New from the Institute for Free Speech
Amicus Brief Urges Supreme Court to Hear Mckesson Case
The Institute for Free Speech today urged the U.S. Supreme Court to hear a case arising from a Black Lives Matter protest in Baton Rouge, Louisiana. Lower courts allowed a lawsuit seeking damages for injuries suffered by a policeman to proceed against DeRay Mckesson, even though he did not attack anyone or encourage any violence at the protest he led. Such a lawsuit inevitably chills the freedoms of speech and assembly, the Institute’s brief explains.
“Federal courts must not allow themselves to become unwitting accomplices of would-be censors. The Supreme Court should protect Americans from being dragged through an expensive and punishing legal process for exercising their First Amendment rights,” said Institute for Free Speech Legal Director Allen Dickerson…
“Allowing this case to survive a motion to dismiss will open Mr. Mckesson and the Black Lives Matter movement to substantial discovery and the other assorted burdens of federal civil litigation. This process will serve as a punishment of its own for Mr. Mckesson, regardless of the eventual outcome of the case. But, more fundamentally, it will serve as a weapon against a particular type of group: those who organize protests during which unsolicited acts of illegality and violence occur. Such a precedent would inevitably chill future civil rights protests and encourage organizers to remain silent,” the brief notes.
The case is Mckesson v. Doe. To read the Institute’s brief, click here.
The Courts
Newsmax: Strip Club Files First Lawsuit Against Small Business Loan Program
By Marisa Herman
A Michigan strip club says the small business loan program geared toward helping small businesses stay afloat amid the coronavirus is unconstitutional.
A lawsuit filed in federal court by Little Darlings alleges the Small Business Administration (SBA) and the Treasury violated the Constitution by preventing businesses that have “live performances of a prurient sexual nature” from receiving any relief.
DOJ
New York Times: Barr Defends Trump’s Dismissal of Intelligence Watchdog
By Katie Benner
Attorney General William P. Barr said on Thursday that President Trump was right to fire the inspector general who disclosed the whistle-blower complaint about Mr. Trump’s dealings with Ukraine and that the president’s political enemies could face criminal prosecution…
[In] his interview with Ms. Laura Ingraham, Mr. Barr argued that Mr. Michael K. Atkinson wrongfully notified Congress of the whistle-blower complaint “without letting the executive branch look at it and determine whether there was any problem.” The complaint suggested Mr. Trump may have violated campaign finance laws in a July phone call with the president of Ukraine, but a Justice Department review conducted before the complaint was revealed to the public found that Mr. Trump had not violated any such laws…
In the interview, Mr. Barr also said that some of the people who were involved in the decision to investigate the Trump campaign in 2016 could face federal criminal prosecution.
John H. Durham, the veteran federal prosecutor assigned to look into the origins of the campaign investigation, “is looking to bring to justice people who were engaged in abuses if he can show there were criminal violations,” Mr. Barr said.
“My own view is that the evidence shows that we are not dealing with just mistakes or sloppiness,” Mr. Barr said. “There is something far more troubling here. And we’re going to get to the bottom of it. And if people broke the law and we can establish that with the evidence, they will be prosecuted.”
FEC
Washington Post: Bloomberg campaign transfer of $18 million to DNC sparks complaints to federal regulators
By Michelle Ye Hee Lee
A conservative group has filed a petition asking federal regulators to prevent self-funded candidates from emulating former New York mayor Mike Bloomberg, who they say used a loophole to make a historically large $18 million contribution to the Democratic National Committee.
Citizens United, the group widely known for its 2010 namesake landmark Supreme Court case that helped pave the way for super PACs, on Wednesday filed a petition with the Federal Election Commission asking federal regulators to create new rules to limit the amount of leftover money that a self-funded federal candidate can transfer to the national party once the candidate has dropped out of the race.
The request followed two FEC complaints filed by other groups that alleged Bloomberg made an improper transfer…
In a petition to the FEC, Citizens United and its affiliate Citizens United Foundation asked the agency to close what the groups dubbed the “Bloomberg loophole,” saying that while the transfer “may fall within the letter of the regulation governing transfers of candidate funds to national political party committees it certainly does not fall within the spirit of the law.” …
David Bossie, president of Citizens United and Citizens United Foundation, said Thursday the groups are seeking to limit the amount of money that can be transferred from a fully self-funded campaign.
Fox News: Citizens United calls on FEC to close ‘loophole’ after Bloomberg sends $18M to DNC
By Brooke Singman
Citizens United is calling on the Federal Election Commission to end what it calls a campaign finance “loophole” after Mike Bloomberg transferred more than $18 million from his now-suspended, self-funded presidential campaign to the Democratic National Committee.
Citizens United, a conservative nonprofit famous for its role in actually loosening campaign finance restrictions, filed a petition with the FEC this week…
Citizens United President David Bossie, a Trump campaign surrogate who also helped run the president’s 2016 campaign, forwarded the petition to House Judiciary Committee Chairman Jerrold Nadler, D-N.Y., and Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., calling on Congress to take action as well.
“It’s our view that questionable transfers like this one could become a dangerous trend unless immediate action is taken by the FEC,” Bossie wrote to Nadler and Graham. “Nothing in the current regulatory regime exists to prevent other wealthy individuals from becoming candidates for federal office for the purpose of following the same path as Mayor Bloomberg.”
Bossie went on to question a perceived double standard.
“The silence from anti-First Amendment Democrats and the left is deafening,” he wrote. “If this transfer were made to the Republican National Committee by an individual such as Charles Koch or Sheldon Adelson, the outrage from the left would have created a mainstream media fire storm that Republican billionaires are buying our Republic.”
But a source on Capitol Hill familiar with Bossie’s letter pushed back.
“Bossie is a thought leader on campaign finance issues,” the source told Fox News. “However, it’s a little rich that the guy whose organization’s namesake is synonymous with money in politics is now complaining about money in politics.”
The source added: “The right answer is that we should be moving in a direction that is more inclusive in terms of allowing individuals to spend their money on politics how they see fit. Period.”
Fox News: Trump campaign demands PAC halt ‘misleading fundraising efforts’ off president’s name
By Brooke Singman
The Trump campaign has sent a “cease & desist” letter to a group called Black Americans to Re-Elect the President, while filing a notice with the Federal Election Commission alleging the PAC is conducting misleading fundraising efforts that appear to wrongly portray itself as Trump-affiliated.
In a disavowal notice to the FEC, obtained exclusively by Fox News, the Trump campaign complained that the organization appeared to be using President Trump’s “name, image, likeness, or slogans in connection with soliciting contributions and conducting other activities.”
“This Committee is concerned about the likelihood of confusion among the public, which may be led to believe such activities are authorized by Mr. Trump or this Committee or that contributions to such unauthorized committees are being made to Mr. Trump’s campaign, when they are not,” the Trump campaign wrote to the FEC, noting that they wish “to place this disavowal notice on the public record” that the organization “is not authorized by Mr. Trump.”
Separately, the Trump campaign Chief Operating Officer Michael Glassner sent the “cease & desist” letter to Black Americans to Re-Elect the President Treasurer Veron Robinson, claiming that the “expenditure-only PAC” is “engaged in misleading fundraising efforts that confuse donors into believing donations” to the organization support the president’s agenda.
First Amendment
The Week: How the coronavirus fight might end up at the Supreme Court
By Bonnie Kristian
The First Amendment protects our freedoms of religion, speech, press, assembly, and petition, and at least two of those could easily be the subject of post-pandemic lawsuits. The most obvious candidate is assembly, as a growing number of cities and states have issued some version of a stay-at-home order, putting police power behind the federal recommendation against gatherings of 10 or more.
Cases whose appeal potentially could go all the way to the top are already happening. In New Jersey, parents who hosted a party of several dozen people were charged with child endangerment. And in New Mexico, the president of the Albuquerque Tea Party has filed suit in federal court against Gov. Michelle Lujan Grisham (D), alleging her shelter-in-place order violates his right to free assembly and worship by prohibiting social and religious gatherings. The question for the Supreme Court would be whether that claim is correct, whether the state interest behind the shelter-in-place order is compelling enough to override First Amendment guarantees.
Media
By Caitlin Oprysko
Jerry Falwell Jr., the president of Liberty University, said on Wednesday that arrest warrants had been issued for journalists from The New York Times and ProPublica after both outlets published articles critical of his decision to partially reopen Liberty’s campus amid the coronavirus pandemic.
Photocopies of the two warrants published on the website of Todd Starnes, a conservative radio host, charge that Julia Rendleman, a freelance photographer for the Times, and Alec MacGillis, a ProPublica reporter, committed misdemeanor trespassing on the Lynchburg, Va., campus of the college while working on their articles…
Both articles by the Times and ProPublica quoted students or professors who suggested that social-distancing guidelines, designed to prevent the spread of the highly transmissible virus, were not being adequately practiced on campus.
Falwell cast his decision to seek a case against the journalists as a move to protect his students, asserting that the journalists had probably come from coronavirus hot spots such as Washington, D.C., or New York, and that by being on campus they had put remaining Liberty students at risk. He also complained that Liberty was being singled out because of its status as a religious school.
David McCraw, in-house counsel for the Times, said in a statement, “Julia was engaged in the most routine form of news gathering: taking an outdoors picture of a person who was interviewed for a news story.” McCraw said Rendleman had been invited to campus by one of the students interviewed for the article…
There is no warrant for the author of the Times article, Elizabeth Williamson, because the magistrate judge did not find enough physical evidence to charge her, Falwell said. But he threatened civil defamation lawsuits against Williamson and another unidentified media outlet if the Times didn’t make a “clear apologetic correction” to its report.
Rolling Stone: ‘If It’s Not True, Don’t Put It on TV’: A Former TV Exec on How to Save Live News in the Trump Era
By Andy Kroll
Many Americans are disturbed that TV networks air the Trump White House’s misinformation-filled coronavirus briefings live and in primetime. One of those people is Mark Lukasiewicz, a former executive at NBC News who also happens to be an ideal person to consult to try to understand why the networks and cable channels continue to broadcast Trump’s briefings unfiltered.
A 40-year veteran of broadcast journalism, Lukasiewicz spent much of 2000 to 2017 as the executive in charge of NBC News’s coverage of live events and breaking news – election nights, presidential debates, inaugurations…
Now a journalism educator and full-time news consumer, he assessed with fresh eyes whether the networks and cable-TV channels were drifting from their journalistic mission…
Watching the live coverage of Trump’s coronavirus briefings, Lukasiewicz hit a breaking point. He wrote a story for the Columbia Journalism Review in which he made a modest request of his former colleagues in the TV news business: “Let truth-telling be a prerequisite for appearing on live TV,” he wrote. “Repeat offenders who lie or obfuscate with abandon, no matter their position, should not be put on live again.”
Lukasiewicz agreed to several conversations with Rolling Stone about his CJR story and his career inside the belly of the TV-news beast…
This interview has been edited and condensed for clarity.
Independent Groups
Daily Beast: ‘Independent’ Trump Super PAC Gets Access to the Campaign’s Prized Possession
By Lachlan Markay
By law, President Donald Trump’s campaign is not allowed to coordinate with a super PAC supporting it. But in recent months, one such ostensibly independent group has purchased access to one of the campaign’s most valuable possessions: the massive email list that it has built over the last five years.
The Trump campaign is renting out that list, and financial records indicate its top political customer is America First Action, the campaign’s “official” super PAC. The Trump campaign says it’s charging fair-market value for the list, which means the arrangement is likely above-board as far as federal election laws go. But it’s nonetheless a striking bit of convergence between Trump’s official re-election effort and a group that is supposed to operate independently of the campaign, and one that’s masked beneath layers of obscure financial transactions.
“This is further evidence that there is little distinction between President Trump’s campaign and his supposedly ‘independent’ super PAC,” said Brendan Fischer, the director of federal reforms at the Campaign Legal Center. “The super PAC effectively operates as an extension of the Trump campaign, and renting the campaign’s list further underscores how closely the two are working together.”
Online Speech Platforms
Wired: Lies About Covid-19 Might Be Deadly, but They’re Not Unique
By Whitney Phillips
By not taking seriously the ways in which political misinformation is itself a threat to public health, we’ll fail to learn what must be learned from this pandemic.
From the outset of the Wuhan outbreak in January, coronavirus conspiracy theories roared across social media…
And so millions of people in the US downplayed the threat, blamed the Democrats, and derided scientific expertise…
That’s precisely why Facebook and Twitter and YouTube and the like were forced to take such drastic measures to curb the spread of false information. But the platforms only acted after having wasted months dithering in principled restraint-treating Covid-19 conspiracy theories and racist invective and false cures as if they were all no different from normal political speech, and thus deserving of the same broad protections…
In the past, Zuckerberg has stated that he doesn’t think Facebook should remove deeply offensive, deeply false things like Holocaust denial. People should be allowed to be wrong, he said; it’s not Facebook’s job to intervene when they are. Now, the argument is that Facebook should take false Covid-19 information down. That it is the platform’s job to intervene…
Covid-19 is an extreme case, but it’s not an anomalous one. False political information absolutely threatens people’s health. Not in the way that Covid-19 does, but with profound consequences for safety and well-being nevertheless.
Daily Beast: Russian Trolls Hype Coronavirus and Giuliani Conspiracies
By Adam Rawnsley
Suspected Russian government trolls are trying to pin the COVID-19 pandemic on the Pentagon; hyping Rudy Giuliani’s conspiracy theories about collusion between Democrats and Ukraine; and trying to meddle in European elections, an investigation by The Daily Beast reveals.
Working with researchers from the disinformation-tracking firm Graphika, The Daily Beast found at least 20 fake news articles pushed by over 40 suspected Kremlin-backed personas across dozens of social media networks like Facebook, Reddit, Medium, and smaller web forums.
Candidates and Campaigns
Newsweek: Coronavirus Could Drain Congressional Candidates’ Finances-That’s Good News For Incumbents
By Ramsey Touchberry
The coronavirus pandemic threatens to drain the revenue streams of congressional political candidates, but the emptying bank accounts could give a bittersweet boost to incumbents in November.
Social distancing measures having forced candidates to give up conventional campaigning-holding rallies, door-to-door canvassing, schmoozing over voters at local diners-leaving them to scramble for ways to connect with voters and the checks that come with them.
“We’re expecting to see at least a 50 to 60 percent drop-off,” Sarah Elizabeth Pole, the director of marketing for progressive consulting firm Grassroots Analytics, told Newsweek about second-quarter revenues. “We’re recommending scaling back, making teams as lean and mean as possible, limiting expenditures and liabilities across the board, and saving up for later in the cycle when things are-maybe-a little more back to normal.”
That means challengers, who typically must fight harder for recognition and support, could be in for an even greater battle than they expected. And those already in office-particularly members in toss-up races-possess sizable fundraising leads that could carry them through the election, records show, increasing their ability to hold on to their seats.
The global crisis has also armed office-holders with a megaphone for constituents seeking the latest public health news.
Mother Jones: Inside Brad Parscale’s 2020 Plan: Re-Elect Donald Trump. Make Money. Maybe Not in That Order.
By Pema Levy
From his perch leading Trump’s reelection effort, [Trump campaign manager Brad] Parscale has continued and helped drive a larger full-court press by conservative media outlets and lawmakers pushing Facebook and other tech platforms to behave the way they want…
By spring 2018, the entire conservative infrastructure mobilized around the idea that a liberal Silicon Valley was trying to muzzle conservatives…
Sure enough, on September 24, 2019, Facebook made clear that politicians were exempt from its fact-checking efforts, allowing them to spread lies in both paid ads and so-called organic posts. Russia’s propaganda machine had amplified disinformation in 2016; in 2020, American politicians would be free to do it themselves. Like the conservatives exerting constant pressure on him in public and in a series of private dinners orchestrated by the company’s Washington team, Zuckerberg explained the policy as a defense of free speech. Within weeks, the Trump campaign blasted out a video ad that falsely purported to show Joe Biden confessing to bribing Ukrainian officials to benefit his son. The ad was viewed as many as 11.3 million times on Facebook and 12 million times on YouTube, a Google subsidiary.
The States
CNN: Abortion rights opponents in several cities have been cited for violating stay-at-home orders
By Harmeet Kaur
In recent weeks, police in several cities have arrested people who continued to engage in anti-abortion rights demonstrations or other advocacy efforts outside reproductive health clinics, despite stay-at-home orders and similar restrictions…
Given that abortion services are largely continuing during the crisis, abortion rights opponents and groups defending those arrested contend that the actions being taken by anti-abortion activists should be considered essential — and therefore exempt from stay-at-home orders…
Eight people protesting outside an abortion clinic in Charlotte were arrested on Saturday for allegedly violating the state’s stay-at-home order…
Last week, police in San Francisco cited an 86-year-old man outside a Planned Parenthood clinic…
Greensboro police arrested three people outside a reproductive health services clinic on March 28 for violating the county’s stay-at-home order and refusing to leave voluntarily after officers asked them to, according to a police statement.
St. Louis Post-Dispatch: Amid COVID-19 funding scramble, Missouri Senate gets ethics panel back on track
By Kurt Erickson
After three weeks in limbo, the commission that regulates Missouri’s campaign finance laws will be able to meet again following a rushed effort to appoint a new member.
Al.com: Alabama authorities urge people to ignore KKK-era anti-masking law
By John Sharp
A 71-year-old Alabama law prohibiting people from wearing masks in public will not be enforced against those who wear medical masks “covering only the nose and mouth,” Attorney General Steve Marshall’s Office said Wednesday.
But at least one civil rights group is concerned. The head of the American Civil Liberties Union of Alabama, in an email to AL.com, said the existence of an anti-masking law “puts people of color in Alabama at further risk of interacting with law enforcement.”
Randall Marshall, executive director of the ACLU of Alabama, said that people of color will have to weigh whether to wear masks “given the continued use of excessive and often lethal force” against minorities. He referred to an incident that occurred last month at a St. Louis area Walmart in which two black men were told by police to remove their medical masks while inside the store.
“We encourage police agencies to resist using this law – or any other – in a way that continues the use of unnecessary citations and arrests during this public health crisis,” said Marshall of the ACLU.
