Supreme Court
Courthouse News: Bipartisan Super PAC Protest Gives Up the Ghost at High Court
By Jack Rodgers
The U.S. Supreme Court on Monday turned down an opportunity to revisit the decision that birthed the modern super PAC, allowing unlimited contributions to certain political action committees.
Before the North Carolina Republican died last year, Congressman Walter Jones had led the bipartisan challenge with four others including Democratic Representative Ted Lieu and Senator Jeff Merkley.
The group had asked the Federal Election Commission to investigate 10 super PACs in the wake of the 2016 election, but the board found no reason to do so in the wake of the 2010 Supreme Court ruling SpeechNow v. Federal Election Commission, which allows certain political committees to contribute an unlimited amount of funds to political campaigns – so long as those committees were not organized by a campaign or political party.
The Federal Election Campaign Act otherwise imposes an annual limit of $5,000 on contributions to political committees. For Lieu and the other lawmakers, however, super PACs blur the lines between political and independent organization, as they are often dedicated to the election of a specific candidate.
Their challenge came to quiet end at the high court on Monday, following previous defeats in District Court and at the D.C. Circuit.
Per their custom, the justices did not make any statement in refusing to take up the case.
The Courts
Reason (Volokh Conspiracy): Lawsuit Over Schools’ Restriction on Pro-Gun Shirts Can Go Forward
By Eugene Volokh
N.J. v. Sonnabend, decided Friday by Judge William C. Griesbach (E.D. Wisc.) involved two students being told by their schools (Shattuck Middle School and Kettle Moraine High School) that they couldn’t wear these [pro-gun] T-shirts…
The districts claimed they should win as a matter of law, not on the grounds that the shirts caused some disruption, but on the grounds that they just weren’t protected by the First Amendment:
Defendants contend that none of the shirts constitute protected speech primarily because the shirts fail to convey a particularized message, and because two of the shirts are “merely advertisements for companies that happen to have a picture of a firearm on them.” …
No, said the court: …
Defendants argue that in order for printed words or pictures on a shirt to receive constitutional protection, the message being conveyed must be clear and unmistakable. But that is not the law…. “[A] narrow, succinctly articulable message is not a condition of constitutional protection.” If it was, the First Amendment “would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.”
DOJ
Wall Street Journal: Attorney General William Barr Tells Prosecutors They Can Pursue Election Probes
By Sadie Gurman
Attorney General William Barr has authorized federal prosecutors to pursue “substantial allegations” of voting and vote-tabulation irregularities before the 2020 presidential election is certified, as President Trump continued to make unsubstantiated allegations of widespread voter fraud.
The Media
Newsweek: Trump Says Major Networks Should Be Called Out For Election Tampering
By Alexandra Garrett
President Donald Trump claimed major television networks should be called out for allegedly tampering with the results of the 2020 presidential election.
“Fox News, Quinnipiac University Poll, ABC/WaPo, NBC/WSJ were so inaccurate with their polls on me, that it really is tampering with an election,” Trump tweeted Monday Night. “They were so far off in their polling, and in their attempt to suppress that they should be called out for election interference.”
The tweet continued: “The worst polling ever, and then they’ll be back in four years to do it again. This is much more than voter and campaign finance suppression!”
Washington Post: Fox News cuts away from Kayleigh McEnany news conference after she alleges vote fraud with no evidence
By Elahe Izadi and Sarah Ellison
Fox News cut away from White House press secretary Kayleigh McEnany’s remarks at a news conference Monday evening because she claimed without evidence that Democrats were inviting fraud and illegal voting.
Online Speech Platforms
By Issie Lapowsky
The fate of the United States Senate will be determined by two Georgia runoffs scheduled for less than two months from now – and Democrats say Facebook and Google are already screwing it up.
The two companies have been temporarily blocking all political ads from running on their platforms since Election Day. But the ad ban didn’t account for the fact that the races for both of Georgia’s senate seats would end in runoffs – one between Republican Sen. Kelly Loeffler and Democrat Rev. Raphael Warnock, and another between Republican Sen. David Perdue and Democrat Jon Ossoff. Now, Democrats say the ad ban is costing Warnock and Ossoff critical days for both fundraising and getting the word out about the races.
“There is no replacing missed high-leverage moments in online fundraising. And ads are a HUGE part of that. Every day @Facebook and @Google wait to turn ads back on they cost @ReverendWarnock a huge number of donations AND volunteers,” Tim Tagaris, former digital fundraising director for Sen. Bernie Sanders’ 2016 campaign, tweeted Monday. “A big gift to self-funding Kelly Loeffler.”
“The biggest challenge is that Democrats are focused on Georgia right now, and our candidates lack the most critical means to engage supporters and raise funds,” said one Democratic digital strategist involved in the runoffs. “Early money will allow those campaigns to plan.”
Techdirt: How Should Social Media Handle Election Polls That Turned Out To Be Misinformation?
By Mike Masnick
[W]ith so many people (including many in the media and a few legislators) demanding that social media websites “crack down” on “misinformation”, especially with regards to an election, the fact that polling that turned out to be misinformation presents something of a challenge. I think most people would say that it would be crazy to say that social media shouldn’t allow polling information to be spread (or even to go viral). Yet, with so many people calling for a crackdown on “msisinformation” how do you distinguish the two?
Some will argue that they only mean the kinds of misinformation that is being spread with ill-intent, though that quickly leaps over to disinformation or requires social media companies to be the arbiters of “intent,” which is not an easy task. Others will argue that this is more “well meaning” information, or that it’s merely a prediction. But lots of other misinformation could fall into that category as well…
I raise this issue primarily to ask that people think much more carefully about what they’re asking for when they demand that social media sites moderate “misinformation.” Especially with an incoming Biden administration that has already suggested that one of its policy goals is to target misinformation online.
New York Times: Facebook Removes Pages Linked to Bannon for Pushing Misinformation
By Mike Isaac
Facebook on Monday removed a network of pages affiliated with the former Trump strategist Stephen K. Bannon that had worked together to push false information about the presidential election.
The company said it had removed seven pages associated with the Stop the Steal hashtag, a reference to conservatives’ unfounded accusations that Democrats stole last week’s election. The pages had amassed a following of roughly 2.5 million people.
“We’ve removed several clusters of activity for using inauthentic behavior tactics to artificially boost how many people saw their content,” said Andy Stone, a Facebook spokesman. “That includes a group that was originally named Stop the Steal, which later became Gay Communists for Socialism and misled people about its purpose using deceptive tactics.”
Washington Post: ‘Stop the Steal’ supporters, restrained by Facebook, turn to Parler to peddle false election claims
By Elizabeth Dwoskin and Rachel Lerman
As President Trump and his allies continue to contest President-elect Joe Biden’s victory, social media has become central to sustaining efforts to delegitimize the results. Yet those campaigns – which spilled onto the streets in protests this weekend – are resulting in the most high-stakes cat-and-mouse game for Facebook and other social media companies to date. The companies are banning groups and hashtags, altering search results, labeling posts, down-ranking problematic content and implementing a host of measures to ward off misinformation…
One sign of the impact of these actions is the renewed interest in Parler, which became the top new app download during the weekend on Apple’s App Store. The app, which has a free-speech doctrine and has become a haven for groups and individuals kicked off Facebook, experienced its largest number of single-day downloads on Nov. 8, when about 636,000 people installed it, according to market research firm Sensor Tower. Parler now boasts 7.6 million user accounts compared with 4.5 million about a week ago, said chief operating officer and investor Jeffrey Wernick.
Business Insider: A top Biden staffer accused Facebook of ‘shredding the fabric of our democracy’ – yet another sign the social-media giant should fear the new administration
By Isobel Asher Hamilton
A top advisor to President-elect Joe Biden has torn into Facebook in a thread on Twitter.
“If you thought disinformation on Facebook was a problem during our election, just wait until you see how it is shredding the fabric of our democracy in the days after,” Bill Russo, a deputy communications director on Biden’s campaign press team, tweeted late Monday.
Russo then attacked Facebook over the course of eight tweets for allowing violent and misleading content to flourish on the platform in the week following Election Day…He specifically criticized Facebook’s decision to allow posts from President Donald Trump labeled as misinformation to be widely shared – whereas Twitter placed restrictions on labeled tweets meaning they couldn’t be retweeted.
Facebook began limiting the spread of posts, rather than just flagging them, on Thursday after Election Day.
“We knew this would happen,” Russo’s thread concluded. “We pleaded with Facebook for over a year to be serious about these problems. They have not. Our democracy is on the line. We need answers.”.
Candidates and Campaigns
Washington Post: Did ‘Shy Trump Voters’ throw off the polls? Maybe not.
By David Byler
The polls underestimated President Trump’s strength yet again during the 2020 election – and, yet again, “Shy Trump Voters” who feel social pressure to stay silent about their views arebeingcited as a potential cause of the miss. So the theory goes, these voters believe that even strangers would judge them as racist or cruel for their vote, so when the pollsters asked who they supported, they blurted out some answer other than “Trump.” Ergo, polling error.
But the details of the data show that there are problems with the “Shy Trump” theory.
The States
Mission Local: Election 2020: What just happened in San Francisco – and what happens next
By Joe Eskenazi
A cadre of swells, developers and business interests marshaled millions of dollars to combat proposed taxes on large companies and the sellers of high-end real-estate. Funneling money through a matryoshka-like series of Democratic clubs and anodyne-named organizations, they also funded vitriolic attack ads targeting progressive supervisor candidates and a litany of deceptive slate mail cards.
That money was essentially burned…
All of the tax measures passed – handily. Including the anti-tax forces’ bête noire, Proposition I, which will double the transfer tax paid by sellers of real-estate priced at $10 million or more…
The No on I campaign raised some $5.5 million. Yes on I didn’t crack $300,000. But that was enough; Prop. I, as of Sunday, had 57.6 percent of the vote…
There are some measures that won’t pass with all the money in the world. There are some candidates who won’t get elected with all the money in the world. With just one caveat: Their more grassroots opposition needs enough money to mount a campaign. They don’t need as much money. They just need enough.
Los Angeles Times: In liberal California, Black Lives Matter protests in some towns meet with ‘scary’ backlash
By Anita Chabria
Though large protests have filled streets in Los Angeles and other cities since a Minneapolis policeman killed George Floyd in May, freshly minted organizers such as Rabell-González are pushing for change in rural communities, often confronting challenges their urban counterparts never encounter.
In Northern California towns such as Nevada City, Fortuna and Quincy, small numbers of protesters have staged events in places where public dissent is uncommon and sometimes unwelcome – resulting in attacks, online doxxing and harassment.
Lacking in numbers, these activists also lack anonymity. In Lodi, everyone has figured out who the new organizers are – a school teacher, a bus driver, a farmworker, a recent high school graduate – and the blowback has been severe: death threats; calls to have them fired from jobs; conspiracy theories about their motives and personal lives.
“As allies in this town you get attacked,” said Kat Ellis, an elementary teacher who helped Rabell-González start an organization called A New Lodi to advocate for progressive causes. “This city would like to think they can fear-monger people.” …
Her school district received complaints, demanding she be fired, she said. Her husband’s employer put him on paid leave after customers threatened to pull their business.
