In the News
State Policy Network: Institute for Free Speech to defend petition rights at the Eighth Circuit
By Matt Nese
Can a state government fine someone simply for talking to state legislators? In a rare move, the entire Eighth Circuit Court of Appeals agreed to rehear Calzone v. Missouri Ethics Commission in an effort to answer that question later this spring.
The case concerns a Missouri law that forces unpaid citizen activists to comply with the same registration, reporting, and disclosure requirements as professional lobbyists. It is being challenged by Ron Calzone, a Missouri citizen who regularly testifies before the Missouri General Assembly. Calzone is being represented by attorneys from the Institute for Free Speech and the Freedom Center of Missouri.
In November, a three-judge panel of the Eighth Circuit upheld Missouri’s law, drawing a vigorous dissent from Judge David Stras. Stras argued, “The law seemingly sweeps up all unpaid political advocacy by anyone who acts on behalf of someone else, no matter how often it occurs and regardless of its purpose.”
In a move that seems to signal agreement with Judge Stras’s dissent, the Eighth Circuit vacated the panel ruling and granted en banc review, meaning all the judges on the appeals court will now re-hear Calzone’s case. The court indicated it will hear arguments in April…
This case began in 2015 when some powerful legislators, the state lobbyist guild, and the Missouri Ethics Commission collaborated to punish Calzone for his successful advocacy efforts at the state capitol. The Institute for Free Speech took Calzone’s case and has been fighting for four years to correct this injustice. No American should be bullied by the government for merely exercising their First Amendment rights.
With the decision by the Eighth Circuit, Calzone is closer than ever before to securing his freedoms.
Daily Caller: Ocasio-Cortez Quietly Removed From Board of PAC She and Top Aide Controlled
By Andrew Kerr
Democratic Rep. Alexandria-Ocasio Cortez and her top aide are no longer board members of the outside PAC credited with orchestrating her political rise, according to a corporate document filed Friday to a Washington, D.C., agency.
The New York Democrat and her chief of staff, Saikat Chakrabarti, who served as her campaign chair, joined the board of Justice Democrats in December 2017, according to the political action committee’s website. It also said the two held “legal control over the entity” at the same time it was playing a key role in supporting Ocasio-Cortez’s campaign prior to her shock victory over incumbent Democratic Rep. Joe Crowley in June 2018.
Attorneys for Ocasio-Cortez said she was removed from Justice Democrats’ board in June 2018, but she was listed an “entity governor” of the PAC as recently as March 14, according to corporate filings, The Daily Caller News Foundation previously reported.
Ocasio-Cortez and Chakrabarti were officially removed from Justice Democrats’ board on March 15, according to a corporate document filed that day to the Washington, D.C. Department of Consumer and Regulatory Affairs…
Ocasio-Cortez never disclosed to the Federal Election Commission (FEC) that she and Chakrabarti controlled Justice Democrats while it simultaneously supported her primary campaign.
If the FEC finds that her campaign and the PAC were operating in affiliation, it could result in “massive reporting violations” or potentially even jail time for Ocasio-Cortez and Chakrabarti, former FEC Commissioner Brad Smith previously told TheDCNF.
Forbes: Trump Has Now Shifted $1.3M Of Campaign-Donor Money Into His Business
By Dan Alexander
Near Trump Grill and Trump’s Ice Cream Parlor, there’s a kiosk where tourists can buy T-shirts, hats and other campaign memorabilia. The fine print at the bottom of a poster next to the stand says “Paid for by Donald J. Trump for President, Inc.” – the official name for the president’s 2020 campaign committee.
The Trump Organization did not respond to a list of questions, including whether the stand is in fact the basis for the payments and how many square feet it occupies. So a Forbes reporter paced out the space to take a rough measurement. It appears the entire stand is approximately 60 square feet. With monthly payments of $3,000, that implies that the campaign is paying $600 per square foot in annual rent…
Real estate experts offered varying opinions on whether $3,000 a month represented an appropriate price. “That’s robbery,” said one person familiar with the New York market, surveying the kiosk from inside the building. Two others said it seemed like a fair deal, since smaller spaces often command higher rates on a per-square-foot basis. A Trump campaign official said the 2020 effort pays market rents.
It’s a key question because federal regulations only allow candidates to put campaign money into their own businesses if they pay going rates. Given the varying opinions on whether $3,000 a month constitutes a fair price, however, it seems unlikely that the payments will spark an investigation by the Federal Election Commission. “If something is really egregious, yeah, it’s there,” says Bradley Smith, a Republican who served as a commissioner of the FEC from 2000 to 2005. “But they’re just not going to try to pick apart things on a difference of a few percentage points and try to second-guess what should be paid.”
New from the Institute for Free Speech
Case Summary:
In August 2018, the U.S. District Court for the District of Columbia struck down a 37-year old Federal Election Commission regulation that limited donor disclosure triggered by groups that make independent expenditures. In doing so, the district court claimed it was fulfilling Congressional intent, but the court did not consider that Congress had an unconstitutional intent. In such circumstances, the rote application of administrative law is insufficient.
IFS’s brief argues that the district court should be reversed, both in order to vindicate the privacy in association that the regulation was designed to protect and to prevent additional, inadvertent constitutional issues that would inevitably follow from the district court’s opinion.
Concerns with and Suggested Fixes to Indiana S.B. 471
By David Keating
The goal of S.B. 471, to protect manufacturing and vital utilities, is certainly laudable. However, the measure’s vague language would greatly chill free speech by organizations that seek to abide by the law…
The bill says that “a person who… intentionally enters… a critical infrastructure facility…commits… a Level 6 felony.” Note that no damage must be done, or even attempted, in order to trigger a felony charge. Simply walking into a facility to seek to leave a leaflet or brochure or talk to an employee about one’s concerns about the facility would appear to be a crime if the bill were to become law.
Another provision provides that “a person who… defaces property of a critical infrastructure facility commits… a Level 5 felony.” But that would appear to cover an action as benign as leaving a poster taped to a pole or a banner placed on a building or machine.
The bill would also suppress speech by organizations. Under the proposal, if an organization is “found to be a conspirator” with a person convicted of any crime defined by the bill, a fine of $100,000 could be imposed. That sum would bankrupt many small organizations. Even larger groups could face ruinous legal defense costs. It is unclear what would trigger a finding that an organization is a conspirator. Such vague provisions can, and probably will, lead to abusive prosecutions.
More worrisome, many organizations will avoid supporting or organizing peaceful protests, even in public areas, fearful that a few bad apples might commit a crime under this bill. Since the definition of a crime under S.B. 471 is both broad and vague, a protester might plead guilty or not contest a crime. That, in turn, could lead to a prosecution against the organization that could trigger devastating legal defense costs, fines, or both. Many groups might well choose to avoid organizing peaceful protests as a result.
ICYMI
New Report Surveys Speech-Chilling Statutes Across the Country
The Institute for Free Speech today published a first-of-its-kind survey of campaign speech regulations and grassroots lobbying laws that implicate First Amendment freedoms.
The survey looks at state laws in twelve distinct policy areas, ranging from electioneering communications statutes to disclaimer rules to false statement laws. These statutes all have the potential effect of chilling speech and association.
“States regulate speech about government through a labyrinth of laws that often make it nearly impossible for average citizens to participate,” said Institute for Free Speech Senior Fellow and survey author Eric Wang. “This document is the first of its kind to attempt to pierce that veil. Would-be speakers will now at least be aware of the pitfalls they face.”
By illuminating the many ways states regulate activity related to speech and association, the Institute for Free Speech hopes to give policymakers a guide to the obstacles facing First Amendment-friendly policies.
“We hope this survey will be a useful resource for public policy advocates, litigators, and legislators,” said IFS Research Director Scott Blackburn. “When defending your First Amendment rights, the first step is knowing the current state of the law.”
To read the introduction to the survey, click here. To receive the full survey, please fill out the brief form at the bottom of the page.
By Eric Wang
The laws in the United States regulating speech about government are enormously complex, especially for such a niche area of the law. As the Supreme Court has noted, the federal law regulating campaign speech (so-called “campaign finance” law) alone consists of “568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975.” This does not even include the nearly 100 pages of statute, and the separate body of law regulating speech about legislative and administrative matters (so-called “lobbying” law). Add to this the reality that each state and many municipalities have their own laws regulating speech pertaining to state and local candidates and government, and the complexity of this body of law explodes more than 50-fold.
The Institute for Free Speech (“IFS”) has reviewed the laws in all 50 states, the District of Columbia, New York City, and Seattle regulating speech about government to determine how much of a regulatory burden each jurisdiction imposes on this core First Amendment activity. The following analysis examines each state’s laws according to 12 major issues (several of which are comprised of multiple sub-issues) that are regulated under this area…
IFS hopes this document will help inform members of the public and state policymakers about complex and onerous laws burdening political speech. By revealing comparative information on not only how the states compare with each other, but also on how a given state regulates various issues pertaining to speech about government, this document may provide a useful guide to public interest organizations and policymakers on how to focus their legislative and litigation efforts to implement true reform in our political speech laws.
The Courts
ABC Fox Montana: New Jersey joins Gov. Bullock’s dark money lawsuit against IRS
By Afiq Hisham
Governor Steve Bullock announced Thursday that the State of New Jersey has joined his lawsuit against the IRS.
The suit challenges the IRS’s decision in July to stop collecting information from dark money groups about donors without notice or public comment, according to a press release.
The decision allegedly violates the federal Administrative Procedure Act from 1946, where agencies must notify the public and provide an opportunity for comment before amending a legislative rule, according to the lawsuit.
“Not only has the IRS made it easier for organizations to hide the sources of their money, it has done so behind closed doors, without seeking public input,” said New Jersey Attorney General Gurbir Grewal. “Governor Bullock led the way by challenging the IRS’s action almost immediately, and now New Jersey is proud to join the fight.”
Congress
The Verge: Sen. Josh Hawley Is Making The Conservative Case Against Facebook
By Makena Kelly
After years of escalating scandals, Congress is looking for ways to crack down on the size and power of tech companies like Facebook and Google. On the Democratic side, Sen. Elizabeth Warren (D-MA) has taken the lead by calling for new antitrust regulations that would break up the companies and usher in a new era of anti-monopoly action. Republican concerns have been harder to pin down, often veering off into deplatforming conspiracies or conflicting theories of free speech, but no less aggressive.
Sen. Josh Hawley, a Missouri Republican, has emerged as a surprising Republican voice on those issues. The youngest working lawmaker in the Senate, Hawley has taken a lead on the ongoing investigations into Facebook, joining with Sens. Ed Markey (D-MA) and Richard Blumenthal (D-CT) in February for a letter probing the company’s teen data collection practices, and penning legislation with Democrats that would extend more rigorous privacy protections for children. He’s also been outspoken in calling for changes to Section 230 of the Communications Decency Act, often seen as the central legal protection for online platforms.
On February 28th, The Verge sat down with Sen. Hawley at his temporary office on Capitol Hill…
Online Speech Platforms
New York Times: Devin Nunes Sues Twitter for Allowing Accounts to Insult Him
By Daniel Victor
Stung by obscene and pointed criticism, Representative Devin Nunes, a Republican from California, has sued Twitter and three users for defamation, claiming the users smeared him and the platform allowed it to happen because of a political agenda.
The complaint, which was filed in Henrico County Circuit Court in Virginia on Tuesday, seeks $250 million in damages. In making his case, Mr. Nunes, a loyal ally of President Trump and the former chairman of the House Intelligence Committee, repeated several common Republican complaints that Twitter has repeatedly denied: that it censors Republicans, “shadow bans” their accounts and actively helps their opponents…
Mr. Nunes singled out Liz Mair, a Republican strategist who said on Twitter that she would not comment on the lawsuit, and two parody accounts: @DevinNunesMom, which was suspended last year, and @DevinCow, which is still active. The complaint says that Ms. Mair coordinated with the anonymous accounts on “a vicious defamation campaign” but did not offer evidence she was behind them or communicated with them, except for one tweet encouraging people to follow @DevinCow.
Experts generally say the law protects large internet platforms like Twitter, Facebook and YouTube from liability based on what their users publish. Section 230 of the Communications Decency Act says they should not “be treated as the publisher or speaker” of the content – allowing the platforms to exist without having to preapprove every post for potential legal issues.
But the complaint by Mr. Nunes seeks to portray the tweets directed at him as evidence of larger efforts by Twitter to undermine Republicans – a frequent rallying cry of conservatives.
The States
NJ Spotlight: Dark-Money Bill Advances, Sans Requirement For Retroactive Reporting
By Colleen O’Dea
The requirement to disclose significant contributions and spending by politically active nonprofits – known as “dark money” – is moving ahead in the Legislature, despite the elimination of what seemed to be one of the bill’s goals – to embarrass Gov. Phil Murphy after a group that supports Murphy went back on its word to reveal its donors…
That retroactive disclosure was not included in the Assembly version of the bill, A-1524 approved Monday by the Assembly Appropriations Committee…
[T]he broad focus of the legislation has drawn the ire of a number of other nonprofits of all political bents that do not necessarily work for or against a candidate – the traditional definition of dark money – but that do lobby on issues. They fear the measure will lead to a loss of funds, since some donors don’t want to be identified and it will infringe on their First Amendment right to free speech…
“Having to share who donors are, actually ends up harming organizations that do controversial work,” said Amol Sinha, executive director of the ACLU-NJ, whose work includes defending the civil rights of those accused of crimes, against police brutality and overreach, and safeguarding individuals’ rights to practice their chosen religion or to follow no religion.
Doug O’Malley, director of Environment New Jersey, called for legislators to make a distinction between true dark-money groups whose primary mission is to support or defeat candidates or ballot questions and groups such as his that are grassroots organizations made up primarily of citizens that advocate for or against issues…
Sandra Matsen of the League of Women Voters of New Jersey said the nonprofit has its own concerns with some of the bill’s requirements, including that the reporting rules could be “burdensome.” …
The full Assembly could vote on the bill as early as next Monday.
Legal Newsline: A conservative activist and the Democrat AG he says is persecuting him are headed for their final showdown in Washington
By Karen Kidd
Longtime conservative activist Tim Eyman says the state of Washington is out to politically silence him, and he’s preparing for what he calls his legal Super Bowl.
While a preliminary motion and other prehearing procedures are expected to be heard on Friday, politicos of all stripes in the Evergreen State will be watching an April 5 hearing in Olympia, before Thurston County Superior Court Judge James Dixon.
The judge is expected to consider Eyman’s motion to dismiss a request by Democrat Washington Attorney General Bob Ferguson that Eyman be banned for life from political activity in the state.
Given the small size of Dixon’s courtroom, Eyman told Legal Newsline that Washington’s public affairs network TVW has agreed to record the hearing and broadcast it later the same day…
Rather than ban Eyman from a lifetime of political activity, the attorney general is formally asking the court to prevent Eyman from “continuing to violate Washington’s campaign finance laws,” Ferguson’s statement said.
“My office is not seeking to prohibit Mr. Eyman from promoting ballot initiatives, sponsoring ballot initiatives, advocating for changes to state laws or engaging in other political speech,” the statement said. “We are, however, seeking an injunction from the court to prohibit Mr. Eyman from controlling and managing the financial transactions of a political committee.
“We are seeking this relief because previous sanctions against Mr. Eyman proved ineffective at curbing Mr. Eyman’s unlawful conduct.”
