In the News
The Atlantic: A Stunning Vote Reversal in a Controversial First Amendment Case
By Garrett Epps
Willett, a Trump appointee and former Texas Supreme Court justice, has now changed his vote [on Mckesson v. Doe] and issued a full-throated defense of the idea that free speech covers even unruly protest.
“I have had a judicial change of heart,” Willett wrote. “Admittedly, judges aren’t naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.'”…
Willett’s dissent is a sign of life for old First Amendment precedents. It reveals how poorly Doe argued his rather weak case, how cavalierly the original opinion treated the Constitution, and how hard the result is to defend, even to a conservative judge like Willett. However, the majority’s opinion still stands, and, as David Keating of the Institute for Free Speech told me, “still poses a huge threat to political speech.”* But, he continued, “now there’s more hope it will soon be set aside.”
The Courts
USA Today: Rick Gates, witness in Russia investigation, sentenced to 45 days in jail
By Kristine Phillips
Former Trump campaign aide Rick Gates was sentenced Tuesday to 45 days in jail, a departure from a probation sentence prosecutors said he deserved in exchange for being a witness in the Russia investigation.
U.S. District Judge Amy Berman Jackson said the jail sentence will be intermittent – Gates will spend weekends behind bars. He will be on probation for three years, must pay $20,000 in fines and must do 300 hours of community service…
Gates and Manafort, longtime business associates, were indicted in Washington in October 2017. They were charged with failing to register as foreign agents for work they did for Ukraine and making false statements to investigators to conceal that work.
The two were indicted again in February 2018 in Virginia, where Gates was charged with assisting Manafort in a years-long scheme to hide millions of dollars of income from foreign governments…
Gates pleaded guilty to conspiracy and making false statements about his status as a foreign agent. Both are felonies…
Gates also testified at the trial of Greg Craig, a high-powered Washington lawyer and former Obama White House counsel who was accused of making false statements to investigators about his work for Ukraine. The charge against Craig stemmed from work he did in 2012 on behalf of a pro-Russian political faction in Ukraine, part of Manafort’s illicit lobbying.
Craig was acquitted, but prosecutors said the acquittal should not diminish Gates’ cooperation.
Arizona Capitol Times: Judge lets Arizona law on initiative petitions to stand
By Howard Fischer, Capitol Media Services
A federal judge on Monday refused to strike down an Arizona law that allows a judge to invalidate otherwise legitimate and qualified signatures on an initiative petition.
In a 19-page ruling, Judge Susan Bolton acknowledged that the 2014 statute could make it more difficult for those proposing their own laws and constitutional amendments to put their proposals before voters.
But Bolton said challengers did not present enough evidence, at least not yet, to show that allowing it to remain in effect presents irreparable harm, either to voters or those who hope to propose future ballot measures…
The law, which passed without significant debate, spells out that paid circulators and those who do not live in Arizona must first register with the Secretary of State or their signatures collected do not count…
Specifically, what’s been dubbed the Strikeout Law says that if any circulator who has to register does not show up, then all the signatures that person gathered can be struck, potentially leaving the petition drive short of its goal…
“There is insufficient evidence of a ‘chilling’ effect,” [Bolton] wrote…
“Ballot-access measures like the Strikeout Law can restrict political speech,” Bolton said. But she said that challengers to this point “have simply failed to show facts or circumstances demonstrating such restrictive effect.”
AP News: Critics say Rhode Island campaign finance law violates the First Amendment
By Associated Press
Critics of a Rhode Island campaign finance law say it violates the First Amendment.
The law requires the disclosure of the top five donors behind any campaign communication during state election cycles. In addition, the law requires groups producing the communications to file public reports of any donor who gave more than $1,000.
The law is the subject of a federal lawsuit filed by conservative advocacy groups, The Boston Globe reported. The paper reports that the law also has critics on the left.
Critics of the bill have argued that identifying donors encourages them not to participate in the democratic process.
“The sole purpose of this law is to name and shame individuals who support different viewpoints – or worse, intimidate people into staying silent,” said Patrick Hughes, president of Liberty Justice Center represents the plaintiffs in the lawsuit.
Supporters of the bill have argued that it will enlighten voters as to who is trying to influence their decision at the ballot.
“It’s about providing voters with more information to fully evaluate political advertising and messaging, which in turn allows them to fully participate in the democratic process,” said Austin Graham of the Campaign Legal Center.
Courthouse News Service: Right-Wing PAC Loses Challenge to Illinois Campaign-Finance Ban
By Lorraine Bailey
The Seventh Circuit on Monday rejected a conservative PAC’s challenge to an Illinois law banning direct campaign contributions by independent expenditure committees, citing the need to curb corruption.
The Illinois Liberty PAC is an independent expenditure committee founded by Dan Proft, a conservative radio talk-show host and former Republican candidate for governor.
Under state law, an independent expenditure committee is a type of political action committee that may raise unlimited funds but it is prohibited from contributing any of that money directly to a candidate, party or another PAC.
Taking its fight to court, Illinois Liberty claimed this blanket prohibition violates the First Amendment because there are instances where the Illinois code lifts contribution caps for other entities and individuals…
In these circumstances, Illinois Liberty PAC claims it should also be allowed to contribute unlimited money directly to candidates.
But a federal judge rejected this line of reasoning, and a panel of Republican-appointed Seventh Circuit judges affirmed Monday.
“If the contribution and coordination ban on independent expenditure committees is lifted in races where contribution caps are removed, a substantial risk of actual or apparent corruption would arise,” U.S. Circuit Judge Michael Brennan, a recent appointee of President Donald Trump, wrote for the court.
DOJ
The Atlantic: The FBI Needs to Be Reformed
By Bob Bauer and Jack Goldsmith
Inspector General Michael Horowitz’s report last week told a complex story about extraordinary events related to the investigation of officials in Donald Trump’s 2016 presidential campaign…
But there is something much more important in the Horowitz report than evidence for political vindication…
The mere fact or even hint of investigation into a campaign threatens protected speech and political activity, and, worse yet, threatens to taint the democratic process by unduly influencing electoral outcomes. Such investigations are all the more fraught because the FBI has a long history of using investigations and secret surveillance against American citizens for political ends…
Horowitz’s latest report expressed surprise about deficiencies in the DIOG guidance in the context of opening investigations related to political campaigns. He proposed that the FBI establish procedures that require giving notice not just to a senior FBI official, but also outside the bureau to a senior DOJ official, such as the deputy attorney general, “for case openings that implicate core First Amendment activity.” …
Horowitz noted that the FBI rulebook uses the same low threshold for opening sensitive cases connected to a political campaign, which implicate First Amendment activity and electoral integrity, as in ordinary, nonsensitive cases. The FBI should develop a heightened threshold for opening such cases to ensure that First Amendment activity is not unduly investigated.
Congress
Techdirt: Why Are Members Of Congress Telling A Private Organization Not To Comment On Copyright Law?
By Mike Masnick
The American Law Institute (ALI) is a non-profit organization which states its mission is to help to “clarify, modernize and otherwise improve the law.” Its most well known products are the so-called “Restatements” of various laws…
The lobbyists for copyright maximalists have now convinced one senator and four members of Congress to pressure the ALI to drop the entire Restatement of Copyright Law project.
In case this is not clear: members of Congress are telling a private organization that it should not give its opinion or analysis on the state of the law. That’s fucked up no matter how you look at it. Senator Thom Tillis, and Representatives Ben Cline, Ted Deutch, Martha Roby, and Harley Rouda, have some explaining to do. Using the power of Congress to say that a private organization shouldn’t talk about the law is insane.
Even the specifics in the letter are crazy — and clearly were talking points from lobbyists.
ALI is a respected organization, whose Restatements are often cited as highly persuasive authority in court cases and scholarly works. Traditionally, Restatements have focused almost exclusively on areas of common law because judicial rulings across different jurisdictions may vary and ALI’s interpretation are predisposed to assembly, analysis, and summaries.
By contrast, laws created through federal statute, including federal copyright law, are ill-suited for treatment in a Restatement because the law is clearly articulated by Congress in both the statute and legislative history…The ALI has long recognized that federal statutes do not require a Restatement and are not an appropriate platform to effect changes in federal law…
[M]ost importantly, if Congress feels that a court — or the Restatement — has gotten something really wrong, it has the power to revise the law…
These elected officials seem bizarrely worried that courts will somehow rely on the Restatement too much, despite little evidence that this would ever be an issue.
Media
BizPacReview: Boston Globe refuses to run anti-impeachment ad, accused of outright bias
By Frieda Powers
America First Policies, a non-profit organization supporting President Donald Trump’s agenda, slammed the pro-impeachment leanings of the Boston Globe’s editorial board and its sales department after the publication refused to run the ad denouncing Democrat Rep. Chris Pappas of New Hampshire…
“Sweaters aren’t the only ugly thing you will see this December… SHAM IMPEACHMENT,” the planned Boston Globe ad by America First Policies read, over a Christmas sweater image in the background.
“It’s time to end the ugliness by stopping Pelosi’s WITCH HUNT!” the ad continued. “One Democrat Congressman called the impeachment ‘HORRIBLY PARTISAN,’ but Chris Pappas is still siding with the liberal mob.
“Instead of putting America first, Pappas is wasting our tax dollars, ignoring our priorities and creating a nightmare of legislative gridlock,” the ad read…
But while more than two dozen newspapers, including the Chicago Tribune, the Des Moines Register and the Minneapolis Star Tribune, approved printing the latest ad which featured an image of Pappas and phone numbers to reach his offices, the Boston Globe refused, citing its advertising “standards.”
The ad “does not meet our advertising acceptability standards,” the Boston Globe told Fox News, while insisting it accepted opinion advertisements “regardless of our editorial position on any given subject.”
The paper added that it was “open to reviewing a reworked version.”
But America First Policies noted that the “modifications” suggested by the paper included the removal of the word “sham” and for the ad to feature a “better picture” of Pappas.
Trump Administration
The Guardian: Visiting the US? The government is reading your old Facebook posts
By Cristian Farias and Carrie DeCell
The little-noticed requirement, which the state department adopted in May, compels nearly everyone wishing to visit or move to the US from abroad to register their social media handles with the US government…
This means that social media posts, photos, “likes,” and other personal data – including visa applicants’ communications with their American colleagues, friends, and family members – are all subject to largely unrestricted government scrutiny. Once collected, applicants’ social media information is retained indefinitely, shared widely within the government, and even disclosed, in some circumstances, to foreign governments.
The social media registration requirement tramples on the guarantees of free expression and association enshrined in the first amendment. By demanding that all visa applicants – international students, journalists, tourists, academics, businesspeople, you name it – disclose how they identify themselves on Facebook, Twitter, Instagram, and other major platforms, the state department is conditioning their ability to visit, work, or live in US on their willingness to subject their speech to government surveillance. This dragnet chills visa applicants’ online expression and deprives the rest of us of opportunities to hear their views.
Online Speech Platforms
New York Times: Fool Us Once, Shame on You. Fool Us in 2020, Shame on Us.
By Suzanne Nossel
Private messenger apps and secret Facebook pages allow the microtargeting of manipulative messages so stealthy that no one but the intended recipients ever see them. Instagram is expected to be the next frontier in disinformation, with its highly visual, meme-based interactions beyond the reach of traditional detection tactics like fact-checking…
While we know that opponents of American democracy are bent on distorting and discrediting our elections, our response is stymied. Dozens of pieces of legislation aimed to safeguard our elections have stalled, including basic provisions to apply truth-in-advertising requirements online…
Federal agencies should disclose what they know about the disinformation threat to lawmakers and the public to allow us to collectively comprehend the risk.
Local and state governments, corporations and media companies should unite behind a mass public awareness campaign to help Americans spot and report misinformation and know how to find the truth.
And Congress should pass the Honest Ads Act, which would put an end to deceptive paid political advertising online, applying the same rules that operate offline.
TechCrunch: Instagram hides false content behind warnings, except for politicians
By Josh Constine
Instagram is giving politicians the same free rein to spread misinformation as its parent company Facebook. Instagram is expanding its limited fact-checking test in the U.S. from May and will now work with 45 third-party organizations to assess the truthfulness of photo and video content on its app. Material rated as false will be hidden from the Explore and hashtag pages, and covered with an interstitial warning blocking the content in the feed or Stories until users tap again to see the post…
Instagram will use image matching technology to find additional copies of false content and apply the same label, and do this across Facebook and Instagram content…
One group that’s exempt from the fact checking, though, is politicians. Their original content on Instagram, including ads, will not be sent for fact checks, even if it’s blatantly inaccurate. This aligns with Facebook’s policy that’s received plenty of backlash from critics, including TechCrunch, who say it could let candidates smear their rivals, stoke polarization and raise money through lies. Instagram CEO Adam Mosseri has maintained that banning political ads could hurt challenger candidates in need of promotion, and that it would be tough to draw the lines between political and issue ads.
Breitbart: Brad Parscale: Google Censoring Trump Ads Because ‘2016 Freaked Them Out’
By Allum Bokhari
Trump 2020 campaign manager Brad Parscale condemned Google’s policy of restricting microtargeted ads in an interview for Fox News this weekend. Parscale theorizes that Google’s management made the decision while saying, “Oh my God, we’ve got to stop them. They’re going to win again in a landslide and we can’t be part of it.”
“2016 freaked them out because I used a whole bunch of liberal platforms to do it,” Parscale told Fox. “I guarantee you, this decision came from another room full of people going, ‘Oh my God, we’ve got to stop them. They’re going to win again in a landslide and we can’t be part of it.'”…
Google has said it will not allow political campaigns to “microtarget” ads based on political affiliation, meaning that political parties will not be allowed to send their ads to the people most likely to be interested in them. The Trump campaign is widely believed to have excelled at this tactic in 2016…
“These are new tech ways of stopping connections,” he told Fox. “If I went on TV right now and said, ‘The telephone companies aren’t allowing me to call people,’ all heck would break loose. Right? It’s exactly what they did. They just did it with a different connection.”
Google-owned YouTube, to which the new ads policy will also apply, has already engaged in widespread censorship of Trump ads. An investigation by 60 Minutes earlier this month found that over 300 of President Trump’s political ads have been removed from the platform.
Candidates and Campaigns
The Hill: Warren unveils plan to end ‘the flow of dark money’ as president
By Justine Coleman
Sen. Elizabeth Warren (D-Mass.) on Tuesday unveiled her plan to stop “the flow of dark money” as president.
Her proposal aims to curtail financial corruption and laundering schemes both domestically and internationally. Warren plans to target kleptocrats and those who use shell companies in the U.S. and abroad to avoid taxation and provide more government oversight for international transactions.
“The flow of dark money puts good governance, the free exchange of ideas, and our national security at risk,” her plan says. “As long as individuals and corporations can launder stolen funds or contraband through real estate, luxury goods, or tax havens, both equality and economic growth suffer.”
Laundered money accounts for 2 to 5 percent of the world’s gross domestic product, reaching up to $2 trillion every year, according to Warren’s release.
The Massachusetts progressive intends to collect improved data on international financial transactions, enact laws requiring shell companies to reveal their beneficiaries, strengthen real estate disclosure mandates and improve campaign finance law to prevent foreign interference.
Warren also would take aim at financial organizations, lawyers and accountants who assist in illicit transactions and “enable the flow of dark money.”
The States
New York Daily News: NY ethics panel gets an earful from rape survivor probed as lobbyist who won’t ‘let it go’
By Denis Slattery
JCOPE dropped its probe of [activist Kat] Sullivan earlier this month despite standing by its assessment that her actions in support of the Child Victims Act last year constituted lobbying.
The commission’s general counsel, Monica Stamm, wrote that Sullivan faced “substantial civil and criminal penalties” and has shown an “outright contempt for the law as demonstrated by (her) increasingly defiant and profane emails.”
But in the end the panel decided “not to take any additional action.”…
JCOPE looked into Sullivan’s spending and determined that because she paid out more than $5,000 on the effort she was participating in “grassroots lobbying.”…
Following Tuesday’s meeting, Sullivan said she plans to file a federal lawsuit against the commission for violating her civil rights and will continue to pursue a state-level suit alleging JCOPE violated her freedom of speech by conducting an “improper and abusive” probe.
Arkansas Times: State Board’s new plan to stifle free speech
By Ali Noland
Can the Arkansas State Board of Education prohibit people from publicly ridiculing its members? It’s trying to. At last Thursday’s meeting, the board’s attorney repeatedly read a statement warning audience members that they could be removed from the meeting for speaking out of turn, asking questions, or “singl[ing] out a particular member or members for ridicule or harassment.” The statement further advised that the board would deviate from its written operating procedures regarding public comment on LRSD items and would implement a separate procedure governing only speech on those items…
While some people have been removed for acts of civil disobedience intended to disrupt the proceedings, at least one person has been removed for merely asking to be allowed to make public comments on an agenda item for which she signed up to speak. The State Board also recently refused to allow any public comments before a vote on a contentious issue, and to add insult to injury, the official transcript for the November meeting omits the audience’s public comments made during the designated public-comment period at the end of the meeting.
Rio Rancher Observer: Our View: New Year, new candidates, new political-ad policy
By Observer Editorial Board
The Observer has instituted a new policy regarding letters to the editor about individual candidates.
We now consider them political advertising and charge to publish them…
Letters that urge a particular action on a candidate are doing the same thing as political ads. In fact, sometimes candidates or supporters organize letter-writing campaigns, which function as an effort to get free advertising, one of the commodities we sell.
Like any other business, the Observer needs revenue to cover expenses, including the cost of printing pages of political letters. Plus, it’s not fair that candidates have to pay for their ads but others can get out a message against them for free…
Other newspapers in the country have followed similar practices for years. Close to home, one of our sister papers already declines to print candidate-endorsement letters for free.
Under the new policy, anyone can pay to get a candidate letter in the Observer. Unlike with letters published for free, there is no limit on length or how often writers can put in pieces…
To be clear, the new policy refers to any opinion piece about a specific candidate or candidates who have announced a run for office in any governmental election open to Sandoval County voters.
We won’t charge to run letters about any other governmental or political subject, including bonds, laws and other measures on the ballot. Free-letter writers can make general statements about all candidates with a particular stance, as long they don’t point to specific candidates…
We will not endorse candidates, so we also will not get free advertising for preferred individuals.
New Jersey Globe: Lawmakers still looking to cleanup dark money bill
By Nikita Biryukov
The legislature is aiming to take another pass at a law mandating donor disclosure for certain non-profit groups, but they won’t be ready to move until lawsuits against the measure are resolved.
“We introduced two other sort of cleanup bills to try to get at this, but until the court rules, it doesn’t really make any sense to move on any of this,” Assemblyman Andrew Zwicker, the dark money bill’s chief sponsor said. “So, we’re ready to go, but we have to see how the court decides.”
The measure, which Gov. Phil Murphy signed under the threat of an override after passing a functionally-identical measure, requires 501(c)(4) groups that spend money to impact elections, legislation or regulations disclose their high-money donors.
Such groups would have to disclose donors who gave $10,000 or more when making expenditures in excess of $3,000.
The law is facing court challenges from the American Civil Liberties Union and Americans for Prosperity.
The ACLU claims the law casts too broad a net and chills giving to issues-advocacy non-profit groups, while AFP claims the law impedes free speech.
Senate President Steve Sweeney has previously criticized the administration’s handling of the suit, claiming it wasn’t actually seeking to defend the law because Murphy wanted it tossed out.
The law is on hold pending the outcome of the suits.
