Online Speech Platforms
Wall Street Journal: Antitrust, Free Speech and Google
By Mark Epstein
Donald Trump’s 2016 campaign promised to use antitrust law against oligopolies it said were “destroying an American democracy that depends on a free flow of information and freedom of thought.” The Justice Department’s investigation of Google may appear to fulfill this pledge. But Makan Delrahim, who heads the antitrust division, has voiced skepticism.
In a 2018 address, he rejected the notion that “antitrust enforcers should step beyond consumer welfare and think about . . . values like the free speech the First Amendment protects.” He worried it would lead to subjective enforcement because “Republican and Democrat prosecutors, or those of any party or political orientation, carry with them their own perceptions of what is good and bad for our democracy.” …
The Justice Department does have authority to consider how Google’s dominance affects the marketplace of ideas, and federal prosecutors routinely make decisions with partisan policy implications when enforcing campaign-finance, election-fraud, and voting-rights laws. Even in the antitrust context, regulators must consider viewpoint diversity in cable and broadcast mergers.
Special statutes apply to these industries, but there is also precedent to address similar concerns under the broader antitrust laws. In Associated Press v. U.S. (1945), the Supreme Court held that the Sherman Antitrust Act of 1890 complemented the First Amendment, which “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”
Antitrust law has evolved since Associated Press to focus solely on consumer welfare. But as Maureen Ohlhausen, then a member of the Federal Trade Commission, argued in 2016, the consumer-welfare standard applies to “values like openness and free speech” because “consumers care about a host of qualities for Internet access, not just price.”
NBC News: Trump claims ‘collusion’ between big tech and Democrats, backs antitrust fines
By Allan Smith
President Donald Trump thinks “obviously there is something going on in terms of monopoly” regarding major tech companies like Facebook, Google and Amazon, he said during an interview with CNBC’s “Squawk Box” on Monday.
Initially asked if he thought Facebook, Google and Amazon are too big now and should be broken up, Trump said, “Well, I can tell you they discriminate against me.”
Trump then veered away from potential antitrust actions against the companies and into his campaign’s use of the platforms.
“You know people talk about collusion. The real collusion is between the Democrats and these companies, cause they were so against me during my election run, everybody said if you don’t have them, you can’t win,” Trump said. “Well I won, you know, and I’ll win again, because we’re doing well, and we’re not the fools anymore, we’re not the foolish country that does so badly.” …
Later in the interview, pointing to the European Union’s heavy fines against companies, including Google, Trump said Europe was “actually attacking our companies.” However, he added that “we should be doing what they’re doing.”
“They think there’s a monopoly, but I’m not sure that they think that. They just figure this is easy money,” he said of the billions in fines. “We’ll sue Apple for $7 billion, and we’ll make a settlement or win the case. So I think it is a bad situation but obviously there is something going on in terms of monopoly.”
Trump’s comments come as the Department of Justice, the Federal Trade Commission and Congress are gearing up for antitrust scrutiny of big tech.
Human Events: The Section 230 Illusion.
By Ron Coleman and Will Chamberlain
As we have discussed, subsection (c)(1) shields platforms from liability for the acts of third persons – typically, for “publishing” third party content that is defamatory or otherwise tortious.
But there’s a more important liability protection in section 230. This provision protects platforms from liability for acts of the ISP’s themselves.
That’s subsection (c)(2). It mandates that:
“No provider or user of an interactive computer service shall be held liable on account of… any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
Subsection (c)(2) should guide our attempts to fix social media censorship. This provision permits social media companies to “restrict access” to “obscene…or otherwise objectionable” material,
But it also requires ISP’s to act “in good faith” – and right now, they are not. Thus, there is nothing in Section 230 that should prevent individual states from passing legislation to protect their citizens from “bad faith” deplatforming…
If there is any question as to whether subsection (c)(2)’s “good faith” requirement permits individual states to protect their citizens from arbitrary bans, Congress should clarify the point by amending the statute. Congress should also make it clear that, bad faith or not, nothing in subsection (c)(2) permits de-platforming people based on political ideology or offline conduct.
The debate about whether social media companies are “publishers” or “platforms” is beside the point. Legislators and influencers should focus instead on writing new law that protects users from bad faith deplatforming.
By Mike Masnick
It certainly appears that politicians on both sides of the political aisle have decided that if they can agree on one thing, it’s that social media companies are bad, and that they’re bad because of Section 230, and that needs to change. The problem, of course, is that beyond that point of agreement, they actually disagree entirely on the reasons why. On the Republican side, you have people like Rep. Louis Gohmert and Senator Ted Cruz who are upset about platforms using Section 230’s protections to allow them to moderate content that those platforms find objectionable. Cruz and Gohmert want to amend CDA 230 to say that’s not allowed.
Meanwhile, on the Democratic side, we’ve seen Nancy Pelosi attack CDA 230, incorrectly saying that it’s somehow a “gift” to the tech industry because it allows them not to moderate content. Pelosi’s big complaint is that the platforms aren’t censoring enough, and she blames 230 for that, while the Republicans are saying the platforms are censoring too much — and incredibly, both are saying this is the fault of CDA 230.
Now another powerful Democrat, Rep. Frank Pallone, the chair of the House Energy and Commerce Committee (which has some level of “oversight” over the internet) has sided with Pelosi in attacking CDA 230 and arguing that companies are using it “as a shield” to not remove things like the doctored video of Pelosi…
But, of course, the contrasting (and contradictory) positions of these grandstanding politicians on both sides of the aisle should — by itself — demonstrate why mucking with Section 230 is so dangerous. The whole point and value of Section 230 was in how it crafted the incentive structure. Again, it’s important to read both parts of part (c) of Section 230, because the two elements work together to deal with both of the issues described above.
Common Dreams: Journalist and Educator Among Those Caught Up in YouTube’s Latest Attempt to Purge Online Hate Speech
By Eoin Higgins
The most prominent of those voices swept up in the purge thus far is Ford Fischer, a video journalist who reports on extremism in U.S. politics on his YouTube page, News2Share…
That lack of understanding context was also on display when YouTube deleted historical content featuring images and video of Nazi leader Adolf Hitler that had been uploaded for educational purposes by teachers. The material, which was intended to educate the public on the dangers of fascism, instead was caught up in YouTube’s erasure of content.
In comment to The Guardian, teacher Scott Allsop, who had his material removed over the last 24 hours, said that YouTube’s heavy-handed tactics were causing more harm than good…
Progressive journalist Rania Khalek, herself no stranger to deplatforming, opined on Twitter that the purge could hurt independent journalists and media outlets.
“It’s interesting to me how mainstream media people are often insisting that we must do this to purge the far right, but it always ends up hurting independent journalists and leftists,” said Khalek. “Almost like those mainstream media folks want social media companies to erase their alternative media competition.”
The Intercept’s Glenn Greenwald cited Fischer’s case as a prime example of why actions like YouTube’s purge are always destined to hurt those who don’t deserve it.
“Apparently, creating and implementing vague, arbitrary censorship standards on the fly in response to mob demands and then purging people en masse end up suppressing and punishing many voices that censorship advocates like,” said Greenwald. “Who could have guessed this would happen?”
Electronic Frontier Foundation: Caught in the Net: The Impact of ‘Extremist’ Speech Regulations on Human Rights Content
Social media companies have long struggled with what to do about extremist content that advocates for or celebrates terrorism and violence. But the dominant current approach, which features overbroad and vague policies and practices for removing content, is already decimating human rights content online, according to a new report from Electronic Frontier Foundation (EFF), Syrian Archive, and WITNESS. The report confirms that the reality of faulty content moderation must be addressed in ongoing efforts to address extremist content.
The pressure on platforms like Facebook, Twitter, and YouTube to moderate extremist content only increased after the mosque shootings in Christchurch, New Zealand earlier this year. In the wake of the Christchurch Call to Action Summit held last month, EFF teamed up with Syrian Archive and WITNESS to show how faulty moderation inadvertently captures and censors vital content, including activism, counter-speech, satire, and even evidence of war crimes.
“It’s hard to tell criticism of extremism from extremism itself when you are moderating thousands of pieces of content a day,” said EFF Director for International Freedom of Expression Jillian York. “Automated tools often make everything worse, since context is critical when making these decisions. Marginalized people speaking out on tricky political and human rights issues are too often the ones who are silenced.”
ScottRasmussen.com: 34% Believe Youtube Will Censor Opposing Political Views; 26% Disagree; 40% Not Sure
By Scott Rasmussen
Thirty-four percent (34%) of voters believe YouTube will likely use new content rules to censor views that it disagrees with while 26% believe it will impose the rules fairly. A ScottRasmussen.com national survey found that a plurality-40%-are not sure.
Republicans, by a 44% to 21% margin, believe YouTube will use the rules for censorship. Independent voters, by a 34% to 24% margin, tend to agree. Democrats, however have a different view. Thirty-three percent (33%) of those in Nancy Pelosi’s party believe YouTube will apply the rules equally while just 25% think they will become a tool for censorship (see crosstab results).
The survey also found that 29% believe YouTube is an unbiased platform for all users while 20% believe it is biased against conservatives. Just 6% think the Google owned platform is biased against liberals. Forty-four percent (44%) aren’t sure.
To ensure equal opportunities for all points of view, just 21% believe the federal government should impose regulations on YouTube. Seventy-nine percent (79%) believe the company should they be allowed to manage their own users. That’s partly because 59% believe government regulators are more likely to be biased than YouTube.
Forty-five percent (45%) have at least somewhat closely followed recent news stories about YouTube banning content it considers hateful or discriminatory. That includes 16% who have followed the news Very Closely.
Congress
Wall Street Journal: The Foreign Influence We’re Ignoring
By U.S. Senator Chuck Grassley
Mr. Mueller’s team indicted dozens of Russians for a scheme to sow discord in American politics through social media and the release of hacked Democratic National Committee emails. But not enough attention has been paid to foreign interests secretly enlisting American cutouts to influence our laws and policies directly. This is a serious problem that should unnerve anyone in government being lobbied on policy matters.
If lobbyists or public-relations firms are peddling policy preferences at the behest of foreign powers, we ought to know about it. This week I’m introducing bipartisan legislation to beef up enforcement against clandestine foreign influence campaigns and encourage greater compliance with the often-ignored registration requirements for lobbyists working on behalf of foreign entities.
Congress passed the Foreign Agents Registration Act in 1938 to unmask Nazi propaganda and identify foreign attempts to influence policy makers and the American public. But until recently, FARA has seldom been used. Only 15 violations have been criminally prosecuted since 1966, when the law was updated-and about half of those stemmed from Mr. Mueller’s investigation…
My legislation, based on my oversight work, grants federal investigators new tools to access material needed to identify covert foreign influence and improve FARA compliance. It requires foreign agents to disclose their clients immediately so policy makers can evaluate their positions in light of those associations. It requires the Justice Department to craft a comprehensive FARA enforcement strategy and creates oversight mechanisms to prevent abuse of the new authorities. And it establishes a review of the Lobbying Disclosure Act exemption to determine whether and to what extent it has been abused to conceal foreign influence.
Political Parties
CNN: Campaigns go public with anger at Democratic National Committee as first debate looms
By Dan Merica
In an interview with CNN Thursday here in Atlanta, [DNC Chairman Tom] Perez subtly knocked the candidates who have yet to meet the grassroots fundraising threshold and are publicly complaining.
“I think everybody has to be proficient,” he said when asked about complaints about the threshold. “If you want to be President of the United States, you have to develop a proficiency at grassroots fundraising.” …
“The DNC seems, on paper, interested in a 50-state strategy, but they’re punishing the only candidate in the field to win a Trump state for doing his job,” said Matt McKenna, a longtime Democratic operative who is advising the Bullock campaign. “I can say with 100% certainty that if Gov. Bullock announces in January, to chase after the DNC’s arbitrary and secret rules, there’s no way he gets Medicaid expansion though a 60% Republican legislature.”
Asked about the grassroots fundraising threshold, McKenna added: “I’d say that punishes candidates from the parts of the country you fly over to get from the DNC HQ to Los Angeles.” …
The criticism from Bullock’s team echo New York Sen. Kirsten Gillibrand’s denunciation of the DNC’s rules in an interview with CNN in May.
Gillibrand called the 65,000-donor threshold an “odd measurable” that is “random and inaccurate.” Although she added, “They’re the DNC, so I’ll follow the rules that are given and I’ll have to play by the rules,” the senator said the measure “is not determinative of any of the things that matter about whether I’d beat Trump.”
“Because if Madonna was running, she’d have a million supporters. She’d have more than anybody,” Gillibrand concluded. “What having followers is a measurable of is whether you’re famous, it’s a measure of whether people know enough about you to send you a dollar.”
FEC
ABC News: FEC law on campaign funds transfers could help some, hurts others in presidential bids
By Sruthi Palaniappan
Current federal campaign finance law might advantage some federal officeholders in the 2020 Democratic primary who, unlike their state and local office holder counterparts, can directly transfer funds from their Senate or congressional campaign committee to their presidential campaign committee…
“Well, obviously it’s a disadvantage. It shows how the system because it’s actually stacked to favor Washingtonians who have federal laws and the ability to transfer their other congressional accounts to a presidential campaign,” [presidential hopeful and mayor of Miramar, Florida, Wayne] Messam said in an interview…
Lisa Gilbert, the vice president of legislative affairs from Public Citizen…said that federal officeholders who transfer funds can especially benefit in the initial phase of their campaign when many candidates are working to build a financial base…
Initial funding can be essential to building grassroots support, said Sheila Krumholz, the executive director of the Center for Responsive Politics…
“Early money is like yeast, and that money in the bank provides an ability to quickly, out of the gate, reach out to people and hire the help they need and get the online messaging information they need out in a quality way that will juice their early support,” Krumholz told ABC News…
“Every penny that a federal officeholder has in their campaign account from their last federal election was raised under federal contribution limits and restrictions. And that’s not true of someone who’s running for state or local office,” said Paul Ryan, the vice president for policy and litigation at Common Cause…
“Many states and many municipalities have much higher contribution limits and much less regulation of candidate fundraising, so I think it would be unfair to other candidates in the race if you were allowed to use money raised under no restrictions,” he told ABC News…
When asked whether FEC guidelines should be revised to not allow for money to be transferred from any committee to the presidential committee, Gilbert told ABC News, “I think that would be the fairest way to go about it. The most level playing field would be to say you start fresh as a presidential candidate.”
The States
NJ.com: N.J. Democrats drop plans to override Murphy as both sides reach last-minute deal
By Matt Arco and Brent Johnson
Gov. Phil Murphy on Monday struck a last-minute deal with top lawmakers to avoid something no New Jersey governor has suffered in 22 years: the state Legislature overruling one of his vetoes.
Both houses of the Legislature abandoned plans to vote Monday to override Murphy’s conditional veto of a so-called “dark money” bill…
Both the Senate and Assembly instead voted Monday to send Murphy an identical version of the original bill he rejected.
Despite his earlier opposition to the measure, Murphy is then expected to sign it swiftly, possibly as early as Monday or Tuesday, a senior administration official said.
The deal would give top Democratic lawmakers the bill that they wanted while at the same time sparing Murphy the embarrassment of an override.
State Senate President Stephen Sweeney, a fellow Democrat who often disagrees with Murphy, said lawmakers easily had the votes to pass an override Monday. Republicans had vowed to provide support…
Still, senior Murphy administration officials said there’s another component of the deal – for lawmakers to work on “cleanup” legislation in the coming months to address “freedom of speech” concerns from Murphy and advocates that the measure will make it harder for progressive grassroots groups to raise money.
Sweeney said that was not part of the deal Monday, arguing that the bill is strong in its current form. He did not, however, rule out possible negotiations.
“If the governor has concerns, we can talk,” the Senate president said. “But it has nothing to do with this bill.”
It’s possible Murphy could veto the measure or decline to sign it until he gets those changes. That could, however, lead to more talk of an override.
The Oregonian: Proposed campaign donation limits only limit who holds the power
By Editorial Board
Oregon House members hailed last week’s passage of campaign finance legislation as a historic event. They predicted that the contribution limits detailed in House Bill 2714 would empower individuals while reining in large donors. And they noted that finally, they were responding to Oregonians’ repeated calls and growing pressure to get big money out of Oregon politics.
But for all legislators’ celebratory words, this isn’t the reform Oregonians need. Rather than get big money out of Oregon politics, HB 2714 concentrates the power to make big donations in the hands of fewer entities, turning today’s free-for-all into tomorrow’s oligarchy. The bill grants the state’s Democratic and Republican legislative caucuses the authority to make unlimited contributions to candidates – a power that none of the minor political parties get - which will further entrench two-party dominance in a state becoming increasingly unaffiliated. And even though HB 2714 effectively clamps down on businesses’ campaign donations, it does little to restrain labor unions from funneling tens of millions of dollars into future Oregon races, just as they do now.
The biggest problem? None of this resolves the most significant barrier to reform: the Oregon Supreme Court’s 1997 decision that ruled such contribution limits violate the Oregon constitution’s free speech protections. Fixing that requires either a constitutional amendment or a reversal by the court.
With little time to fix the legislation’s flaws, Oregon state senators should reject HB 2714 and focus their attention instead on a constitutional referral that would explicitly allow the government to impose donation and spending caps…
Despite HB 2714’s flaws, the House passed two other campaign finance reform bills that should move forward with some additional amendments. Those bills, HB 2716 and HB 2983, call for greater disclosure of contributors to political ads and to nonprofits involved in political communications.
New York Post: City Council’s next campaign-finance ‘fix’ is a huge gift to the speaker
By Editorial Board
City voters OK’d a major expansion of the public-campaign-finance system last November, but the City Council just can’t stop sweetening the pot even more.
The next step could come as early as Thursday, with an “idealistic” move that just happens to grease the skids for Speaker Corey Johnson’s coming mayoral campaign.
The change, like the system itself, will be justified as reducing the influence of big money donors in local elections. But the impact will clearly benefit pols like Johnson, who can milk the rules to the max because they already have extensive donor lists.
Last year’s referendum moved the public “match” from six taxpayer dollars for every qualifying private campaign donation to an 8:1 ratio – starting in 2021. Yet the ink wasn’t even dry before Councilman Ben Kallos (D-Manhattan) pushed through a bill making the 8:1 match an option immediately. It also allowed matching funds to be turned over much earlier in the cycle – up to six months before candidates even qualify for the ballot.
Naturally, almost every candidate in the special election for public advocate chose the higher match. And every competent campaign is sure to demand as much free money as soon as possible.
Now Kallos is looking to further amend the law by increasing the total amount that candidates can get from the public match.
Right now, taxpayers are only on the line for up to 75 percent of the total maximum spending that the law allows each campaign. Kallos wants that to rise to 89 percent.
That is: A candidate can max out simply by raising enough qualifying private donations, then getting eight times that amount from the taxpayers.
