[EL] Twitter sues - and Seth Waxman urges protection for anonymous speech

Fri Apr 7 08:22:43 PDT 2017

Rick asks: 3. Will all the campaign finance deregulation groups that oppose disclosure come out and condemn the attempt to unmask the identity of the Twitter user?

The Philanthropy Roundtable isn’t a campaign finance deregulation group, of course – our interest is in protecting the freedom of philanthropists to decide for themselves whether to keep their giving private or (both literally and figuratively) put it in 1-foot letters on the side of a building.

That said, I think I can safely say that the issues raised by this particular case raise the same fundamental concerns we had in Independence Institute v. FEC and have in Americans for Prosperity Foundation v. Becerra. Of interest might be this article from last December by David Callahan of Inside Philanthropy suggesting that philanthropists may indeed have some reason for concern over retribution directed against them by the Trump administration (though it’s entirely theoretical, of course, so maybe there’s nothing to worry about?):
Prime Target: Will Foundations Come Under Attack in the Age of Trump?<https://www.insidephilanthropy.com/home/2016/12/4/prime-target-will-foundations-come-under-attack-in-the-age-of-trump>

Last week, Breitbart.com criticized<http://www.insidephilanthropy.com/home/2016/12/2/hey-breitbart-get-clue-the-wk-kellogg-foundation> the W.K. Kellogg Foundation for its giving to progressive causes and statements made by the director of its racial equity work. The attack came as part of a broader campaign by Breitbart against the Kellogg Company, which recently pulled its advertising from the site. (A reporter mistakenly believed that WKKF was the company’s “nonprofit arm.”)

Attacks by Breitbart.com on progressive funders are hardly new. Type “Soros” into the search box of that media site and you’ll get, literally, 42,000 results.  Along with other right-wing media sites, Breitbart.com has been on the tail of progressive funders for years, and Soros is a favorite target as a Jewish billionaire from finance. But these sites have also gone after a range of other foundations, like Ford, Tides, Nathan Cummings, and so on.

Such attacks have long been little more than background noise, the mutterings of a right-wing populist fringe.

Now things are about to get a whole lot scarier, and for a few different reasons.

First, and most obviously, the populist fringe is headed to the White House, with Steve Bannon—the former CEO of Breitbart—taking an office in the West Wing….

…if foundations do their jobs right, they inevitably will become top targets. With all branches of the federal government in conservative hands, progressive civil society will be a central locus of resistance to the Trump agenda, and innumerable groups, from the ACLU onward, are already mobilizing for battle. Who’ll be footing the bill for much of this work? Places like Ford and the Open Society Foundations, as well as top progressive philanthropists like Tom Steyer and the partners of the Democracy Alliance…. If they properly rise to the challenge, both could face a degree of scrutiny they’ve never experienced before. An obvious strategy of the Trumpist right might be to try to intimidate funders into not backing the kind of hard-hitting opposition work that this moment requires.
I should point out that David isn’t sufficiently concerned about this favor allowing philanthropists to continue deciding for themselves whether to give anonymously:

Whatever the future may hold, a final point to keep in mind is that foundations are well-equipped to handle attacks. They have plenty of money to lawyer up, hire PR firms, and even pay for private security if it comes to that.

This strikes me as dubious on two points – yes, the Ford Foundation and Tom Steyer can easily afford lawyers, PR firms, and private security as the price of #Resistance. But the overwhelming majority of foundations and philanthropists don’t have those sorts of resources – someone who can give $10,000 to Cato and $5,000 to the ACLU can’t necessarily afford the tens or even hundreds of thousands of dollars it would cost to have a level of security noticeably better than ADT and a 9mm in the nightstand.  Second, it seems problematic that anyone would think this an acceptable cost for philanthropy.

Best,

Sean Parnell
Vice President for Public Policy, The Philanthropy Roundtable
1120 20th Street NW, Suite 550 South
Washington, DC  20036
(202) 600-7883 (direct)
(571) 289-1374 (mobile)
sparnell at philanthropyroundtable.org

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Friday, April 07, 2017 11:01 AM
To: Steve Klein <stephen.klein.esq at gmail.com>
Cc: law-election at uci.edu
Subject: Re: [EL] Twitter sues - and Seth Waxman urges protection for anonymous speech

Just because I think it would be constitutional to require disclosure of funding of ads for and against pending Supreme Court candidates does not mean I necessarily think it is good policy.  I’m still mulling that.

But you are right I think that disclosure thresholds are way too low, and even though low thresholds are constitutional, they are bad policy because they do not further the government’s important interests in preventing corruption, providing voters with valuable information and (in some instances) allowing for the enforcement of other campaign laws.

From: Steve Klein <stephen.klein.esq at gmail.com<mailto:stephen.klein.esq at gmail.com>>
Date: Friday, April 7, 2017 at 7:49 AM
To: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Cc: Jason Torchinsky <jtorchinsky at hvjt.law<mailto:jtorchinsky at hvjt.law>>, Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Twitter sues - and Seth Waxman urges protection for anonymous speech

I’m on the record defending<http://www.fed-soc.org/publications/detail/bailey-v-maine-commission-on-governmental-ethics-another-step-toward-the-end-of-political-privacy> de minimis spending on political blogging from campaign finance disclosure.

Others disagree<https://twitter.com/GerryHebert/status/618439787855392768>.

Prof. Hasen, to the best of my recollection your work has focused on disclosing big money spent on political speech, such as it is. It was only two weeks ago, however, you defended placing disclosure on just about any kind of advocacy<http://department-lists.uci.edu/pipermail/law-election/2017-March/014167.html>, assuming the money is big.

But plenty of state regimes allow campaign finance disclaimers to apply to just this kind of speech, with no spending thresholds whatsoever. (Even on the narrower spectrum, some of these “alt” accounts have, indeed, gone well into express advocacy, etc.)

For what it’s worth, I condemn the effort (and, along with that, Gator baiting<https://www.youtube.com/watch?v=3I0K-ymOTS4>). Though I’m quite impressed that Brown would still have a place for, of all things, protecting (presumed) federal employees who are finding new and interesting alternatives to work (for tweets during business hours, that is).

On Fri, Apr 7, 2017 at 10:21 AM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
1. I imagine Twitter is a paying client for Seth Waxman, and this does not necessarily represent his personal views.
2. Even for those of us who support strong disclosure laws, there is an exemption when the government singles out people for harassment (Brown v. Socialist Workers Party).  From the Twitter complaint: “Such fears are likely to be especially great for users of “alternative agency” accounts who are currently employed by the very agency that is a principal target of the commentary, in light of the retaliation, harassment, or even loss of livelihood that might occur if their real identities became known to their superiors.”
3. Will all the campaign finance deregulation groups that oppose disclosure come out and condemn the attempt to unmask the identity of the Twitter user?

Rick

On 4/7/17, 3:32 AM, "law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> on behalf of Jason Torchinsky" <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> on behalf of jtorchinsky at hvjt.law> wrote:

    All,

    It is amazing to see this complaint urging the court to protect against government disclosure of speech.

    Jason

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