The Courts
Washington Times: Conservative nonprofit asks DOJ to help it fend off lawsuit demanding donor disclosure
By Alex Swoyer
A conservative nonprofit group has asked the Trump Justice Department to help fend off a lawsuit attempting to force the disclosure of its donors.
It is the latest twist in a unique legal battle that is testing the separation of powers over campaign finance litigation.
American Action Network says the left-leaning watchdog group Citizens for Responsibility and Ethics in Washington (CREW) has waged a nearly decade-long legal battle to force it to reveal the names of its donors.
CREW says the organization is operating as a political committee and therefore must disclose its donor list under the Federal Election Act of 1971, which requires reporting and other measures for groups that spend money to influence elections.
The Federal Election Commission has refused to pursue violations against American Action Network, so CREW used an obscure federal law to take the group to court in the District of Columbia.
On Monday, American Action Network petitioned the court to have the Justice Department get involved, saying the constitutional issues in the case could have serious ramifications.
Congress
The Hill: Democrats chide Facebook over climate disinformation
By Rachel Frazin
A group of Democratic senators is expressing concerns over reports that Facebook is exempting climate change misinformation from fact-checking.
Sens. Elizabeth Warren (Mass.), Tom Carper (Del.), Brian Schatz (Hawaii) and Sheldon Whitehouse (R.I.) wrote to CEO Mark Zuckerberg after E&E News reported that the company may consider climate information scientists have called misleading “opinion” and make it free from fact-checking.
“Allowing the spread of climate disinformation on Facebook is wholly inconsistent with your company’s June 2020 claims that it is ‘committed to fighting the spread of false news on Facebook and Instagram’ – and represents another unfortunate example of Facebook’s refusal to fully combat the deliberate spread of misinformation,” the lawmakers wrote this week.
They asked Zuckerberg to tell them by July 31 whether the company has a fact-checking loophole for climate denial, as well as how its climate fact-checking differs from other issues like the coronavirus.
The company says it doesn’t consider climate change to be an opinion and that opinion content is not exempt from fact-checking.
FTC
Multichannel News: FTC Reports on Social Media Bots in Online Ads
By John Eggerton
The Federal Trade Commission has released a report on the use of social media bots–algorithmically driven computer software–in online advertising and finds them to be thriving, out in the open, and easy, cheap and effective to sell, buy and use.
The report came at the direction of the Senate Appropriations Committee, which wanted input on deceptive advertising. While that majority report passes no judgment, Democratic commissioner Rohit Chopra, in his a separate statement, does, concluding there are major issues that Big Tech won’t solve, but the FTC needs to tackle…
While the report essentially made no value judgments beyond the enforcement action against a bad actor, Chopra said Big Tech platforms can’t be trusted to police themselves. “While the Commission’s report cites platforms’ efforts to remove bots and fake accounts, it is crucial to recognize that the platforms’ core incentives do not align with this goal,” he wrote…
“The FTC’s authority is limited to ‘commerce’ and generally does not encompass political speech,” [Chopra] also concedes. “However, individuals, firms, and corporations operating for profit are covered by the FTC Act’s prohibition on deception. In other words, if a for-profit enterprise offers surreptitious manipulation services to denigrate a commercial competitor or political opponent, it may be subject to the FTC’s jurisdiction.”
First Amendment
Washington Post: It’s time to challenge America’s repressive anti-riot laws
By David Henderson
Congress passed a federal anti-riot law as part of the Civil Rights Act of 1968. Vaguely written anti-riot laws also passed in states nationwide were meant to dissuade peaceful protesters from exercising their First Amendment rights. To this day, these laws – intentionally broad and opaque and codified in states from California to Minnesota and Texas…- are exploited by the police to intimidate, silence and arrest those who are peacefully pushing for a better world…
Such is the experience of dozens of peaceful protesters, including Yolanda Dobbins, Megan Nordyke and Lily Godinez, who were each violently arrested while peacefully holding up Black Lives Matter signs and marching for justice.
It’s not that police shouldn’t have any legal avenues to quell violence; rather, as one federal judge opined, it’s that a broad anti-riot statute “criminalizes advocacy even where violence or lawless action is not imminent.” In a sense, anti-riot laws are misnomers, because they’re often not actually used to contain riots – they’re used to arrest peaceful protesters who might, at some point, hypothetically, become violent…
Through protesting, ordinary people are making an extraordinary difference in the Black Lives Matter movement. People have the right to speak up about what they believe, especially during moments of national mourning and distress. And any efforts to curtail that should be ruled unconstitutional, lest the police continue brutalizing peaceful protesters.
Spiked: Free speech and civil rights go hand in hand
By Kevin Yuill
Both the civil-rights movement and the anti-slavery movement preceding it relied on free speech. Moreover, though the civil-rights movement was not fought to vindicate free-speech rights, by demanding civil rights, it revolutionised our conception of free speech and overturned libel law in the US, revealing the dependency of free speech and campaigns for black rights on each other.
In the slavery era, anti-slavery hero Frederick Douglass told an audience in Ithaca, New York, in 1852, that the ‘right of speech is the delight of the lovers of liberty, as it is the dread and terror of tyrants’. ‘To chain the slave, these parties have said we must fetter the free! To make tyranny safe, we must endanger the liberties of the nation, by destroying the palladium of all liberty and progress – the freedom of speech.’
Douglass’s view of free speech would now be decried as ‘absolutist’. ‘It is idle and short-sighted to regard this question as merely relating to the liberties of the coloured people of this country’, he said. ‘If, today, these parties can put down the right of speech on one subject, tomorrow they may do so on another… Liberty for all, or chains for all.’ …
Today’s attempt to disassociate free speech from the pursuit of civil rights rewrites history. It is always the powerless who gain the most from the freedom to speak out against their condition. And it is always they who suffer when the right to express themselves is curtailed.
Washington Post: Call it the cultural left. Do not call it liberal.
By Matt Bai
Liberals are supposed to believe that the freedom to dissent is an essential part of a functioning democracy. More points of view lead to a better grasp of complex problems. Liberals believe that the price of that freedom is the tolerance of ideas we may find self-evidently wrong, or even odious.
Some of us viscerally remember when American liberalism was defined by the American Civil Liberties Union’s courageous defense of Nazis marching in Skokie, Ill. Real liberalism says you can’t discredit an argument without recognizing its right to be heard.
But this cultural leftism that has been emboldened in the Trump moment – call it wokeism, I guess – espouses the opposite…
The new leftism holds that free speech is often a tool of oppression, an elitist principle wielded by white men whose speech counts for more than everybody else’s. Ezra Klein, the founder of Vox, recently echoed this argument, tweeting: “A lot of debates that sell themselves as being about free speech are actually about power.”
I’m not sure any Soviet-era autocrat could have made the case against liberal democracy more succinctly than that.
We in the media should make sure all sides of this debate are heard. But when we allow the cultural left to refer to itself as a “liberal” or “progressive” movement, we do a profound disservice to generations of political activists who stood up for a decidedly different set of principles. Those words get their meaning from a century of tolerance and dissent.
Media
Courthouse News: News Outlets Join Fight Against Gag Order in George Floyd Cases
By Andy Monserud
A nationwide coalition of news outlets has thrown its weight against a gag order in the cases of four former police officers charged in the death of George Floyd.
The coalition – which includes the companies behind national news outlets like NPR, the Wall Street Journal, CNN and the Associated Press alongside local TV stations and newspapers and the University of Minnesota’s media law center – filed a motion Friday seeking the removal of Hennepin County Judge Peter Cahill’s gag order in the cases against former Minneapolis officers Derek Chauvin, Tou Thao, Thomas Lane and J. Alexander Kueng.
The news outlets argued that the gag order, put in place July 9 after Lane’s attorney spoke to the Minneapolis Star Tribune about a motion to dismiss the case against his client, is too broad.
“George Floyd’s death catapulted Black Lives Matter into one of the largest movements in this country’s history and spurred important conversations on a number of topics that arguably ‘relate’ to these prosecutions,” attorney Leita Walker of the local firm Ballard Spahr wrote. “The order can be read to restrict the speech of a breathtaking number of people. Indeed, it arguably restricts the speech of every employee of the state of Minnesota and Hennepin County.”
Online Speech Platforms
Axios: Zuckerberg: No deal with Trump
By Mike Allen
Facebook CEO Mark Zuckerberg, under fire for allowing President Trump to post inflammatory statements on his platform, tells Axios there’s no truth to whispers that the two have a secret understanding…
Zuckerberg pointed out that “under this administration, we’ve faced record fines of $5 billion, are under antitrust investigation by multiple agencies, and have been targeted by an executive order to strip protections in Section 230,” which shields tech companies from liability for content on their platforms…
I asked Zuckerberg about Trump after the CEO told a companywide Q&A on Thursday, in remarks obtained by Axios:
“One specific critique that I’ve seen is that there are a lot of people who’ve said that maybe we’re too sympathetic or too close in some way to the Trump administration.”
“I just want to push back on that a bit,” Zuckerberg told employees. “[W]e need to separate out the fact of giving people some space for discourse, from the positions that we have individually, where I feel like the company and I personally have been.” …
Zuckerberg said he believes deeply “in giving people a voice, even when I disagree with them. I believe in a broad definition of free expression, especially around political speech – but those are my principles and I don’t think that’s a surprise to anyone.”
Reuters: Google bans ads on coronavirus conspiracy theory content
By Sheila Dang
Alphabet Inc’s Google said on Friday it would prohibit websites and apps that use its advertising technology from running ads on “dangerous content” that goes against scientific consensus during the coronavirus pandemic…
Content not allowed to make money from ads include debunked conspiracy theories, such as the notion that the novel coronavirus was created in a Chinese lab as a bioweapon, that it was created by Microsoft Corp founder Bill Gates, or that the virus is a hoax, Google said in a statement.
Google already bars ads with harmful content like “miracle” health cures or which promote the anti-vaccination movement. It also prevents ads from running on publisher content that encourages those topics.
Google’s new policy will also bar advertisers from creating their own ads that promote coronavirus conspiracy theories.
Google allows only certain institutions to run ads about the coronavirus pandemic, including government organizations and healthcare providers, to prevent activities like price-gouging on medical supplies.
Candidates and Campaigns
Roll Call: Lobbyists bundle donations to Senate Democrats, Trump Victory
By Kate Ackley
[E]ven in a pandemic, advocates trying to influence federal policy are working in support of candidates who may someday vote on it, even though the candidates are keeping their distance from corporate PAC money.
Campaigns are only required to disclose bundlers who are registered federal lobbyists, so it’s not possible to track the ebb and flow of other people who gather contributions from groups of donors and pool them together, unless campaigns and committees release them voluntarily.
That prompted a cross section of ideological groups last week to renew their calls on the campaigns of President Donald Trump and former Vice President Joe Biden to disclose everyone who is bundling contributions together for their campaigns.
The States
New York Times: The Legal System Should Not Be a Tool for Bullies
By The Editorial Board
The New York State Legislature has before it an important bill that would discourage abusive lawsuits filed with the sole purpose of silencing critics. Known as SLAPPs, for strategic lawsuits against public participation, the suits are deliberate misuses of the legal system intended to choke off free speech.
Individuals and organizations who file a SLAPP typically do not intend to win. Their goal is to intimidate and harass critics by saddling them with prohibitively expensive, nerve-racking and time-consuming legal processes. The ploy is a direct assault on freedom of expression, perversely cloaked as ordinary civil claims such as defamation, invasion of privacy or interference with economic advantage…
[W]hile substantial organizations have the resources to fend off punitive suits, smaller news organizations and people sharing their opinions on social media can be seriously hurt by legal costs that can well exceed $100,000 and the wrenching ordeal of discovery proceedings and court hearings.
Frivolous lawsuits are hardly new. But the spread of social media has greatly expanded the power of individuals and organizations to mobilize opposition to some project or to criticize, expose and ridicule wayward politicians, oppressive organizations or bullying businesses, and retaliatory SLAPPs have proliferated.
Post and Courier: Editorial: Will latest dark-money investment in SC Senate race finally spur action?
By The Editorial Staff
[U]nlike 47 other states, South Carolina doesn’t require outside groups that spend money to influence our votes to tell us anything about who they are or what they’re doing. We only know how much was spent on TV ads because TV stations have to make information about political advertising available to the public…
The House has passed legislation to require some groups to report their spending and the names of their largest donors, only to see it die in the Senate. For the past two years, even the House didn’t pass it after Republican operatives stepped up their opposition.
The special interests argue, ridiculously, that the U.S. Constitution requires lawmakers to let them spend as much money as they want, as anonymously as they want, to try to manipulate our votes. Despite the fact that 47 states require some sort of reporting.
It’s true that the U.S. Supreme Court believes that money is the same as speech, so we no longer may limit how much non-candidates spend on political campaigns. But the court never said we can’t require people to report their spending. Just the opposite. In the infamous 2010 Citizens United v. FEC ruling striking down limits on third-party expenditures, the high court said there’s no need to worry that unlimited election spending will create corruption precisely because the spending is reported. As Justice Antonin Scalia wrote in another case that same year: “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”
Salt Lake Tribune: Animal welfare activists facing prison time seek top Utah prosecutor’s donor list
By Taylor Stevens
Utah Attorney General Sean Reyes, currently under scrutiny in his reelection bid over the sources of his big fundraising dollars and allegations that he’s put the office up “for sale,” now faces similar accusations on a separate front: in the courtroom.
One of two California animal welfare activists who face up to 60 years in prison for allegedly stealing pigs from a Beaver County hog farm in 2017 filed a motion in 5th District Court late last month asking a judge to compel Reyes, whose office is involved in prosecuting their case, to disclose his campaign contributions.
Given the potential of past affiliations with the animal agriculture industry, there is a “legitimate question” of whether Reyes has a “personal interest” in the case, the defendants argue. And they want to know whether Reyes has taken campaign contributions from Smithfield Foods – which owns the Circle Four Farms they’re accused of stealing from – that could present an “undue influence over him or the functioning of the Attorney General’s Office.”
Reason (Volokh Conspiracy): Indian Tribes, Like Other Government Entities, Can’t Sue for Libel; Lawsuit Over Billions Episode Thrown Out
By Eugene Volokh
Friday’s decision by New York Judge Kathryn E. Freed in Cayuga Nation v. Showtime Networks Inc. involves a lawsuit over an episode of the Showtime TV series Billions. The show depicted possible bribery and blackmail by the leaders of a “Cayuga Iroquois” tribe, including a council member named “Jane Halftown.” Plaintiffs, Cayuga Nation and tribal council member Clint Halftown, claim the show libeled them, but the court said no:
[1.] There can be no claim for libel of a government entity (as opposed to a government official); that’s a lesser-known holding of New York Times v. Sullivan, and the court concluded that it applies to tribal governments as well.
[2.] Clint Halftown lost his defamation claim because the show would be perceived as fiction that doesn’t make any claims about real people (even ones who share the same last name and job description as a character).
