[EL] Electioneering communications

Thu Nov 14 12:50:02 PST 2019

Here’s a piece that might illuminate the points others have made: https://www.brennancenter.org/our-work/analysis-opinion/20th-century-law-cant-regulate-21st-century-technology

Sent from my iPhone

On Nov 14, 2019, at 2:26 PM, Scoville, George S. <GScoville at lewisthomason.com> wrote:

CAUTION:This email originated from outside of Stetson. Do not click on links or open any attachments unless you expected the attachments and know the sender.

Agreed.

[X]
George S. Scoville III Attorney at Law
Lewis, Thomason, King, Krieg & Waldrop, P.C.
424 Church Street, Suite 2500 | P.O. Box 198615 | Nashville, TN 37219
Office: 615-259-1366 | Fax: 615-259-1389
Website<http://www.lewisthomason.com/> | My Bio<https://www.lewisthomason.com/attorneys/george-s-scoville-iii/>

CONFIDENTIALITY NOTICE: This e-mail transmission and any document, files or previous e-mail messages attached to it, are confidential and are protected by the attorney-client privilege and/or work product doctrine. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any review, disclosure, copying, dissemination, distribution or use of any of the information contained in, or attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please notify us immediately by forwarding this message to the original sender or by telephone at 800-335-3930 and then delete this message and its attachments from your computer.

From: Lori A Ringhand <ringhand at uga.edu>
Sent: Thursday, November 14, 2019 2:23 PM
To: Scoville, George S. <GScoville at LewisThomason.com>; law-election at department-lists.uci.edu
Subject: Re: Electioneering communications

I agree with Rick and George, but would add that the ad would still need to be reported under FECA if it met the definition of express advocacy.  BCRA's wider substantive coverage does not cover internet communications, but nor does it exempt express advocacy from otherwise applicable regulation.

Lori A. Ringhand
Fulbright Scotland Visiting Professor, University of Aberdeen
J. Alton Hosch Professor of Law, University of Georgia
Athens, GA 30601

ringhand at uga.edu<mailto:ringhand at uga.edu>
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=332414
________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Scoville, George S. <GScoville at LewisThomason.com<mailto:GScoville at LewisThomason.com>>
Sent: Thursday, November 14, 2019 3:16 PM
To: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu> <law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>>
Subject: Re: [EL] Electioneering communications

[External Sender]

In addition to Rick's comments about Citizens United, the FEC regs expressly exempt Internet communications from the definition of "electioneering communication":

(c) The following communications are exempt from the definition of electioneering communication.  Any communication that:

(1) Is publicly disseminated through a means of communication other than a broadcast, cable, or satellite television or radio station.  For example, electioneering communication does not include . . . communications over the Internet, including electronic mail[.]

11 C.F.R. § 100.29(c)(1).  As Rick notes, an ad broadcast via Hulu seems much more like an Internet communication than a cable communication, even if a cable company's network enables the transmission.

George S. Scoville III Attorney at Law
Lewis, Thomason, King, Krieg & Waldrop, P.C.
424 Church Street, Suite 2500 | P.O. Box 198615 | Nashville, TN 37219
Office: 615-259-1366 | Fax: 615-259-1389
Website | My Bio

CONFIDENTIALITY NOTICE: This e-mail transmission and any document, files or previous e-mail messages attached to it, are confidential and are protected by the attorney-client privilege and/or work product doctrine. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any review, disclosure, copying, dissemination, distribution or use of any of the information contained in, or attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please notify us immediately by forwarding this message to the original sender or by telephone at 800-335-3930 and then delete this message and its attachments from your computer.

-----Original Message-----
Message: 2
Date: Thu, 14 Nov 2019 17:14:14 +0000
From: "Kogan, Vladimir" <kogan.18 at osu.edu<mailto:kogan.18 at osu.edu>>
To: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] "Electioneering" question
Message-ID:
        <SN6PR01MB4317F7D4F3C465819E597DCB82710 at SN6PR01MB4317.prod.exchangelabs.com<mailto:SN6PR01MB4317F7D4F3C465819E597DCB82710 at SN6PR01MB4317.prod.exchangelabs.com>>

Content-Type: text/plain; charset="us-ascii"

I have a question about BCRA and "electioneering:" Suppose that a group buys video ads on Hulu (and only on Hulu) shortly before an election, naming a candidate for federal office. Am I right that this would not be covered by the definition of "electioneering" since the ads would not distributed using "radio, television, or satellite" and so would not need to be disclosed/reported?

Thanks in advance!

Vlad Kogan

[The Ohio State University]
Vladimir Kogan, Associate Professor and Director of Undergraduate Studies Department of Political Science
2004 Derby Hall | 154 N. Oval Mall, Columbus, OH 43210-1373
510/415-4074 Mobile
614/292-9498 Office
614/292-1146
http://u.osu.edu/kogan.18/
kogan.18 at osu.edu<mailto:kogan.18 at osu.edu>
[Twitter icon]@vkoganosu<https://twitter.com/vkoganosu>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20191114/939a50b8/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 3605 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20191114/939a50b8/attachment-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.gif
Type: image/gif
Size: 1351 bytes
Desc: image002.gif
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20191114/939a50b8/attachment-0001.gif>

------------------------------

Message: 3
Date: Thu, 14 Nov 2019 19:34:22 +0000
From: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
To: "Kogan, Vladimir" <kogan.18 at osu.edu<mailto:kogan.18 at osu.edu>>, Election Law Listserv
        <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] "Electioneering" question
Message-ID: <467513B6-C8A8-4E7D-8F3E-9D2A5D479AEE at ad.uci.edu<mailto:467513B6-C8A8-4E7D-8F3E-9D2A5D479AEE at ad.uci.edu>>
Content-Type: text/plain; charset="utf-8"

The Supreme Court in Citizens United rejected the idea that video on demand was not something broadcast as a ?cable . . . communication? that could be reached by at least 50,000 people. I do not think people are getting Hulu via cable television, even though they often have a cable from the cable television company providing internet connectivity which allows them to view Hulu.
If that?s right, then it is not an EC, but an online communication.

------------------------------

Subject: Digest Footer

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
https://department-lists.uci.edu/mailman/listinfo/law-election

------------------------------

End of Law-election Digest, Vol 103, Issue 13
*********************************************

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
https://department-lists.uci.edu/mailman/listinfo/law-election
_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu
https://department-lists.uci.edu/mailman/listinfo/law-election
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20191114/52c2b04a/attachment.html>