Free Speech

The Atlantic: A Civil-Rights Icon Urges Law Grads to Defend Free Speech

By Conor Friedersdorf

This month the graduating class at Georgetown Law School marked commencement with a speech by non-voting D.C. Representative Eleanor Holmes Norton, whose résumé is as impressive as any in the House of Representatives…

Here is a transcript of relevant passages from her speech: …

“Change, especially change that requires legislative solutions, will not occur easily given our vast, inherently disharmonious, and increasingly polarized country. Change will only occur if we make the highest, best and most peaceful use of the First Amendment…

…My direct clients were a minority in American society, proselytizing racists with whom I had nothing in common. Yet it was clear that the ultimate client was the First Amendment itself.

Those who have brought change to our country did not win it by shutting down the other side. They won change the hard and only way that ensures it will be lasting. They persisted against their adversaries until they persuaded the country that they should prevail…

Who is in the best position to help not only young people, but also the American people, to relearn the purposes and uses of the First Amendment for these times and in our polarized society? I believe I am speaking to them now as the 2018 Georgetown Law graduates go on to become leaders of their communities.” 

Donor Privacy 

Nonprofit Quarterly: Free Speech vs. Transparency: When Should Donor Identities Be Public?

By Martin Levine

Those challenging states have come from both poles of the political spectrum. As NPQ recently reported, the NAACP successfully challenged the state of Alabama’s attempt to require it to provide a list of its members in the case of NAACP v. State of Alabama Ex. Rel. Patterson. The group feared that in the hostile racial environment of a Deep South state, publishing names “would reasonably subject them to the threat of violence.” Decades later, the Americans for Prosperity Foundation successfully challenged a California state law because its donor list had leaked and its supporters had been harassed.

Most recently, in a case brought by Citizens United challenging a New York state donor disclosure law, a federal court came to the opposite conclusion…

For free speech advocates who fear the danger of backlash, donor anonymity is critical. The NAACP, in an amicus brief in support of overturning the California disclosure legislation, argued that, “In an increasingly polarized country, where threats and harassment over the Internet and social media have become commonplace, speaking out on contentious issues creates a very real risk of harassment and intimidation by private citizens and by the government itself….Thus, now, as much as any time in our nation’s history, it is necessary for individuals to be able to express and promote their viewpoints through associational affiliations without personally exposing themselves to a legal, personal, or political firestorm.”

Internet Speech Regulation

Roll Call: With Russia Claims, Clapper Crosses a Line

By David Winston

A 2014 study of the effect of online ads on electoral behavior, done by researchers at the University of California, Berkeley and Columbia University, found that they had “little effect on their viewers’ recognition or evaluation of the advertising candidate.”

“Voters randomly exposed to the ads were in some cases more likely to recall them but no more likely to recognize or positively evaluate the candidates they depicted.” Good to know, but we need a lot more data to make any kind of definitive conclusion. There are just too many unanswered questions.

For example, did a Russian online ad, “Backing the Badge,” popping up on Facebook or a Bernie Sanders gay rights ad on Google or Instagram actually influence voter decisions or were they designed to simply create division? And did they work?

From a regulatory perspective, is an online ad the equivalent of a bumper sticker or should it be seen in the same context as a television ad requiring disclosure? Do either have any real impact in the fragmented media world in which campaigns must operate today?

When it comes to online ads, is the real culprit digital microtargeting that makes monitoring difficult? Or is this simply a new kind of technology that society has to learn how to incorporate into its political discourse?

IRS

Wall Street Journal: Private Charitable Foundations Give Lavish Rewards to Insiders

By Andrea Fuller

A half-century ago, Congress, troubled by tales of foundation self-dealing, enacted a law to prevent insiders from taking advantage of their positions. The law prohibits most business between private foundations and their insiders-meaning their officers, directors and substantial donors. It says foundations may not engage in property deals, loans or the exchange of other goods and services with insiders.

Some foundations have grown adept at relying on a bevy of complex exemptions to their advantage. More than 1,800 foundations checked boxes on their fiscal 2016 tax filings indicating that they engaged in business activities with insiders but weren’t violating the self-dealing law, The Wall Street Journal found in a review of thousands of filings.

The law permits foundations to employ insiders for certain services provided they aren’t paid excessive compensation, which would be considered self-dealing. About 10,000 private foundations checked boxes on their fiscal 2016 returns indicating they legally compensated insiders.

It’s impossible to determine from tax data how many of the exemption claims were clearly justifiable, or whether some might stretch the definitions…

Foundation insiders deemed by the Internal Revenue Service to be self-dealing, such as through business they do with the foundation, must pay extra taxes and unwind the deals. The IRS imposes such extra taxes on about 200 people a year. The agency audits less than 1% of nonprofit tax filings. 

Political Parties

Committee to Protect Journalists: By suing WikiLeaks, DNC could endanger principles of press freedom

By Avi Asher-Schapiro

In April, the Democratic National Committee, the governing body of the Democratic Party, announced that it was suing WikiLeaks and Julian Assange–along with a number of other defendants, including the Trump campaign and Russian operatives–for their alleged involvement in the theft and dissemination of DNC computer files during the 2016 election. On its surface, the DNC’s argument seems to fly in the face of the Supreme Court’s precedent in Bartnicki v. Vopper that publishers are not responsible for the illegal acts of their sources. It also goes against press freedom precedents going back to the Pentagon Papers and contains arguments that could make it more difficult for reporters to do their jobs or that foreign governments could use against U.S. journalists working abroad, First Amendment experts told CPJ.

“I’m unhappy that there’s even an allegation that you could be held liable for publishing leaked information that you didn’t have anything to do with obtaining,” said George Freeman, a former lawyer for The New York Times and executive director of the independent advisory group, Media Law Resource Center. James Goodale, the First Amendment lawyer who defended The New York Times in the 1971 Pentagon Papers case, said that the suit appeared to be the first time WikiLeaks has been sued for a journalistic function. Goodale, a senior adviser to CPJ and former board chair, added that the DNC had “paid zero attention to the First Amendment ramifications of their suit.”

Independent Groups

The Intercept: An Advocacy Group for Startups Is Funded by Google and Run by Ex-Googlers

By David Dayen

“Public officials need to be aware that this so-called startup advocacy group is really in bed with Silicon Valley’s foremost D.C. influence machine, whose interests are often in conflict with those of disruptive entrepreneurs,” said Daniel Stevens of the Campaign for Accountability, which released the report. There are no clean hands here: The Campaign for Accountability gets major funding from Oracle, a chief antagonist to Google.

A Google spokesperson said the company is “happy to support Engine’s work” to represent the views of startups in Washington policy debates. “While we often agree on policy matters, Engine is an independent organization just like the other groups we support,” the spokesperson said.

Google publicly discloses its funding support for Engine on its website, “in contrast to the Campaign for Accountability, which declines to list its corporate funders and has been instrumental in Oracle’s long-running legal grudge against Google,” the spokesperson said.

Ken Gleuck, a senior vice president in Oracle’s Washington office, said after publication that Google’s charge was off-base and that Oracle had nothing to do with the report…

In addition to direct lobbying, Google uses its prodigious war chest to fund think tanks, academic research, and “grassroots” groups, which then offer what can look to the uninitiated like independent viewpoints. 

FEC

Daily Caller: Lobby Group Representing Google, Facebook Doesn’t Want Their Ads Regulated Like Radio Or TV

By Kyle Perisic

A lobbying group representing some of the biggest names in tech filed an open letter to the Federal Election Commission (FEC) Tuesday advising the agency not to implement regulations on political advertisements in the same way as radio or TV.

“[Internet Association]’s recommended approach is to allow for more flexibility given the variety of ways that internet content is consumed and to preserve the ability of the IA’s members to innovate and to allow users of those platforms to innovate,” wrote Michael Beckerman, president and CEO of the Internet Association (IA).

The FEC announced on March 14 it is considering plans to add a disclaimer to political advertisements on the internet in the same way that voters would see and hear on the TV or radio – with the disclaimer coming at the end of the ad.

Candidates and Campaigns

The Verge: Facebook’s new political ad rules could upend June 5th primaries

By Casey Newton

Facebook introduced new disclosure rules for political advertisements this week designed to block bad actors from meddling in elections. But in the meantime, the rules are blocking legitimate candidates from buying Facebook ads – and at least one congressional candidate in Mississippi says it could tip the election toward his opponent.

The rules that Facebook implemented in the United States this week require anyone wishing to buy a political ad to verify their identity. To do so, Facebook mails a card to their physical location containing an authorization code. Only after the candidate or advocacy group enters that authorization code on Facebook can they purchase political ads.

Facebook began allowing political advertisers to start the verification process on April 23rd. The company promoted the new process with a blog post and messages inside Facebook directed at administrators of political pages. In May, it also sent emails to page administrators advising them of the changes.

But not everyone got the message – and now some are scrambling to come up with a Plan B ahead of June 5th primary elections.

The States

Kansas City Star: Will Greitens’ political nonprofit hand over records? It’s unclear, lawmakers say

By Jason Hancock and Allison Kite

Republican legislative leaders are unsure whether Gov. Eric Greitens’ political nonprofit will have to turn over documents to House investigators now that he has announced he’s stepping down on Friday…

A Cole County judge on Tuesday ordered A New Missouri Inc., a nonprofit founded by Greitens’ political advisers, to turn over communications and documents showing potential coordination among the nonprofit, the governor and the governor’s campaign committee, as well as expenditures related to advertising.

Emerging Wednesday morning from a meeting in the office of Lt. Gov. Mike Parson, the Legislature’s top Republican leaders said the fate of that subpoena is up in the air…

Several sources with knowledge of the nonprofit told The Star that donors to A New Missouri had been quietly panicking behind the scenes at the prospect that the House’s investigation could reveal their identities…

[T]he timing of the judge’s Tuesday order – coming just hours before Greitens shocked Missouri’s political world by announcing his resignation – had many speculating that the prospect of divulging the inner workings of his secretive nonprofit may have contributed to his decision to quit.