Ed. note: The Media Update will return Tuesday, February 16.
The Courts
By Jason Grant
In her almost four decades of bringing civil rights lawsuits targeting police abuse and misconduct, Detroit-based lawyer Julie Hurwitz said she had never seen the “level of gratuitous violence and acts of aggression toward peaceful protesters” by police that she witnessed in Detroit last summer…
By August, Hurwitz and a collection of area lawyers filed a First Amendment- and Fourth Amendment-based civil rights suit in federal court against the police, quickly securing a temporary restraining order and then what amounted to an injunction against the department’s more aggressive tactics… But what came next, in a legal filing by the city of Detroit, shocked Hurwitz and has caused concern among civil rights advocates and lawyers nationally: the city launched a civil conspiracy-based countersuit against the protesters who’d lodged the original action, seeking money damages and a declaratory judgment marking them as riot inciters and property destroyers.
Hurwitz said she’d never seen a municipality countersue protesters who exercised their First Amendment right to march and speak out, and she, along with other attorneys and law professors, said they believe Detroit’s countersuit is both novel and dangerous. They call it a classic Strategic Lawsuit Against Public Participation, or SLAPP suit, and worry that if it’s successful, or even survives a motion to dismiss, its impact may be to intimidate and scare off many thousands of would-be protesters across the country who suddenly would need to consider their civil legal exposure, under the theory of civil conspiracy, before taking to the streets.
“It is an attempt simply to intimidate and terrify people who are doing nothing more than exercising their First Amendment rights,” said Hurwitz in a recent phone interview.
Congress
Reason (Volokh Conspiracy): A Reply to the House of Representatives’ Managers’ Reply Memorandum
By Josh Blackman and Seth Barrett Tillman
On Tuesday, February 9, 2021, the House Managers filed a Reply Memorandum. The Managers’ Reply Memorandum made six primary arguments concerning the First Amendment. Here, we will respond to these arguments.
First, the Managers’ Reply Memorandum referenced a recent letter signed by 140+ academics. The Reply Memorandum asserted:
In the words of nearly 150 First Amendment lawyers and constitutional scholars, President Trump’s First Amendment defense is “legally frivolous.”
Blackman previously explained why the academics’ letter is problematic. The signatories take conflicting positions about how exactly (if at all) the First Amendment should apply to these impeachment proceedings. For example, the academics’ letter states:
“Many of us believe that the First Amendment simply does not apply here [in the impeachment context].”
Many? How many? Is many most? A majority? A plurality? A minority? The academics’ letter does not say.
Indeed, some of the signatories may in fact agree with our position about the relevance of the Brandenburg standard to the article of impeachment. What, then, was “legally frivolous”? Blackman explained:
Free Speech
Newsweek: Will Free Speech Be the First Casualty of Biden’s War on Domestic Terror?
By Ben Weingarten
Robust political speech-the core protected speech of the First Amendment-is a precondition for a self-governing people. Remove political speech, and the end result is total Ruling Class control of the ideological sphere, and ultimately one-party rule. Attempts to infringe upon our right to free speech-either directly or by proxy-under the guise of a war on “domestic violent extremism” are not only unconstitutional, but fundamentally un-American.
Online Speech Platforms
Wall Street Journal: How to Quiet the Megaphones of Facebook, Google and Twitter
By Barak Richman and Francis Fukuyama
The prevailing approach to protecting political speech on the major digital platforms has been to pressure the companies to self-regulate by creating, for instance, oversight boards of outside experts. But leaving these momentous decisions in the hands of private companies is not a long-term solution; they have neither the legitimacy nor the capacity to make such decisions in the public interest.
The core issue is the oversize power of Twitter, Facebook and Google in controlling political discourse. One measure with some congressional support is to repeal or change Section 230 of the Communications Decency Act, which limits the liability of platforms for the content they carry. But reform could hurt small companies more than the established giants, who can more easily develop algorithms and hire personnel to filter out problematic content.
The question is how to reduce the power of today’s digital monopolists without losing the substantial social value they offer. We believe that a structural solution is possible: requiring the dominant platforms to allow users to select their own output from the algorithms. This would depend on the creation of a new kind of “middleware.”
New Yorker: Inside the Making of Facebook’s Supreme Court
By Kate Klonick
In August, 2019, the governance team met with advisers, over snacks and seltzer, and discussed who should sit on the board… The people selected for the board would determine its legitimacy, and how it ruled, but the experts had trouble agreeing on who could be trusted with this responsibility. One attendee suggested letting the first board members choose the rest, to preserve their independence from the company. Lauren Rivera, a professor at Northwestern’s business school, cautioned against this approach: “It’s empirically proven that when you have a group self-select, in the absence of any kind of guidance, they just pick more people that look like them.” The experts then began giving their own ideas. Journalists said that the board should be mostly journalists. International human-rights lawyers said that it should be all international human-rights lawyers. Information scientists said that it should be “anyone but lawyers.” A white man at a think tank said that it should be populated with “regular people.”
Guardian: Facebook might censor criticism of Zionists. That’s dangerous
By Rabbi Alissa Wise
In response to pressure from the Israeli government and its supporters, Facebook is currently reaching out to stakeholders to ask if criticizing Zionists falls within the rubric of hate speech per Facebook’s community standards. In particular, Facebook is weighing whether “Zionist” should be considered a proxy for “Jew” or “Israeli”.
Facebook’s hate speech policy prohibits attacks based on protected characteristics including race, nationality and sexual orientation. Political ideologies, like capitalism, socialism – or Zionism – are not protected. But if Facebook names “Zionist” a proxy for “Jew” or “Israeli”, Zionism would become a de facto protected category, which would have far-reaching and dangerous ramifications for Palestinians and Jews.
Under this policy, valid attempts to hold the state of Israel accountable through constitutionally protected political speech could be labeled as hate speech and removed from the platform. Palestinians would be prevented from using Facebook like everyone else – to talk about their daily experiences, histories and lives – because their realities are shaped by Zionist apartheid policy. This policy would censor Palestinian speech, discriminate against Palestinians as a class, and silence nuanced conversation about Zionism.
Candidates and Campaigns
Center for Responsive Politics: Most expensive ever: 2020 election cost $14.4 billion
By Karl Evers-Hillstrom
Most Americans don’t make significant political contributions, but OpenSecrets data reveals a massive uptick in political participation. In the 2020 cycle, nearly 1.8 percent of the U.S. adult population donated more than $200 to a political committee. That figure sat at nearly 0.7 percent in the 2016 cycle and roughly 0.5 percent in the 2012 cycle.
Donors who had been on the sidelines in previous elections – particularly women – jumped into the fray in 2020. Women accounted for 45 percent of donations of $200 or more and 35 percent of total fundraising. That’s up from 37 percent and 30 percent, respectively, in 2016.
Overall, small donors accounted for 23 percent of total fundraising in the 2020 cycle, up from 15 percent in 2016. Political campaigns spent big on online ads to build their lists of supporters then sent out flurries of fundraising emails and text messages urgently asking for campaign cash.
With the increased influence of individual donors, traditional PACs such as corporate PACs and leadership PACs are becoming less of a force in political fundraising. The percentage of fundraising from PACs fell to 4 percent from 9 percent in the previous presidential election cycle…
Outside groups are also taking advantage of loopholes in disclosure rules. Each of the top 7 super PACs were partially funded by dark money. Pro-Biden groups like Future Forward USA and Priorities USA Action were bankrolled by nonprofit affiliates that share the same name and staffers.
Independent Groups
RealClearPolitics: Dems Beat GOP at Dark-Money Game. Will They Now Swear It Off?
By Susan Crabtree
Anonymous “dark money” donors provided $145 million to pro-Biden groups during the 2020 election, helping pave his way to the White House and dwarfing the $28.4 million spent on behalf of Donald Trump, Bloomberg reported in late January. When it comes to control of the Senate, Stacey Abrams’ voter-registration groups, Fair Fight and its dark-money arm, Fair Fight Action, also are widely credited with helping Democrats win the Georgia runoffs.
Liberal dark-money groups, which (like conservative ones) don’t disclose the source of their funds, started out-spending their counterparts in 2018, according to a report by Issue One, an advocacy group calling for more restrictions on campaign fundraising. The Center for Responsive Politics, a group that closely tracks campaign spending, found that liberal dark-money groups outspent conservatives ones in 2020 as well.
The States
WIBC: “Riot Bill” Opposed By Prosecutor and ACLU
By Chris Davis
If you are a part of an illegal assembly and a crime is committed, you could face misdemeanor charges, under a bill being considered by the state Senate. The American Civil Liberties Union of Indiana and the Marion County prosecutor’s office call the new bill unconstitutional.
“If you look at the rioting bill, it’s unconstitutional on its face,” said Marion County Prosecutor Ryan Mears, in an interview with IndyPolitics.org. “People have an absolute right to protest. People who are non-violent protesters, who don’t damage other people’s property, who don’t hurt someone else- the Constitution protects their right to assemble and to express themselves.”…
“Indiana legislators are launching a full-on attack on Hoosiers’ right to protest in what is clearly a backlash against the Black Lives Matter protests that occurred across the state of Indiana last summer,” said Katie Blair, ACLU of Indiana public policy and advocacy director.
“SB 198 is unconstitutional and would chill Hoosiers’ free speech by enhancing criminal penalties and discouraging release on bail for charges during what the law defines broadly as an ‘unlawful assembly.’ SB 198 is not an ‘anti-riot’ bill; SB 198 is an anti-First Amendment bill.”
ABC 15: Politically Charged: Officials create ‘fictional gang’ to punish Phoenix protesters
By Dave Biscobing
Amy Kaper promises she is not a gang member.
The 29-year-old graduate student does not run drugs, traffic guns, or work in any organized crime ring.
But, she did protest police violence last year.
For that, the Maricopa County Attorney’s Office and the Phoenix Police Department are aggressively prosecuting Kaper – and a group of 17 other defendants, including three minors – for being part of a criminal street gang following an October 17 protest in downtown Phoenix.
In fact, officers and prosecutors allege the group is as dangerous – and in some ways more dangerous – than notorious gangs like the Crips, Bloods, and Hells Angels.
“It’s scary,” said Kaper, who didn’t know others in the group and attended the protest with her boyfriend after seeing an online flier. “It feels like totalitarianism. It feels like we’re not allowed to speak out about our rights. And unless you’re on the side [police are] on, they’re going to arrest you and try to ruin your life.”
Kaper and the other defendants could face between eight and 32 years in prison.
The gang charges, based on broad and easily-abused statutes, are a clear “political prosecution” intended to silence dissent and scare protesters from organizing, according to community activists, defense attorneys, and legal groups like the ACLU.
Insider NJ: ELEC Welcomes Debate Over Pending Campaign Finance Reform Bill
By Jeffrey Brindle
State Senator Nicholas Scutari (D-22) has introduced legislation (S-3413) that would require disclosure of campaign finance activity within 72 hours of its occurrence.
This “real time” disclosure requires candidates, party committees, and PACs to report donations over $200 as well as the expenditures they make within this three-day period.
The legislation also would remove all contribution limits, end quarterly reporting, and presumably require the Election Law Enforcement Commission (ELEC) to post that same information on an ongoing basis within 72 hours of receipt.
The effort by Senator Scutari to modernize the State’s campaign finance system by making disclosure quicker and addressing other critical areas hopefully will bring about serious discussion and perhaps even action.
WVTF: Legislation Closing Campaign Finance Loophole Moving Forward in Richmond
By Michael Pope
Here’s a dirty secret of campaign finance laws in Virginia. As long as candidates aren’t closing out a campaign account, they can use the money for anything. A new car, a trip to Paris, a diamond ring – it’s all legal under Virginia law.
That’s why Delegate Marcus Simon introduced a bill to prevent candidates from using campaign cash for personal use…
Virginia has no limits on who can contribute or how much they can contribute. So this new law would be a first step at creating some guardrails.
Janet Boyd with the League of Women Voters says she’s particularly excited about the exemption that would allow campaign money to be used for child care.
“This rule would encourage a greater diversity of Virginia candidates, particularly women, who with younger children otherwise would not have an opportunity to run for elective office,” Boyd explains…
Simon’s bill has already passed the House and is now under consideration in the Senate.
City & State: Campaign Confidential
By Jeff Coltin
While the state campaign finance disclosure website continues to be entirely unusable, a couple of activists have taken the city’s campaign finance data and highlighted only the political insiders. It’s called Project Red String, and it tracks donations to and from elected officials, staff, club members, journalists and more – basically, anyone who might read City & State. It was co-founded by two Very Online Gen Z operatives: Michael Sutherland, who’s a researcher at the Housing Rights Initiative, and Lucy Merriam, a CUNY Graduate Center student. And though it’s still in the beta stage, it’s an endlessly interesting tool for any donation detectives.
