The decline of Facebook and the chilling effect of social media

Oh my goodness. Reducing Volokh to a “right wing blogger” is completely insane.

You are right on the hyperbole, but there’s so many problems with this here. First, the FEC decision I quoted (which I assume is the one we’re talking about, but I’m actually not so sure anymore) offers no real insight into what a “thing of value” is, beyond that it can include intangibles and campaign materials with a fixed, ascertainable market price. I’m not sure what in the FEC’s decision you want to afford deference to, since the situation here involves intangibles without an ascertainable market price. Second, this would seem to fall under a major policy considerations exception to Chevron, since it’s a fundamental First Amendment question affecting elections. Third, Chevron appears to be on its way out. Fourth, even if we apply Chevron, as you seem to know, the agency’s determination would not stand if it’s unreasonable, which I’m arguing it very much is.

The oppo research in question here is not routinely purchased by anyone. It was a one-time thing. The FEC decision you cite – assuming we are talking about the same one – referred to materials that had an ascertainable market value because they had been purchased previously on the market.

Er, they certainly would not necessarily broadcast it as a news story, especially if it’s on background. Talk about reading things into the statute!

Repeating this challenge for gman:

Suggestions for how you could win the challenge:

  • You could grant that the FEC has defined ‘thing of value’, that an oppo research report would be a ‘thing of value’, and this ruling by the FEC is current law;
  • You could grant that the definition of ‘expenditure’ included in the law can reasonably be read to exclude the constitutional problem you (Volokh, really) believe exists; you don’t have to agree with my reading, you just have to grant that my reading is defensible

I would accept either of those in some form as evidence you can actually understand the arguments of others, and adjust your own views when you’re presented with good arguments.

If those won’t work for you, then give me another. Anything. I honestly don’t think you can.

I think your arguments are “defensible,” obviously, but I disagree with them.

Is your understanding that newspaper articles are electioneering communications?

I’ve read the FEC’s 2004 decision, and it seems to include as “things of value” various memoranda that are not publicly available. It does not offer any discussion about the constitutional import of this determination, however. And I note that the FEC’s language is weirdly equivocal:

What difference does that make? The statute doesn’t obligate the media to run the story, it just allows foreign persons to offer it. If it obligated the media to run the story, then you’d have an actual first amendment problem, wouldn’t you? Can you please stop making obviously stupid objections?

Ah, it’s an intangible, and ‘thing of value’ may include intangibles. What’s your objection, then?

There’s also this additional explanation from your citation:

Although the value of these materials may be nominal or difficult to ascertain, they have some value. The provision of these items without charge would relieve your campaign of the expense that it would otherwise incur to obtain such materials. Thus, the provision of such items without charge would constitute a contribution and, as such, would be prohibited, particularly in light of the broad scope of the prohibition on contributions from foreign nationals.

That argument applies quite clearly to an oppo research report, doesn’t it?

(Also, too, this is not the citation I gave you, which you ignored. But it works well enough. It should be starting to dawn on you that there is a not-insignificant record on this question, none of which supports your view.)

No, not at all. Electioneering communications are newspaper (or broadcast) political advertisements. Since this statue doesn’t regulate newspaper stories at all, it cannot create any sort of first amendment issue when a foreign person gives information to the press, because the statute does not prohibit that activity.

When you give information on background, you are not offering a story. You are in fact expressly precluding the organization from making a story out of the information.

Right, so why are you avoiding talking about 1A: “a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election”

That section, unlike 1C, is not limited to electioneering communications.

I’m not. 1A is a prohibition on contributions and donations to campaigns or candidates. The press isn’t a campaign or candidate, so arguments about the impact of 1A on the press are, well, moot. The statute doesn’t in any way restrict what information a foreign person can give to the press. What it does do is prohibit a foreign person from materially aiding a campaign or candidate or political party by (1A) giving money or things of value to a campaign or candidate or (1B) giving money or things of value to a party or (1C) making an ad buy on behalf of a campaign or candidate. It’s really not that hard to understand, if you’re not motivated to be obtuse about it.

Objection: mind-numbingly irrelevant.

“Expenditure” includes:

It is not so limited to giving oppo to campaigns; it is limited only to giving oppo to someone for the purpose of influencing any election to federal office.

As Volokh notes, the carve-out you describe is limited:

This thread sucks.

Thank you for your quality contribution

Objection. Asked and answered.

Objection. Asked and answered.

You know, both gman and scottagibson have been chapping my hide with their posting styles, but by the magic of quantum politics, put them together and they annihilate into vast quantities of energy. If only we could harness all that energy for good.

I saw this today and it reminded me of gman’s ‘legal’ arguments.

Facing the rather obvious evidence of crimes in plain sight, gman can only think to attack the laws themselves, in an effort to make it so that a particular act is not really so much against the law. It’s, well, enlightening.

Yes, it’s the styles that really matter.

Case in point, your Honor.

Nope, that doesn’t really work. You’re going to have to say more, or the challenge stands. Isn’t it odd that you can’t come up with any example where an argument changed your mind?

Focusing on the ‘tone’ is a stupid thing to do. We all do stupid things, of course, without actually being stupid, so ‘moron’ was unfair, and I retract it and apologize for it.

Focusing on tone matters, because most of us post on this forum for fun, and we like talking to each other.

Being intentionally insulting damages the forum, by making it a less enjoyable experience for those here.

There’s no need for it, it adds nothing to your case.

If anything, it just gives folks who would otherwise agree with you something to dislike you for, and it’s often difficult for humans to separate personal animosity from logical processing.

It won’t hurt to just be cool to folks.

Focusing on tone rather than substance is a stupid thing to do, although it is entirely human.

But there is nothing about substance which demands an antagonistic approach here.

It makes the experience worse for the others in the conversation.

It also forces conversations into a deeply polarized position, where coming to a point of understanding and compromise involves agreeing with someone who is personally insulting you.

There’s no reason for it here. Being cool to each other doesn’t cost us anything.