New from the Institute for Free Speech
IFS Asks Supreme Court to Halt California Demand for Nonprofit Donor Names
The Institute for Free Speech late yesterday asked the U.S. Supreme Court to overturn a California mandate requiring nonprofits and charitable organizations to report the names and addresses of their donors to the state. California’s demand violates the right to privacy in association and ignores over a half-century of Supreme Court precedent.
“The Ninth Circuit erred in ruling that donor exposure does not harm the First Amendment. To the contrary, the Supreme Court has long recognized that privacy in association is essential to freedom of speech. When Americans join together in support of a cause, they have a right to be safe from the prying eyes of the state,” said Institute for Free Speech Legal Director Allen Dickerson.
The case began in 2014 when then-California Attorney General Kamala Harris began requiring nonprofits registered in the state to provide donor names and addresses that are kept confidential under federal law. The Institute for Free Speech filed a lawsuit to protect the privacy of its supporters and assert its First Amendment rights. The case continued under the state’s current Attorney General, Xavier Becerra…
The Institute’s petition asks the Supreme Court to hear the case, Institute for Free Speech v. Becerra, and reaffirm its longstanding precedents on freedom of association.
To read the Institute’s petition, click here.
The Courts
Reuters: Giuliani associate paid $1 million by indicted Ukrainian oligarch’s lawyer: prosecutor
By Brendan Pierson and Karen Freifeld
U.S. prosecutors said in court on Tuesday that Lev Parnas, an associate of U.S. President Donald Trump’s personal lawyer Rudy Giuliani, received a $1 million payment from a lawyer for Ukrainian oligarch Dmytro Firtash.
Prosecutors said that the Ukraine-born U.S. citizen Parnas, who has been charged with campaign finance violations, concealed the payment from them and said his bail should be revoked because he posed an “extraordinary risk” of fleeing the United States.
However, U.S. District Judge Paul Oetken in New York ruled at a hearing on Tuesday that Parnas may remain under house arrest in Florida. Parnas had not made any “clear or direct misstatement” about his finances, Oetken said.
Wall Street Journal: The Climate-Change Lawsuit Debacle
By Curt Levey
What started as an allegation of “a longstanding fraudulent scheme by Exxon . . . to deceive investors” about climate change ended with Letitia James, who was elected attorney general last year, withdrawing two of the four fraud charges against the company during closing arguments in court.
After those charges were dropped, all that remained of the government’s case-which the court described as a “hyperbolic Complaint”-was second-guessing about how Exxon Mobil accounts for the uncertain effect on its business of climate-change policies that governments might adopt in the future. Even then, under the low bar of New York’s Martin Act-which grants the attorney general extremely broad investigatory powers and requires neither knowledge of wrongdoing nor damage to convict-Ms. James struck out. The court ruled that the state failed to show “that ExxonMobil made any material misstatements or omissions.”…
In his ruling, Justice Ostrager noted the “politically motivated statements” made by Mr. Schneiderman, who launched his investigation by claiming that Exxon Mobil had made statements “that question climate change” and “that claim that there is no competent model for climate change.” The former attorney general also accused the company of funding policy-focused nonprofit organizations that “deny” climate change. Besides pushing up against the First Amendment, Mr. Schneiderman ran into the inconvenient fact that Exxon Mobil had long included in public filings and shareholder reports all it knew about the potential risks to its businesses from climate change.
Reason: The Feds Get Permission To Seize Edward Snowden’s Book Profits
By Scott Shackford
A federal judge in Virginia has ruled that the U.S. government has the authority to seize the proceeds of Edward Snowden’s book because he failed to submit his book to the CIA and National Security Agency (NSA) for pre-publication review to analyze any classified information printed within.
The ruling, by Liam O’Grady, U.S. District Judge of the Eastern District of Virginia, is a perfect encapsulation of the letter of the law and also the bizarreness of its application. Snowden’s book, Permanent Record, documents his decision to blow the whistle on the NSA’s secret surveillance and mass unwarranted collection of Americans’ communication data. He is currently a fugitive from the Department of Justice (DOJ), living in Russia, charged with espionage, though many Americans see him as a hero…
O’Grady even canceled a planned hearing for verbal arguments because he said they weren’t necessary. O’Grady notes in the ruling that “there is no genuine dispute of material fact publicly disclosed the type of information and materials described above in Permanent Record and his speeches…”
Read the ruling here.
Citizens United
Slate: The Decade of Citizens United
By Richard L. Hasen
In 2010, Citizens United held that corporations have a First Amendment right to spend sums independently to support or oppose candidates for office. Looking at the amount of direct corporate spending in elections over the past decade, one might think that Citizens United was a bust. Few for-profit corporations spend money in their own names boosting or dissing candidates. But this case helped to usher in a sea change in American elections, and its influence on the decade that followed is hard to overstate. We’ve seen an explosion of outside, often-undisclosed money in elections, candidates’ skirting campaign finance rules by having shadow “super PACs,” and dangerous foreign interference in our elections. And that pivotal opinion contains all the tools the Supreme Court needs to get rid of remaining campaign contribution limits…
DOJ
Lawfare: The Justice Department’s New, Unprecedented Use of the Foreign Agents Registration Act
By Joshua R. Fattal
The U.S. Department of Justice is using a once-obscure law, most commonly used today to require the registration of those who lobby in the United States on behalf of foreign governments, to target foreign-based anonymous disinformation actors on social media…
But why is the government charging these foreign-based actors with violating FARA, a statute that is currently being used to regulate U.S. lobbyists?
As the case against these actors has proceeded in the U.S. District Court for the District of Columbia, the government indicated in October that it intends to argue at trial that the defendants conspired to cause a number of individuals or organizations to act as agents of a foreign principal, for which the individuals and organizations or the conspirators (or both) would have had a legal duty to register under FARA with the Justice Department. [T]he government is arguing that foreign online disinformation actors such as the Russia-based Internet Research Agency, and perhaps those Americans acting at the behest of foreign disinformation organizations, have a legal duty to register their activities…
As the attorney for one of the indicted Russian organizations put it: “[N]ever before has a foreign corporation … with no presence in the United States, been charged criminally for … the political speech of individuals on social media, at rallies, or in advertisements during a U.S. presidential election campaign.”
First Amendment
Forbes: Is The Barron Trump Screenplay On The Black List In Danger Of A Defamation Lawsuit?
By Bryan Sullivan
Many people likely say that it can’t be defamatory because it is a work of fiction. However, courts have held that defamation in connection with a fictional work can be actionable where the description of the fictional character is so closely akin to the real person claiming to be defamed that a reader of the book, knowing the real person, would have no difficulty linking the two…
Satire is used to criticize or ridicule in an effort to express deeper ideas or concepts and is protectable under the fair use doctrine as well as the First Amendment of the Constitution protecting free speech. Indeed, satire is often considered political speech and thus is a defense against defamation. Here, Curcio’s screenplay is not trying to portray historical fact, but rather appears to be making a political statement utilizing an alternative history thing.
Florida Politics: Dan Backer: Are you smart enough to buy Christmas presents, but too stupid to vote?
By Dan Backer
[W]hen a group of individuals comes together and spends $100,000 on a political ad, Democrats immediately pivot to outrage. Over at the Federal Election Commission (FEC), rogue Democratic commissioner Ellen Weintraub continues to crusade against political advertising, arguing such information “divides our democracy.”
How, exactly? If anything, the backbone of American democracy is the free flow of information, which we all process to make decisions in the political system. Restrict that flow of information, and democracy is sure to suffer.
Whether you see a political ad or a car commercial, you’re simply receiving information to process…
Yet political spending is constantly considered some nefarious activity…
In reality, neither form of advertising should trigger anything other than turning the channel or scrolling down the page.
Online Speech Platforms
By David Doty
[D]oes President Trump need to pay Twitter for advertising to get his messages out to tens of millions? No more than Kim Kardashian. Duh. It is knotty, perhaps even impossible, to define what a “political ad” even is, especially in the present media environment when a candidate or party, for instance, can readily express “personal editorial points of view” on platforms…
As someone who had as his first real job in media that of a fact-checker at Harper’s Magazine, it has always seemed to me that the editorial side of publishers should check their facts but not engage in zealous monitoring of the speech of advertisers, especially that of political candidates. My own BS meter serves me well…
We can take a look at how platforms would be asked in essence to inhibit freedom of speech, of candidates or citizens, when we look at the application of these ideas in the extreme. For instance, we all know that email itself is used to spread political points of view-wouldn’t it be too much if we asked email providers to track and limit that? I remember when fax machines were used to spread incendiary points of view. I had once to tell a business associate to stop sending me what I found to be rather racist auto-faxes. Should my phone-line provider have been responsible to limit that? Or was it my responsibility to receive, shred and get back to the source and say, Stop your nonsense!
Is this all really any different?
Reason: Can Jack Dorsey Reinvent the Internet by Making Twitter More Like Email?
By Mike Masnick
On Wednesday morning, Twitter co-founder and CEO Jack Dorsey surprised many people by tweeting out an ambitious plan to hire an independent team, called “Bluesky,” to explore re-architecting Twitter as an open, standards-based “protocol” rather than its current state as a “platform.” As part of that tweetstorm, Dorsey cited a paper I wrote earlier this year, published by the Knight First Amendment Institute at Columbia University, entitled “Protocols, Not Platforms: A Technological Approach to Free Speech .”…
What Dorsey is proposing, however, is to take Twitter-a proprietary, closed system-and see if it’s possible to move it to the historical, more open protocols of the early internet. This would mean giving up centralized control, pushing more power and control out to the end users, and creating a more competitive market for a better version of Twitter.
While it has resulted in plenty of eye-rolling, Dorsey’s nod to the possibility of cryptocurrency/blockchains is quite interesting here as well: “Blockchain points to a series of decentralized solutions for open and durable hosting, governance, and even monetization.” As he notes at the end, this offers up a potential business model that could keep a protocol sustainable (unlike in the past) without the need to resort to sucking up all your data and targeting ads.
Axios: Exclusive: Facebook adding part-time fact-checking contractors
By Sara Fischer
Facebook is creating a new pilot program in the U.S. that will leverage part-time contracted “community reviewers” to expedite its fact-checking process.
The community reviewers will help to corroborate or debunk stories that Facebook’s machine learning tools flag as potential misinformation. This will make it easier for Facebook’s fact-checking partners to quickly debunk false claims…
But Facebook doesn’t want to hire anyone who could have any sort of bias. This third-party contractor strategy, it hopes, will solve that.
Facebook will hire the “community reviewers” through a third-party contractor called Appen, which sources, vets, selects and qualifies community reviewers…
Their goal is to look for information anywhere easily accessible on the web that can either contradict the most obvious online hoaxes or do the opposite, and corroborate other claims…
As an additional safeguard, Facebook says it’s partnering with YouGov, a global public opinion and data company, to ensure that the pool of community reviewers represent the diversity of people on Facebook.
Facebook says that ahead of the pilot’s launch, YouGov has determined that the requirements Appen has used to select community reviewers will lead to a pool of people that is representative of the Facebook community in the U.S., and that it should reflect the diverse viewpoints on Facebook, including political ideology.
CNN: Facebook, Google and Twitter’s political ad policies are bad for democracy
By Ann M. Ravel
[T]here are many problems that indicate that Twitter should reverse its ban on political candidates, PACs and SuperPACs. It is likely, for example, that the ban will favor incumbents and establishment candidates with deeper pockets (who can afford television advertising) over smaller challengers. Since digital ads are cheaper than radio or television spots, non-incumbents often rely on them to reach voters, mobilize volunteers and raise money…
Facebook’s decision not to fact-check content posted by politicians, whether paid or organic, is no better…
Political discourse is the bedrock of a representative democracy. We want truthful political discourse and debate to inform voters during elections and when discussing important issues that will affect our daily lives. This is not possible without true transparency. Ultimately, social media companies like Facebook, Twitter and Google shouldn’t be making sweeping decisions about political speech. If Congress and the FEC did their jobs, they wouldn’t have to.
Candidates and Campaigns
Christian Science Monitor: Watch golf? Own guns? Trump data team has ads just for you
By Timmy Broderick
[T]he same data operation that defied political expectations and helped place Mr. Trump in the White House has returned for Round 2 – organized, flush with cash, and armed with reams of voter data dating back to 2012…
Meanwhile, the Democratic party is candidate-less, in debt, and banking on recent investments in a new data exchange to recapture the magic that fueled President Barack Obama’s victories.
“The benefits to being an incumbent extend far beyond … name recognition and having existing relationships with supporters. It means that candidates are able to build systems and collect data for years in advance of the general election,” says Daniel Kreiss, an associate political communications professor at the University of North Carolina at Chapel Hill.
However, Google upended the 2020 digital arms race last month by changing its digital advertisement policy to restrict who political campaigns could target. Bothparties decried the move, saying it doesn’t address advertisements that spread lies or misinformation, which they see as crucial in the wake of a 2016 presidential election marked by digital disinformation.
If Facebook enacts similar rules, as many experts predict, it could radically alter campaign strategy and the 2020 trajectory. While it’s difficult to measure microtargeting’s impact, there’s no doubt that it was a factor in Donald Trump’s victory in 2016, and Democrats see these tools as crucial to winning in 2020. Depending on Facebook’s moves, campaigns will need to get creative, says Republican digital strategist Eric Wilson.
The States
The Stranger: Super PAC Spending Is Exploding in Seattle. Will a Proposal to Contain It Hold Up in Court?
By Lester Black
Now that the dust has settled on last month’s Seattle elections, the sheer scale of the record-breaking super PAC spending, spurred on by Amazon’s incredible $1.5 million donation, is coming into sharper focus. Super PACs spent more than $4 million in this year’s Seattle City Council races. That’s more money than all of the 55 candidates themselves spent-combined…
In 2011, our first municipal election of the decade, there was no money spent by super PACs, according to the Seattle Ethics and Elections Commission (SEEC). In 2015, super PACs accounted for 20 percent of spending. And this year saw super PACs spend an incredible 55.5 percent of all election spending.
But just as super PACs seem to be growing limitlessly, there’s a plan to stop them.
Seattle Council Member Lorena González has introduced legislation that would cap super PAC donations at $5,000 and entirely bar multinational companies like Amazon from spending in Seattle elections. If approved, her legislation will almost certainly face a legal challenge. But she thinks it can survive in court, and maybe even change the face of elections nationwide.
Times Union: Good government group calls for lawmakers to throw out public financing report
By Cayla Harris
Citizens Union on Tuesday released a lengthy statement accusing the state’s public financing commission of failing its mandates – which, detailed in a budget bill in March – tasked the unelected nine-member group with creating a public financing system to get big money out of campaigns. Instead, the good government group argues, the commission settled on too-high contribution limits and restricted ballot access by increasing voter thresholds for minor parties…
Citizens Union’s announcement comes ahead of the Dec. 22 deadline state lawmakers face to either return to Albany and amend the commission’s report or allow it to automatically become law…
While critics – including Citizens Union – have eschewed the money reforms for not limiting donations enough, the most contentious proposal from the commission has concerned ballot access for minor parties.
