The Courts
National Law Journal: DC Circuit Hands Gibson Dunn’s Ted Boutrous Another Win in Legal Fight Over White House Press Access
By Jacqueline Thomsen
The U.S. Court of Appeals for the D.C. Circuit on Friday said the White House can’t temporarily suspend the press pass of Playboy correspondent Brian Karem over an altercation with former Trump aide Sebastian Gorka in the Rose Garden last July.
In an unanimous opinion authored by Judge David Tatel, the court found the temporary suspension of the hard pass violated Karem’s due process rights, as the White House had not set specific standards on when media access could be revoked. The opinion, joined by Chief Judge Sri Srinivasan and Judge Cornelia Pillard, upheld a preliminary injunction issued by U.S. District Judge Ketanji Brown Jackson that blocked the suspension.
Congress
CNN: Senate panel approves legislation requiring campaigns to report foreign election help
By Manu Raju and Jeremy Herb
The Senate Intelligence Committee quietly approved on Wednesday a measure that would require presidential campaigns to report offers of foreign election influence to federal authorities, a move taken in response to Russian election interference in 2016 and one that could draw the attention of President Donald Trump, committee sources say.
Senate Republicans, however, are preparing to remove the provision from the bill when it heads to the Senate floor.
FEC
Federal Election Commission: James E. Trainor III sworn in as Commissioner
James E. Trainor III was sworn in [Friday] as a member of the Federal Election Commission.
Commissioner Trainor was nominated by President Donald J. Trump and confirmed by the United States Senate on May 19, 2020. He was appointed to a term ending April 30 2023, and replaces Commissioner Matthew S. Petersen, who departed the agency on August 31, 2019.
“We welcome Trey to the Commission and look forward to working with him. His extensive practical experience working with candidates and committees will be very valuable to the Commission,” said Chair Caroline C. Hunter, who noted that the Commission would hold the first open meeting with its reconstituted quorum in a teleconference scheduled for June 18, 2020.
First Amendment
Washington Post: Is free speech an ‘inviolable’ right or a cover for ‘hostile acts’?
By Michael Bobelian
Unlike scientists, bigots preaching violence and spewing venom are uninterested in this civil exchange of ideas, a point [Thane] Rosenbaum reiterates throughout “Saving Free Speech . . . From Itself.” To Rosenbaum, a law professor and public intellectual, hatemongers have twisted a constitutional right formulated to enlighten our political dialogue into a weapon of oppression. “We have repeatedly confused and conflated hostile acts with free speech,” Rosenbaum contends, and “have allowed the First Amendment to provide cover for those who do violence and disguise it as political expression.” …
[Rosenbaum] calls for narrowly tailored restrictions on those intending “to cause harm – either by threatening and intimidating certain targeted audiences . . . or when speech is being deployed in order to deprive vulnerable groups of their dignity, self-respect, and social status.”
[Rosenbaum also recommends creating] a private cause of action for the emotional damage caused by hate speech…
Rosenbaum [says], “Any criticism of the First Amendment is instantly regarded as seditious in our political culture.” …
Over the years, suffragists, civil rights activists, antiwar protesters and LGBT advocates were censored not just by sexists, racists and bigots but also by well-meaning detractors who bristled at their tactics or found their revolutionary ideas offensive, threatening or unpatriotic.
Perhaps nothing exemplified this dynamic more than McCarthyism…
As a stout defender of free speech, Frederick Douglass confronted the same quandary… “No right was deemed by the fathers of the government more sacred than the right of speech,” Douglass uttered days after a mob shut down an abolitionist meeting in Boston out of fear that the assembly would offend the Southern states then contemplating secession.
Media
Washington Post: James Bennet resigns as editorial page editor of the New York Times
By Erik Wemple
Once a lumbering colossus that processed copy and internal change at its own cerebral pace, the New York Times on Sunday brandished its Internet-era agility: Editorial Page Editor James Bennet, the newspaper announced, had resigned his post following the controversial publication of an op-ed by Sen. Tom Cotton (R- Ark.) regarding the federal response to recent protests.
Over the course of four days, the paper published a controversial opinion piece; beheld a furious backlash; defended it; defended it some more; bailed on it; held a staff meeting about it; and took a high-level personnel action on a…Sunday…
The resignation caps off a whirlwind of turmoil at the Times, much of it visible on the churning commentary on Twitter. After Cotton advocated the deployment of U.S. troops – “The nation must restore order. The military stands ready,” reads the op-ed’s subtitle – Times staffers and others said the piece put African Americans in danger. Bennet on Wednesday wrote a Twitter defense of the op-ed, claiming that it advanced debate and that the role of the section was to host competing views. The next morning, Sulzberger wrote a staff memo that mustered pretty much the same defense…
By Friday morning, both men had folded. In a video staff meeting, Sulzberger said that the piece never should have been published. Bennet, too, had stopped defending it. The discussion moved to corrective measures, with Sulzberger stressing the need to revamp procedures and the role of the op-ed at the Times.
The paper appended an editor’s note to Cotton’s op-ed indicating that it fell short of Times standards and shouldn’t have been published.
Tweets from Bari Weiss (via Thread Reader app)
The civil war inside The New York Times between the (mostly young) wokes the (mostly 40+) liberals is the same one raging inside other publications and companies across the country. The dynamic is always the same. (Thread.)
The Old Guard lives by a set of principles we can broadly call civil libertarianism. They assumed they shared that worldview with the young people they hired who called themselves liberals and progressives. But it was an incorrect assumption.
The New Guard has a different worldview, one articulated best by @JonHaidt and @glukianoff. They call it “safetyism,” in which the right of people to feel emotionally and psychologically safe trumps what were previously considered core liberal values, like free speech…
Here’s one way to think about what’s at stake: The New York Times motto is “all the news that’s fit to print.” One group emphasizes the word “all.” The other, the word “fit.”
New York Times: Inside the Revolts Erupting in America’s Big Newsrooms
By Ben Smith
[America’s] biggest newsrooms are trying to find common ground between a tradition that aims to persuade the widest possible audience that its reporting is neutral and journalists who believe that fairness on issues from race to Donald Trump requires clear moral calls.
The conflict exploded in recent days into public protests at The New York Times, ending in the resignation of its top Opinion editor on Sunday; The Philadelphia Inquirer, whose executive editor resigned on Saturday over the headline “Buildings Matter, Too” and the ensuing anger from his staff; and The Pittsburgh Post-Gazette. And it has been the subject of quiet agony at The Washington Post, which [journalist Wesley] Lowery left earlier this year, months after the executive editor, Martin Baron, threatened to fire him for expressing his views on Twitter about race, journalism and other subjects.
Mr. Lowery’s view that news organizations’ “core value needs to be the truth, not the perception of objectivity,” as he told me, has been winning in a series of battles, many around how to cover race. Heated Twitter criticism helped to retire euphemisms like “racially charged.” The big outlets have gradually, awkwardly, given ground, using “racist” and “lie” more freely, especially when describing Mr. Trump’s behavior…
[T]he shift in mainstream American media – driven by a journalism that is more personal, and reporters more willing to speak what they see as the truth without worrying about alienating conservatives – now feels irreversible.
Washington Post: What’s a journalist supposed to be now – an activist? A stenographer? You’re asking the wrong question.
By Margaret Sullivan
Every piece of reporting – written or spoken, told in text or in images – is the product of choices…
We choose what to focus on, what to amplify, what to investigate and examine.
That’s why the simplistic “just the unadorned facts” can be such a canard. And that’s why the notion to “represent all points of view equally” is absurd and sometimes wrongheaded.
“Journalism is not stenography” is a refrain from an astute editor I know…
Let’s take the New York Times example. Plenty of well-respected media people are saying that the much-discussed opinion piece by Sen. Tom Cotton (R-Ark.) absolutely should have been published.
“We need to hear all points of view, especially those we disagree with,” is their reasoning. And some even argue that those who object to the piece on the grounds that it is incendiary and factually flawed are a mob of coddled activists masquerading as objective journalists.
That argument can be dismantled in a nanosecond. Should the denialist views of, say, Alex Jones of Infowars on the Sandy Hook massacre be given a prestigious platform, too? But Cotton is a prominent political figure, you say? By that logic, the lies of White House adviser Kellyanne Conway should be welcomed on news-discussion shows daily because she’s close to the president.
Perhaps a more useful way to think about many of these tough issues is to consider the role of journalism in democratic society: to dig out and present the information that helps citizens hold their elected officials accountable.
IRS
Wall Street Journal: A Minor IRS Miracle
By The Editorial Board
Federal agencies don’t typically give up discretionary power, so it’s worth applauding the Internal Revenue Service, believe it or not. Late last week it published a final rule that relieves most 501(c) nonprofits of a requirement to report the names and addresses of major donors. The IRS “does not need” the information “to administer the internal revenue laws,” said the Treasury Department, and it changed the rule “in light of the risks and burden.”
Federal law requires 501(c)(3) charities to report information on donations of more than $5,000 on their 990 tax forms. In the 1970s the IRS wrote a rule adding the demand for other 501(c)s-including chambers of commerce and social welfare groups that can engage in limited political activity.
The Schedule B forms are supposed to be confidential, but “the IRS has experienced incidents of inadvertent disclosure,” Treasury says in its guidance document. In 2014 the IRS settled a lawsuit alleging that the agency leaked donor data from the conservative National Organization for Marriage. The IRS said the leak was inadvertent but the data somehow ended up in the hands of opponents at the Human Rights Campaign…
The new rule will reduce administrative costs for nonprofits. But the biggest gain is for free political speech, as donors to causes on the left and right have less chance of being harassed. No one paid a price for the IRS abuses of the Obama years, but this is at least one small result for the better.
Online Speech Platforms
New York Times: The Complex Debate Over Silicon Valley’s Embrace of Content Moderation
By Nellie Bowles
The existential question that every big tech platform from Twitter to Google to Facebook has to wrestle with is the same: How responsible should it act for the content that people post?
The answer that Silicon Valley has come up with for decades is: Less is more. But now, as protests of police brutality continue across the country, many in the tech industry are questioning the wisdom of letting all flowers bloom online…
In the midst of this notable shift, some civil libertarians are raising a question in an already complicated debate: Any move to moderate content more proactively could eventually be used against speech loved by the people now calling for intervention.
“It comes from this drive to be protected – this belief that it’s a platform’s role to protect us from that which may harm or offend us,” said Suzanne Nossel, the head of PEN America, a free-speech advocacy organization. “And if that means granting them greater authority, then that’s worth it if that means protecting people,” she added… “But people are losing sight of the risk.”
Civil libertarians caution that adding warning labels or additional context to posts raises a range of issues – issues that tech companies until recently had wanted to avoid. New rules often backfire. Fact checks and context, no matter how sober or accurate they are, can be perceived as politically biased. More proactive moderation by the platforms could threaten their special protected legal status. And intervention goes against the apolitical self-image that some in the tech world have.
Wall Street Journal: Facebook, Twitter and Google Write Their Own Rules for Political Ads-and What You See
By Patience Haggin and Emily Glazer
Political campaigns and advocacy groups will funnel billions of dollars into digital advertising during the 2020 election season. With virtually no federal guidelines regulating these ads, the major online platforms are drawing up their own rules for what political advertisers can and cannot do.
Platforms’ decisions to moderate content have sparked widespread debate, as with Twitter Inc.’s decision in May to flag tweets posted by President Trump that violated its rules and Facebook Inc.’s decision to allow similar posts to appear without moderation.
Facebook, Alphabet Inc.-owned Google and Twitter updated their ad policies in 2019, setting rules for what counts as a political ad, who is allowed to buy them and what they can say. All three platforms use a combination of automated and human review to enforce their policies. The following uses real ads as examples to explain how the three platforms diverge.
Wall Street Journal: Facebook to Review Content Policies Related to Civil Unrest, Violence
By Kimberly Chin
Facebook Chief Executive Mark Zuckerberg said Friday that the company will review existing policies on how it handles content related to civil unrest or violence, as the company faces criticism over its decision to not moderate or take down some posts…
Mr. Zuckerberg’s memo to employees-which was also posted publicly on Facebook-comes after the company’s employees staged a virtual walkout Monday over the CEO’s decision to leave up a post from President Trump about the recent social unrest. Critics say the president’s post violated Facebook’s rules about inciting violence…
Facebook will review potential options for dealing with violations or partial violations of its content policy “aside from the binary leave-it-up or take-it-down decisions,” he said.
Tweets from Randy Barnett (via Thread Reader app)
[Replying to this tweet from John Daniel Davidson:]
I fully appreciate these costs, but am unsure the country would be better off…
Twitter has given me a voice as a public intellectual, in ways that are difficult to imagine without something like it. I can speak to hundreds, perhaps many thousands, at low cost. It also allows me to have serious discussions of constitutional & legal issues with other experts.
In addition to interacting with nonexperts, I now can interact (for the better) with other academics and public intellectuals far better and on a more personal level than would ever before have been possible. I don’t just pontificate, I learn a lot from these interactions.
And these are all in addition to having a personally-curated news feed from which, should I care to, I can learn what’s happening far faster than by any other news medium. And by following many with whom I disagree, I also instantly get the other side of every issue.
This column ignores or discounts ALL these personal and social benefits enjoyed by me and millions of others…
Having said this, I think the power enjoyed by Twitter and Facebook to stifle political views with which their faceless employees disagree is the type of “private power” that progressives would inveigh against if it was happening to them to the same degree.
Precisely because of the benefits it provides, if my Twitter platform disappeared tomorrow, it would impose a major cost on me. I would feel that loss, and be quite distressed it if was the result of arbitrary acts by anonymous ideological bigots.
However, addressing this by eliminating or restricting Section 230 protection would be more understandable if I had any confidence at all in our civil justice system not to prevent abusive lawsuits that themselves will stifle free expression. I just don’t trust that system.
The States
City & State: Is police money the new real estate money?
By Rebecca C. Lewis
There are a lot of people, organizations and causes whose campaign donations are politically toxic to Democrats in New York – and the list keeps growing. Donations from police unions is the newest addition to that list.
After the death of George Floyd at the hands of a Minneaopolis police officer, protests erupted across the nation and across the state… [T]he protests have also called attention to politicians who have accepted campaign donations from police groups, such as police union political action committees, and some on the left have begun pressuring lawmakers to return the money and pledge to accept no more. So far, at least 12 state legislators have publicly donated some or all of those contributions to causes like bail funds and mutual aid groups…
Although criminal justice reform is on the agenda for many Democratic legislators, most still accept money police groups that generally oppose those changes. After all, they are the party of organized labor, and law enforcement unions are unions. About 50 Democratic state legislators have accepted donations from police, corrections or court officer unions…
But with the recent protests once again placing police brutality on the front page, police money has become controversial in the way that donations from powerful business interests have long been on the left.
CalMatters: Proposal to prohibit police unions from funding district attorney campaigns doesn’t go far enough
By Joel Fox
One response to the protests over police treatment of black communities is a proposal by some current and former California district attorneys to prohibit candidates running for prosecutor positions from receiving police unions’ donations and endorsements.
The Los Angeles Times…backed the idea arguing, “These unions’ power to raise and dispense large amounts of campaign cash has warped the electoral process.”
If such a move is seriously considered, then the proposal doesn’t go far enough. The same principle of unions unduly influencing authorities that oversee their work applies to other relationships between public unions and government officials. If police unions should not give to District Attorney candidates, then teachers unions should not endorse and donate to school board candidates; prison guard unions should not give to state legislators; other public sector unions should not campaign for mayors and city council members who set their salaries and working conditions…
But, if this idea of banning endorsements and contributions from police unions (or any public union) is moved forward – there are major obstacles ahead.
Denying the unions their First Amendment rights of free speech is certainly threatened. In addition, ironically, for unions who complained about the U.S. Supreme Court decision in the Citizens United case, usually reported as allowing corporations the right to speak with their dollars, unions would get the same protection. Under Citizens United, unions can take member dues and spend the money on materials in support or in opposition to a candidate for office. As Justice Antonin Scalia noted at the time of the decision, “What individuals have the liberty to do alone, they have a liberty to do together.”
Mercury News: Finding compromise on San Jose’s Fair Election Initiative
By Garrick Percival and Mary Currin-Percival
Supporters of the Fair Elections Initiative (FEI), a San Jose ballot measure that restricts certain lobbyists’ campaign contributions and proposes to move mayoral elections to presidential years, recently received a major legal victory.
A Superior Court judge has called for a full recount of the nearly 100,000 signatures collected to qualify the initiative for the 2020 ballot after the Santa Clara County Registrar’s office erroneously disqualified valid signatures. The recount is expected to cost the city $1 million…
The question now is what’s the best way forward? Labor leaders who bankrolled the initiative are asking the City Council to place the FEI on the ballot. Given Mayor Sam Liccardo’s business-friendly coalition on the council, this is unlikely.
But we believe there is a way forward that preserves major parts of the FEI, avoids a costly recount, and (perhaps) lowers political tensions. The City Council would agree to place a charter amendment on the ballot that proposes to move San Jose’s mayoral elections to presidential years beginning in the 2024, just as the FEI calls for. In exchange, supporters of the FEI would agree to drop the measure’s campaign finance restrictions.
This compromise would offer something to all sides… As it stands now, developer-backed interest groups will undoubtedly file lawsuits challenging the legality of the measure’s campaign finance restrictions. Even if FEI supporters prevailed in court, delays caused by legal wrangling would be harmful.
