In the News
The Hill: New ad disclaimers silence activists
By Tiffany Donnelly
Can the government put words in your mouth? The Constitution says no, but some politicians say yes. Their latest scheme twists political ad disclaimer laws into something almost unrecognizable. Once a simple matter of identifying yourself to viewers, Americans now often face impossible requirements when speaking about an election on television or radio, in the newspaper, or online.
Ad disclaimers are supposed to tell viewers or listeners who is attempting to persuade them. Even straightforward disclaimer requirements can raise constitutional concerns because they compel speakers to voice a government message. But throwing caution to the wind, states and localities are increasingly mandating lengthy, complex, and confusing disclaimers that run roughshod over the First Amendment.
Just ask San Francisco political activist Todd David. He formed the group Yes on Prop B to support a local ballot initiative on earthquake and disaster preparedness. Yet City law made it nearly impossible for the group to run ads by requiring them to carry a 28-second disclaimer. David, who is challenging the law with help from the Institute for Free Speech, asked, “How are groups supposed to communicate with voters if their ads are eaten up by a disclaimer?”
When disclaimers consume such large portions of ads, it becomes more expensive to communicate to voters. The smallest and cheapest forms of advertising become impossible or impractical to use, harming small, cash-strapped groups. What may seem like a minor inconvenience can effectively silence the group’s message.
Philanthropy Roundtable: Philanthropy’s Role in Elections: How and Why Philanthropy Became Such a Powerful Player
By Debi Ghate
On Sept. 8, the Roundtable hosted a conversation about how philanthropy is increasingly involved in our election process-an important topic that is not often publicly discussed…
Our guests, Bradley Smith (Institute for Free Speech), Lawson Bader (Donors’ Trust), and Christian Adams (Public Interest Legal Foundation), walked us through: how and why philanthropy became such a powerful player; where these philanthropic dollars are coming from and going; and how these dollars are being spent. Here are three takeaways. We encourage you to check out the recording to learn more.
- Both the left and right are heavily investing in elections and the processes behind them. But they invest in very different ways.
- It is very difficult to evaluate how much money is flowing in because of the lag in data becoming available, and the challenge in separating some policy and education/outreach work from its impact on election processes.
- There has been an influx of 501(c)(3) dollars into funding and managing the election process itself-a new development in 2020.
New from the Institute for Free Speech
Celebrate Constitution Day by Protecting Anonymous Speech
By Tiffany Donnelly
Today marks the 233rd anniversary of the signing of the U.S. Constitution. As we commemorate September 17, 1787 as the end of the drafting process, we should also remember it as the beginning of a passionate public debate over ratification – and an evergreen reminder of the importance of anonymous speech.
As Federalists and Anti-Federalists sought support for their views, they persuaded fellow Americans by anonymously circulating their arguments in the press. Ten days after the Constitution was signed, the first anti-Federalist letter was published, followed by Federalist No. 1 a month later. Authored under the pen names “Cato” and “Publius,” respectively, these seminal essays are among many in our nation’s history written pseudonymously.
A decade prior, Common Sense’s rousing words urged the country to pursue independence. It was written “By an Englishman,” only revealed to be Thomas Paine months after becoming a sensation.
In today’s world, anonymous advocacy is often maligned and misunderstood. It’s surprising, considering how many Americans fear personal and professional backlash for their political views. A July Cato Institute poll shows nearly a third (32%) of employed Americans are worried about missing career opportunities or losing their job if their political opinions became known. The same poll shows that over 62% of Americans have political views they are afraid to share.
The Courts
Center for Public Integrity: Telemarketer at Center of Public Integrity Investigation Banned from Fundraising
By Sarah Kleiner
The Federal Trade Commission and four state attorneys general have shut down a “sprawling fundraising operation” that allegedly bilked unsuspecting donors out of tens of millions of dollars, according to court documents filed Tuesday.
The fundraising network, led by New Jersey businessman Mark Gelvan, was the focus of a 2017 Center for Public Integrity investigation into the telemarketers working with about two dozen charities and political action committees that spent little, if anything, on the causes they championed…
All together, the U.S. District Court in the Southern District of New York ordered Gelvan and his co-defendants to pay back more than $58.5 million, but they will only be required to pay back a small portion of that “based on their inability to pay.” The money will be sent to legitimate charities…
In 2017, Gelvan’s primary company Outreach Calling expanded into the highly unregulated realm of political fundraising. In the first nine months of 2017, the company kept $1.3 million out of the $1.5 million it raised for a veterans-focused political action committee.
Daily Beast: Daniel Ellsberg Tells Court U.S. Is Out for ‘Revenge’ Against Julian Assange
By Nico Hines
Daniel Ellsberg, the whistleblower who exposed the underbelly of U.S. policy in the Vietnam War, has told a British court that the extradition of Julian Assange is part of an American effort to “crush” future whistleblowers.
Ellsberg said the U.S. wanted revenge against the WikiLeaks founder just like the Nixon administration and the CIA plotted vengeance against him for his part in the publication of the Pentagon Papers…
Ellsberg was called as a witness for the defense. In a written submission to an extradition hearing, he said: “I observe the closest of similarities to the position I faced, where the exposure of illegality and criminal acts institutionally and by individuals was intended to be crushed by the administration carrying out those illegalities; in part in revenge for my act of exposing them, but in part to crush all such future exposure of the truth and when there was no other way.”
Assange’s lawyers claim that if he is extradited to the U.S. he could be sentenced to prison for as long as 175 years…
Ellsberg argues that life imprisonment is just the kind of deterrent the U.S. wants to set. “I have closely observed the actions of the U.S. government, its military, and its intelligence agency the CIA,” he said. “I have also observed that those who have been party to exposing them have been and continue to be themselves threatened and criminalized.”
DOJ
Wall Street Journal: Barr Tells Prosecutors to Consider Charging Violent Protesters With Sedition
By Aruna Viswanatha and Sadie Gurman
Attorney General William Barr told the nation’s federal prosecutors to be aggressive when charging violent demonstrators with crimes, including potentially prosecuting them for plotting to overthrow the U.S. government, people familiar with the conversation said.
In a conference call with U.S. attorneys across the country last week, Mr. Barr warned that sometimes violent demonstrations across the U.S. could worsen as the November presidential election approaches. He encouraged the prosecutors to seek a number federal charges, including under a rarely used sedition law, even when state charges could apply, the people said…
To bring a sedition case, prosecutors would have to prove there was a conspiracy to attack government agents or officials that posed an imminent danger, legal experts said. They added that there is a fine line between the expression of antigovernment sentiment, which could be protected speech under the First Amendment even if it included discussions of violence, and a plot that presented an imminent danger and could justify a charge of sedition.
DOD
NPR: Military Police Leaders Weighed Deploying ‘Heat Ray’ Against D.C. Protesters
By Dina Temple-Raston
Hours before federal police officers cleared a crowded park near the White House with smoke and tear gas on June 1, the lead military police officer in the Department of Defense for the D.C. region asked if the D.C. National Guard had a kind of military heat ray that might be deployed against demonstrators in the nation’s capital, according to one of the most senior National Guard officers on the scene.
In written responses to the House Committee on Natural Resources obtained by NPR, Major Adam DeMarco of the D.C. National Guard said he was copied on an email from the Provost Marshal of Joint Force Headquarters National Capital Region. He was looking for two things: a long range acoustic device, a kind of sound cannon known as an LRAD, and a device called the Active Denial System, or ADS.
FCC
Ars Technica: Trump replaces FCC member in bid to push through Twitter/Facebook crackdown
By Jon Brodkin
President Donald Trump today nominated one of his administration officials to serve on the Federal Communications Commission in an attempt to push through his proposed crackdown on social media websites.
Trump announced the nomination of Nathan Simington, who is currently a senior advisor in the National Telecommunications and Information Administration (NTIA). Simington “played a significant role in the agency’s social media regulation agenda,” as The Verge reported last week when news broke that Trump was considering Simington for the FCC position.
Simington would replace Republican Michael O’Rielly, who apparently angered Trump by saying that the FCC must uphold First Amendment speech protections “that apply to corporate entities, especially when they engage in editorial decision making.” O’Rielly’s comments signaled that he isn’t likely to support the Trump administration petition, submitted by the NTIA, that asks the FCC to reinterpret Section 230 of the Communications Decency Act in order to limit social media platforms’ legal protections for hosting third-party content when the platforms take down or alter content they consider objectionable.
Media
Courthouse News: Divergent Media Diets Drive Partisan Divides Ahead of Election
By Daniel Conrad
Disinformation and conspiracy theories are the sources of some of the deepest disagreements between Republicans and Democrats during the 2020 campaign season, according to a Pew Research Center survey released Wednesday…
The parties were divided on who shares the blame for disinformation and false reporting about the election. Almost 70% of all U.S. adults said they’ve seen some or a lot of election news that “seemed completely made up.”
Though the overwhelming majority of all respondents blamed politicians and activist groups, almost 30% said journalists are to blame. More than half of Republicans say journalists make up a lot of news about the election, but less than 10% of Democrats agree.
Of note, only 17% of Republicans blame foreign governments for election disinformation, while more than a quarter of Democrats feel the same way.
Online Speech Platforms
New York Times: Facebook and Instagram Flag Tucker Carlson Virus Posts
By Tiffany Hsu
Facebook and Instagram flagged posts from the Fox News show “Tucker Carlson Tonight” as false information on Wednesday, saying that they repeated information about Covid-19 “that multiple independent fact checkers say is false.”
The show posted a video on the social media platforms on Tuesday night with the caption “Chinese whistle-blower to Tucker: This virus was made in a lab & I can prove it.” The posts feature a segment in which Mr. Carlson interviewed Li-Meng Yan, a Chinese virologist who claims that the virus “is not from nature.”
The Hill: Twitter suspends account of Chinese virologist who claimed coronavirus was made in a lab
By Anagha Srikanth
Li-Meng Yan and other researchers posted a preprint of a study titled “Unusual Features of the SARS-CoV-2 Genome Suggesting Sophisticated Laboratory Modification Rather Than Natural Evolution and Delineation of Its Probable Synthetic Route.” The unpublished non-peer-reviewed paper suggests SARS-COV-2 was developed in a laboratory rather than developing through natural evolution, as several other studies have suggested. But the reaction from the scientific community suggests the theory is an outlier…
When asked why the account was suspended and what rules it violated, a Twitter spokesperson told Changing America they had no comment.
Yan first came forward as a whistleblower in July, telling Fox News that she believes the Chinese government knew about the novel coronavirus well before it claimed it did and ignored research she was doing that she believes could have saved lives.
By John Bickley
Amid pressure from left-wing activists and media outlets to clamp down on “misinformation” from the right, Facebook has begun censoring political ads that receive negative fact-checks – fact-checks that are produced by mostly left-leaning fact-checkers and that mostly target right-leaning ads. In at least two new cases, these fact-checks do not actually check facts – they instead merely state that factually true claims are “missing context,” then downgrade the ads.
The danger of this political speech-silencing policy by the social media giant – which nearly 70% of Americans use and where more than 40% read their news – is on full display in the case of the censoring of the pro-Trump 30-second political ad “Too Risky.”
The ad launched on Aug. 4 before getting slapped with a “mostly false” rating by PolitiFact and subsequently blocked by Facebook. The ad directly quotes Biden declaring, “If you elect me, your taxes are going to be raised, not cut,” and warns that his plan will raise taxes “on all income groups.”
The overarching problem of curbing political speech aside, was America First actually guilty of pushing a “mostly false” message in the ad? No. And to confirm this, we need look no further than the very fact check that resulted in the silencing of the pro-Trump organization.
Family Research Council: Facebook Attaches an Asterisk to Free Speech
By Tony Perkins
Yesterday, Facebook put its thumb on the scale of the Michigan Senate race in favor of Democratic incumbent Gary Peters by blocking a $4 million ad campaign from the conservative American Principles Project (APP) PAC…
The ad criticized Senator Peters’ support for the radical, left-wing Equality Act…
Particularly, the Equality Act will allow biological males to compete in women’s sports. This would “destroy women’s sports,” said the video, by taking away from female athletes “a fair shot at competition, at a scholarship, at a title, at victory.”
In response, Facebook placed a warning on the ad that it was “missing context” and “mislead people” and later banned it entirely.
However, the “fact-check” by PolitiFact was anything but. It admits, “Their specific criticism is … a prediction we can’t fact-check.” That’s because you can’t fact check the truth. Instead, PolitiFact opted for the weasel words “missing context” and “mislead people” — whatever that means…
Evidently, they think all conservative candidates should give their opponents airtime in ads they pay for within 60 days of the election. And it seems they thought the ad might “mislead people” to vote for candidates who oppose the radical Equality Act.
Candidates and Campaigns
New Yorker: Is Russian Meddling as Dangerous as We Think?
By Joshua Yaffa
The challenge in making sense of disinformation operations is disentangling intent from impact. Yevgeny Prigozhin’s Internet Research Agency trolls may have aspired to distort American politics and upend American society, but to what extent did they succeed? … In 2016, they inflamed hot spots of American discourse, then ran away when the fire began; their priority appeared to be scoring points with bosses and paymasters in Russia as much as influencing actual votes in the United States. Russian disinformation-and the cynical, distorted world view it entrains-is a problem, but the nature of the problem may not be quite what we imagine.
The States
Center Square: In wake of federal corruption probe, Ohio Senate takes look at ending dark political money
By J.D. Davidson
A bill proponents say takes a step forward in Ohio eliminating political dark money drew praise Wednesday from state churches, a group dedicated to campaign finance reform and Ohio’s secretary of state.
“Secret money in elections has eroded voter confidence and the dark money surrounding House Bill 6 has highlighted how easily political advertising dollars can be misused without transparency and accountability,” Brandi Slaughter, policy director for the Ohio Council of Churches, testified before the Ohio Senate Government and Oversight Committee. “It’s been 10 years since Citizens United v FEC. Voters should not have to wait any longer. We have a problem and we have a clear solution – closing the dark money loophole.”
SB 347 continues as part of the fallout from a multi-million bribery and racketeering scandal that led to the indictment of former House Speaker Larry Householder and others.
The bill would eliminate an Ohio law that prohibits corporations and labor unions from engaging in any candidate-related political spending. However, that restriction was struck down by the U.S. Supreme Court in 2010, but Ohio law never changed.
The bill includes specific contribution requirements and prohibitions, along with reporting and disclaimer regulations…
Catherine Turcer, with Common Cause Ohio, urged passage but also offered what she called improvements, such as requiring disclosure of the original source of funding, disclaimers should contain contact information and more clear boundaries are needed between candidates and independent expenditures.
“It’s time to close the dark money loophole,” Turcer said. “We are now experiencing the consequences of not having adequate disclosure. I urge you pass Senate Bill 347 and shine a light on the funding of all political advertisements.”
San Bernardino Sun: San Bernardino mayor vetoes council-approved cap on campaign contributions
By Brian Whitehead
A decision in San Bernardino to support legislation that on Jan. 1 sets a yearly $4,700 limit on how much someone can give a candidate for county or city office has been vetoed by Mayor John Valdivia and will be discussed further next month…
Signed into law last fall, Assembly Bill 571 on Jan. 1 will set the default contribution limit at $4,700 per year per individual for cities and counties without their own laws regulating campaign donations. Jurisdictions can adopt their own rules before then to avoid defaulting to the limits already in place for state Assembly and Senate candidates…
The new legislation puts the California Fair Political Practices Commission, or FPPC, in charge of enforcing the default limit and makes violations punishable as a misdemeanor. Restrictions also will be put in place on personal loans and for committees formed to fend off recall measures.
