Supreme Court
SCOTUSblog: Argument preview: Justices take on First Amendment challenge to robocall law
By Amanda Shanor
Next week, in Barr v. American Association of Political Consultants, the Supreme Court will hear oral argument on whether the federal law prohibiting robocalls to cellphones violates the First Amendment’s free speech clause. The case could have a significant impact on political advertising in the run-up to the 2020 election. It could also have ripple effects well beyond robocalls, including on the constitutional rules surrounding commercial advertising and the proper remedy for laws found unconstitutional under the First Amendment on what are known as content neutrality grounds.
Bloomberg Law: Follow From Home the Supreme Court’s First Livestream Arguments
By Kimberly Strawbridge Robinson
Barr v. American Association of Political Consultants, Inc.
Significance: Congress passed the Telephone Consumer Protection Act in the 1990s to deal with unwanted automated phone calls. But Congress created an exception for “robocalls” seeking to collect government debt. Political groups that want to make their own calls, say the government shouldn’t pick and choose which speech it likes and which it bans. Such a “content-based” restriction is unconstitutional, they argue. They say the exemption can’t be separated from the rest of the TCPA, so the whole statute must be struck. The government counters the exception isn’t based on the content of the call, but rather the parties’ previous borrowing relationship.
What We’re Listening For: In 2015, the high court struck down an Arizona town’s sign ordinance in Reed v. Town of Gilbert. Reed was a game changer that broadly defined content-based speech and made governments pass the most exacting level of judicial scrutiny to survive review. There’s no disagreement among lower federal courts on the issue. We’ll be watching for signs the justices are thinking of benching Reed, or limiting its reach.
Legal Intelligencer: US Supreme Court Considers Vagueness of Immigration Statute
By Stephen A. Miller and Alessandra Emini
The Supreme Court recently considered [the vagueness of an immigration statute] in United States v. Sineneng-Smith. This appeal from the U.S. Court of Appeals for the Ninth Circuit concerned the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain. See 8 U.S.C. Section 1324(a)(1)(A)(iv). The Ninth Circuit held that the statute was facially unconstitutional-in other words, that it was so overbroad and vague that it could not be applied to anyone.
The circumstances of this case would suggest that the Supreme Court agreed to hear this case with the intent of reversing the Ninth Circuit. Respondent, Evelyn Sineneng-Smith, tricked undocumented immigrants in the United States into paying for her “consulting services,” which consisted of filing applications for permanent-resident status through a discontinued Department of Labor program for which she knew the noncitizens were ineligible. Put bluntly, she ran a scam and stole money from vulnerable people, who remained in the United States, in theory, based on her assurances that they would soon achieve lawful immigration status.
The Courts
Reuters: D.C. judge: U.S. courts’ administrative agency can’t bar employees’ political speech
By Alison Frankel
U.S. District Judge Christopher Cooper of the District of Columbia ruled Wednesday that the Administrative Office of the U.S. Courts cannot bar employees from making political contributions, attending campaign events, publicly supporting candidates and engaging in other political speech on their own time. The judge held that the Administrative Office can preclude employees from organizing campaign events and driving voters to the polls because those activities “evince particularly strong commitments to enlisting partisan support.” But otherwise, he said, employees’ bedrock First Amendment rights trump speculative concern that their political speech will taint perception of the judiciary’s impartiality.
First Amendment
New York Times: We the People, in Order to Defeat the Coronavirus
By The Editorial Board
Civil liberties may feel to some like a second-order problem when thousands of Americans are dying of a disease with no known treatment or vaccine. Yet while unprecedented emergencies may demand unprecedented responses, those responses can easily tip into misuse and abuse, or can become part of our daily lives even after the immediate threat has passed…
Consider the rights to free speech, association and religious exercise under the First Amendment: These freedoms are central to our self-definition, and yet they have all been infringed on to varying degrees across the country, as states ban gatherings where the virus can spread quickly and easily. In Maryland and Iowa, for example, all types of large events and gatherings, including church services, have been prohibited…
Bans like these are legal, as long as they are neutral and applicable to everyone…
But even if all these bans are legal on their face, what happens as the 2020 election approaches? Speech and association rights are at their peak in the political context, and Americans will be especially wary of any incursions on those rights in the months or weeks before Election Day. What if a state lifts some restrictions on large gatherings, then reimposes them in the days before an election? That may be necessary if there is another wave of the virus, and yet in a highly polarized political environment, citizens might well distrust official motivations behind a crackdown, and that could generate public unrest.
Online Speech Platforms
The Verge: Rep. Adam Schiff pushes YouTube and Twitter on coronavirus misinformation
By Kim Lyons
Rep. Adam Schiff (D-CA) sent a letter today to Google, YouTube, and Twitter urging the platforms to explicitly notify users when they’ve engaged with misinformation about the coronavirus.
Schiff wrote to Google CEO Sundar Pichai, YouTube CEO Susan Wojcicki, and Twitter CEO Jack Dorsey, saying it’s not enough to remove or downgrade harmful or misleading content about the pandemic, but that it’s critical to ensure that users who saw the content have access to correct information as well.
New York Times: Trump’s Disinfectant Talk Trips Up Sites’ Vows Against Misinformation
By Sheera Frenkel and Davey Alba
At a White House briefing last week, Mr. Trump suggested that disinfectants and ultraviolet light were possible treatments for the virus. His remarks immediately found their way onto Facebook, Instagram and other social media sites, and people rushed to defend the president’s statements as well as mock them.
But Facebook, Twitter and YouTube have declined to remove Mr. Trump’s statements posted online in video clips and transcriptions of the briefing, saying he did not specifically direct people to pursue the unproven treatments. That has led to a mushrooming of other posts, videos and comments about false virus cures with UV lights and disinfectants that the companies have largely left up…
The social media companies have always trod delicately when it comes to President Trump. Yet their inaction on posts echoing his remarks on UV lights and disinfectants stands out because the companies have said for weeks that they would not permit false information about the coronavirus to proliferate.
Independent Groups
Washington Free Beacon: Steve Bullock, Who Called to Ban Super PACs, Linked to New Super PAC
By Joe Schoffstall
Montana’s Democratic governor, Steve Bullock, who has called for eliminating super PACs, appears to have a new outside super PAC backing his Senate run.
The Big Sky Voters PAC-a Montana-based super PAC-was created April 23 and looks positioned to boost Bullock’s Senate bid against incumbent Republican senator Steve Daines. Its treasurer previously held the same role for Bullock’s similarly named Big Sky Values leadership PAC.
The super PAC can collect unlimited sums from donors and could provide pivotal outside assistance in a race that will help determine which party controls the Senate following the November elections. If the new super PAC does, in fact, back Bullock, it would run counter to the promises the governor made during his stint as a presidential candidate. Bullock’s “One Big Idea” for his presidential platform last year was campaign finance reform. He used the issue to criticize his Democratic rivals and their use of super PACs.
Candidates and Campaigns
New York Times: How to Run for President in the Middle of a Pandemic
By Jon Grinspan
Is it possible to run for president during a pandemic, without the handshaking and the baby-kissing? Can Joe Biden and Donald Trump stay a safe six feet from their own campaigns? Ever since the arrival of the coronavirus, we’ve all wondered whether democracy can operate at such a distance.
Not only is it possible, but history shows that for the first century of American politics nearly all candidates stayed home. Parties ran their races for them. The idea of a man promoting his own election, The New York Times wrote in 1892, “disgusts the people.” In an age of tribal partisanship, feuding candidates and frequent epidemics, this style of socially distanced stumping drew record turnouts and protected a candidate’s honor, and maybe his health. Such a retro campaign might suit the weird world in which we live today…
A less present candidate might be a good thing for our democracy. The constant focus on the presidency drowns out much of the dynamism of political life.
The States
Seattle Times: High fines necessary in big-money elections
By Editorial Board
Washington’s Supreme Court strongly reinforced the longstanding principle of political financial transparency this month. However, supporters of public disclosure law must remain on alert. The same 5-4 decision that endorses the public’s right to information also shows an opening for a challenge to the accountability mechanism that makes the system function.
With the fresh ruling that political transparency requirements don’t violate the Constitutional right of free speech, Attorney General Bob Ferguson must carefully preserve the state’s full power to punish offenders. Political cycles run faster than the courts can fairly operate, so keeping future campaigns honest requires a penalty for breaking rules that outweighs the benefits of winning an election. Otherwise, big-money interests can break rules and shrug at the consequences as the cost of doing business…
Washington’s capacity to enforce campaign-finance laws in proportion to the money involved in elections must be preserved. A 1974 Washington Supreme Court opinion quoted by Justice Mary Yu in the Grocery Manufacturers Association case got it right: “The right to receive information is the fundamental counterpart of the right to free speech.” The public has an absolute right to know who’s behind every campaign.
Charlotte Observer: Should NC politicians be banned from paying themselves rent with campaign money?
By Will Doran
Should politicians be able to use their campaign donors’ money to pay for a home they already own?
That’s the question the North Carolina State Board of Elections is now weighing, after leaders there previously signed off on such arrangements. Specifically, the potential rule change would ban politicians from using their campaign funds to pay the rent or mortgage of any residence owned by them or a family member.
If state officials do decide to ban such practices, it would appear to be a change aimed one of the most powerful politicians in the state, N.C. Senate leader Phil Berger.
Berger, a Republican from Rockingham County north of Greensboro, has been criticized for using his campaign funds to essentially pay his mortgage on a second home in Raleigh near the legislature…
Berger created an LLC that he used to buy a Raleigh townhouse, then used his campaign funds to pay rent to that LLC.
South Jersey Times: Kill the virus! Can we kill N.J. pay-to-play, too?
By South Jersey Times Editorial Board
“Pay-to-play” disclosure and direct contribution limits in effect for the past decade have slowed the political influence of contractors, but full reforms remain elusive. PACs like General Majority, and others controlled by legislative leaders, cans still engage in “wheeling,” a practice that permits PACs to parcel out donations from these contractors to local and county candidates – who serve on the freeholder boards and municipal bodies that actually award most engineering, professional and construction contracts…
Despite Gov. Phil Murphy’s insistence that transparency and further reforms are a priority, no real push toward them is likely to be seen while the state has digging out of its coronavirus doldrums atop its agenda. And, Murphy has his own credibility problems because he refused for two years to demand full donor disclosures of a PAC set up by his cronies to advance his gubernatorial agenda. A donor list was finally released last September. Who could have guessed? The New Jersey Education Association, the teachers’ union with whom Murphy is especially cozy, kicked in $4.5 million.
