In the News
Daily Caller: MORGAN: California Aims To Take Nonprofit Donors’ Right To Privacy
By Zac Morgan
Several cases currently before the U.S. Supreme Court ask the question: will the court’s landmark case law from the civil rights era be lost to history, or do those cases reflect enduring constitutional principles, available to all?
One of those cases was brought by my organization, the Institute for Free Speech. In February of 2014, we received an odd letter from the California attorney general. It stated that we would be barred from soliciting money in California unless we provided our major donor list.
The Institute for Free Speech is a nonpartisan, 501(c)(3) nonprofit organization – legalese for charities and civil society groups. Our mission is to defend freedom of speech and association, so when we received this missive from the California attorney general, we instantly realized this was an unconstitutional demand.
In the 1950s and 1960s, the NAACP and its allies waged a hard-fought judicial campaign to ensure the right of privacy in association. Their victories established that the First Amendment protects private giving to civil society groups. As Justice Thurgood Marshall put it: “The First Amendment gives organizations such as the ACLU the right to maintain in confidence the names of those who belong or contribute to the organization, absent a compelling governmental interest requiring disclosure.”
Daily Caller: WANG: Seattle Moves To Silence Dissent From Corporations
By Eric Wang
When government seeks to enact laws that harm your interests, should you have a right to speak out to defend yourself?
The Seattle City Council recently voted to shut down such public dissent. Using foreign attempts to interfere with U.S. elections as an excuse, the city council passed a bill to retaliate against American companies that had opposed an onerous city tax on employers. The move is the latest in a string of attempts around the country by politicians to enact campaign finance restrictions to immunize themselves from public accountability…
At first glance, the Seattle bill purports to prohibit any “foreign-influenced corporation” from making campaign contributions or independent expenditures in connection with city elections. In a New York Times op-ed, Commissioner Ellen L. Weintraub of the Federal Election Commission touts the bill as being consistent with the federal ban on foreign political spending, over which she and her agency have jurisdiction. This is overly simplistic and disingenuous. The bill would actually prohibit and deter just about any American public company from standing up for the political interests of its employees, shareholders, and customers.
AP News: Judge: South Dakota to pay lawyer fees after fundraising ban
By Associated Press
South Dakota taxpayers will pay nearly $115,000 in lawyer fees to plaintiffs who challenged an initiated measure that prohibited ballot question committees from accepting out-of-state money.
The measure, passed by voters in 2018, was pushed by legislators unhappy with what they saw as outside interference in putting political questions on the ballot. However, U.S. District Judge Charles Kornmann struck the measure down last Thursday as unconstitutional, the Argus Leader reported.
Kornmann said taxpayers should pay the attorney fees, the same taxpayers who violated the U.S. Constitution when they authorized the measure.
“Neither the state Legislature nor the majority of voters are allowed to pass laws that violate the Constitution without risking the possibility that those oppressed by the measure will expend attorney’s fees challenging it, and, upon success, be entitled to reimbursement,” Kornmann wrote.
Last year, Kornmann ruled that the measure violated the U.S. Constitution’s First Amendment right to free speech, which includes political speech. Non-residents and businesses faced potential civil or criminal sanctions for violating the measure, which would have gone into effect on July 1.
The measure was challenged in two separate lawsuits, the first filed by South Dakota Voice and Cory Heidelberger, a liberal activist from Aberdeen. Plaintiffs in the second lawsuit included the South Dakota Newspaper Association, Retailers Association, and Broadcasters Association.
Supreme Court
SCOTUSblog: Relist Watch
By John Elwood
There are so many interesting relists to discuss this week that I’m not even going to try. Who has time to discuss 19 new relists? After all, I’m busy preparing for other pressing commitments, so it’s time once again for the affordable luxury of Relist Watch SelectTM…
Americans for Prosperity Foundation v. Becerra, 19-251
Issue: Whether the exacting scrutiny the Supreme Court has long required of laws that abridge the freedoms of speech and association outside the election context – as called for by NAACP v. Alabama ex rel. Patterson and its progeny – can be satisfied absent any showing that a blanket governmental demand for the individual identities and addresses of major donors to private nonprofit organizations is narrowly tailored to an asserted law-enforcement interest.
(relisted after the January 10 conference)
The Courts
Courthouse News Service: Eighth Circuit Hears Fight Over Arkansas Anti-Boycott Law
By Joe Harris
An Arkansas newspaper argued before the Eighth Circuit on Wednesday that a state law requiring businesses that contract with the state to pledge not to boycott Israel is unconstitutional.
The Arkansas Times is challenging the 2017 law, which it claims forces businesses to take a political stance in violation of the First and 14th Amendments. In 2018, the American Civil Liberties Union filed a lawsuit on behalf of the paper, which for years has contracted with a state public college to publish ads for the school.
U.S. District Judge Brian S. Miller, a George W. Bush appointee, ruled in favor of the state last year, finding that boycotts are not entitled to constitutional protection. The decision prompted the appeal to the Eighth Circuit.
The three-judge panel on Wednesday questioned ACLU attorney Brian Hauss, who was representing the Times, on how the precedent of NAACP v. Claiborne Hardware effected this case. That landmark 1982 Supreme Court ruling held that states cannot prohibit peaceful advocacy of a politically motivated boycott.
“They are a form of expression on public issues resting on the highest rung of hierarchy on First Amendment values,” Hauss told reporters outside…
“Americans across the political spectrum use boycotts as a tool for advancing their political beliefs,” Hauss told reporters. “They are essential to the poorly financed causes of little people and that’s why they deserve constitutional protection.”
NBC News: Americans shouldn’t forfeit their freedom of speech so states can support Israel
By Jeremy Ben-Ami and Rabbi Jill Jacobs
As leaders of two major American Jewish and pro-Israel advocacy groups, we might not be expected to spearhead a fight against laws that seek to discourage participation in the Boycott, Divestment, Sanctions movement against the state of Israel. Although some under the broad BDS umbrella have trafficked in anti-Semitic ideas and rhetoric, heavy-handed attempts by states to restrict or prohibit people from participating in the movement both violate the First Amendment and do absolutely nothing to protect Israel or Jews…
[T]here is a long history of marginalized groups in America successfully using boycotts to press for social and political change, from the Montgomery bus boycott during the civil rights movement to the Delano grape strike and boycott from 1965 to 1970 and even to the boycott of South Africa’s apartheid regime, which eventually led to the imposition of sanctions against South Africa…
Recently, however, the right to boycott has come under attack when it comes to Israel…
On Wednesday, in St. Louis, the 8th U.S. Circuit Court of Appeals will review Arkansas’ anti-BDS law, which a lower court found last year was constitutional because, it said, engaging in a boycott of Israeli goods and services is neither speech nor expressive conduct. We believe, however, that previous Supreme Court rulings about consumer boycotts firmly establish that the BDS movement’s activities are entitled to First Amendment protection.
Intercept: “Targeted For Speaking Out”: Deported Activist Files Free-Speech Suit Demanding Return to New York
By Nick Pinto
A New York City immigration rights activist who was deported by U.S. Immigration and Customs Enforcement in 2018 filed a lawsuit in federal court in Brooklyn on Thursday morning, alleging that he was targeted for deportation because of his political speech. Jean Montrevil said his removal from the U.S. was in violation of his First Amendment rights and demanded that the government return him to his home in New York from Haiti.
The suit brought by Montrevil, 51, a founding member of the New Sanctuary Coalition of New York City, builds on a significant ruling last spring by the 2nd Circuit Court of Appeals in the case of a former colleague, activist Ravi Ragbir. In Ragbir’s case, the court found that ICE’s moves against Ragbir in early 2018 were intended as retaliation for Ragbir’s political speech and thus, violated his rights under the First Amendment…
Montrevil’s record of being threatened for his activism goes back further, stretching over a decade. Montrevil was not [able to escape] – in large part, he alleges, because of an elaborate and carefully planned conspiracy of official lies and misconduct that deprived him of access to courts, his lawyer, and his due-process rights just long enough to get him on a plane out of the country…
Montrevil’s lawsuit is seeking to make the court recognize what seems plain to many who have followed his case: that his deportation was, at its essence, political – the literal banishment of a dissident who challenged the government too often and too loudly.
DOJ
Wall Street Journal: Double Signoff for the FBI
By The Editorial Board
Attorney General William Barr on Monday announced the Justice Department’s first policy change in response to the FBI’s mucking around in the 2016 election. Henceforth, both an AG and the FBI director must sign off on any proposed counterintelligence investigation into a presidential campaign. Three cheers for future accountability.
Amazingly, no such basic rule has existed. FBI policy allowed even sensitive investigations to proceed with little more than a review by an FBI lawyer and approval from a supervisor. Justice Department Inspector General Michael Horowitz’s recent report about the FBI’s investigation of the Trump presidential campaign expressed alarm that FBI policy didn’t even require that “a senior [DOJ] official be notified” of such a politically fraught step.
This loose system made a presidential probe too easy. It has also enabled the 2016 FBI leadership to duck responsibility for the excesses and mistakes of that investigation…
Mr. Barr’s policy change raises the question of whether the Justice Department needs a broad review of past investigations. An FBI that felt it could investigate a Senator (Jeff Sessions) and a President ( Donald Trump ) on its own provenance may have abused its authority in other ways. Now that Mr. Barr has commenced with his housekeeping, let’s sweep all the dirty corners.
First Amendment
Reason (The Volokh Conspiracy): Utah Government Considering Canceling DEPORTM Personalized License Plate
By Eugene Volokh
The Salt Lake Tribune (Erin Alberty) reports:
[T]he Utah Tax Commission is considering recalling the license plate after complaints this week on social media.
“We’re not sure how it got through,” said Tammy Kikuchi, spokeswoman for the commission, which oversees the Utah Division of Motor Vehicles. “We’re really quite surprised.” … [O]fficials are reviewing the plate for compliance with provisions in state law that forbid vanity plates that “may carry connotations offensive to good taste and decency or that may be misleading” and express “contempt, ridicule or superiority of a race, religion, deity, ethnic heritage or political affiliation.”
“I don’t know why it was approved in 2015,” [Kikuchi] said, adding: “The current DMV director was not the director then.”
I think canceling the plate would violate the First Amendment:
[1.] Vanity plate contents are private speech, not government speech. Though Walker v. Sons of Confederate Veterans held that license plate designs are government speech, and the government can generally pick and choose which ones are allowed, vanity plates convey the owner’s own views. Courts are split on the matter, with a recent Maryland high court decision and a federal district court decision in Kentucky taking the view I articulate here, and an Indiana Supreme Court decision taking the opposite view.
Free Expression
The Nation: John Carlos Responds to the New Olympics Ban on Political Protest
By Dave Zirin
A new list of restrictions against political speech or gestures was released on Thursday by the International Olympic Committee (IOC). The move is as arrogant as it is censorious…
The actual punishments for political speech are opaque but threatening, the IOC saying that such will be determined on a “case by case basis.” …
There is something particularly ironic about the fact that the US Olympic and Paralympic Committee (USOPC) just admitted John Carlos and Tommie Smith into its Hall of Fame last November, 51 years after they raised their fists on the medal stand in 1968. The ceremony was meant to be a celebration of reconciliation and a tacit acknowledgment by the USOPC that it was wrong to ostracize the two runners. This new ruling sends a hell of a message that the “Olympic movement” wants to absorb the protest into the past and criminalize it for the present and future.
I spoke to John Carlos on the phone and, as one might expect, he was livid. Here’s what he told me:
This is nonsense. They’re way out of line with this. They’re trying to take people’s rights away and it’s ridiculous. They are saying that they don’t want politics at the Olympics but this is a political move. The silencing of people is political.
Online Speech Platforms
Slate: Who Will Win the Reality Game?
By Samuel Woolley
My academic work over the past 10 years or so has been on the impact of what I call computational propaganda-the use of automation to influence political behavior. My research colleagues and I were particularly interested in social media bots-which, we concluded, could be used to mimic real people, and thus amplify certain conversations and candidates while suppressing others.
But the reality, we’ve learned, is that propagandists are pragmatists. They tend to use the cheapest and most widely available tools. Most of the political bot campaigns we studied in those years were powered by “dumb bots”: simple, repetitive, automated profiles, which liked or shared certain political content from particular people again and again. They smeared opposition groups with identical troll messages or false information on voting; they took over the hashtags their rivals were using to communicate and organize, and filled them with noise and spam.
The digital political strategists I spoke to laughed when I talked about the efficacy of Cambridge Analytica’s methods. They dismissed the company’s psycho-graphic politics as a marketing gimmick, a vast exaggeration of what its technology was really capable of. Scholars have also noted a conspicuous lack of empirical evidence regarding the effectiveness of the company’s purported methods. Cambridge Analytica didn’t control the minds of 230 million Americans individually. Mostly, it was actually doing demographic political advertising, just online. The 2016 U.S. election wasn’t a case of “smart” systems or machine learning being leveraged to conquer democracy…
But it’s not going to stay that way.
Wired: Bad Algorithms Didn’t Break Democracy
By Gideon Lewis-Kraus
As with the war on drugs, the chief villains in this account are the vectors: the social media companies and their recommendation algorithms, which stoke the viral profusion of preposterous content. The people who originate the memes, like peasants who grow poppies or coca, aren’t painted as blameless, exactly, but their behavior is understood to reflect incentives that have been engineered by others. Facebook and Google and Twitter are the cartels.
And the users? They go about their online business-“not aware,” as technology investor and critic Roger McNamee puts it, “that platforms orchestrate all of this behavior upstream.” Tech’s critics offer various solutions: to break up the platforms entirely, to hold them liable for what users post, or to demand that they screen content for its truth-value…
“I understand the concerns that people have about how tech platforms have centralized power, but I actually believe the much bigger story is how much these platforms have decentralized power by putting it directly into people’s hands,” said Mark Zuckerberg, in an October speech at Georgetown University. “I’m here today because I believe we must continue to stand for free expression.”
If these corporations spoke openly about their own financial interest in contagious memes, they would at least seem honest; when they defend themselves in the language of free expression, they leave themselves open to the charge of bad faith.
Candidates and Campaigns
Washington Monthly: Are Democrats Trying to Self-Destruct?
By Julie Rodin Zebrak
To repair the damage President Donald Trump has wrought on the country and our democratic institutions, one thing must happen above all else: a Democrat must win the White House. Yet the most progressive wing of the party has been creating undue hurdles for Democrats to successfully oust Trump…
The first obstacle: certain self-imposed donor restrictions that the candidates have elected to implement. [S]ome self-imposed campaign finance restrictions are reasonable and consistent with Democratic values. Indeed, here’s the good news: None of the 2020 hopefuls are taking corporate PAC money this year.
But some other self-imposed restrictions have become burdensome and unnecessary tests of progressive purity. Bernie Sanders and Elizabeth Warren have foregone large dollar closed fundraisers throughout the primary, which is true to their brands and pleases devoted supporters. Warren, like Sanders, has also rejected Super PAC money and funds from fossil fuel and pharmaceutical company donors, likewise true to brand. Both Sanders and Warren have relied on a high volume of small-dollar grass-roots donations and have rejected big dollar, limited-access campaign fundraisers…
But for 2020, the Sanders and Warren approach may be tantamount to tying an arm behind their respective backs…Warren has pledged to reject large-dollar fundraisers through the general election if she becomes the nominee. That level of purity is where the red flag goes up.
New York Magazine (Intelligencer): Bloomberg and Steyer Reveal That Billionaires Are Underinvesting In Politics
By Eric Levitz
The contradictions between democracy and economic inequality have weighed on our republic since its founding. And concerns about the influence of money in politics loomed especially large in the wake of the financial crisis and Citizens United decision. The problem I’m describing here isn’t new. And it may even seem a tad antiquated; given the burgeoning potency of small-dollar fundraising in recent years, the spectre of billionaires’ political spending may seem less menacing today than it did in the past. But what is both new and menacing is the sheer scale of the super-rich’s economic power after a decade of stagnant wages, record profits, and runaway asset inflation. In 2010, Jeff Bezos was worth $12.3 billion; today, he is worth $115 billion…Suffice to say, billionaire megafortunes are growing at a faster rate than the price of television advertisements…
Taken together, all this means that the billionaire class’s capacity to dominate mass media – through gargantuan ad buys and the subsidization of newspapers, local news stations, or other journalistic enterprises – has been rising in tandem with the political value of exerting such dominance…
What then is to be done? Although the threat that concentrated wealth poses to democracy is dire, small-D Democrats can scarcely afford to forswear their own plutocratic patrons, or paper over ideologically discomfiting ambiguities with vulgar Marxism.
