In the News
Arkansas Times: Arkansas Times joined in law challenge by friends of First Amendment
By Max Brantley
Briefs are stacking up in support of the Arkansas Times’ challenge of a state law attempting to gag criticism of Israel.
The Times, represented by the ACLU, is appealing Judge Brian Miller’s rejection of our lawsuit challenging a state law that requires state vendors to sign a pledge they won’t boycott Israel to get state business or else to take a reduction in pay. The Times has never editorialized on the subject, but objects to promising silence on any potential editorial issue as a condition of doing business with Arkansas. Many media in the state apparently have been willing to make such a pledge perhaps because economic times are hard in the news business. Our refusal cost us business with the University of Arkansas, which is a defendant in the lawsuit.
The appeal process to the 8th Circuit U.S. Court of Appeals is underway.
Among those who’ve filed requests to support our appeal are:
…
* Foundation for Individual Rights in Education and Institute for Free Speech
Congress
Reason: Nancy Pelosi Declares a ‘New Era’ of Internet Regulation; E.U. Threatens Same
By Nick Gillespie
In an interview with Recode’s Kara Swisher, Speaker Nancy Pelosi (D-Calif.) pronounced that in the tech sector, the “era of self-regulation” is over when it comes to privacy and speech rules. Sounding a lot like conservative Republicans such as Sens. Ted Cruz of Texas and Josh Hawley of Missouri, she zeroes in especially on Section 230 of the Communications Decency Act as the thing that needs to be torched…
“For the privilege of 230,” Pelosi warns, “there has to be a bigger sense of responsibility on it. And it is not out of the question that that could be removed.”
Like many Democrats, Pelosi remains convinced that Facebook helped to throw the election to Donald Trump by not regulating political advertising tightly enough and providing a space for the Russians to practice dark arts…
The motivations might be slightly different than those on the right-who accuse Facebook, et al. of limiting the reach and popularity of conservative figures and opinion due to ideological bias-but the endpoint is the same: a repeal of Section 230. “Google and Facebook should not be a law unto themselves,” Sen. Hawley told a crowd at the Conservative Political Action Conference (CPAC). “They should not be able to discriminate against conservatives. They should not be able to tell conservatives to sit down and shut up.” What Pelosi calls a gift, Hawley calls “a sweetheart deal” that should be ended by enforcing some sort of viewpoint equality on social-media platforms. Cruz has effectively called for the repeal of Section 230 and the implementation of something like a Fairness Doctrine for the internet…
Throw in President Trump’s recent statement that we need to “do something” about social media sites, and the only safe conclusion is that Section 230 is in real danger. And with it, the internet as we’ve known it.
DOJ
CNN: The footnote in Barr’s Mueller report letter we need to pay attention to
By Larry Noble
[H]iding in plain sight is a footnote in which Barr explains that he and Mueller are using a definition of coordination that requires proof of an agreement, which is contrary to the law and Federal Election Commission regulations and, more importantly, has been rejected by the Supreme Court…
Regarding the Trump campaign’s involvement with these activities, Barr writes: “as the report states ‘[T]he investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.’1 ” …
Barr is a person who picks his words carefully, so it pays to look at how Barr qualified the no “coordination” finding in Footnote 1: …
“The special counsel defined ‘coordination’ as an ‘agreement-tacit or express-between the Trump campaign and the Russian government on election interference.'” …
The FEC’s current regulation, 11 CFR § 109.20(a), provides: “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee, or a political party committee.” Coordination can result if a “communication is created, produced, or distributed after one or more substantial discussions” between the campaign and the person paying for the communication, regardless of whether there was any “agreement” about the communication…
The Bipartisan Campaign Reform Act of 2002 ordered the FEC to rewrite its coordination rules and explicitly stated: “The regulations shall not require agreement or formal collaboration to establish coordination.” …
While the FEC coordination regulations are overly complicated and there is a debate about their application to activity on the internet, the FEC, Congress and the Supreme Court have made it clear that it is naïve and unnecessary to define coordination as requiring an agreement. Nevertheless, this is apparently what Mueller and Barr have done.
First Amendment
Just Security: Assange Indictment Is Shot Across the Bow of Press Freedom
By Jameel Jaffer and Ben Wizner
The problem is that the indictment seems to have been drafted not just to justify the prosecution of Assange but to tar legitimate journalistic activities by association with Assange’s alleged crime.
The indictment characterizes everyday journalistic practices as part of a criminal conspiracy. Cultivating a source, protecting a source’s identity, communicating with a source securely-the indictment describes all of these activities as the “manners and means” of the conspiracy. The Justice Department says that Assange and Manning communicated using an encrypted chat service, but most national-security journalists communicate with sources using encrypted channels. It says that Assange and Manning “took measures to conceal Manning as the source of the disclosure,” but taking measures to protect their sources’ identities is something that national-security journalists do all the time, for good reason. It says that Assange created “a special folder on a cloud drop box of Wikileaks” to allow Manning to share files with him, but many major news organizations use SecureDrop and other similar software to allow sources to share files with them securely…
In fact so much of the indictment is dedicated to describing legitimate journalism that a reader can’t help but wonder whether the Justice Department believes the alleged hacking was necessary to support an indictment here, or just sufficient.
The indictment is troubling for another reason, too. While Assange wasn’t charged with violating the Espionage Act-the World War I-era law that criminalizes unauthorized dissemination of “national defense information”-the indictment states that the purpose of the conspiracy for which he was charged was to violate the Espionage Act. This raises the question whether this indictment is just an opening salvo aimed at easing the path for extradition, with more substantial charges to be added later.
Reason: The Assange Exception to the First Amendment
By Jacob Sullum
The debate about whether Julian Assange should be considered a journalist, reignited by the WikiLeaks founder’s arrest in London last week, gives employees of news and opinion outlets ample opportunity to display their high self-regard and contempt for amateurs who fall short of their lofty standards. But the question is constitutionally irrelevant, because freedom of the press belongs to all of us, no matter where we work or what the journalistic establishment thinks of us…
Professional journalists who took comfort from the fact that Assange was not charged with violating the Espionage Act by publishing the State Department cables and Pentagon documents that Manning gave him should think again, since most of the details that the indictment describes as aspects of the conspiracy between Assange and Manning involve actions that reporters consider part of their legitimate work, such as obtaining classified information, secretly communicating with sources, and helping them conceal their identities.
People who get paid for doing that sort of thing are clinging to the hope that their press passes will save them. Assange, writes former CNN correspondent Frida Ghitis, “is not a journalist and therefore not entitled to the protections that the law-and democracy-demand for legitimate journalists.”
Washington Post columnist Kathleen Parker notes that Assange’s critics view him as “a sociopathic interloper operating under the protection of free speech,” an assessment with which she concurs. Real journalists, she says, go through “a lot of worry and process” before they publish embarrassing information that the government wants to keep under wraps. Assange, by contrast, “is not…a journalist, despite his claiming to be, because he isn’t accountable to anyone.”
This distinction is not just debatable but beside the point. As UCLA law professor and First Amendment scholar Eugene Volokh has shown, the idea that freedom of the press is a privilege enjoyed only by bona fide journalists, however that category is defined, is ahistorical and fundamentally mistaken.
Fundraising
Center for Public Integrity: Why Democrats Are Falling Over Themselves to Find Small-Dollar Donors
By Carrie Levine
Democratic presidential candidates love small-dollar donors – and they want you to know it.
When Bernie Sanders’s campaign announced its first-quarter haul, the $18.2 million total – which put the senator from Vermont at the top of a growing gaggle of Democratic presidential candidates – wasn’t the number the campaign seemed most excited about.
Rather, staffers stressed that more than $8 out of every $10 raised had come from donors giving $200 or less. And that small-dollar metric is the one that campaign manager Faiz Shakir said that “we would like other campaigns to be judged on.”
The Sanders campaign wasn’t the only one trying to sell a narrative focused on small-dollar donors. South Bend, Indiana, Mayor Pete Buttigieg’s campaign touted his average contribution of $36.35. The campaign of Sen. Elizabeth Warren, D-Mass., highlighted the number of donors contributing and an average contribution of $28. Beto O’Rourke’s campaign noted the candidate wasn’t “taking a dime from PACs, special interests, lobbyists and corporations.” And so on.
Democratic presidential primary candidates are competing to be the candidate of the small donor in part because Sanders and others have shown it’s a viable route and a friendly narrative.
“We’re seeing a new state in campaigning where no one has to be convinced that you can raise a lot of money online and you can raise it through small donations,” said Tim Lim, a digital consultant who has worked on Democratic campaigns.
HuffPost: Bernie Sanders Leads The Democratic Presidential Fundraising Pack
By Paul Blumenthal and Kevin Robillard
[I]t’s already clear the new emphasis on grassroots fundraising might lead to a debate stage that includes some unexpected characters and leaves out some candidates who have been expected to run for president for years…
Some of the elected officials who haven’t qualified yet are deploying unusual tactics to game the system. A super PAC backing Inslee spent close to $300,000 on Facebook during the first three months of the year, with many of the ads encouraging users to sign up for the Inslee campaign’s email list. Former Rep. John Delaney of Maryland, who gave his own campaign $11 million during the first quarter, is encouraging donations by promising to personally give $2 to a charity of the donor’s choice.
“A spot on the presidential debate stage should be earned by generating real enthusiasm and inspiring Americans to give what they can to your campaign,” said Patrick Burgwinkle, the communications director for End Citizens United, of Delaney’s and Inslee’s tactics. “Governor Inslee is using a super PAC run by a top political aide to boost the number of donors to his campaign, which is a total end run around the contribution limits other candidates are abiding by.” …
Money, as we also learned in 2016, doesn’t always win elections – especially not presidential elections, where voters are just as likely to find out about candidates from earned television and news coverage as they are from paid advertising. The best evidence probably comes from the 2016 GOP primary, where the more than $100 million Bush raised for his super PAC did little good in comparison to Trump’s dominance of news coverage…
While Bush’s high-cost flop is remembered from 2016, he wasn’t the only big spender to lose that year. Down the stretch of the 2016 primary, Sanders’ campaign spent nearly $122 million. Clinton’s campaign? Just $80 million.
Center for Responsive Politics: House Democrats broke fundraising records in 2018. They’re on pace to eclipse those numbers
By Karl Evers-Hillstrom
House Democrats have already raised nearly $56 million in their quest to keep control of the lower chamber in 2020, far more than they did at this point last election cycle.
Through the first quarter of 2017, general election Democratic House candidates, including incumbents and non-incumbents, raised a combined $43 million. The average Democratic House candidate raised $195,520 in the first quarter of 2019, up from $148,574 in 2017.
Freshman Democratic members drove the bulk of the increase, combining to raise a stunning $23 million in the first quarter. Some of them hadn’t raised much, or even declared as candidates yet, by this point in 2017. As incumbents, they receive a name recognition advantage and a serious leg up in fundraising.
While not a single Democratic House candidate raised more than $1 million by this point last cycle, three have already surpassed the mark this time around. Sixty-eight House Democrats have collected $300,000 or more…
Rep. Adam Schiff (D-Calif.) leads the pack with nearly $1.9 million, an unprecedented number for a safe incumbent member. Schiff, chair of the House Intelligence Committee, has taken advantage of personal attacks from President Donald Trump, spending more than $250,000 on Facebook ads to build a list of small donors, whose contributions made up 52 percent of his fundraising.
Members of the House Progressive Caucus, many of whom are vocal opponents of Trump, had a strong showing, raising nearly $19 million in total.
Roll Call: No letup in congressional fundraising after ‘green wave’ election
By Bridget Bowman and Simone Pathé
Democrats placed an early emphasis on online fundraising and were confident of continuing their robust programs heading into 2020. The DCCC also placed digital directors in each of its regional teams to assist incumbents with grassroots solicitations.
Some of the party’s top fundraisers are not in competitive general election races but have national profiles, such as Minnesota’s Ilhan Omar, who raised $832,000, and New York’s. Alexandria Ocasio-Cortez, who brought in nearly $728,000…
The “no corporate PAC” pledge caught fire among Democratic challengers in 2018 as they sought to cast themselves as independent from special interests.
The 29 Democrats who took the pledge raised an average of $451,000 in the first quarter. The other 25 Democrats who are NRCC targets but do accept corporate PAC money raised an average of nearly $370,000.
The early fundraising numbers could quiet questions about how Democrats rejecting corporate money could make up for lost funds. Proponents of the pledge have argued that candidates would rake in small-dollar donations, but in the first quarter of 2019, donations from individuals giving more than the $200 still account for most of these candidates’ hauls.
Donors giving $200 or less, categorized by the FEC as “unitemized contributions,” gave 11 percent of the total money to the no-corporate-PAC Democrats in the first quarter.
The vast majority of Democrats rejecting corporate money still accepted contributions from other types of PACs, such as those connected to colleagues in Congress, trade associations and labor groups.
FEC
NBC Boston: Trahan Responds to Allegations of Campaign Finance Violations
By Alison King
Rep. Lori Trahan, D-Mass., said she has been fully compliant with the laws and regulations outlined by the Federal Election Commission. She said these allegations highlight why more women need to be in leadership and run for elected office.
“It’s a mindset shift that we need in this country, that a woman can start her own business and grow it into a successful one,” she said.
“It does not appear that she had sufficient personal assets to cover $300,000 in personal loans,” said Brendan Fischer of the Washington-based Campaign Legal Center.
Fischer questions the source of hundreds of thousands of dollars Trahan loaned her campaign in the final weeks of the hotly contested MA-3 primary. The watchdog group has filed a complaint with the FEC.
“One possibility is that Rep. Trahan, in fact, used money from her husband’s bank account to fund her campaign, which would, in fact, be illegal,” Fischer said.
Asked if she categorically denies that her husband helped beyond the $2,700 allowed by law, Trahan said she did.
“Look, the suggestion that I personally did not have the funds available is completely inaccurate,” she said.
Trahan said the Campaign Legal Center is working off of disclosure forms filed in May – just a snapshot, she said, of her yearly income.
“It seems hard to believe that a candidate who is actively campaigning in the midst of a very close race would also be earning hundreds of thousands of dollars on the side from a consulting firm,” Fischer argued.
“This notion that a woman can’t come from a public school system in the city of Lowell and start her own business and have a successful career is exactly what needs to be debunked in this country,” Trahan said.
The States
ACLU: Arizona Lawmakers Running Scared After Anti-Boycott Law Ruled Unconstitutional
By Brian Hauss
Last year, an Arizona federal court blocked the state from enforcing its anti-boycott law, ruling that the law – which requires government contractors to certify that they are not participating in boycotts of Israel or Israeli settlements in the West Bank – violates the First Amendment. In response, the state appealed the court’s decision and asked the Ninth Circuit to allow it to continue enforcing the unconstitutional law pending appeal. The Ninth Circuit refused and scheduled oral arguments for the appeal for June 6.
But instead of trying to defend its law in court come June 6, the state of Arizona is running scared. Today the state amended its anti-boycott statute in a transparent attempt to avoid another loss in court. The new law, signed today by Gov. Ducey, limits the anti-boycott certification to for-profit companies with more than 10 employees and government contracts worth more than $100,000. This means the law no longer applies to our clients as well as many other individuals and small businesses. It also means that the state will try to escape further judicial review and continue imposing the anti-boycott certification in at least some cases, even though a federal court has held that the law unconstitutionally infringes the First Amendment rights “that Americans and Arizonans use ‘to bring about political, social, and economic change.'” …
The Supreme Court has made crystal clear that individuals and companies have the same First Amendment right to participate in political expression and association. Individuals like Esther Koontz, small businesses like Mik Jordahl’s solo law firm, and larger businesses like the Arkansas Times newspaper all have First Amendment rights. None can be forced to sign an anti-boycott certification.
