Ed. note: The Media Update will return Wednesday, Feb. 26.
Supreme Court
Bloomberg Law: Chief Justice Robert’s Surprising Views on the Public’s Right to Know
By William Bennett Turner
Of course, [Chief Justice] Roberts’s youthful idealism on behalf of a people’s right to know preceded his tour of duty in the Reagan administration, where he spent his formative years as a young lawyer, his corporate law practice, and his involvement with the Federalist Society. These experiences had a profound effect on his constitutional views.
He and his conservative brethren (they’re all men) have now discovered that First Amendment principles-originally developed to shield and empower oppressed individuals-can be put to the service of a politically conservative agenda, as in Citizens United.
The Roberts Court has decided more First Amendment cases than any previous court. Most of its decisions have favored free speech claims. In an interview last year, the chief justice claimed he is the court’s “most aggressive defender of the First Amendment.” But most of his rulings enhance the “speech” rights of corporations and religious right interests.
The Courts
Washington Post: Judge says state courts must offer timely access to filings
By Associated Press
A federal judge in Virginia has ruled that the First Amendment guarantees a qualified right to access newly filed civil lawsuits on the day they are filed.
The judge also declared Friday that state court officials in Norfolk and Prince William County deprived a court news service of that First Amendment right for several months starting in January 2018.
Courthouse News: Judge Dismisses Free Speech Suit Brought by ‘Unite the Right’ Organizer
By Erika Williams
A federal judge on Friday tossed out a lawsuit brought against the City of Charlottesville by a “Unite the Right” organizer who claimed city officials violated his First Amendment rights.
Jason Kessler, a primary organizer of the rally in Charlottesville that led to the death of a protester, sued the city in 2019 for shutting down his event after threats and violence had ensued…
Kessler had a permit to hold the event, but law enforcement announced an “unlawful assembly” due to public safety concerns and cleared the park before he could speak.
Congress
The Hill: Congress to get election security briefing next month amid Intel drama
By Jordain Carney
The administration is gearing up to brief lawmakers on election security as the country wades deeper into the 2020 primaries.
Both the House and Senate will be briefed, separately, on March 10, according to Speaker Nancy Pelosi (D-Calif.) and a Senate aide.
The briefings will come a week after Super Tuesday, when primary voters in more than a dozen states will head to the polls. On March 10, voters in six more states will cast ballots…
“American voters should decide American elections – not Vladimir Putin. All Members of Congress should condemn the President’s reported efforts to dismiss threats to the integrity of our democracy & to politicize our intel community,” Pelosi said in a tweet on Thursday.
FEC
Government Executive: Elections Agency Commissioner: ‘The Biggest Story at the FEC Is What’s Not Happening’
By Courtney Bublé
“I appreciate the extra funding [in Trump’s budget request],” Democratic Commissioner Ellen Weintraub told Government Executive in an interview. However, “I think that we could use still more funding dedicated to our enforcement program…that would allow us to, assuming we had a quorum, move the cases through the system in an expeditious manner.” …
“Honestly the biggest story at the FEC is what’s not happening and that is anything that would require a working commission. It’s really unfortunate,” said Weintraub. The commission is supposed to have a six-member board, and it needs four members for its proceedings to be valid…
In the recent interview with Government Executive Weintraub said that the increase in funding for fiscal 2021, if ultimately approved by Congress, ideally would go toward the enforcement program, so people would receive timely responses to their complaints and the agency could hold those in violation of campaign finance laws accountable, among other things.
Independent Groups
Politico: Pro-Buttigieg super PAC hired Buttigieg finance staffer amid ad blitz
By Maggie Severns
The pro-veterans super PAC backing Pete Buttigieg hired one of his campaign fundraisers as it threw in for his 2020 campaign, forging a link between the campaign and the outside group that has spent millions of dollars boosting Buttigieg.
The addition of a former Buttigieg aide to VoteVets is the latest connection between the two, which are not allowed to explicitly coordinate with each other under federal law.
Section 230
Reason (The Volokh Conspiracy): What Should We Do About Section 230?
By Stewart Baker
[T]he Attorney General held a workshop on Section 230 of the Communications Decency Act. The question was whether the law can be improved. Section 230 does need work, though there’s plenty of room for debate about exactly how to fix it. These are my mostly tentative and entirely personal thoughts on the question the Attorney General has asked.
Section 230 gives digital platforms two immunities – one for publishing users’ speech and one for censoring users’ speech. the second is the bigger problem.
Online Speech Platforms
By Scott Shackford
The [Bloomberg] ad is clearly a joke, one that’s in the spirit of a lot of political advertisements. You’d have to be a pretty credulous rube to think it’s real. But some very loud people seem to think you’re a rube-or think pretending you’re a rube will help them take advantage of some new rules Twitter is implementing in March. And by take advantage of some new rules, I mean chill political speech.
Los Angeles Times: Twitter is suspending 70 pro-Bloomberg accounts, citing ‘platform manipulation’
By Suhauna Hussain and Jeff Bercovici
Michael R. Bloomberg’s presidential campaign has been experimenting with novel tactics to cultivate an online following, or at least the appearance of one.
But one of the strategies – deploying a large number of Twitter accounts to push out identical messages – has backfired. On Friday, Twitter began suspending 70 accounts posting pro-Bloomberg content in a pattern that violates company rules.
“We have taken enforcement action on a group of accounts for violating our rules against platform manipulation and spam,” a Twitter spokesman said. Some of the suspensions will be permanent, while in other cases account owners will have to verify they have control of their accounts.
Federalist: Twitter Just Made Ideological Defamation Its Official Corporate Policy
By Ben Domenech
Now in their latest tone deaf action, Twitter has gone beyond the limits of mere stupidity and constant bias to engage in outright defamation.
According to NBC, Twitter reportedly plans to once again ignore its user demands for basic things like an edit button or better filters to mute trolling, and instead roll out a new feature that would clearly enable organized trolls to shut down articles and pieces they dislike.
In the screenshot of the demo obtained by NBC, Twitter used three examples of how the proposal would look. In doing so, they included a Tweet by House Minority Leader Kevin McCarthy, featuring just one media outlet: The Federalist, who they defamed as “harmfully misleading.”
Candidates and Campaigns
Wall Street Journal: Warren’s Super PAC Pivot
By Editorial Board
After Wednesday’s debate, Ms. Warren broke with her pledge [to disavow any Super PAC supporting her], protesting that other candidates are backed by Super PACs. “It can’t be the case that a bunch of people keep them, and only one or two don’t,” she said.
We’re delighted she is conceding that spending money is vital to getting a message out in a political campaign. That insight was the basis of the Supreme Court’s 2010 decision in Citizens United, which Ms. Warren has made a career of excoriating.
The ad that Persist PAC is running to promote Ms. Warren’s record is core political speech…
The Supreme Court has said such speech cannot be prohibited under the First Amendment. Ms. Warren has said Citizens United illustrates how Supreme Court Justices John Roberts and Samuel Alito are among the most “pro-corporate” in decades. What if their real constitutional thinking is that politicians like Ms. Warren shouldn’t be denied a chance to compete against billionaires like Mike Bloomberg? …
Progressives ridicule the notion that spending money has anything to do with speech. That fiction is easier for them to believe when the speech is supporting conservative causes. Yet the Super PAC ads for Ms. Warren are as much speech as a book or a protest sign. And they don’t make themselves or pay for their own time on the airwaves.
Washington Examiner: Extra $1 billion: Bloomberg’s riches prompt Republican dash for cash
By David M. Drucker
Republican financiers are reassessing their 2020 fundraising goals, concerned unprecedented personal spending by Michael Bloomberg will erase President Trump’s money edge and turn out voters who swamp GOP candidates down the ticket…
“Bloomberg’s money is motivating donors to give more,” a well-connected Republican operative said. “People are stepping up.” …
“It’s hard to win elections getting dramatically outspent,” a Republican insider said. “Absolutely, Bloomberg’s money is a factor.”
Politico: Morning Score
By Zach Montellaro
This means that every Democratic candidate falls into one of three categories: A billionaire self-funder, a candidate supported by some outside money – yes, including Sanders, who got air cover from a nurses’ union super PAC and general support from the nonprofit he founded, Our Revolution – or Tulsi Gabbard, who appears to fall into neither of the former categories. An interesting detail from The New York Times’ Jonathan Martin: EMILY’s List, which hasn’t endorsed a candidate, gave $250,000 to the new outside groups supporting both Warren and Klobuchar.
Wall Street Journal: Bloomberg Bankrolls a Social-Media Army to Push Message
By Jeff Horwitz and Georgia Wells
While Facebook Inc.’s policies historically have treated political advertising and influencer marketing as separate spheres, the company recently has begun to grapple with the intersection of the two.
It isn’t clear whether messages like those the Bloomberg campaign is suggesting would require labeling as sponsored content under Facebook’s disclosure rules. A Facebook spokeswoman said posts by “content creators” would need labels if a campaign paid for them, but that posts by campaign staffers wouldn’t. The company didn’t address how it would categorize posts by employees paid to promote content to their personal networks.
A review by the Journal of social-media posts by some people being paid by the campaign found they aren’t labeled as sponsored content…
The Bloomberg campaign spokeswoman said posts from its deputy field organizers wouldn’t need to be labeled, describing them as a form of political organizing rather than paid influencer content.
Slate: Experts Have Never Seen A Political Ad Blitz Like Bloomberg’s
By Julia Craven
Bloomberg’s marketing blitz…is not usual-in fact, experts who spoke to Slate described it as unprecedented. No other candidate has ever tried the kind of saturation campaign currently underway, so [political scientist Alexander] Coppock said he doesn’t know of anyone who’s tested what such a barrage might do…
Coppock couldn’t recall a time when a candidate burst onto the scene and dropped such an incredible volume of advertisement in a short period of time…
“Here in Pennsylvania, I think there was a Bloomberg ad during every single commercial break-or at least it seemed like it,” said Dr. Michael Platt, a neuroscientist at the University of Pennsylvania who studies how humans make decisions, about Wednesday’s debate. “I’ve never seen anything quite like that. That’s pretty remarkable saturation.”
But what happens within a human’s literal brain when they are seemingly inundated by political advertisements?
Vox: Mike Bloomberg tweeted a doctored debate video. Is it political spin or disinformation?
By Alex Ward
Following his lackluster performance in Wednesday’s Democratic presidential debate, former New York Mayor Mike Bloomberg tweeted out a doctored video that made it look like he had a hugely successful moment on the debate stage, even though he didn’t.
And while politicians putting out campaign ads that take their opponents’ words out of context or are selectively edited to misconstrue their opponents’ positions is a practice basically as old as time itself, some experts are calling the Bloomberg video dangerous and unethical in a digital age rife with disinformation.
Daily Caller: FCC Commissioner Explains Why It’s A Mistake To Call Bloomberg’s Edited Video A Doctored Deepfake
By Chris White
Federal Communications Commissioner Brendan Carr clobbered pundits who are calling out Bloomberg’s campaign for supposedly deceptively editing a video of Wednesday’s Democratic debate…
“Political satire is one of the oldest and most important forms of free speech. It challenges those in power while using humor to draw more people in to the discussion,” Carr noted. “Equating this type of political speech with doctored deepfakes or illegal content is a serious mistake.”
Carr was referring to a video in which former New York City Mayor Michael Bloomberg asks his Democratic opponents if they have ever started a business. The video is edited to show the candidates sharing a moment of awkward silence while crickets chirp in the background.
Carr aimed his remarks at Washington Post fact-checker Glenn Kessler, who said in a tweet Thursday that the video could lead to a wave of “fake videos” littering the media ecosphere.
The States
Reason (The Volokh Conspiracy): Congressional Candidate Ordered Not to Repeat Charges That Her Opponent Abused His Wife
By Eugene Volokh
Derrick Reed and Nyanza Moore are running against each other and one other serious candidate in the Mar. 3 Democratic primary for a Houston-area House of Representatives seat…
Moore had apparently accused Reed of committing domestic violence, so Reed sued…
And last week, Brazoria County (Texas) District Court Judge Patrick Sebesta issued a temporary restraining order requiring Moore to stop making such allegations (at least until a hearing scheduled for Feb. 25), and issue a retraction…
Yet regardless of who’s telling the truth as to the underlying allegations, the order is clearly unconstitutional.
Reason (The Volokh Conspiracy): Right to Removal of “Inaccurate, Irrelevant, Inadequate, or Excessive” Information About People …
By Eugene Volokh
Iowa Senate File 2236, introduced by Sen. Zach Nunn, would define “content of minimal value” as “information related to an individual that is inaccurate, irrelevant, inadequate, or excessive,” including information which, after a significant lapse in time from its first publication, is no longer material to current public debate or discourse, especially when considered in light of the demonstrable harm the information is causing or may cause to an individual’s professional, financial, reputational, or other interest (though excluding “information related to criminal convictions, potential or pending litigation relating to a violent crime, or a matter that is of significant current public interest”)…
For more on the Carson King backstory, see here. For more on a similarly worded New York bill from 2017, see this post; for a similarly worded New Mexico bill that I had missed, see here.
CalMatters: Steak dinners, secret donors: How the Tech Caucus is courting Silicon Valley with charity
By Laurel Rosenhall
On a recent afternoon, more than a dozen California lawmakers gathered to discuss thorny issues…
The discussion wasn’t taking place in the state Capitol, where the public can participate in open hearings. Instead, this meeting was behind closed doors inside a Silicon Valley hotel.
There, elected officials heard from an exclusive crowd: tech lobbyists and executives whose companies had paid for them to attend via thousands of dollars in donations to a nonprofit created by the Legislature’s Technology Caucus…
Who paid for this access to the elected officials whose agenda this year will likely include regulating massive power shutoffs and changes to a controversial labor law impacting the gig economy?
The public doesn’t get to know.
Federal law does not require charities to disclose the identities of donors, even if, like the Tech Caucus’ foundation, they are closely tied to elected officials. California law, however, does require elected officials to disclose payments made at their request to nonprofits and other organizations…
By not telling the public where their money comes from, nonprofits affiliated with politicians may “allow not only buying influence, but also doing so without the public scrutiny that would ordinarily come through a disclosed campaign contribution,” said Rick Hasen, a professor of law and political science at University of California, Irvine.
