican in a non-partisan seat.
Kells Hetherington lost the 2018 race, but still faces a fine of $500 for describing himself as a “lifelong Republican” in a candidate bio. Stephanie Cunningham, assistant general counsel for the FEC, explained that bio was displayed on the local election supervisor’s website.
“Respondent campaigned based on political party affiliation when he supplied a statement to be published on his filing officer’s website, that stated he is a Republican,” Cunningham said during the commission’s meeting Tuesday. “I am recommending the commission find one violation of Section 106.143(3).”
The candidate’s statement read, in part: “A lifelong Republican, I was raised in the Congregationalist Church … I appreciate your taking the time to take a look at my candidacy and I would be honored to serve as your District 2 School Board Member”
Hetherington was originally fined $200 for violating state election code, but sought to sue the FEC, claiming they infringed on his free speech rights. In response, the FEC returned his money and launched an investigation.
“My biography can damn well say that I’m a life-long Republican,” Hetherington wrote. “My First Amendment right to free speech is not abridged simply because I’m running in a nonpartisan race. The prohibition is on my campaigning as a Republican, which I have not done.”
Buffalo News: State panel closing in on new taxpayer-funded campaign finance system
By Tom Precious
A panel, whose members were appointed by Gov. Andrew M. Cuomo and legislative leaders, is closing in on a final set of changes that critics already are maneuvering to dismiss as gussied-up campaign finance alterations that will leave a system in place favoring powerful incumbents.
Assuming the Public Finance Reform Commission does not stumble and it reaches a consensus by the imposed Dec. 1 deadline, the claim is that its recommendations – including the mechanics for how some future candidates for state office are to be in line for $100 million in annual taxpayer-funded matching grants to help finance their campaigns – will be binding.
But, seldom is anything really binding on the New York State Capitol, and there already are whispers that lawmakers will be pressured to re-examine the issue in 2020, or perhaps later, since the law’s implementation will, under one panel plan, not take effect for people who want to remain or become governor until after the 2022 elections.
The commission is due to issue its final report on Nov. 27 – the day before Thanksgiving. The panel has shown recent signs of some dissent within its ranks, and a public meeting set for Monday this week was postponed.
