September 17, 2024

New from the Institute for Free Speech

Free Speech Arguments (audio): Can the Government Ban TikTok? (TikTok Inc. v. Merrick Garland)

.....TikTok Inc. v. Merrick Garland, argued before Chief Judge Sri Srinivasan, Circuit Judge Neomi Rao, and Senior Circuit Judge Douglas H. Ginsburg in the U.S. Court of Appeals for the District of Columbia Circuit on September 16, 2024. Argued by Andrew J. Pincus (TikTok petitioners), Jeffrey L. Fisher (TikTok creator petitioners), and Daniel Tenny (on behalf of Merrick Garland).

The Courts

New York Times: Judges Show Some Skepticism of TikTok’s Fight Against Potential U.S. Ban

By Sapna Maheshwari and David McCabe

.....A panel of federal judges on Monday made pointed remarks that called TikTok’s legal arguments into question, in a landmark case that could determine whether the Chinese-owned video app survives in the country.

The hearing, before the U.S. Court of Appeals for the District of Columbia Circuit, lasted roughly two hours. Three judges asked probing questions of both TikTok and the government about an April law that forces ByteDance, the app’s owner, to sell TikTok to a non-Chinese company before Jan. 19 or face a ban in the United States. The lawyers have asked the judges to deliver a decision in the case before Dec. 6, and legal experts anticipate the losing party will appeal to the Supreme Court.

Atlanta Journal-Constitution: A federal judge is skeptical of a Democratic challenge to Georgia’s campaign finance law

By David Wickert

.....A federal judge Monday was skeptical of a Democratic challenge to Georgia law that allows Gov. Brian Kemp and a few other elected officials to raise unlimited amounts of campaign cash.

At a hearing in U.S. District Court in Atlanta, the Democratic Party of Georgia argued the law is unconstitutional. They say it gives the governor and a few incumbent officials an unfair advantage against other candidates, who face limits on the amounts they can receive.

Congress

ABC News: Congress is gridlocked. These members are convinced AI legislation could break through

By Dan Merica, AP

.....A bipartisan group of lawmakers plans to introduce legislation Tuesday that would prohibit political campaigns and outside political groups from using artificial intelligence to misrepresent the views of their rivals by pretending to be them.

The legislation is being introduced as Congress has failed to regulate the fast-evolving technology and experts warn that it threatens to overwhelm voters with misinformation. Those experts have expressed particular concern over the dangers posed by “deepfakes,” AI-generated videos and memes that can look lifelike and cause voters to question what is real and what is fake.

Lawmakers said the bill would give the Federal Election Commission the power to regulate the use of artificial intelligence in elections in the same way it has regulated other political misrepresentation for decades. The FEC has started to consider such regulations.

“Right now, the FEC does not have the teeth, the regulatory authority, to protect the election,” said Rep. Brian Fitzpatrick, a Pennsylvania Republican who is co-sponsoring the legislation. Other sponsors include Rep. Adam Schiff, a California Democrat; Rep. Derek Kilmer, a Washington Democrat; and Lori Chavez-DeRemer, an Oregon Republican.

Cyberscoop: House Dem urges FCC to press ahead with disclosure rule around AI in political ads

By Derek B. Johnson

.....The top Democrat on the House Administration Committee is signaling “strong support” for the Federal Communications Commission’s ongoing efforts to mandate disclosure of AI use in political ads, emphasizing transparency as essential as lawmakers assess how to regulate the technology in the future…

In a letter sent to FCC Commissioner Jessica Rosenworcel, Rep. Joe Morelle, D-N.Y., wrote that “the absence of effective guardrails” around generative AI in political ads “presents a clear and present danger to the information ecosystem in the upcoming election.”

“The current lack of regulation that specifically addresses political advertisements could easily be exploited by candidates for office and dark money groups attempting to confuse and manipulate voters,” Morelle wrote.

FEC

Washington Examiner: Artificial intelligence is free speech, let’s treat it that way

By Trey Trainor

.....In July of 2023, Public Citizen submitted a petition to the Federal Election Commission urging it to clarify that the law against fraudulent misrepresentation of campaign authority (52 U.S.C. § 30124) encompasses the use of deliberately deceptive AI-generated content in campaign advertisements. On Sept. 19, 2024, when the FEC considers the petition’s request in an open meeting, I will vote against initiating a rulemaking because the FEC lacks the statutory authority to promulgate the rule the petitioner seeks. And upon careful consideration, I have concluded that, as a matter of policy, it should not.

First and foremost, the FEC may not pass a rule that goes beyond the statutory authority granted to it by Congress in the Federal Election Campaign Act. 

Daily Caller: TREY TRAINOR: Strengthening Candidate Security With Campaign Funds Is A Common Sense Solution

By Trey Trainor

.....As the Federal Election Commission (FEC) prepares to consider new regulations on Sept. 19 that would allow candidates for federal office to spend their campaign dollars on their own safety, it is imperative that we address this urgent and growing need for enhanced security measures for our candidates.

Recent events have laid bare the stark reality of threats facing those who seek to serve this nation at the highest levels. The recent assassination attempts on former President Donald Trump — in Butler, Pennsylvania., and West Palm Beach, Florida, have underscored the critical necessity of fortifying candidate security. In response, I support the draft final rule on candidate security and the accompanying justification.

Washington Examiner: FEC finally rules ‘phantom’ left-wing group filed false financial disclosures in 2020

By Gabe Kaminsky

.....A progressive super PAC dubbed a “phantom” in 2020 violated federal law by filing false financial disclosure reports, according to the Federal Election Commission.

The FEC’s ruling was detailed in a letter last week to director Kendra Arnold of the Foundation for Accountability and Civic Trust, a watchdog group that demanded an investigation into Americans for Progressive Action USA in May 2020. That super PAC, Arnold argued in a complaint at the time, violated the Federal Election Campaign Act with fabrications on its financial disclosures.

R Street: FEC Makes the Right Call on AI Regulation in Federal Elections

By Chris McIsaac

.....On Tuesday, Sept. 10, the Federal Elections Commission (FEC) announced that it does not intend to enact new regulations targeting the use of artificial intelligence (AI) to generate deceptive content in elections for federal office—a decision that concludes a yearlong debate over whether the FEC would take action. At first glance, this decision may appear to greenlight deepfakes and other forms of election deception. However, the FEC also confirmed their interpretation that existing federal laws prohibiting “fraudulent misrepresentation” would still apply to AI-generated content. Pending final adoption at the next open meeting on Sept. 19, this technology-neutral regulatory approach focuses on prohibited activities rather than the tools used to conduct them, providing a useful policy framework for lawmakers and regulators adapting to AI and other emerging technologies.

Free Expression

Wall Street Journal: Bureaucrat Who Threatened To Censor X Announces Resignation on X

By James Freeman

.....Last month a French bureaucrat named Thierry Breton even had the gall to warn Mr. Musk that streaming a live interview with former President Donald Trump could run afoul of a European Union law restricting “harmful content.” Today France’s would-be arbiter of American political debate announced his resignation from the European Commission, and you’ll never guess where Mr. Breton decided to share the news.

The States

Santa Fe New Mexican: Judge orders 'dark money' group back to court for failure to register, disclose donors

By Daniel J. Chacón

.....A state District Court judge is considering holding a “dark money” group in contempt for failing to comply with an order to register as a political committee and disclose its donors.

The New Mexico Project, a fundraising organization led by businessman and former gubernatorial candidate Jeff Apodaca, aims to “empower the moderate Latino electorate,” according to its website, and supported a slate of legislative candidates in the Democratic primary election.

Second Judicial District Judge Joshua Allison issued a preliminary injunction last month requiring the group to register with the Secretary of State’s Office no later than Sept. 4 and report its expenditures and contributions no later than Sept. 9.

The group has taken neither step.

KGW8: Portland Commissioner Rene Gonzalez's Wikipedia edits not in violation of campaign finance law, audit finds

By Alex Jensen

.....An investigation found "insufficient" evidence that Portland City Commissioner Rene Gonzalez, who is running for mayor, violated campaign finance law for using city funds to edit his own Wikipedia page. 

The City of Portland Auditor's Office called its decision "an exceedingly close call" and referred the matter to the Oregon Secretary of State's Office for a "fuller investigation" to determine whether city employees engaged in prohibited political activities or if Gonzalez violated the law by asking employees to participate in political advocacy during working hours.

Penn Live: Activists gain meeting with Pa. Senate leader’s office over bill to ban foreign campaign money

By Zack Hoopes 

.....Activists demanding campaign finance and lobbying reforms staked out the office of Pennsylvania’s state Senate leader on Monday — and got a commitment to meet with top legislative staff on a bill they hope will clear the chamber soon.

Members of March on Harrisburg and other affiliated groups rallied at the state Capitol, with activists lining the atrium outside the office of Senate President Pro Tempore Kim Ward, R-Westmoreland. The group’s leaders entered Ward’s office and emerged roughly half an hour later saying they had made progress.