New from the Institute for Free Speech
Letter to Arizona Department of Child Safety Concerning Ban on Parental Criticism of Agency Actions
By David Keating
On behalf of the Institute for Free Speech, I write in response to a recent Arizona Republic article that reports at least one instance where your office has instructed a parent to “avoid inviting people to attend DCS [Department of Child Safety] meetings, or court hearings that may have a connection with the media, such as any journalist, newspaper/news reporters, potential political gain, or anyone who may write derogatory statements in social media or elsewhere regarding DCS or the Judicial system.”
If true, this demand raises serious First Amendment concerns. “The Supreme Court has long recognized a qualified right of access for the press and public to observe government activities.” Leigh v. Salazar, 677 F.3d 892, 898 (9th Cir. 2012). While that right is not absolute, it is strong and fundamental, and governments have great difficulty overcoming the presumption of open proceedings. See Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982) (holding unconstitutional a ban on public access to trial testimony of children who were victims of sex crimes).
Should this policy be challenged by litigation, then under the facts reported by The Arizona Republic, there is very little prospect of your office prevailing in court. Not only does the instruction bar public viewing of presumptively-public proceedings, it does so on the basis of viewpoint. As you doubtless know, viewpoint discrimination is “an egregious form of content discrimination,” and nearly always unconstitutional. Rosenberger v. Rectors and Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995). Viewpoint discrimination is bad enough, but where the government’s clear motivation is suppressing criticism, its behavior is not just technically unconstitutional. It is patently outrageous. As the Ninth Circuit has warned, “when wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate.” Leigh, 677 F.3d at 900.
Congress
Washington Post: The Cybersecurity 202: Democrats call for harsher data breach penalties after Equifax settlement
By Joseph Marks
2020 presidential candidate Sen. Amy Klobuchar (D-Minn.) slammed Senate Majority Leader Mitch McConnell (R-Ky.) and the White House for blocking legislation to secure the upcoming elections in an interview with my colleague Robert Costa yesterday. Klobuchar echoed growing concerns from the U.S. intelligence community that Russia and other nations will ramp up election interference operations in 2020…
Klobuchar also warned that preventing other election legislation, such as her Honest Ads Act, would open the door for foreign governments and other actors to manipulate voters online…
Senate Democrats are using special counsel Robert S. Mueller III’s testimony in front of the Senate Intelligence Committee tomorrow to renew their crusade to pass a slew of election security reforms. Senate and House Democrats including Warner, the Senate Intelligence Committee vice chairman, will host a news conference today highlighting bipartisan proposals that they say McConnell “buried in the Senate’s legislative graveyard.”
McConnell has refused to allow votes on election security legislation, including a bill that would mandate that states use paper ballots that are tougher to hack than digital ones and another bill that would require online political ads to come with the same disclosures as print and broadcast media.
Foreign Affairs: U.S. Elections Are Still Not Safe From Attack
By Lawrence Norden and Daniel I. Weiner
Congress could exempt the cost of cybersecurity enhancements from limits on how much well-heeled national party organizations, such as the DNC and RNC, can give to affiliated candidates…
Congress should clarify the law to eliminate any doubt that a campaign or party’s solicitation or receipt of any benefit from a foreign government is prohibited. Congress should also require campaigns to report credible offers of free assistance or collaboration from foreign governments and political parties and all payments to foreign vendors…
The bipartisan Honest Ads Act updates rules governing transparency in campaign advertising to include Internet campaign ads beyond those containing express advocacy. It also requires major platforms to create public online databases of their political ad sales, which would include digital copies of the ads themselves and information about the audience the ad targeted, the number of views, the ad’s cost, and its purchaser. Passing the DISCLOSE Act, which has been introduced in every Congress since 2010, would eliminate the problem of dark money altogether by requiring nonprofits, such as the NRA, to reveal their donors when they engage in substantial campaign spending… Finally, Congress must also wrestle with the question of what additional mandates could be used to uncover unpaid deceptive foreign online activity, including the use of bots and deepfakes…
Congress should reduce the number of commissioners from six to five and give the commission’s professional staff the ability to independently investigate violations of the law. Similarly, Congress can address FARA enforcement by establishing a FARA enforcement unit within the Department of Justice, and by allowing the statute to be enforced civilly as well as criminally, which would lower the government’s burden of proof to establish and remedy violations. Congress should require FARA registrants-including media entities like RT and Sputnik-to disclose their status as foreign agents in public communications, including television and radio broadcasts and paid advertisements.
The Courts
Courthouse News Service: Judge Urged to Block Warrantless Tech Searches at Border
By Zack Huffman
Attorneys from the American Civil Liberties Union and Electronic Frontier Foundation asked a federal judge Thursday afternoon to ban the practice of border agents searching electronic devices without a warrant.
Both organizations sued the federal government in 2017 on behalf of 10 people whose laptops or smartphones were searched while attempting to re-enter the United States.
Now armed with information showing Customs and Border Protection gives its agents broad authority to make warrantless searches of devices, the groups asked U.S. District Judge Denise Casper to forego a trial and issue a summary judgment against the warrantless searches.
“The record demonstrates that this highly invasive practice is untethered from immigration and customs enforcement rationales,” EFF Senior Staff Attorney Adam Schwartz said at Thursday’s hearing in Boston federal court…
The government moved to dismiss the class action suit, arguing that people entering the United States have no First or Fourth Amendment protection against searches from border agents. Casper was not persuaded and denied the motion in May.
Meanwhile, the ACLU and EFF obtained information through discovery that CBP and U.S. Immigration and Customs Enforcement were allowing their agents to search devices with little to no justification for legitimate purposes…
It is unclear when Casper will rule on the summary judgment motion.
CNBC: Trump sues House Ways and Means panel to block disclosure of his tax returns
By Kevin Breuninger
President Donald Trump on Tuesday filed a lawsuit against the Democrat-led House Ways and Means Committee, as well as New York state’s attorney general and its tax chief, to block the disclosure of years of his tax returns.
The president’s lawsuit, which was filed “in his capacity as a private citizen,” came less than a month after the Ways and Means Committee sued the Treasury Department and the Internal Revenue Service to obtain Trump’s federal returns.
Trump’s new legal action intervenes in that suit, according to the complaint filed in U.S. District Court in Washington, D.C.
Trump’s lawyers argue that the House panel “lacks a legitimate legislative purpose” to use a recently passed New York state law to get Trump’s returns. They also claim that state law violated the president’s First Amendment rights, because it was enacted to “discriminate and retaliate against President Trump for his speech and politics.”
“We have filed a lawsuit today in our ongoing efforts to end Presidential harassment,” said Trump’s lawyer, Jay Sekulow, in a statement. “The actions taken by the House and New York officials are nothing more than political retribution.”
Fundraising
Center for Responsive Politics: Women continue to contribute in record numbers heading into 2020
By Grace Haley
Almost 100,000 women have given more than $200 to a presidential candidate so far during the 2020 presidential elections – nearly four times the number of women donors at this point in the 2016 elections. Who benefits has yet to be determined, but where women are putting their money provides insight.
Democratic presidential candidates have raised $41 million from women so far this presidential cycle while the Republicans have raised $12 million, based on an OpenSecrets analysis examining publicly available data from contributions for candidates who have raised more than $100,000 reported to the Federal Election Commission.
The second-quarter fundraising figures indicate that women, who are neither a monolithic voting base nor donor base, are spreading their money widely among the 2020 presidential candidates…
Sen. Kirsten Gillibrand, Harris, former Rep. Beto O’Rourke, Warren and former Secretary of Housing and Urban Development Julián Castro reached gender parity in the percentage of women in their overall donor base – at 55 percent, 52 percent, 51 percent, 50 percent, and 50 percent respectively. Williamson has overwhelming support from women with more than 71 percent of her donors, a first for a presidential candidate.
Of all the presidential candidates during the second quarter, President Donald Trump has the highest number of women donors at 13,537. Trailing Trump in second-quarter total donors are Sanders at 9,701 women and Warren at 8,123 women.
However, it appears that many networks of prominent donors, including powerful women, are staying out of the presidential fundraising race for now, giving money to groups and causes outside the primary.
Washington Post: ‘They’re rich and ready’: House Democrats outpace GOP in fundraising by nearly $20 million
By Mike DeBonis and Anu Narayanswamy
Six months into Democrats’ control of the House, the “green wave” that helped put them there shows no sign of ebbing, even as the party’s donors look to oust President Trump by contributing to a crowded lineup of two dozen White House candidates.
Key House campaigns reported massive fundraising hauls for this early stage of the campaign cycle, according to federal disclosures filed this past week by congressional campaigns, with all Democratic freshmen but one outraising their declared Republican challengers and several GOP incumbents lapped by Democratic opponents…
The formula for these massive Democratic hauls is a combination of the old-fashioned – hours of “call time” to known political donors – plus, for some, a mastery of small-dollar fundraising that can be generated by viral videos and social media stardom…
But Republicans argue that the more Democrats cater to a national audience of liberal activists, the more they risk losing touch with the voters in their home districts…
An early test for how much money will matter comes on Sept. 10, when voters in North Carolina’s GOP-tilting 9th Congressional District fill an open House seat. Democrat Dan McCready has more than $1.5 million on hand vs. the $184,000 banked by Republican Dan Bishop, although outside spending is expected to close that gap.
There are districts that are so Republican, even an ocean of Democratic money might not make a difference on Election Day. Last year, the opponents of Rep. Tom McClintock (R-Calif.) spent a combined $5.5 million to his $1.7 million; he won by eight percentage points. He was significantly outraised again in this most recent quarter by Democrat Brynne Kennedy.
Candidates and Campaigns
Bloomberg: Facebook Is Big Winner in Democrats’ 2020 Presidential Debates
By Misyrlena Egkolfopoulou
The Democratic National Committee’s debate-qualification rules are driving a social-media spending frenzy.
But as the 2020 presidential campaigns spend millions to secure donors and push up polling numbers to win coveted debate slots, they’re also discovering that the economics of online advertising can be confusing – and punishing…
While most candidates say they have benefited from social media and relish its ability to target specific groups in desired locations, its costs often fluctuate wildly, making it difficult to control expenses. With a crowded field of Democratic hopefuls competing for the same online audience, prices can skyrocket. Some candidates are even seeing a loss from their online investments, having spent millions on Facebook without reaping a bump-up in the polls.
Some campaigns are in danger of being “bled dry” by spending well more than $1 to get a $1 contribution and meet the debate criteria, said Niko Duffy, managing director of Commonwealth Media, a digital strategy firm for liberal candidates. “They’ve shifted their resources, as opposed to spending money on the ground in Iowa, to spending money to acquire these $1 donors.” …
The competition for ad space is likely to get worse, digital-ad experts said, under the DNC’s tougher rules for the September and October debates. Candidates must have at least 130,000 unique donors – twice the number needed for the first two debates – with at least 400 contributors from 20 states…
Federal Communications Commission rules require candidates to get the lowest available rate to buy air time on TV, but no such regulations exist for the internet. And while TV ad rates are broadly predictable, social-media prices aren’t.
The States
San Francisco Chronicle: Adachi leak case: SFPD didn’t tell judge that target of search was a journalist
By Evan Sernoffsky
San Francisco police didn’t tell a judge that a man who obtained a police report on the death of Public Defender Jeff Adachi was a journalist when they asked for a warrant to search the man’s phone amid an investigation into who in the police force leaked the confidential document, according to records released Tuesday.
The warrant that was issued March 1, one week after Adachi died, was the first of five search warrants police executed on freelance videographer Bryan Carmody in their mishandled investigation.
Superior Court Judge Rochelle East, who initially granted the search of Carmody’s cell phone records, quashed the warrant last week and ordered it unsealed, along with the police affidavit justifying the search.
“I conducted an internet search for Bryan Carmody and located a LinkedIn profile associated to Bryan Carmody which listed him as a ‘Freelance Videographer/Communication Manager, USO Bay Area,'” Sgt. Joseph Obidi wrote in the affidavit. “Further internet research revealed that Bryan Carmody is not currently employed by any of the news organizations that obtained the death investigation report.”
What Obidi didn’t write in the application for the warrant was that Carmody worked for decades as a freelance journalist in San Francisco, shooting video of breaking news and selling content to local television news stations, and that he had a San Francisco Police Department-issued press pass.
Freelancers like him are covered under California’s shield law that protects journalists from being forced to reveal confidential sources or hand over unpublished information and specifically bars police searches.
“The more we learn about the Police Department’s extreme overreach here, the more the city’s violation of California and federal law becomes obvious,” said David Snyder, executive director of the First Amendment Coalition, which fought to have the affidavit unsealed…
Four other judges will rule if the remaining warrants should also be quashed and unsealed in separate hearings.
ACLU of Virginia: I Was Sued For Speaking Out About Monument Protectionists.
By Dr. Jalane Schmidt
As a public historian, being able to give accurate historical context regarding current events is crucial. That is why I am working with the ACLU to defend my right to free speech.
The ACLU of Virginia is representing me in Tayloe v. C-Ville Holdings, a case in which I am being sued for defamation. The plaintiff, Edward Dickinson Tayloe II, is also a plaintiff with the Monument Fund, a group suing the Charlottesville City Council for voting in 2017 to remove two of the city’s downtown Confederate monuments. Plaintiff Tayloe has filed suit against me, reporter Lisa Provence, and the C-Ville Weekly newspaper for the contents of a March 6 article which detailed the plaintiff’s family history of slave ownership and domestic slave trading.
Tayloe’s lawsuit against me not only fails to meet the legal requirements for a defamation case, it is also a disdainful attempt to stifle speech and prevent me from speaking out about matters of public concern. These types of claims, known as strategic lawsuits against public participation, or SLAPP suits, are designed to silence, censor and intimidate critics with the threat of costly litigation…
First Amendment protections should not be stifled by lawsuits designed to make anyone fearful of the consequences of exercising their rights.
