The View from 1600 Pennsylvania Avenue: How the ... · How the Entertainment Industry has Forever...

THE VIEW FROM 1600

PENNSYLVANIA AVENUE: HOW THE ENTERTAINMENT

INDUSTRY HAS FOREVER CHANGED

AMERICAN PRESIDENTIAL POLITICS

Presented by the

American Bar Association Forum Committee on Entertainment and Sports Industries and Center for Professional Development

American Bar Association Center for Professional Development 321 North Clark Street, Suite 1900 Chicago, IL 60654-7598 www.americanbar.org 800.285.2221

The materials contained herein represent the opinions of the authors and editors and should not be construed to be the action of the American Bar Association Forum Committee on Entertainment and Sports Industries or Center for Professional Development unless adopted pursuant to the bylaws of the Association.

Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are intended for educational and informational purposes only. © 2016 American Bar Association. All rights reserved. This publication accompanies the audio program entitled “The View from 1600 Pennsylvania Avenue: How the Entertainment Industry has Forever Changed American Presidential Politics” broadcast on August 11, 2016 (event code: CE1608APP).

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The View from 1600 Pennsylvania Avenue: How the Entertainment Industry has Forever Changed

American Presidential Politics

Thursday, August 11, 2016 | 1:00 PM EasternSponsored by the ABA Forum Committee on Entertainment and Sports Industries and

the ABA Center for Professional Development


Faculty

Moderator:• Richard Warren Rappaport, Esq., The Law Firm, Richard Warren

Rappaport, Boca Raton and Miami Beach, FL

Panelists:• David E. Fink, Esq., Kelley Drye & Warren LLP, Los Angeles, CA• Shannon Harvey, Esq., The Law Offices of Shannon Harvey, PA,

Miami Beach, FL• Emily Patricia Graham, Esq., Law Offices, Emily Patricia Graham,

Miami Beach and Clearwater, FL• Jane Graham, Esq., Assistant Town Attorney of the Town of

Surfside, FL• Raeha Kim, Esq., Raeha Kim Law Firm, LLC, New York, NY


From the Moderator

We have all been on a rapid learning curve in this political year. The issues seem to be moving at an accelerated rate as the campaigns continue to pick up their pace with the presidential election just weeks away.

Practicing attorneys, law students and lawyers in commerce or politics will take away a solid understanding of the more significant legal and business aspects of the impact of the entertainment industry on the presidential election. In American politics, everyone has an opinion and during the process the lines between truth and fantasy can often become blurred.

Integral to our discussion will be the incredible power and significance of the film, television, music, media and Internet industries on the presidential campaign as the electorate chooses the leader of the free world.

This is a must for every lawyer who has an interest in our political leadership, the legal underpinnings of election law, the significance of the entertainment industry, the importance of campaign protocol and the state of our union in 2016 and beyond.

Richard Warren Rappaport


Our DiscussionThis panel of distinguished experts will discuss the legal, business, legislative and political significance of the incredible impact made by the entertainment industry on the face of our presidential race as the candidates head down to the wire on November 8, 2016, when the voters choose a new president. The panelists will discuss and debate:• The impact of film, television, music, the media and the Internet on the style and

nature of the presidential campaign; • The power of the media in entertainment and news and its responsibilities and limits

up to the election and beyond; • The question of political balance in light of the existence of the super PACs; • The power of a candidate’s brand, its use or abuse in the world of entertainment and

its legal limits; • The significance or insignificance of the Federal Election Commission; • The political boundaries drawn by the Citizen's United case; • The First Amendment rights of the candidates as well as members of the public;• The political interests of powerful individuals in business and law who have the ability

to define the direction of the campaign; and, • The importance of our national discourse on presidential politics in this fascinating

election year..


Election 2016 The importance of all U.S. presidential elections cannot be underestimated. Our governmental offers discourse and debate within the executive, legislative and judicial branches, presenting a dynamic yet oftentimes delicate balance of power, while our democracy continues to endure.

The entertainment industry has become one of the most significant factors in the evolution of presidential campaigns, with film, television, music, the media and the Internet playing a major role in the development of the campaigns and the presentation and branding of the candidates.

We hope our discussion will serve to educate and enlighten our attendees and provide further understanding of the issues important to the American people in this critical election year. Thank you for taking part in our webinar.

Richard Warren Rappaport


Unlicensed Song Use By Political CampaignsDavid E. Fink, Esq.

Kelley, Drye & Warren LLP


Unlicensed Song Use By Political Campaigns

“During [my] campaign, a video advertisement utilized a song made famous by David Byrne and the Talking Heads called Road to Nowhere. . . . Regrettably, the campaign did not ask permission to obtain a license from Mr. Byrne to use Road to Nowhere in the advertisement. . . . The use . . . was wrong and should not have occurred. “

-Charlie Crist






• The band Queen condemned Donald Trump’s use of “We Are The Champions” at the 2016 RNC on Twitter.

• Neil Young criticized Donald Trump for using his song “Rockin’ in the Free World”



• The Foo Fighter’s Dave Grohl was “infuriated” with John McCain’s use of his song “My Hero.”

• Bruce Springsteen sued Ronald Reagan over use of “Born in the USA” in his 1984 reelection campaign.

• The band Rush denied Rand Paul’s use of their song “The Spirit of Radio.”



Scandals

Hillary Clinton• Use of personal email over

governmental email during her time as Secretary of State

• Benghazi, Libya• Foreign donations to the

Clinton Foundation• WikiLeaks release of

thousands of internal emails indicating that the DNC was conspiring against Bernie Sanders’ candidacy

Donald Trump• Trump University and Trump

Institute• Pageant Scandals• Racial Housing Discrimination• Mafia Ties• Racist, Misogynistic,

Homophobic, etc. remarks• Tenant Intimidation • Four Bankruptcies• Alleged Marital Rape


Level of Scrutiny

Hillary Clinton

• Established governmental official with pre-existing duty to American public

Donald Trump

• Private businessman with no political background; public figure


Defamation of Candidates?• Supreme Court, 1964: Public officials subject to “actual

malice” standard in defamation cases. – New York Times Co. v. Sullivan, 376 U.S. 254 (1964).– “Actual malice” means knowledge that the statement was false

or with reckless disregard of whether it was false or not.

• Supreme Court, 1971: Candidates for political office subject to the same “actual malice” standard. – Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971).– Applied even to candidates for state and local offices:

• Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 299 (1971) (county tax assessor)• Cianci v. New Times Pub. Co., 639 F.2d 54, 56 (2d Cir. 1980) (mayor of Providence, RI)


• “A politician is the archetypal public figure.” Peterson v. New York Times Co., 106 F. Supp. 2d 1227 (D. Utah 2000)

• Due to the “background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

• “[E]ncourages people to comment freely on high-profile figures—who have invited attention and comment and assumed some risk of injury from defamation—without fear of liability for accidentally defamatory statements.” Bell v. Nat'l Republican Cong. Comm., 187 F. Supp. 2d 605 (S.D.W. Va. 2002).

• “By seeking-and attaining-the public limelight for a period of many years and being well known . . . in a variety of respects as citizens and politicians . . . they invite attention to all aspects of their lives.” Jones v. New Haven Register, Inc., 46 Conn. Supp. 634, 647–48, 763 A.2d 1097 (Super. Ct. 2000)

Why?


• Trump: “I’m going to open up our libel laws”

• Floyd Abrams: “Is it a good idea to make it easier for public officials (as Trump might become) or public figures (as he already is) to sue the press, or others who write or speak of them in a critical way? Doing so would permit powerful and wealthy individuals — Trump certainly fits that description — to chill speech, to avoid criticism, to limit the full range of public debate about their conduct. It would add to the current and fully justified concern about the inequalities of our society. Even more important, it would prevent the public from being provided with information which permits it to pass judgment on the most powerful people in our society.”

• Erwin Chemerinsky: “Trump apparently does not know that libel laws are state law, not federal law. More important, as president he cannot change the First Amendment limits on recovery for defamation that the Supreme Court has imposed for over 50 years.”

• Gregg Leslie (Reporters Committee for Freedom of the Press): “His statement shows why we need libel protections. . . . Trump gets offended, he gets upset and he wants to sue to retaliate. That's not a good reason to sue someone.”

• Trevor Timm (Freedom of the Press Foundation): “What exactly does this possible Republican presidential nominee think of free speech? As with many of his views, this one is detached from reality. . . . More than any other candidate, the First Amendment has enabled Donald Trump to flourish. Yet by all indications, if he ever gets into office, he’ll do everything in his power to tear it down.”

Here Today. Gone Tomorrow?


• “Public figures are entitled to less protection against defamation and invasion of privacy than are private figures with respect to the publication of false information about them.” Carafano v. Metrosplash.com Inc., 207 F. Supp. 2d 1055 (C.D. Cal. 2002).

• “The same standards of constitutional protection apply to an invasion of privacy as to libel actions.” Meeropol v. Nizer, 560 F.2d 1061 (2d Cir. 1977).

• “Those plaintiffs who either have entered of their own accord or have been drawn into a particular public controversy of legitimate public concern must show actual malice in order to recover. A less stringent burden of proof would unconstitutionally inhibit debate and comment concerning public controversies. The resulting invasion of privacy which public figure plaintiffs may claim is necessary to the limited protection afforded publishers in their reporting of public affairs.” Rosanova v. Playboy Enterprises, Inc., 580 F.2d 859 (5th Cir. 1978)

What About Candidates’ Privacy?


• “Those who seek elected public position realize that in so doing they subject themselves, and those closely related to them, to a searching beam of public interest and attention. . . . If the publication does not proceed widely beyond the bounds of propriety and reason in disclosing facts about those closely related to an aspirant for public office, the compelling public interest in the unfettered dissemination of information will outweigh society's interest in preserving such individuals' rights to privacy.” Kapellas v. Kofman, 1 Cal. 3d 20 (1969).

• “A politician running for public office, in effect offers his public and private life for perusal so far as it affects his bid for office.” Stryker v. Republic Pictures Corp., 108 Cal. App. 2d 191 (1951).

Again: Why?


Shannon Harvey, Esq.Law Offices of Shannon Harvey, P.A.


Use or abuse of the legal system in promoting a candidate’s Brand •In the book “Art of the Deal” Donald Trump, writes,

One thing I’ve learned about the press is that they’re always hungry for a good story, and the more sensational the better. It’s in the nature of the job, and I understand that. The point is that if you are a little different, or a little outrageous, or if you do things that are bold or controversial, the press is going to write about you. I’ve always done things a little differently.” Trump, Donald, and Tony Schwartz. Trump: The Art of the Deal. New York: Random House

•Elementary equation: Filing Lawsuits = Headlines •Should our judicial system be burdened with lawsuits that are largely prompted by a Plaintiff’s desire or “need” for publicity and/or as a strategy to promote their Brand?


• Donald Trump and Miss Universe L.P sue Univision Networks & Studios, Inc. and its president, Alberto Ciurana in U.S. District Court in New York.

• Lawsuit contained a defamation count alleging $500,000,000.00 in damages when Ciurana’s published Trump’s photo along side of the photo of South Carolina alleged mass murderer Dylann Roof in an Instagram post.

• Defamation must be based on assertions of fact Expressions of opinions, even vastly offensive, can generally not be the subject of a defamation action.

• An integral part of a candidates brand may be formed by their approach to handling criticism.


• Candidate threatened lawsuit against the conservative group Club for Growth after publication of a political ad video stating that he supported high taxes and identified with Democrats.

• Distinct criteria must be met when the Plaintiff in a defamation lawsuit is considered a public figure.

• Candidate threatened lawsuit after The Onion, a satirical newspaper, printed a fake ‘opinion’ piece authored by ‘Donald Trump’ urging the public to take solace in the fact that he may “be dead in 15 or 20 years.” Article contained no actual factual claims.

• First Amendment grants protection to publications publishing parodies of public figures.


Candidate’s use of music in branding strategy

•Demographic appeal

•Copyright implications pertaining to the use of the songs

•Sound recording, composition, public performance,

ASCAP

•Potential legal issue on non-copyright grounds

Music


Emily Patricia Graham, Esq.Law Offices, Emily Patricia Graham


Earned Media & The Equal Time Rule

• By Emily Patricia Graham, Esq.• The Law Offices of Emily Patricia Graham• Florida, Louisiana, and California• PACs• Super Pacs• The Equal Time Rule• Earned Media• Who’s coming on top?• Media overview


PAC Men & Women

• PAC: Political Action Committee• Raise money to support or oppose candidates• $5,000 limit to any one candidate committee

each election• $15,000 annual limit amount to a national party

committee• $5,000 annual limit to receive from any

individual, PAC, or party committee• Must Register with the FEC within 10 days of

formation


Supa Dupa PACs

• Super PACs: (AKA “Independent Expenditure Only Committees”)• Citizens United v. Federal Election Commission

– Corporations and unions• SpeechNow.org v. Federal Election Commission.

– Individuals• No limits on sums of money raised or source• Can be for or against any candidate• Cannot donate directly to or coordinate spending with any candidate


"¡El pueblo unido, jamás será vencido!"• Citizens United v. FEC

– A conservative non-profit organization– Air and advertise Hillary: The Movie, video on demand– Paid for partially with corporate donations– Supreme Court reversed the USDC decision that doing so would violate

the McCain-Feingold Act, a.k.a. the Bipartisan Campaign Reform Act• Section 203 “electioneering communication” is a broadcast, cable, or satellite

communication that mentions a candidate within 60 days of a general election or 30 days of a primary.

• struck down provisions of BCRA that prohibited corporations (including nonprofit corporations) and unions from making independent expenditures and "electioneering communications".

• Overruled Austin v. Michigan Chamber of Commerce (1990), partially overruled McConnell v. Federal Election Commission (2003)

• Upheld public disclosure requirements for advertisement sponsors (BRCA sections 201 and 311)


SpeechNow.org v. FEC• nonprofit, unincorporated association organized as a

section 527 entity under the U.S. Internal Revenue Code• contribution limits of 2 U.S.C. §441a were

unconstitutional as applied to individuals' contributions to SpeechNow.

• reporting requirements of 2 U.S.C. §§432, 433 and 434(a) and the organizational requirements of 2 U.S.C. §431(4) and §431(8) can be constitutionally applied to SpeechNow

• http://ij.org/wp-content/uploads/2008/02/dccircuitopinionspeechnow.pdf

• http://ij.org/press-release/speechnoworg-release-11-1-2010/


American Civil Liberties Union

• Anti-Corruption• Shareholder Protection• ACLU: Supports Citizens United

– Expand public finance– Craft disclosure rules and enforce– https://www.aclu.org/aclu-and-citizens-united

• Enforcement:– Problems with disclosures and hidden corporate

puppeteers– Problems with the FEC and partisan gridlock

https://www.aclu.org/aclu-and-citizens-united


Equal Time

• The Equal Time Rule is found in 47 U.S.C. Section 315(a), as part of the Communications Act of 1934

• Enforced by the Federal Communications Commission (the “FCC”).

• Intended to provide fairness to legally qualified candidates over the limited amount of broadcast time.


Equal Time

• The Equal Time Rule is to be distinguished from the “Fairness Doctrine”, which required broadcasters to air opposing viewpoints on controversial political issues, and was repealed in 2011.

• 47 U.S.C. § 315(a) (2016). See Kenneth Creech, Electronic Media Law and Regulation 57 (Focal Press 3d ed. 2000).

• Ackerman v. CBS, Inc., 301 F. Supp. 628, 632 (S.D.N.Y. 1969) (describing and applying the fairness doctrine).


The Equal Time Rule• (a) If any licensee shall permit any person who is a legally qualified candidate for any public

office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provision of this section. No obligation is hereby imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any –

• (1) bona fide newscast,• (2) bona fide news interview,• (3) bona fide news documentary (if the appearance of the candidate is incidental to the

presentation of the subject or subjects covered by the news documentary), or• (4) on-the-spot coverage of bona fide news events (including but not limited to political

conventions and activities incidental thereto),• shall not be deemed to be use of a broadcasting station within the meaning of this

subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views of issues of public importance.

• 47 U.S.C. § 315(a)(1)-(4). https://transition.fcc.gov/mb/policy/political/candrule.htm


Equal Time is not a Crime• Saturday Night Live

– Donald Trump– Other Republican Candidates– Hillary Clinton and Bernie Sanders

• Arnold Schwarzenegger (the “Governator”)• Cable• Satellite• Internet• Print


You Earned It

• What is Earned Media?• News and commentary about a campaign in all

media, including broadcast and cable television, newspapers, magazines, and social media

• Not paid advertisements or airtime subject to Equal Time Rules

• Does not need to be equalized among candidates


Earning Attention

• Most Earned Media: Primaries


No Press Is Bad Press? Trump


No Press is Bad Press? Carson


Speak of the Candidates


The Revolution Will Be Televised?


The Donkey Show


The King of the Elephants


Commercial Media Overview


Ethics, Campaigns, & The First Amendment

Jane Cynthia GrahamAssistant Town Attorney, Surfside, Florida


Unprecedented Presidential Conflicts of Interest Questions

“Trump, Clinton money awash in conflicts of interest: U.S. ethics laws weren’t written to account for a commander in chief with such far-reaching interests”Politico http://www.politico.com/story/2016/06/trump-clinton-conflict-interest-224463

“Trump Has a Conflict-of-Interest Problem No Other White House Candidate Ever Had” Mother Joneshttp://www.motherjones.com/politics/2016/06/trump-german-loan-deutsche-bank

“Hillary's Campaign Is Built on a Shaky Foundation: Are conflicts of interest inevitable when the Clintons are involved?” The Atlantic http://www.theatlantic.com/politics/archive/2015/03/hillarys-campaign-is-built-on-a-shaky-foundation/388324/

“Can Donald Trump be a CEO and a president?” CNN http://www.cnn.com/2016/06/23/politics/donald-trump-scotland-golf-course-business-conflicts/


Ethics and Campaigns

• Elections Laws– Federal elections– State Elections– County/Local elections

• The First Amendment– The right to pay to run– Political speech and signs

http://www.politico.com/story/2016/06/trump-clinton-conflict-interest-224463

http://www.theatlantic.com/politics/archive/2015/03/hillarys-campaign-is-built-on-a-shaky-foundation/388324/

http://www.cnn.com/2016/06/23/politics/donald-trump-scotland-golf-course-business-conflicts/


Ethics in Government Act of 1978• Ethics in Government Act of 1978, Public Law 95-521 requires the reporting

of income and identity and source of gifts, interests in property, liabilities for candidates and public officials- legislative and executive branch- includes President and Vice President, See also 18 U.S.C. § 208

• Exceptions for blind trusts and trusts under certain circumstances. Political campaign funds are exempt

• Violations subject to civil penalties by United States Attorney General• The Ethics in Government Act requires presidential candidates to file a Public

Financial Disclosure Report (OGE Form 278e) with the FEC. Copies of these reports are available from the FEC's Public Records Office and, after certification, on the Office of Government Ethics Website. See also 5 C.F.R §2634.201


Ethics in Government Act Resources• The Ethics in Government Act requires presidential

candidates to file a Public Financial Disclosure Report with the Federal Election Commission.

• Copies of these reports are available from the FEC's Public Records Office and, after certification, on the Office of Government Ethics Website.

• FEC campaign finance reports and other information on candidates: http://www.fec.gov/portal/presidential.shtml

• New statements for candidacy: http://www.fec.gov/data/Form2Filer.do?format=html

http://www.oge.gov/Forms-Library/OGE-Form-278--Public-Financial-Disclosure-Report/

http://www.oge.gov/Open-Government/2016-Presidential-Candidate-Records/

http://www.oge.gov/Open-Government/2016-Presidential-Candidate-Records/

http://www.fec.gov/portal/presidential.shtml

http://www.fec.gov/data/Form2Filer.do?format=html


The Foreign Gifts and Decorations Act

• 5 U.S. Code § 7342: Receipt and disposition of foreign gifts and decorations

• Foreign gifts received by the President and Vice president and their families are managed by the National Archives and Record Administration.

• Foreign gifts received by the Senate and Senate office staff will be disposed of by the Commission of Arts and Antiquities of the United States Senate.

.


Stricter Rules for Executive Employees than the Executive

• 5 C.F.R §2601.203 Conflict of interest analysis.(a) A gift will not be solicited or accepted if the authorized agency official determines that such solicitation or acceptance of the gift would reflect unfavorably upon the ability of the agency, or any employee of the agency, to carry out OGE responsibilities or official duties in a fair and objective manner, or would compromise the integrity or the appearance of the integrity of its programs or any official involved in those programs.

***No such requirement for the Executive ***


Compare with State laws- California example

• California: "Political Reform Act of 1974.“ Conflict of Interest Provisions• § 87100. Public Officials; State and Local. No public official at any level of state or local government

shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest.

• § 87103. Financial Interest. A public official has a financial interest in a decision within the meaning of Section 87100 if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on the official, a member of his or her immediate family, or on any of the following: (a) Any business entity in which the public official has a direct or indirect investment worth two thousand dollars ($2,000) or more. (b) Any real property in which the public official has a direct or indirect interest worth two thousand dollars ($2,000) or more. (c) Any source of income, except gifts or loans by a commercial lending institution made in the regular course of business on terms available to the public without regard to official status, aggregating five hundred dollars ($500) or more in value provided or promised to, received by, the public official within 12 months prior to the time when the decision is made. (d) Any business entity in which the public official is a director, officer, partner, trustee, employee, or holds any position of management. (e) Any donor of, or any intermediary or agent for a donor of, a gift or gifts aggregating two hundred fifty dollars ($250) or more in value provided to, received by, or promised to the public official within 12 months prior to the time when the decision is made


Local Laws: NYC and Mayor Bloomberg Mayor Bloomberg: City of New York Conflicts of Interest Board Advisory Opinion 2007-04: Non-profit

foundation and financial interests, http://archive.citylaw.org/coib/AO/arch%202007/AO2007_4Final.pdf

Provisions of Chapter 68 prohibit public servants from holding ownership interests in firms that have "business dealings" with the City - particularly the public servant's own agencyCharter Section 2604(a)(1)(a): no public servant shall have an interest in a firm which is engaged in "business dealings" with the agency served by that public servant. Charter Section 2604(a)(5)(a) provides that, for the purposes of Charter Section 2604(a), the “agency served" by an elected official, other than a member of the City Council, shall be the entire executive branch of City government.Charter Section 2601(8) defines "business dealings" to mean any transaction involving the "sale, purchase, rental, disposition or exchange of any goods, services, or property, any license, permit, grant or benefit.“Charter Section 2604(a)(3) provides that a public servant who holds an ownership interest prohibited by Charter Section 2604(a)(1)(a) must either divest that ownership interest or disclose it to the Board and comply with its order

Board stated that Mr. Bloomberg will not violate Chapter 68, so long “as it is the investment firm or firms ("Investorco[s]") assisting him with these investments that choose and retain the Managers who will make the specific investments, so long as Mr. Bloomberg's communications with the Investorco[s] are limited to decisions about the allocation of investments among broad classes or sectors, the performance of the categories of investments, and the performance of the Managers, and so long as Mr. Bloomberg does not know either the identities of the Managers or the specific investments they make on his behalf and on behalf of the Foundation” and recusal from Bloomberg L.P

http://archive.citylaw.org/coib/AO/arch 2007/AO2007_4Final.pdf


Miami-Dade County

Sec. 2-11.1. – Miami-Dade County Conflict of Interest and Code of Ethics Ordinance. – (e)(4) Disclosure – (g) Exploitation of official position prohibited– (i) Financial disclosure– (j) Conflicting employment prohibited– (l) Prohibited investments. – (m) Certain appearances and payment prohibited– (n) Actions prohibited when financial interests involved– (cc) Penalties: civil and criminal


Sec. 2-11.1.1. - Ethical campaign practices ordinance, Miami-Dade County

Sec. 2-11.1.1. - Ethical campaign practices ordinance, Miami-Dade CountyCandidate…shall not:

(a) With actual malice make or cause to be made any untrue oral statement about another candidate or a member of his or her family or staff which exposes said person to hatred, contempt, or ridicule or causes said person to be shunned or avoided, or injured in his or her business or occupation;(b) With actual malice publish or cause to be published by writing, printing, picture, effigy, sign or otherwise than by mere speech any untrue statement about another candidate or a member of his or her family or staff which exposes said person to hatred, contempt, or ridicule or causes said person to be shunned or avoided, or injured in his or her business or occupation;(c) Willfully injure, deface or damage or cause to be injured, defaced or damaged by any means any campaign poster, sign, leaflet, handbill, literature or other campaign material of another candidate;(d) Knowingly obtain, or cause to be obtained the campaign property of another candidate with the intent to, temporarilyor permanently, deprive the candidate of a right to the property or a benefit therefrom; or

(e) Knowingly file with the Ethics Commission a groundless or frivolous complaint against another candidate.

Voluntary Fair Campaign Practices Act- Oath. In Re: Oliver G. Gilbert, Miami Dade Commission on Ethics and Public Trust: Signing Voluntary Fair Campaign Practices Form freely waives certain First Amendment Rights

Subject to penalties fines, restitution, admonition, public reprimand


Other Relevant Case law on first amendment, campaigns and ethics

• Buckley v. Valeo, 424 U. S. 1 (1976): Court rejected a cap on a candidate’s expenditure of personal funds to finance campaign speech, holding that a “candidate . . . has a First Amendment right to . . . vigorously and tirelessly . . . advocate his own election,” and that a cap on personal expenditures imposes “a substantial,” “clea[r,]” and “direc[t]” restraint on that right,”

• Davis v. Federal Election Commission, 554 U.S. 724 (2008): “Millionaires Amendment” Section 319(a) raises the limits only for non-self-financing candidates and only when the self-financing candidate’s expenditure of personal funds causes the OPFA threshold to be exceeded. Court held the law imposed different contribution limits for candidates competing against each other, and ruled this scheme impermissibly burdened First Amendment right for a candidate to spend his own money for campaign speech.

• Green Party of Connecticut v. Garfield, 616 F.3d 213 (2d Cir. 2010): Trigger provisions in Connecticut’s Citizen’s Election Program violated First Amendment because imposed “penalty” on candidates rights to spend personal funds for campaign speech

• Reed v. Town of Gilbert (576 U.S. __ 2015): impacts municipal regulation of political signs, categories now seen as content, taking away “political signs” as a distinct category of regulation


Raeha Kim, Esq.Raeha Kim Law Firm, LLC

The View from 1600 Pennsylvania Avenue:How Social Media Changed US Presidential

Elections


Obama – ‘The Social Media President’

Back in 2007, then Senator, Barack Obama, was all but a nameless, faceless US senator no one knew anything about until he became accessible to the masses by way of social media. Without overlooking his expertise as a community organizer and growing grassroots organizations, President Obama used a number of social media platforms to connect with his audience, collect small donations and forever change the face of Presidential Politics.

“Mr. Obama used the Internet to organize his supporters in a way that would have in the past required an army of volunteers and paid organizers on the ground.” – NYTimes -2007


How Did the POTUS Do It?

• YouTube – A free video marketing tool that allowed him to upload his grassroots initiatives.

• The Obama campaign constantly documented and uploaded videos to this free social media platform, which in turn created a sense of credibility because video proof now holds him, his word and campaign affiliates accountable. As a result, a wave of fact-checking amongst everyday citizens heightened their interest an involvement in the political process.

*By November of 2008, President Obama had around 50 million YouTube viewers. To date, President Obama’s Official YouTube Channel has amassed 300 million viewers.*“The campaign’s official stuff they created for YouTube was watched for 14.5 million hours. To buy 14.5 million hours on broadcast TV is $47 million.” NYTimes, 2007


How Did the POTUS Do It? (con’t)

• Twitter – According to the statistics portal, Statista.com, as of January of last year (2015), 11.3 million of the 52.9 million Twitter users in the US are between the ages of 24-35.

• By November of 2008 and over 2 million twitter followers, it was clear the future POTUS had captured the attention of the young voters who were largely responsible for his landslide victories in both elections.

*Just before the November election, President Obama had acquired around 2 million followers – he now has almost 10 million.*


How Did the POTUS Do It? (con’t)

• Facebook - before Facebook became a free networking/advertising and information sharing tool – it was created for college students by college students for virtual communication by way of messaging and picture sharing.

• Soon enough, adults began to create accounts to keep a watchful eye over their high school and college- aged kids, which ultimately allowed a digital place and space for the more mature tech savvy user.

During the 2008 presidential election season, Obama’s social media initiative set a “no-brainer” trend for politicians to join the social media platform to not only be accessible but to able to directly communicate with their constituents.

*By November of 2008 – President Obama had acquired 3.2 million Facebook followers, to date, he now has over 49 million.*

http://www.statista.com/statistics/398152/us-twitter-user-age-groups/


Social Media is Suddenly Not a Political Option

• Once the Obama campaign drew in millions of donation dollars and a viral following - his competitors soon followed his lead – some not as successful as others.

• Not only were social media users sharing information and ideas – the formation of like-minded political communities began to sprout on every medium.

• Some crowds spat hate while others remained neutral or aligned with their respected party – all in the name of exercising their first amendment rights – FREEDOM OF SPEECH AND PRESS!

This is when entertainment law inspires creative legal practice! And here’s why …


When Entertainment Law Meets PoliticsRegardless of party affiliation, the excitement of voting a presidential nominee into office is sole based of personal opinion and choice – including celebrities and other public figures alike - which can be shared on social media - which can cause brand damage! As an entertainment attorney, clients here are a few strategies to skirt these PR headaches and potential loss of contracts.• Work closely with your clients publicists to get an idea of the digital tone they set

amongst their following and with press affiliates. Strategize ways to successfully align brands and images with a political stance

• Connect with your clients during pre-presidential election season and inquire about any scheduled political party charity events and fundraisers and discuss how it could help or hinder their brand

• Raise awareness on how quickly one off-beat or offensive Tweet or FB status update can cause irreversible brand damage, endorsement contract terminations and quite possibly their job! NO JOB – NO CLIENT. Hint, Tiger Woods and Paula Deen.

• Consult with your clients on how to tie-in existing endorsement contracts and ambassadorships with major political brands, i.e. ‘Rock the Vote’ and ‘NoH8’ campaigns


IN CLOSING …

No matter how it’s presented, politics has and will always maintain its space in the entertainment realm of our society and media. With the digital necessity social media branding, there is a highly lucrative legal niche market for entertainment law practitioners with the alignment of current and potential client brands and political initiatives on a national and local scale.Bringing the forces together not only endorses a sense a unity between politicians, celebs and their followings but allows the space for accessibility and meaningful discourse led by our countries most admirable public figures.

Thank you for your time and attention!-Raeha Kim, Esq.Raeha Kim Law Firm, LLC – New York, New York and Atlanta, GA


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