June 18, 2024

The Courts

Politico (Influence): Appeals court upholds dismissal of Wynn FARA suit

By Caitlin Oprysko

.....A federal appeals court this morning rejected the Justice Department’s bid to force casino magnate and Republican megadonor Steve Wynn to register for briefly acting as an agent of the Chinese government, upholding a district court’s 2022 decision to toss the lawsuit.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit decided that U.S. District Court Judge James Boasberg had been right to dismiss the case because he was bound by a decades-old precedent that bars DOJ from requiring foreign agents to retroactively register once they are no longer performing that work.

New York Times: Trump Lawyers Argue Barring Attacks on F.B.I. Would Censor ‘Political Speech’

By Alan Feuer

.....In a 20-page court filing, the lawyers assailed prosecutors in the office of the special counsel, Jack Smith, for seeking to limit Mr. Trump’s remarks about the F.B.I. on the eve of two consequential political events: the first presidential debate, scheduled for June 27, and the Republican National Convention, set to start on July 15.

“The motion is a naked effort to impose totalitarian censorship of core political speech, under threat of incarceration, in a clear attempt to silence President Trump’s arguments to the American people about the outrageous nature of this investigation and prosecution,” the lawyers wrote.

Fox News: Red states ask court to stop Jack Smith's gag order against Trump in Florida documents case

By Brianna Herlihy 

.....A group of 24 Republican state attorneys general have filed an amicus brief in former President Trump's classified documents case, asking a Florida court not to grant special counsel Jack Smith's gag order request, calling it "presumptively unconstitutional."

"Free and fair elections in the United States depend on candidates’ ability to speak about important issues of the day. Attempts to stop a candidate from speaking out harm more than just the candidate. They also hurt the voters, who are denied access to crucial information, and the States, which are responsible for managing elections," the amicus brief filed Monday in the Southern District of Florida stated. 

"And when agents of one candidate seek a court order to muzzle discussion on matters relating to important electoral issues, that restraint raises even more fundamental First Amendment concerns," the brief said. 

Sixth Circuit Appellate Blog (Squire Patton Boggs): En Banc Court Hears First Amendment Challenge to Campaign Finance Restriction

By Trane Robinson

.....In limiting “coordinated party expenditures,” the [Federal Election Campaign] Act caps the amount a party may spend on activities like political advertising for a candidate. Even if that spending limitation serves the legitimate objective of limiting corruption and its appearance, the Committee argued, the restriction violates the core First Amendment right to associate with the political candidate of one’s choosing under seminal precedents like Citizens United, McCutcheon, and the 2022 Cruz decision (all versus FEC). 

The Federal Election Commission responded that a Supreme Court decision from 2001 foreclosed that argument. Thus, Wednesday’s argument centered on one case: FEC v. Colorado Republican Federal Campaign Committee or “Colorado II.” 

Washington Post: Merrick Garland: Unfounded attacks on the Justice Department must end

By Merrick Garland

.....In recent weeks, we have seen an escalation of attacks that go far beyond public scrutiny, criticism, and legitimate and necessary oversight of our work. They are baseless, personal and dangerous.

These attacks come in the form of threats to defund particular department investigations, most recently the special counsel’s prosecution of the former president.

They come in the form of conspiracy theories crafted and spread for the purpose of undermining public trust in the judicial process itself. Those include false claims that a case brought by a local district attorney and resolved by a jury verdict in a state trial was somehow controlled by the Justice Department.

Congress

National Review: FEC Commissioner Blasts DOJ’s Silence as Bragg Contorted Federal Law to Get Trump

By Andrew C. McCarthy

.....As Commissioner Trainor explained to the House this week, Bragg’s prosecution of Trump represents “a significant deviation from this established legal framework.” In effect, Bragg “usurped the jurisdiction that Congress has explicitly reserved for federal authorities.”

Trainor pointed the Committee to the scholarship of John Yoo, which is neatly summarized in an essay Professor Yoo penned for National Review (co-authored by Robert J. Delahunty). Under Supreme Court jurisprudence, Yoo and Delahunty relate that the Constitution forbids state officers from prosecuting violations of federal law. Consistent with this line of authority, Trainor persuasively contends that FECA has preempted the field of regulating the spending and public reporting of campaigns for federal office.

Furthermore, in this instance, Bragg acted in the teeth of lengthy DOJ and FEC investigations, after which determinations were made that no enforcement action should be taken against Trump — not even a civil lawsuit. Not to belabor the point, but these determinations were undoubtedly based on that fact that, technically, non-disclosure agreements (NDAs) of the type Trump’s then-lawyer, Michael Cohen, entered into with Stormy Daniels to buy her silence about an alleged 2006 affair with Trump are not campaign expenditures.

Washington Examiner: State Department hit with subpoena over ‘censorship-by-proxy’

By Gabe Kaminsky

.....The State Department is facing a congressional subpoena for failing to turn over records on programs Republicans say cultivated “censorship-by-proxy and revenue interference of American small businesses,” the Washington Examiner has learned.

The subpoena, which was served late Thursday by the House Small Business Committee, is the latest development in a one-year investigation into an embattled State Department-housed office called the Global Engagement Center, which the Washington Examiner reported granted $100,000 to the Global Disinformation Index. The latter group, which is based in London and has an affiliated nonprofit organization registered in the United States, works to pressure advertisers to boycott right-leaning media outlets.

Fox News: House GOP launches investigation into federally funded news ratings group's impact on free speech

By Kyle Morris 

.....The House Oversight Committee announced this week that it has launched an investigation into a news-rating system that purportedly ranks which news outlets are trustworthy, with the focus of the probe surrounding whether the ratings group's contracts with federal agencies have an influence on what news it attempts to suppress.

Oversight Chair James Comer, R-Ky., said Thursday his committee was investigating NewsGuard's impact "on protected First Amendment speech and its potential to serve as a non-transparent agent of censorship campaigns."

In a letter to Steven Brill and Gordon Crovitz, NewsGuard’s chief executive officers, Comer requested documents on the group's "business relationships with government entities, its adherence to its own policies intended to guard against appearances of bias, how it tries to avoid and manage potential conflicts of interest arising from its investors and other influences, and actions that may have the impact of delegitimizing factually accurate information."

Free Expression

Conspicuous Cognition: Misinformation poses a smaller threat to democracy than you might think

By Dan Williams

.....This week, Nature, one of the world’s top scientific journals, published a short commentary by a group of leading misinformation researchers. Titled “Misinformation poses a bigger threat to democracy than you might think”, it addresses three criticisms of misinformation research:

“[1] that the threat has been overblown; [2] that classifying information as false is generally problematic because the truth is difficult to determine; and [3] that countermeasures might violate democratic principles because people have a right to believe and express what they want.”

They argue that these criticisms are “based on selective reading of the available evidence”. They also imply that certain critics are deploying the same tactics “used in the decades-long campaigns led by the tobacco and fossil-fuel industries to delay regulation and mitigative action.”

I respect the commentary's authors. Moreover, I share their commitment to the importance of science, evidence-based public discourse, and democracy. However, the commentary is badly argued, misunderstands basic issues, and misrepresents critics' views.

Online Speech Platforms

New York Times: Surgeon General: Why I’m Calling for a Warning Label on Social Media Platforms

By Vivek H. Murthy

.....It is time to require a surgeon general’s warning label on social media platforms, stating that social media is associated with significant mental health harms for adolescents. A surgeon general’s warning label, which requires congressional action, would regularly remind parents and adolescents that social media has not been proved safe. Evidence from tobacco studies show that warning labels can increase awareness and change behavior. When asked if a warning from the surgeon general would prompt them to limit or monitor their children’s social media use, 76 percent of people in one recent survey of Latino parents said yes.

Candidates and Campaigns

Harvard Kennedy School: Using AI for Political Polling

By Aaron Berger, Bruce Schneier, Eric Gong, and Nathan Sanders

.....AI could change polling. AI can offer the ability to instantaneously survey and summarize the expressed opinions of individuals and groups across the web, understand trends by demographic, and offer extrapolations to new circumstances and policy issues on par with human experts. The politicians of the (near) future won’t anxiously pester their pollsters for information about the results of a survey fielded last week: they’ll just ask a chatbot what people think. This will supercharge our access to realtime, granular information about public opinion, but at the same time it might also exacerbate concerns about the quality of this information.

I know it sounds impossible, but stick with us.

Cowboy State Daily: Rod Miller: Keeping an Eye on AI (While AI Keeps an Eye on Us)

By Rod Miller

.....My son Vic’s AI-assisted campaign for Cheyenne’s mayor has a lot of folks scratching their noggins. Count me in that crowd.

Anything new or unknown creates fear among humans. That’s instinctive and healthy. And it's pretty obvious that a lot of folks fear AI and all that it portends.

That same fear is the instinct that all of humanity’s explorers and innovators had to overcome before they took their first step into Terra Incognita, where there may be dragons. We follow in those first steps and reap the fruit of their exploration every day.

Still, it's hard to look dispassionately and objectively at something that we consider a threat to our comfort. History is full of examples of humans pushing back against change that they didn’t understand, particularly if that change comes from the world of machines.

The States

Sacramento Bee: California bill makes Big Tech pay for news. Why tech companies call it a government handout

By Andrew Sheeler

.....In less than two weeks, Assembly Bill 886 — the California Journalism Preservation Act — will be heard in the Senate Judiciary Committee. The bill reemerged this week with amendments aimed at making it more palatable to critics including the tech industry, which would be taxed for news links shared on their platforms. Big Tech is continuing to make its displeasure with the bill known…

NetChoice Vice President and General Counsel Carl Szabo framed the bill not just as bad for the tech industry, which he represents, but also for the free press itself. “With AB 886, the free press in California hangs in the balance. If enacted, journalists will unquestionably face new financial pressures from government officials and politicians to report favorably on them or lose funding, further undermining the public’s trust in news media,” Szabo said in a prepared statement. Brittney Barsotti, of the California News Publishers Association, said that NetChoice was introducing “red herring” arguments about the bill.

ABC 13: Fort Bend County candidate charged for allegedly faking racist social media attacks against himself

By Rosie Nguyen

.... The Democratic challenger for Fort Bend County Precinct 3 commissioner is facing charges for allegedly creating a fake social media account to post racist comments directed at himself after the Republican incumbent requested an investigation last year.

According to arrest warrant documents, Pct. 3 Commissioner Andy Meyers requested the Fort Bend County District Attorney's Office begin an investigation in October regarding the source behind several social media posts directed at his opponent, Taral Patel.

Election Law Blog: Citing First Amendment, Michigan Supreme Court narrows construction of voter intimidation statute after 2020 robocall prosecution

By Derek Muller

.....People v. Burkman and People v. Wohl, decided yesterday by the Michigan Supreme Court, a 5-2 decision. The majority narrowed construction of the statute and remanded for further consideration. The dissenting opinions, which concurred in part, would have held that the conduct fell outside the scope of the statute. The core of the holding is that the criminal statute still extends to “proscribe that speech only if it is intentionally false speech that is related to voting requirements or procedures and is made in an attempt to deter or influence an elector’s vote.” On remand, the court will decide whether the facts of the case fit that here. From the opinion (lightly revised):