Supreme Court

The Atlantic: Can Police Retaliate Against Loudmouths?

By Garrett Epps

Arctic Man is Alaska’s answer to Nevada’s more famous Burning Man…

As one can imagine, Arctic Man revelers sometimes attract the attention of law enforcement. One such meeting led to a case called Nieves v. Bartlett that will be argued before the Supreme Court on Monday, and that may finally resolve the question of whether a citizen can ignore or even talk back to police officers without fear of consequences.

In theory, the First Amendment protects a citizen’s right to talk back. But anyone who has ever been around citizen-police confrontations knows that, on occasion, officers (who are as human as anybody else) decide they’ve had enough and place the loudmouth under arrest.

When can the citizen sue for “retaliatory arrest”? More properly, what if the citizen has done, or seems to have done, something that gives the officer “probable cause,” but that offense might have gone unnoticed except for a “retaliatory motive”-the desire to shut the citizen up?

A case last term was supposed to settle the issue. Fane Lozman was arrested in 2006 during a public comment period at a meeting of the City Council in Riviera Beach, Florida…

But instead of the larger issue-does the existence of probable cause for any charge negate a claim for retaliatory arrest?-Justice Anthony Kennedy’s 2017 opinion focused on the issue of the city council’s “official retaliatory policy,” which made Lozman’s case unusual, “unlike an ad hoc, on-the-spot decision by an individual officer.” Because those facts were “far afield from the typical retaliatory arrest claim,” Kennedy wrote, the larger issue “must await a different case.”

Which takes us to Arctic Man, and one of those “ad hoc, on-the-spot” decisions, this time made by an Alaska state trooper, Sergeant Luis Nieves, during an encounter with Robert Bartlett, one of the roughly 10,000 subzero merrymakers gathered at Camp Isabel for booze and merriment. 

The Courts

Oregonian: Journalist’s case against former Baker City chief can proceed, court says

By Maxine Bernstein

A journalist’s case alleging the former Baker City police chief and other officers retaliated against him after he wrote a critical editorial of the agency for the local Record-Courier in 2008 can proceed to trial, an appeals court has ruled.

The 9th U.S. Circuit Court of Appeals ruled Friday that a U.S. District judge correctly found that journalist Brian Addison presented sufficient evidence to show that former Chief Wyn Lohner may have retaliated against him. Lohner retired as chief in May.

The right to be free from “adverse police action” in retaliation for constitutionally protected speech is clearly established, the court noted.

The appeals panel also found Addison’s complaint timely and that the chief wasn’t protected by any immunity…

Addison contends police harassed him with unwarranted stops and concentrated efforts to get him fired four years ago from a new job by falsely suggesting to his new employer that he had a criminal background…

The chief argued in an appeal that his communications with Addison’s employers amounted to protected speech.

But while public employees are entitled to First Amendment protections, they don’t have the right to engage in a campaign of harassment or humiliation in response to another’s exercise of free speech, the appeals panel found…

“We conclude that Chief Lohner’s actions were not protected by the First Amendment because the totality of conduct attributable to Chief Lohner under the district court’s findings supports the conclusion that he engaged in a ‘campaign of harassment and humiliation,”’ the appeals ruling said.

Courthouse News Service: Facebook Accused of Suppressing Speech

By Nicholas Iovino

The Federal Agency of News, a St. Petersburg-based media outlet, and its owner and general director Evgeniy Lvovich Zubarev claim Facebook abruptly deleted the news outlet’s account for allegedly violating the platform’s terms of service…

Meanwhile, the Menlo Park-based tech giant was hit with another federal lawsuit Tuesday claiming it has unfairly restricted the account of an Arizona resident from Egypt who frequently opines about religious freedom and politics in his home country…

The situation surrounding the removal of the Russian news outlet’s account appears somewhat more nuanced. At least two individuals previously associated with the Federal Agency of News were indicted by special counsel Robert Mueller earlier this year for their alleged involvement in a conspiracy to defraud the United States, influence the 2016 U.S. election and undermine confidence in nation’s political system.

The news agency’s founder and former general director Aleksandra Yuryevna Krylova allegedly worked with Russia’s Internet Research Agency, which the U.S. has accused of carrying out “information warfare” through social media platforms to target U.S. citizens.

However, the Federal Agency of News says Krylova has not been involved with organization since 2014 when she sold 100 percent of the company’s shares to her successor, Anna Vitalyevna Botneva.

Mueller also indicted the news agency’s chief accountant, Elena Alekseevna Khusyaynova, who allegedly worked on “Project Lakhta,” purportedly a Russian interference operation…

Both lawsuits accuse Facebook of violating the users’ First Amendment rights, breaching its contract with users, and acting in bad faith.

Congress

Washington Post: The Democratic majority’s first order of business: Restore democracy

By U.S. Reps. Nancy Pelosi and John Sarbanes

The new Democratic House is ready to deliver with H.R. 1: a bold reform package to restore the promise of our democracy – a government of, by and for the people.

First, let’s end the dominance of money in politics. For far too long, big-money and corporate special interests have undermined the will of the people and subverted policymaking in Washington…

So let’s rein in the unaccountable “dark money” unleashed by the Supreme Court’s Citizens United v. Federal Election Commission decision by requiring all political organizations to disclose their donors and by shutting down the shell game of big-money donations to super PACs. We must also empower hard-working Americans in our democracy by building a 21st-century campaign-finance system – combining small-donor incentives and matching support – to increase and multiply the power of small donors. Wealthy special interests shouldn’t be able to buy more influence than the workers, consumers and families who should be our priority in Washington…

We’ll curb the influence of high-powered Washington insiders by closing lobbyist registration loopholes that allow big-money power brokers and foreign actors to operate in the shadows. That way, well-connected special interests won’t be able to steer the policy agenda away from the priorities of the American public.

Event

NetChoice: How should conservatives address perceptions of political bias online?

Some conservatives are expressing concern that online social media platforms are using content moderation as an excuse to suppress conservative news and views.
Former Attorney General Sessions convened a meeting of state Attorneys General on September 25 to discuss what the Department of Justice could do about political bias in content moderation.
On the other hand, many conservatives believe using government to regulate online content moderation clashes with core conservative principles and with the first amendment.

Panelists:

– Bartlett Cleland, General Counsel and Chief Strategy and Innovation Officer at the American Legislative Exchange Council (ALEC)

– Jesse Blumenthal, Director of Technology and Innovation at the Charles Koch Institute

– Phil Kerpen, President of American Commitment

– Seton Motley, President of Less Government

Date: December 5

Time: 12PM – 1:30PM ET

Location: Rayburn House Office Building, Room 2226

FEC

Bloomberg Government: Jeb Bush Super-PAC Fined $200,000 for Campaign Finance Violation

By Ken Doyle

The super-political action committee that supported Jeb Bush’s unsuccessful presidential primary bid agreed to pay a $200,000 fine to the Federal Election Commission for failing to report almost $10 million in spending for campaign ads.

The super-PAC, called Right to Rise, didn’t file required independent expenditure reports for television ad buys before the Iowa caucuses and New Hampshire and South Carolina primaries in early 2016, according to documents released by the commission…

Numerous complaints involving 2016 presidential super-PACs remain unresolved at the commission as the 2020 presidential election cycle gets under way. Among them are allegations that Bush and other 2016 candidates broke the law by raising tens of millions of dollars for allied super-PACs before officially declaring their candidacy…

In a separate matter, the FEC fined a Plumbers Union local based in New Jersey $92,650 for collecting PAC contributions from union members through payroll deductions without permission or proper documentation.

In addition to the fine, a settlement called for the Plumbers and Pipefitters Local Union No. 9 to reimburse almost $2.4 million in contributions made by 1,310 members from 2012 to 2017, unless the union members agree to give their money to the PAC.

Online Speech Platforms

Forbes: Zuckerberg’s Manifesto And Our Algorithmically Controlled Future

By Kalev Leetaru

As Facebook increasingly reorients its company towards an AI future in which algorithms make all decisions across the site, what does this future portend for democracy? …

According to Zuckerberg “over the course of our three-year roadmap through the end of 2019, we expect to have trained our systems to proactively detect the vast majority of problematic content.” In short, by the end of next year the company will have largely outsourced its routine moderation efforts to automated systems.

For a company that apparently has so little faith in its algorithms that it won’t publish their false positive rates, that’s a scary sell to a concerned public.

Even more troubling is the company’s admission that it suppresses the visibility of content that is not actually prohibited, but which approaches the line of acceptability…

Perhaps most notably of all, while the company mentions the creation of independent bodies to hear appeals, Zuckerberg’s vision does not include democratizing its acceptable speech rules or giving its two billion users any kind of vote on what should be allowable or not.

Putting this all together, the future of social media is one in which acceptable speech is determined by algorithms. Even allowable speech that complies with all written rules may still fail secret unpublished rules and be penalized. As an army of humans is replaced with algorithms whose keys are held only by a trusted few, the little oversight that exists today will entirely disappear. In the end, the digital dictatorships that rule the online world will finally rid themselves of their last shreds of accountability and be able to exert total control over what a quarter of the earth can see and say online.

The Media

Washington Post: The White House shouldn’t be in charge of granting press credentials

By Kathy Kiely and Mike McCurry

For a better way to handle press access, the White House and its beat reporters need look no further than the other end of Pennsylvania Avenue. Since the late 1800s, Congress has pointedly butted out of decisions about who gets credentials to cover its proceedings, turning over the duties instead to a Standing Committee of Correspondents.

Now morphed into several committees to meet the needs of broadcasters, photojournalists and periodical reporters (including those for Web-based publications), the group is made up of working reporters who serve on a rotating basis and adjudicate questions – that have become increasingly knotty in the digital age – about who is a reporter. Sometimes their decisions are controversial. But the decisions are made by dispassionate professionals, not by politicians with a potential interest in the outcome.

Why should that not be the same model at the White House? The White House Press Office and its staff should not be in charge of deciding who gets the coveted “hard pass” for daily access to the president, staff and policymakers. Yes, the Secret Service should do a security screening. But decisions about professional bona fides should be in the hands of the White House Correspondents’ Association, which represents reporters on the beat, although it’s better known for running a once-a-year glitzy dinner.

In trying to ban Acosta, the president may have done the press corps an inadvertent favor. With attention now focused on the dubious system for granting press credentials, the White House and the White House Correspondents’ Association should seize the moment to modernize it. Decisions about White House access should be in the hands of security and media professionals, not political appointees.

Corporate Speech

Forbes: Freedom Of Speech For The CEO

By Michael Peregrine

The recent controversy surrounding the White House press credentials of CNN reporter Jim Acosta has an unexpected governance twist, courtesy of AT&T chief executive Randall Stephenson. For Mr. Stephenson’s highly visible criticism of the Trump administration in this case is a reminder of both the increased willingness of corporate CEOs to speak out on political and social concerns, and the need for boards to monitor such speech.

Mr. Stephenson’s concern for protecting the freedom of the press was not the first, and certainly won’t be the last instance in which a prominent CEO takes a public position on a controversial issue outside of the direct scope of corporate operations. Indeed, the last two years have seen multiple examples of high profile business leaders speaking out…

There is an increasing sense that public positions on certain leading issues of the day can have a positive impact on the company’s reputation, its relationship with consumers and with its own workforce. Sometimes the prompt for comment will be external, such as a public development of significance to the company’s customer base, pressure from corporate stakeholders or criticism from the media. Other times the pressure can be internal, such as a response to an organizational justice initiative or other expressions of workforce concern. In either case, the CEO’s response should be expressed as an extension of the corporate culture…

Progressive boards may embrace an active public voice by its CEO on social and political issues of the day. That voice may be best exercised in partnership with the board.

The States

Reuters: Trump fails to end New York lawsuit over his charity

By Jonathan Stempel

A New York state judge rejected U.S. President Donald Trump’s request to dismiss a lawsuit in which New York’s attorney general accused him of misusing his namesake foundation to advance his 2016 presidential campaign and his businesses.

The decision issued Friday by Justice Saliann Scarpulla of the state supreme court in Manhattan is a rebuke to the Republican president, whose lawyer had accused Attorney General Barbara Underwood, a Democrat, of “pervasive bias” for suing.

Scarpulla said the U.S. Constitution did not immunize Trump from the lawsuit, and Underwood could pursue claims alleging breach of fiduciary duty, improper self-dealing, and misuse of assets belonging to the Donald J. Trump Foundation.

Underwood sued Trump and his adult children Donald Jr., Eric and Ivanka on June 14, after a 21-month probe that she said uncovered “extensive unlawful political coordination” between the foundation and Trump’s campaign…

The lawsuit alleged, among other things, that Trump wrongly ceded control to his campaign of about $2.8 million donated to the foundation in a 2016 Iowa fundraiser for military veterans…

[Scarpulla] said the state sufficiently alleged that Trump’s actions were willful and intentional, citing allegations that he and his campaign arranged for the foundation to cut checks, helping generate “vote-getting publicity that Mr. Trump would have otherwise paid for himself.”

Washington Post: D.C. Council approves sweeping reforms to combat ‘pay-to-play’ politics

By Peter Jamison

The bill would ban campaign contributions from firms and their top executives if they hold or are seeking government contracts worth at least $250,000.

It would also give new authority and independence to the city’s Office of Campaign Finance – long viewed as a weak enforcer – and require increased disclosures from independent expenditure committees…

The council must vote on the bill again in December, which means it could still be subject to last-minute changes. If approved, the legislation would go to Mayor Muriel E. Bowser (D), who could veto it…

The legislation would prohibit donations of any amount to politicians who have a say in the awarding of contracts, leases, tax exemptions and other District resources from organizations – corporate and nonprofit – that are benefiting from or vying for those resources…

The bill would also create a new board to oversee the Office of Campaign Finance, which is currently under the Board of Elections; require that independent expenditure committees list their top five donors on political advertisements; and ban the bundling of campaign contributions by lobbyists, among other measures.

Although the bill passed Tuesday with a solid majority, some lawmakers expressed reservations. Council Chairman Phil Mendelson (D), who voted yes, said he did so despite concerns…

“This is an ephemeral chase,” he said. “What we are chasing is trying to eliminate influence in politics. If you think about it, politics, representative government, is entirely about influence. . . . If we’re trying to reduce influence in politics, we can’t and we shouldn’t, because our government is founded on influence – that we respond to people and try to do the right thing in responding to people.”

Philadelphia Tribune: Philly campaign contribution limits questioned

By Dan Davies

When former City Controller Alan Butkovitz announced plans to challenge Mayor Jim Kenney, he said the city’s campaign finance laws are a problem.

“What were supposed to be reforms in Philadelphia made it very difficult to raise the money to run for mayor dealing with the grassroots and Philadelphia business people,” Butkovitz said.

Asked if he would seek to abolish the city’s campaign contributions limits, Butkovitz hesitated.

“The question is, ‘can you put the genie back in the bottle now?'” Butkovitz said, “because what happened is as a result of that is [that] it’s all special interests and Super PACs [funding campaigns].” …

Butkovitz said he believes contribution limits are a good idea, but he complained about the city’s 2005 pay-to-play law, which bars business owners from competing for city contracts if they exceed prescribed contribution limits.

City Ethics Board Executive Director Shane Creamer declined to respond directly to Butkovitz but said in an interview he thinks the rules are achieving their intended purpose.

“You don’t have potential city vendors giving six-figure contributions to city candidates who then get lucrative contracts from the city,” Creamer said.

Creamer acknowledged that U.S Supreme Court decisions permit big donors to influence city elections through Super PACs, but he noted that Philadelphia has placed greater restrictions on their activities than federal regulators and required more frequent and detailed disclosure of their operations.

New York Times: N.Y. Democrats Vowed to Get Big Money Out of Politics. Will Big Money Interfere?

By Vivian Wang

[E]ven as they vowed to muzzle big money’s influence, they benefited from the same L.L.C. donations they were railing against. Before the 2016 election, when the Democrats’ chances of regaining power seemed less certain, their campaign committee amassed $42,500 from L.L.C.s in the final weeks of the campaign. This year, amid widespread consensus that they would prevail, they took in more than $400,000 in the same period…

Democrats insist that closing the loophole will be one of their first priorities in the new year. They have proposed holding L.L.C.s to the same limit as corporations, and to count any donations funneled through them toward each stakeholder’s individual limits…

Mr. Cuomo has suggested that the Assembly may become less enthusiastic about passing ethics reform without the Senate standing by to squash it.

“I’m not suggesting that it’s a manipulation, but when you know something’s not going to happen anyway, it’s easier to be supportive of it,” the governor said in a recent radio interview.

The same, of course, could be said of Mr. Cuomo. For years, he has professed support for closing the loophole; for years, he blamed Republicans for the effort’s downfall. In the meantime, he has raised far more through L.L.C.s than the entire Senate Republican conference…

If the Democrats close the L.L.C. loophole and carry out other changes they have backed, including a statewide small-donor matching funds program, New York’s campaign finance laws could go from the nation’s most lax to its most robust, said Lawrence Norden, deputy director of the Democracy Program at New York University’s Brennan Center for Justice.

New York Daily News: Exclusive: Prominent unions pushing for New York State to enact public campaign financing system

By Kenneth Lovett

Two key unions with ties to Gov. Cuomo and the state Senate Democrats will be part of a major push to create a statewide campaign public finance system…

The unions are part of a group called Fair Elections for New York that will be pushing for campaign finance and electoral reforms to be among the first issues tackled by the Legislature in 2019…

The unions and the other groups that are part of the Fair Elections for New York coalition will send a letter Monday to Cuomo and legislative leaders pushing for a 6-1 small donor public financing system for all state-level and district attorney races, lower contribution limits and closing a so-called limited liability companies loophole that allows businesses to donate virtually unlimited amounts…

And while the public financing system would be based on New York City’s program, the groups want to avoid copying the city’s Campaign Finance Board that they say has been too punitive and instead create a “functional, fair administrative agency” modeled after Connecticut’s Citizens’ Election Program.

“The influence of big corporate money on political decision making is something we are really fighting against,” said Communications Workers of America District 1 Political Director Bob Master.

Republicans have long argued taxpayers shouldn’t be on the hook to finance political campaigns.

Others say the increase in Super PACs in New York that can raise and spend unlimited amounts as long as there is no coordination with the campaigns they are supporting reduces the need for a public financing system.

Master, whose union created a Super PAC that spent heavily on state Senate Democrats in recent years, disagrees. He argues that a public campaign finance system will make it easier for those who are not wealthy be able to run for office.

Boston Globe: Unions’ political advantage could be tested in Mass.

By John Chesto

Unions have long held an unusual political advantage in this state, in part because Massachusetts allows them to give up to $15,000 to any one candidate.

This advantage – or loophole, depending on your perspective – survived a state Supreme Judicial Court ruling in September.

But it might not be around for much longer.

The state Office of Campaign and Political Finance has started a rule-making process that could rewrite the books on the issue, following a Nov. 7 request from watchdog group Common Cause of Massachusetts. Labor reps and their occasional antagonists from the business community will likely weigh in before the initial comment period ends Nov. 30. A draft decision is expected by Feb. 1.

Some business advocates view this as an unfair advantage, one that stems from the state law banning direct corporate donations to candidates. Trade groups are usually nonprofits, but they get much of their money from corporate members. Unions, meanwhile, are funded by individuals’ dues, and have thus been allowed to make contributions above the state limits, up to $15,000 a year.

Common Cause has argued for a legislative fix in the past. That’s a tough sell in the union-friendly State House.

Common Cause executive director Pam Wilmot isn’t known as a champion of corporate interests. But she also sees an inherent unfairness. A small number of organizations, she says, shouldn’t be allowed to make a $15,000 gift when nearly everyone else is limited to $1,000 per candidate (or $500, in the case of political action committees).