In the News
State Policy Network: Shutting down speech with disclaimers: Institute for Free Speech represents Massachusetts group in newest lawsuit
By Matt Nese
If you want to criticize lawmakers over a pending bill, should the state be able to tell you what to say?
That’s the law in Massachusetts. The Institute for Free Speech’s newest client, Massachusetts Fiscal Alliance, wants the freedom to deliver its own message.
The Alliance wanted to run advertisements criticizing legislators’ decision to give themselves a pay raise while simultaneously raising Bay Stater’s taxes. But, in Massachusetts, if an ad mentions a candidate within 90 days of an election, it must include a long disclaimer mandated by the state.
The law forces a group’s top official to say her name, title, the name of the organization she leads, and that the group approved and paid for the ad. But what the CEO of a group looks or sounds like has nothing to do with the validity of the group’s message. A group’s top donors must also be listed on the face of the ad, even if they didn’t know about the ad, let alone donate to fund it.
“There is no legitimate reason for the government to force a group’s CEO to appear on-screen during an ad,” Institute for Free Speech Legal Director Allen Dickerson explained. “Nor is there justification for listing individual donors on ads they may know nothing about. These requirements force speakers to waste their resources promoting the government’s message.” …
Making matters even worse, these rules can add thousands of dollars to an ad campaign by making ads unnecessarily longer and increasing compliance costs. Violations can trigger substantial fines or even criminal prosecution.
Compelled speech such as what is required in Massachusetts is an affront to the First Amendment. It is on these grounds that the Institute for Free Speech took the Alliance’s case…
More information about the case, Massachusetts Fiscal Alliance v. Sullivan, is available here.
Supreme Court
SCOTUSblog: Argument preview: Probable cause, retaliatory arrests, and the First Amendment
By Howard M. Wasserman
At issue [in Nieves v. Bartlett, to be argued on November 26] is whether a plaintiff pursuing a First Amendment claim arising from an allegedly retaliatory arrest must show that the officer lacked probable cause to arrest the plaintiff on any charge. The Supreme Court had an opportunity to address that issue last term in Lozman v. City of Riviera Beach, but the arrest there was alleged to have resulted from a municipal policy of retaliation, rather than the on-the-spot discretionary decision of an individual officer. The question the Supreme Court avoided in Lozman is squarely presented in Nieves…
The officers argue that a damages remedy is less necessary in the case of an “‘ad hoc, on-the-spot decision by an individual officer'” than in cases involving government policies that infringe on speech. Official government policies taking sides against unpopular ideas or information, not an individual police officer’s individual arrest decision, implicate the First Amendment’s “core concern.” …
The officers also argue that there are other ways to deter retaliatory arrests, including investigation and discipline of individual officers…
Bartlett counters that the “freedom of individuals verbally to oppose or challenge police action” is “one of the principal characteristics by which we distinguish a free nation from a police state,” placing it high in the hierarchy of First Amendment values. And alternative remedies are insufficient. Besides not providing a direct remedy to the injured person, the Department of Justice has not prosecuted any officer for retaliatory arrest, although retaliatory policing has been found in many civil actions against unconstitutional departmental policies and practices. Similarly, state-law remedies for police misconduct should not undermine the availability of a Section 1983 damages claim for a violation of federal law.
Privacy
Wiley Rein Election Law News: The First Amendment Right of Political Privacy Chapter 1 – The Edgerton Dissent
By Lee E. Goodman
The newfound value The New York Times ascribes to anonymous speech critical of the President is refreshing. Defending its decision to publish a September 5 op-ed without identifying its author, other than as “a senior administration official,” Times publisher A.G. Sulzberger stated that the anonymous commentary “added to the public understanding of this administration and the actions and beliefs of the people within it.” He continued, “We didn’t think there was any way to make that contribution without some guarantee of anonymity.”
First Amendment libertarians couldn’t articulate the point more convincingly. They have argued, with varying judicial results and limited editorial support, that speech itself is protected by the First Amendment and that forced government disclosure of speakers and supporters of associations necessarily reduces the number and candor of valuable ideas that benefit speakers, listeners, and the democracy as a whole.
The Times’ protection of this “senior administration official’s” anonymity against the government’s demand – made by the President himself – to name the author, in the interest of enforcing good and faithful government service, implicates the important question of whether the First Amendment protects anonymous political speech and association…
Although the right to speak and associate anonymously had been asserted by the Ku Klux Klan as a privacy right under the Privileges and Immunities Clause of Article IV of the Constitution and the substantive Due Process Clause of the Fourteenth Amendment as early as the 1920s, the Supreme Court had rejected the existence of such a constitutional right.2 Twenty years later, however, the right was reasserted under the First Amendment in the context of government efforts, in the 1940s and 1950s, to root out “communists.” And that is where this jurisprudential history begins.
Online Speech Platforms
Recode: Should the First Amendment apply to Facebook? It’s complicated.
By Eric Johnson
Facebook is not a part of the government. That means, unlike an American government body that has to abide by the First Amendment to the U.S. Constitution, it can kick off users who violate its rules.
However, says First Amendment scholar Jameel Jaffer, we should have a discussion about that power and whether Facebook should be able to decide who gets to speak.
“The First Amendment is concerned principally with government power, but we resisted the centralization of control over the public square in the government because we didn’t like the idea of centralization of that kind of power,” Jaffer said on the latest episode of Recode Decode with Kara Swisher. “Maybe we should resist the idea of centralizing power in the social media companies for the same reason.”
As the executive director of Columbia University’s Knight First Amendment Institute, Jaffer has sued President Trump for blocking people on Twitter and called on Facebook to stop restricting the access to its platform it has placed on journalists and academics. And although he doesn’t believe requiring Facebook to carry everyone’s speech is a workable solution, the “privatization of the public square” has made free speech a thorny issue online.
“Facebook has its own First Amendment rights here,” Jaffer said. “It expresses them by ejecting Alex Jones from the platform. I think none of that would raise difficult questions if it weren’t for Facebook’s scale. It’s the fact that Facebook is so big and that Facebook arguably controls the public square or arguably controls a large segment of the public square.”
“That’s when I think free speech advocates start to get nervous about Facebook excluding people from the platform, especially when there’s an argument that they’re excluding people on the basis of viewpoint,” he added.
Congress
Center for Public Integrity: Democrats plan ‘aggressive’ oversight of Federal Election Commission
By Dave Levinthal and Ashley Balcerzak
“In the next Congress, we will be conducting aggressive oversight and pursuing legislative reform so we can finally have an FEC that’s fulfilling its mission of fighting corruption,” said Rep. Zoe Lofgren, D-Calif., a member and potential chairwoman next year of the Committee on House Administration, which has jurisdiction over the FEC.
Rep. Jamie Raskin, D-Md., concurred.
“We clearly need to have an oversight hearing on the FEC,” said Raskin, also a member of the Committee on House Administration. “We need to shine a spotlight on dysfunction at the FEC.”
Whether House Democrats’ efforts can go beyond spotlight-shining is unclear: Republicans, who generally oppose strict campaign finance laws and regulations, will next year control the U.S. Senate.
But the prospect of new attention on the FEC comes as Democrats are poised to lead the U.S. House for the first time since 2011 – the most recent year a House committee conducted any kind of FEC oversight hearing – and are primed to widely deploy oversight, investigation and subpoena powers that come with such leadership.
Wall Street Journal: House Democrats to Probe Trump’s Role in Hush Payments
By Rebecca Ballhaus
House Democrats, set to take over majority control next year, plan to probe President Trump’s involvement in hush payments arranged during the 2016 campaign to two women alleging affairs, according to a Democratic aide on the House Oversight Committee.
The aide said House Democrats have already begun probing the hush payments, including requesting records from the Trump Organization in September, and “plan to dig in deeper” by examining Mr. Trump’s role…
An inquiry by House Democrats-whose majority status next year will mean they gain subpoena power-would open up a new avenue of investigation into whether Mr. Trump committed campaign-finance violations during the 2016 election.
Rep. Jerry Nadler (D., N.Y.), who is a favorite to lead the House Judiciary Committee next year, told CNN Sunday that if the president was involved in criminal campaign-finance violations, “that might very well be an impeachable offense.”
Asked about the Journal’s report, Mr. Nadler said it would be a question of whether Mr. Trump’s involvement could be proved and “whether the situation is serious enough that it makes sense to do an impeachment to defend the system of government and the system of democracy.”
The States
Arizona Daily Star: Incoming Arizona Secretary of State Katie Hobbs wants more campaign-finance disclosure
By Howard Fischer
Incoming Secretary of State Katie Hobbs said Monday that political parties should be required to report when they spend money to elect specific candidates, even as she defended the failure of the Arizona Democratic Party to disclose its spending to get her elected.
“I’m prepared to support any laws that increase transparency in campaign finance,” Hobbs said in her first news conference since Republican Steve Gaynor conceded late Friday that she had won.
But those laws, which generally require individuals and groups to detail how they are spending their cash, have a major loophole: Political parties need list only that they spent their money, with no specifics on which candidates were helped.
In fact, the only way to determine how much a political party is spending is to go through the detailed reports that each television station files with the Federal Communications Commission each time a party buys air time. And that only covers TV and radio, not newspaper ads or mailers.
As it turns out, the Arizona Democratic Party has since acknowledged spending $3.3 million to get Hobbs elected. That outstrips the more than $2.3 million Gaynor put of his own cash into the race, spending he was required to disclose in reports filed with the Secretary of State’s Office.
But the only reports filed by Hobbs and supporters with that office – and the only ones legally required – show $818,824 in expenses by her campaign, plus another $170,000 spent on her behalf by other groups.
Hobbs denied there was anything wrong in requiring people to search out FCC records to find out the true extent of the money spent to get her elected.
“We followed the law and played the game by the rules that are in place,” she said.
Pensacola News Journal: Florida taxpayers gave big boost to winning campaigns
By Jim Turner
With candidates setting a record this year for pulling in matching funds, Florida taxpayers contributed $4.2 million to the winning campaigns for governor and three Cabinet seats, according to the final totals for the 2018 elections.
Another $5.65 million in tax dollars went to the campaigns of six unsuccessful statewide candidates, according to numbers posted Friday by the Florida Division of Elections.
Overall matching funds totaled $9,852,606, more than double the $4.34 million from the last midterm election in 2014 and easily topping the nearly $6.07 million in 2010.
Disparaged by critics as welfare for politicians, the program was approved by voters in 1998 as part of a constitutional amendment proposed by the Constitution Revision Commission. It provides matches for individual contributions of $250 or less to statewide candidates’ campaigns.
Republican Gov.-elect Ron DeSantis was the biggest recipient of the funds this year, receiving nearly $3.23 million, including $557,554 that rolled in after voters cast their ballots but as campaign finance reports continued to be submitted and individual contributions verified.
