The Courts
Politico: Appeals court backs greater disclosure of ‘dark money’ donors
By Josh Gerstein
The D.C. Circuit Court of Appeals on Friday upheld a lower court ruling that found the Federal Election Commission’s donor-disclosure regulations regarding groups that spend money on independent expenditures – ads that expressly support or oppose political candidates – were too weak to comply with federal law.
Donations to groups that spend money on politics but don’t disclose their donors, including 501(c)4 nonprofit organizations, have mushroomed to billions of dollars in the wake of the Supreme Court’s 2010 Citizens United decision, as well as subsequent rulings that legalized multiple-donor efforts to support or oppose federal candidates while remaining nominally independent of their campaigns.
While donors to super PACs are disclosed, even politically active nonprofits typically don’t disclose their donors, creating the opportunity for some wealthy individuals to secretly spend tens of millions of dollars on political races.
But the 2-0 appeals court decision Friday appears to wipe out at least some of the methods groups and individuals have utilized to keep donations secret. The court said the FEC’s regulations on the issue are invalid because they don’t go far enough to require the disclosures Congress mandated in the Federal Election Campaign Act.
“FECA … unambiguously requires an entity making over $250 in IEs to disclose the name of any contributor whose contributions during the relevant reporting period total $200, along with the date and amount of each contribution,” wrote Judge Sri Srinivasan, an Obama appointee. “The Rule does not require such disclosures. … The Rule therefore is invalid.”
[Ed. note: The Institute for Free Speech filed an amicus brief in support of the Appellant in this case.]
Washington Post: The Technology 202: New lawsuit against Trump highlights risks of blanket WeChat ban
By Cat Zakrzewski
WeChat users are suing the Trump administration to block a recent executive order that could effectively ban the popular Chinese social app in the United States.
U.S. WeChat Users Alliance, a non-profit established to fight the executive order that says it is not affiliated with WeChat’s parent company Tencent, and several other plaintiffs filed the lawsuit against President Trump and Commerce Secretary Wilbur Ross over the weekend. The lawsuit claims the executive order was unconstitutional and that the Trump administration did not provide sufficient evidence to support claims that WeChat raises a national security threat.
“In a stark violation of the First Amendment, the Executive Order targets and silences WeChat users, the overwhelming majority of whom are members of the Chinese and Chinese-speaking communities,” the lawsuit says. “It regulates constitutionally protected speech, expression, and association and is not narrowly tailored to restrict only that speech which presents national security risks to the United States.”
Congress
The Guardian: Democrats’ climate plan takes aim at the fossil fuel industry’s political power
By Emily Holden
Senate Democrats are set to release a 200-page plan arguing that significant US climate action will require stripping the fossil fuel industry of its influence over the government and the public’s understanding of the crisis…
A 16-page chapter of the report titled Dark Money lays out how “giant fossil fuel corporations have spent billions – much of it anonymized through scores of front groups – during a decades-long campaign to attack climate science and obstruct climate action”…
Scores of media reports and lawsuits from states have exposed the industry’s efforts to conceal the scale of the problem and use of dark money groups to create partisan gridlock and slow a shift away from fossil fuels…
[The plan] directly blames the 2010 Citizens United Supreme Court decision that allowed industries to spend virtually unlimited sums of money to sway elections…
The special committee recommends a three-part plan to:
- “Expose the role of the fossil fuel billionaires, executives and corporations in funding and organizing the groups trafficking in climate denial and obstruction.”
- “Reform federal laws and regulations to require greater transparency and reduce the influence of money, particularly dark money, in politics.”
“Alert industries that support climate action to the depth, nature and success of the covert fossil fuel political scheme.”
FTC
Politico: Trump pressures head of consumer agency to bend on social media crackdown
By Leah Nylen, John Hendel, and Betsy Woodruff Swan
President Donald Trump has personallypushed the head of the Federal Trade Commission to aid his crusade against alleged political bias in social media, according to two people familiar with the conversations – an unusually direct effort by a president to bend a legally independent agency to his agenda.
Trump’s efforts have included at least one meeting in recent months in the Oval Office with Republican FTC Chair Joseph Simons, in which the president said he wanted the agency to take action on social media companies’ alleged censorship of conservatives, according to a person familiar with the conversation. A second person confirmed that Trump and Simons met in the White House and discussed the executive order, but declined to describe the tone of the conversation.
Both people spoke on condition of anonymity to speak candidly about the private discussions.
Right to Protest
Washington Post: Tennessee adopts new law that could strip some protesters of voting rights
By Colby Itkowitz and Amy Gardner
Tennessee protesters could now lose their right to vote under a new law Gov. Bill Lee (R) signed with little fanfare Thursday.
Protesters who camp out on state property, such as the activists who have demonstrated for months outside the state Capitol against racial injustice, could now face felony charges punishable by up to six years in prison. Convicted felons are automatically stripped of their voting rights in Tennessee.
The new law, which went into effect immediately, outraged civil rights groups, who say the move is Tennessee’s latest attempt to repress voting ahead of the November elections.
“The racial motivation underlying the law is undeniable,” said Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law. “It’s a clear backlash response to the Black Lives Matter movement and to people who are decisively protesting racial injustice and police violence.”
Clarke said her organization is considering a sweeping lawsuit addressing all the ways she believes Tennessee Republicans are trying to suppress and intimidate voters.
“To criminalize protest activity and disenfranchise voters on top of it defies principles that lie at the heart of our Constitution,” she said. “It’s pouring fuel on the fire when communities are seeking justice, change and reform.”
Online Speech Platforms
Deadline: Twitter Flags President Donald Trump Tweet On Mailboxes Not Being “COVID Sanitized”
By Bruce Haring
Twitter has marked a tweet by President Donald Trump for “misleading claims” in a tweet that claimed proposed presidential election ballot drop boxes are not “COVID sanitized” and are fraught with security concerns…
Trump said ballot drop boxes are a “voter security disaster” and a “big fraud,” claiming that “it possible for a person to vote multiple times” and that they aren’t “Covid sanitized.”
“We placed a public interest notice on this Tweet for violating our Civic Integrity Policy for making misleading health claims that could potentially dissuade people from participation in voting,” the social media platform’s official safety account tweeted on Sunday afternoon.
Twitter said that the tweet will remain on the service because of “its relevance to ongoing public conversation.” However, the tweet will be hidden behind a public message warning users of its alleged misleading claims and its engagements will be limited.
Wall Street Journal: Sheryl Sandberg and Facebook’s Billion-Dollar Balancing Act
By John D. Stoll
Provocative speech, the kind that nestles up to any line Facebook draws, is like catnip to users, but the company’s long-term profitability depends on policing it without abusing users’ trust.
“You know, one person’s opinion, one person’s free expression can be another person’s hate,” Facebook’s Chief Operating Officer Sheryl Sandberg told me recently. She said she believes the company’s standards are tough, but will never be tough enough for some people…
During our 40-minute Zoom call, Ms. Sandberg listed metrics supporting her case. Facebook on its own now finds 95% of the hate speech that is taken down, compared to 24% a couple years ago. Millions of pieces of content are removed by artificial-intelligence tools…
The next big test will be the 2020 election.
“We all know that there’s a lot at stake for this election. Full stop,” Ms. Sandberg said.
Ms. Sandberg said Facebook is committed to being “much more proactive around pushing out accurate information in this election.” The company’s efforts to detect misinformation have been sharpened during the pandemic, she said.
New York Times: Facebook Braces Itself for Trump to Cast Doubt on Election Results
By Mike Isaac and Sheera Frenkel
Facebook spent years preparing to ward off any tampering on its site ahead of November’s presidential election. Now the social network is getting ready in case President Trump interferes once the vote is over.
Employees at the Silicon Valley company are laying out contingency plans and walking through postelection scenarios that include attempts by Mr. Trump or his campaign to use the platform to delegitimize the results, people with knowledge of Facebook’s plans said.
Facebook is preparing steps to take should Mr. Trump wrongly claim on the site that he won another four-year term, said the people, who spoke on the condition of anonymity. Facebook is also working through how it might act if Mr. Trump tries to invalidate the results by declaring that the Postal Service lost mail-in ballots or that other groups meddled with the vote, the people said.
Washington Post: Facebook removes page using image of LeBron James over ‘voter suppression tactics’
By Isaac Stanley-Becker
Facebook on Friday deleted a page using an image of LeBron James, among other deceptive tactics, to spread false and misleading claims about mail-in voting, a day after The Washington Post raised questions about the online operation.
A Facebook spokeswoman, Devon Kearns, said the company was enforcing its policy against “voter interference.” She added, “We have removed this page for engaging in voter suppression tactics.”
The online effort, which aimed to steer Facebook users to a website raising unfounded concerns about mail balloting, was promoted extensively by FreedomWorks, the tax-exempt nonprofit that helped launch tea-party protests a decade ago and is now aligned with causes central to President Trump’s reelection. The messaging was in line with misinformation spread by Trump and his reelection campaign about the integrity of mail-in voting.
The States
Reason (Volokh Conspiracy): Immediate Appellate Review of Prior Restraint in Cincinnati Policeman Libel Suit?
By Eugene Volokh
As you may recall from an earlier post, a Cincinnati policeman is suing for libel over a post that accused him “of possibly being associated with white supremacy or of being racist after spotting a video and picture of him allegedly flashing the ‘ok’ sign at a City Council meeting … held to address concerns by those in the Black Lives Matter Movement.” And the judge responded by issuing a preliminary injunction ordering the defendants not to “publiciz[e], through social media or other channels, Plaintiff’s personal identifying information.” The order doesn’t define “personal identifying information,” but the only Ohio statute that does define term (the identity fraud statute) defines it to include a person’s “name.”
Thus, the bloggers are banned from mentioning the police officer at all. They aren’t just banned from libeling him; even a post conveying accurate information, or expressing an opinion, about the police officer is forbidden, if it mentions the officer’s name. The defendants have appealed the order, and right now the question before the Ohio Court of Appeals is whether this order should indeed be immediately appealable. (You can read the officer’s motion to dismiss the appeal, and the defendants’ response.)
My invaluable pro bono local counsel Jeffrey M. Nye (Stagnaro, Saba & Patterson) has just filed an amicus brief urging immediate review, on behalf of several current and former Ohio First Amendment professors-Jonathan L. Entin, Andrew Geronimo & Raymond Ku (Case Western), David Forte, Stephen Lazarus & Kevin O’Neill (Cleveland-Marshall), and Margaret Tarkington (currently Indiana, but formerly Cincinnati)-as well as Aaron Caplan (Loyola) and me, as well as the National Writers Union, the Writers Guild of America (East), and the Society of Professional Journalists.
OC Register: A major victory for California taxpayers
By Jon Coupal
Last Thursday, the Fair Political Practices Commission imposed one of the largest fines ever against Los Angeles County for using taxpayer funds for political ads touting Measure H, a sales tax increase on the ballot in 2017.
The action by the FPPC was precipitated by a complaint filed by the Howard Jarvis Taxpayers Association…
When it comes to government entities using public money for campaigning, there are two distinct but related issues.
First, as noted above, the FPPC has jurisdiction over campaign financing reporting as well as disclosure requirements for political advertising…
Second is the threshold issue of whether government entities should be engaging in electioneering at all. As noted by the California Supreme Court, “Such contributions are a form of speech, and compelled speech offends the First Amendment.”
Many assume, wrongly, that the FPPC already has jurisdiction in this area. But current law does not permit the commission’s enforcement division to investigate and bring legal action against public agencies and officials for spending taxpayer funds on campaigns…
As long as the FPPC’s jurisdiction is limited to campaign finance and disclosure issues, it is up to other interests to prosecute constitutional claims based on the First Amendment…
For that reason, the Howard Jarvis Taxpayers Association has created a new Public Integrity Project which will be run by HJTA’s affiliated 501(c)(3) organization, the Howard Jarvis Taxpayers Foundation.
