New from the Institute for Free Speech
Fourth Circuit Halts Maryland Online Speech Law
The Institute for Free Speech released the following statement praising today’s ruling by the United States Court of Appeals for the Fourth Circuit in The Washington Post, et al. v. McManus. The Institute filed an amicus brief in the case supporting the newspapers.
“The Fourth Circuit recognized what should have been clear all along. You can’t fight foreign propaganda by violating the First Amendment,” said Institute for Free Speech President David Keating. “Congress and other states should take note: the First Amendment protects online publishers from crushing regulatory burdens.”
Maryland’s law required online advertisers, including news outlets, to amass and publish vast amounts of information in order to possibly find a Russian posing as an American to run ads. Its extensive regulations imposed “layer upon layer of expressive burdens,” the Fourth Circuit wrote. The court rejected the state’s argument that online publishers could avoid the law’s burdens by refusing political ads.
“After all, another way of saying ‘opt out’ is ‘stop speaking,'” the ruling explained. “Indeed, when a private entity, let alone a newspaper, decides to host political speech, its First Amendment protections are at their apex. To contend that news outlets forgo some of their free speech rights by accepting political speech turns the First Amendment on its head and does nothing to salvage the Act.”
The ruling described the law as “a compendium of traditional First Amendment infirmities.”
The Institute for Free Speech filed an amicus brief in the case calling Maryland’s law a “massive overreaction” that imposed “novel and comprehensive” regulation on Internet publishers.
To read the Fourth Circuit’s ruling, click here.
Texas Anti-BDS Law is Unconstitutional Viewpoint-Based Discrimination
A Texas law violates the First Amendment right to engage in political boycotts, according to an amicus brief filed late Friday by the Institute for Free Speech (IFS) and the Foundation for Individual Rights in Education (FIRE). The free speech organizations asked the United States Court of Appeals for the Fifth Circuit to rule the law unconstitutional.
“The First Amendment does not allow government to restrict political boycotts it disagrees with. This principle is critical to free speech whether you support or oppose the BDS movement,” said IFS Legal Director Allen Dickerson.
The Texas law prohibits state entities from contracting with companies that boycott goods and services from Israel. It was passed as a response to the ‘BDS movement,’ an effort to pressure the Israeli government through boycotts, divestment, and sanctions of Israeli businesses.
Supreme Court precedent instructs lower courts to analyze a boycott’s source, context, and nature as a whole to determine if it is protected expressive activity. A political boycott of a foreign government clearly passes that test, IFS and FIRE wrote.
“A boycott is more than the sum of its parts, and its nature and context as a whole must be examined to determine if it is a protected political boycott. The nature and context of the boycotts prohibited by Texas’s H.B. 89 squarely place them among the political boycotts protected by the First Amendment and the district court correctly found the provision facially invalid,” the brief explains.
The plaintiffs in the case include five individuals who have lost employment opportunities or potential employment opportunities as a result of the law. A district court struck down the law on First Amendment grounds on April 25. The state then appealed the ruling to the Fifth Circuit Court of Appeals.
The Institute for Free Speech has been a frequent critic of efforts to restrict political boycotts. IFS and FIRE filed an amicus brief opposing an Arkansas anti-BDS law earlier this year. The Institute also criticized as unconstitutional a 2016 executive order by New York Governor Andrew Cuomo requiring state agencies to divest from institutions or companies that support boycotts of Israel.
The case is Amawi v. Pflugerville Independent School District. To read the Institute’s brief, click here.
In the News
Washington Times: Federal court strikes down Maryland law requiring newspapers disclose political-ad buyers
By Christopher Vondracek
A law that required newspapers and online platforms to post information online about purchasers of political ads cannot be squared with the First Amendment, says a unanimous three-judge panel with the 4th U.S. Circuit Court of Appeals.
While acknowledging the state’s intent to build trust in reporting, Judge J. Harvie Wilkinson III said the law would subvert the historic approach to government regulation of speech, in which political expression is afforded the widest latitude.
“The changing nature of elections and the novel technological challenges accompanying them have made the states’ managerial tasks more difficult,” wrote Judge Wilkinson III, in the opinion issued Friday. “How states choose to carry out their responsibilities has long merited our respect. But that respect has bounds – and here, Maryland has crossed them.”
The law would have required platforms to disclose the identity of online political ad purchasers and how much money was spent. Maryland’s legislature passed the political ads law after the revelation of Russian meddling in the 2016 elections, when the U.S. intelligence community said agents under the direction of the Kremlin created online ads for social media to sway the U.S. presidential vote. The bill became law without the signature of Gov. Larry Hogan.
Plaintiffs in the lawsuit represented a range of publications, from The Washington Post to community newspapers. Briefs supporting them were filed by the Society for Professional Journalists and the Institute for Free Speech.
Election Law Blog: Is Mike Bloomberg Breaking the Law by Continuing to Control Bloomberg News While a Presidential Candidate? [UPDATE: Probably Not]
By Rick Hasen
“Michael Bloomberg temporarily had a tiny but extremely questionable advantage in the 2020 presidential race: if you typed ‘Mike’ into one of his company’s roughly 325,000 news terminals around the globe, you were redirected to his campaign site, reported the Financial Times…”
Brad Smith in an article in the Daily Caller makes the following argument: Former FEC Chairman Bradley Smith told the DCNF that the key factor to determining whether Bloomberg News’s editorial policy puts its press exemption at risk is whether the commission determines that Trump is Michael Bloomberg’s opponent at this stage of the Democratic primary.”A good argument nonetheless could be made that the press exemption should not apply here, given Bloomberg’s own declaration, ‘I’m running for president to defeat Donald Trump and rebuild America,'” Smith said, citing Michael Bloomberg’s campaign website.
However, Smith said he believes the better argument is that Michael Bloomberg and Trump aren’t officially considered opponents from a campaign finance perspective until they have secured their respective parties’ nominations.
“I don’t believe that the FEC or a court have ever ruled on this type of situation, so I suppose it’s an open question,” Smith said. “Certainly, it reveals the flaws of having a regime in which some very large, influential corporations (those designated ‘press’) have a freedom that other Americans do not.”…
UPDATE: Brad Smith points me to 11 c.f.r. 100.132, which creates a further exemption for:
“… a news story (a) That represents a bona fide news account communicated in a publication of general circulation or on a licensed broadcast facility; and (b) That is part of a general pattern of campaign-related news account that give [sic] reasonably equal coverage to all opposing candidates in the circulation or listening area, is not an expenditure.”
This regulation strikes me as inconsistent with the text of the statute, but given that it exists and there is no working FEC, this is probably enough to give Bloomberg a safe harbor to do what he’s doing.
Ballot Access News: Washington Post Wins in Fourth Circuit Against Maryland Law on Disclosure for On-Line Political Ads
By Richard Winger
On December 5, the Fourth Circuit affirmed the decision of a U.S. District Court in Washington Post v McManus, 19-1132. The issue was a new Maryland law requiring web pages that carry political ads to report a great deal of information about who paid for the ad, and who prepared it. Both courts ruled the law unconstitutional. Here is the decision. Thanks to the Institute for Free Speech for the link.
The Courts
Washington Post: Trial of man who offered $500 for killing ICE agents closes
By Philip Marcelo, Associated Press
A jury on Friday began weighing the fate of a man who tweeted that he would give $500 to anyone who would kill a federal immigration officer in a case centered on whether a threatening tweet is protected speech…
[Brandon] Ziobrowski, who lived in Cambridge, Massachusetts at the time, made threats on social media against Immigration and Customs Enforcement officials and other law enforcement last year, authorities said.
In one instance, Ziobrowski tweeted to his roughly 400 Twitter followers: “I am broke but will scrounge and literally give $500 to anyone who kills an ice agent. @me seriously who else can pledge get in on this let’s make this work.”
Ziobrowski’s lawyer Derege Demissie argued Friday that his client’s comments are constitutionally protected political speech that have been “blown out of proportion” by prosecutors…
Assistant U.S. Attorney Stephanie Siegmann…argued that there was nothing in Ziobrowski’s tweet suggesting he was joking or being sarcastic, as his lawyer maintained…
As the jury prepared to deliberate, Judge Denise Casper said the question before them was whether Ziobrowski intended to communicate a “true threat,” or at least knew that it could be interpreted by others that way.
But she also reminded them that a true threat does not include “caustic”or “sharp” political attacks, which are protected speech.
Online Speech Platforms
New York Times: Trump Administration Sued Over Social Media Screening for Visa Applicants
By Charlie Savage
A pair of documentary film organizations sued the Trump administration on Thursday over its requirement that foreigners disclose their social media accounts – including pseudonymous ones – when they apply for visas…
In particular, the lawsuit argues, forcing people from authoritarian countries to disclose the pseudonyms they use to discuss politically sensitive matters could endanger them by creating a risk that the information gets back to their own governments…
“Many people use pseudonyms on social media so that they can speak anonymously about sensitive or controversial issues, and so that they can shield themselves or their families or associates from possible reprisals by state or private actors,” the plaintiffs wrote. “The registration requirement effectively conditions their eligibility for U.S. visas on their readiness to surrender their online anonymity.”…
The complaint maintains that administration officials improperly developed the rule – arguing that they failed to point to evidence that it would be effective and necessary – and that it violates the Constitution by chilling rights of free speech and association…
While most of the people affected by the new rule are foreigners abroad, who generally do not have constitutional rights, the lawsuit noted that the requirement also covers people with substantial ties to the United States, including people already residing on domestic soil – like foreign students and foreigners with work permits – who renew their visas while abroad.
Breitbart: Democrat Impeachment Witness Noah Feldman Behind Idea for Facebook ‘Oversight Board’
By Allum Bokhari
Harvard Law School professor Noah Feldman, one of the anti-Trump witnesses at yesterday’s impeachment inquiry, is reportedly playing a critical role in Facebook’s establishment of its content oversight board, colloquially dubbed the “Facebook Supreme Court.”
The oversight board will, among other things, review cases from banned Facebook users who argue that the termination of their accounts was unwarranted. It is meant to give banned users the right to appeal – but this is corporate due process, not state due process. The “Facebook Supreme Court” will be set up by Facebook and could be shut down at any time by Facebook.
According to a report by Harvard Law Today, Feldman was the one who first proposed the idea of a “Facebook Supreme Court” in January 2018. The purpose, according to the report, is to help Facebook “balance competing values that range from supporting free expression to combating hate speech.”
The idea intrigued Facebook, which brought Feldman on as an adviser. The social network then asked him to produce a white paper on the idea, according to Harvard Law Today. Plans to establish the Oversight Board were officially announced by the company later in the year.
Feldman, a professor of constitutional law, was one of the Democrat-selected expert witnesses at this week’s impeachment hearings against President Donald Trump.
Candidates and Campaigns
New York Times: Bloomberg Says 2020 Rivals Criticizing His Fortune Could Have Made Their Own
By Matt Stevens
In a television interview, Mr. Bloomberg’s first since he announced his presidential campaign, the billionaire and former mayor of New York City rejected the idea that he had an unfair advantage, saying that while other candidates asked donors for money, he had made his money himself and then given most of it away.
“I turn and they’re criticizing me for it,” he said on “CBS This Morning.” “They had a chance to go out and make a lot of money. And how much of their own money do they put into their campaigns?”
“I’m doing exactly the same thing they’re doing, except that I am using my own money,” he added. “They’re using somebody else’s money and those other people expect something from them. Nobody gives you money if they don’t expect something. And I don’t want to be bought.”…
Mr. Bloomberg, who built a successful financial information and media company, spent more than $30 million on his first week of advertising as a candidate last month – far more than the entire rest of the Democratic field spent that week…
Ms. Warren and Mr. Sanders, two of the leading candidates in the race, have shunned high-dollar fund-raising events, relying instead on smaller contributions from grass-roots supporters and arguing that such a strategy prevents influence by wealthy donors.
The Intercept: The Supreme Court Case That Made Michael Bloomberg’s Campaign Possible – And Doomed Kamala Harris
By Jon Schwarz
The divergence in the fates of the two candidates can be traced back to a Supreme Court decision on the constitutionality of campaign finance law. But the case involved is not Citizens United v. Federal Election Commission, from 2010. It’s a far less famous one: Buckley v. Valeo, from 1976. The decision opened the door for billionaires – and, more generally, the ultra-rich – to spend as much as they want on their own political campaigns…
Soon after Nixon resigned in 1974, Congress responded with significant amendments to the Federal Election Campaign Act. This included a new limit of $50,000 per calendar year on what presidential candidates could spend of their own money on their campaign. Adjusting for inflation, that’s about $275,000 today.
Just two years later, however, the Supreme Court struck that limit down in the Buckley case. Those running for political office could now spend any amount of their own fortune they wanted. In fact, the court stated, it could be good for the wealthy to self-fund runs for office, because “the use of personal funds reduces the candidate’s dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse.”
The result of the case is a presidential field where billionaires can hang on seemingly forever without batting an eye and other competitors must strain to keep up by raising funds the old fashioned way: through regular, limited donations and by getting billionaires to give to their dark-money groups.
Independent Groups
Talking Points Memo: How America’s System Of Legalized Corruption Brought Us To The Brink Of Impeachment
By Brendan Fischer
In April of 2018, the two men, Lev Parnas and Igor Fruman, had an intimate dinner with President Donald Trump at the Trump International Hotel in Washington D.C. They turned the conversation to Ukraine, and urged the President to fire the U.S. ambassador to that country, Marie Yovanovitch…
So how did this self-interested pair, who have a history of failed businesses and connections to European organized crime, score a personal audience with the President to make this pitch?
They promised a six-figure donation to President Trump’s super PAC, America First Action…
It was part of a series of face-to-face meetings that the President has granted to big super PAC donors that have continued through today: just a few weeks ago, for example, President Trump hosted a “private roundtable” with donors who gave six figures to his supposedly independent super PAC…
The cash-for-access transaction itself was perfectly legal, and far too commonplace in our big money-dominated political system.
What’s more, the big money that bought dinner with the President went to a super PAC that was supposedly independent of his campaign. Remember, when the U.S. Supreme Court paved the way for corporate-funded super PACs in its Citizens United decision, it did so under the assumption that they’d be “independent” of candidates, and promised that such independence guarded against any risk of actual or perceived corruption. But when President Trump affords direct access to those six-figure donors who give to his “approved” super PAC, that super PAC is anything but independent.
The American Prospect: Democrats Have Learned Nothing From 2018 (or 2008)
By Alexander Sammon
One of the few consistent traits of the new Democratic majority that won the midterms in 2018 was a refusal of corporate PAC money…
The movement seemed to be growing when the 2020 Democratic presidential primary kicked off, as candidates pledged to swear off PAC money of all types…
But now, as the field has narrowed, a counterrevolution has set in, as a number of front-runners have all but reneged on those dedications…
What’s worse, the current super PAC embrace has ceded Democrats’ legitimacy in claims to take on Citizens United, the Supreme Court decision that flooded American politics with corporate cash in a way that has overwhelmingly favored Republicans. Despite relying on some super PAC support himself, Trump chipped away at that weakness to great effect, pointing to Clinton’s more than $700 million in super PAC backing in 2016…
The rationale for super PAC support is often that, until they change the law, Democrats cannot unilaterally disarm. But there’s little reason to believe that going long on PAC money of any sort is the best path to getting a Democratic nominee over the hump. Bernie Sanders and Elizabeth Warren have turned in prolific fundraising numbers without it, while Alexandria Ocasio-Cortez continues to set records of her own. The small-dollar revolution is so capable at harnessing large sums of money, in fact, that it led Biden and friends to pursue super PAC funds in the first place.
The States
Wall Street Journal: As Albany Talks of Reform, Campaign Fundraising Chugs Along
By Jimmy Vielkind
Mr. Cuomo’s soiree came after he praised the recommendations of a commission, set to become law in two weeks, that would halve the size of the contributions gubernatorial candidates can raise. The commission also recommended multiplying campaign donations of $250 or less with taxpayer funds.
Mr. Cuomo told reporters in Buffalo last Tuesday that the recommendations were “the most aggressive, positive reform of money in politics” in his lifetime. The next night near Central Park, Mr. Cuomo avoided protesters and the press by entering his birthday party at the Essex House through a back door.
He was greeted by 350 people, a spokesman said, including his mother and daughters, labor leaders, current and former aides and Albany lobbyists. Attendees paid up to $25,000 per table…
Mr. Cuomo is holding another fundraising event on Dec. 17. Democrats who control the state Senate and Assembly are also raising funds this month for their campaign committees. Richard Azzopardi, a senior adviser to the governor, said “we follow all laws while leading the fight to change them.”…
Mr. Azzopardi said New Yorkers had rejected their platform when Mr. Cuomo won a large Democratic primary victory last year over actress Cynthia Nixon.
Associated Press: NY commission drops investigation into advocate’s billboards
By Marina Villeneuve
A New York ethics commission is dropping its investigation of a woman who paid for billboards criticizing the state’s molestation laws.
The state Joint Commission on Public Ethics in a Wednesday letter says it won’t take further action against Kat Sullivan.
Commission lawyers said the billboards amounted to lobbying and threatened thousands of dollars in fines if Sullivan refused to pay a lobbyist registration fee of $200. But the commission’s counsel says it’s instead issuing guidance and will review regulations.
Sullivan called the commission’s investigation “abusive” in a lawsuit.
Sullivan says she was assaulted by a private school teacher two decades ago. She was among hundreds who successfully pressured lawmakers this year to pass a law making it easier for abuse victims to seek justice.
Tucson.com: Local Opinion: Arizona’s war on public education continues
By Jacolyn Girolamo Marshall, Special to the Arizona Daily Star
The latest attack on education is an initiative entitled “Arizona Classroom Code of Ethics for K-12 Public Schools,” proposed by legislators who previously failed to pass similar legislation. If approved, the initiative would prohibit teachers of any subject, including history, to speak positively or negatively about elected officials, political parties, judicial decisions, legislative acts, presidents or political issues, unless those historical matters occurred 50 years ago. In effect, teachers could discuss only local, state, national, and world events that occurred before 1970, and only leaders who served before then…
It is irrational. Public school teachers would be unable to do their jobs. The 85% of students attending public schools would be prohibited from learning about every historical event since the Vietnam era and every political figure since Nixon. This initiative would ensure that students remain ignorant of the world in which they live and will eventually help govern. Since politics refers to the total complex of relations among people within a society, it touches on every aspect of our daily lives. Politics is everywhere…
It is in violation of the First Amendment which prohibits government from making laws to abridge freedom of speech, including political speech and speech in schools. Writing the majority opinion in Tinker v. Des Moines Independent Community School District (1969), Justice Abe Fortes stated that neither teachers nor students “shed their constitutional right to freedom of speech at the schoolhouse gate.”
Denver Post: Caldara: Phil Weiser’s dark money problem shows the danger of campaign limits
By Jon Caldara
What Colorado’s niggardly contribution limits have really done is stolen most candidates’ ability to run their own campaign. Instead, Amendment 27 delivered the job of running campaigns to self-appointed “friends” who are barred from even communicating with the candidate. Like so many well-intended regulations, it’s having the opposite effect. It increased big money in politics.
Take our last governor’s race. Walker Stapleton and Jared Polis could only except $1,250 in a campaign contributions from a “natural person” thanks to Amendment 27. While Jared Polis, one of the wealthiest men serving in the U.S. Congress at the time, could self-fund his run for governor as much as he wished (and boy did he wish), Stapleton couldn’t.
To match every million dollars Polis gave his own campaign, Stapleton would have had to effectively beg 800 individuals to max out their gifts to him. Polis self-funded at least $23 million without having to take the time, energy and distraction from campaigning to ask a single person for help. Stapleton would have had to get 18,400 donors to max out their contributions to be on funding par with Polis.
Someone else could run their own campaign on Stapleton’s behalf and self-fund it as much as they like through mechanisms like an Independent Expenditure Committee. But they are prohibited from coordinating with the candidate. So, while Polis was able to run his own campaign, which he did masterfully, Stapleton couldn’t stop his friends when they went completely off-target campaigning on his behalf.
