Supreme Court
Courthouse News: Robocallers Stumble in High Court Bid for Cellphone Access
By Tim Ryan
A techno-gaffe from Justice Stephen Breyer closed the circle Wednesday as the Supreme Court ended its first week of remote arguments with little sympathy for political consultants hampered by the federal ban on robocalling cellphones…
Latham & Watkins attorney Roman Martinez argued Wednesday on behalf of the political groups that the government-debt exception proves that the government never had a strong interest in restricting robocalls.
It would be also be odd, Martinez argued, for the court to strike down a law on First Amendment grounds with the ultimate result of restricting, rather than expanding, the scope of allowable speech.
“The core purpose of the First Amendment is to protect the free exchange of political speech, even when people might find that speech to be a nuisance,” Martinez said…
Justice Neil Gorsuch was one of the few justices who seemed to support Martinez’s argument for striking down the entirety of the robocall ban.
“The government’s remedy proposed here is essentially that we should suppose or reimagine that Congress would have preferred a regime in which more speech is suppressed than one in which less is suppressed,” Gorsuch asked. “On what authority do we have the right to make that kind of judgment as opposed to simply enforcing the First Amendment, finding a violation and liberating the speech that’s been wrongly suppressed?”
Wired: Is There a Constitutional Right to Make Robocalls?
By Gilad Edelman
During oral arguments this morning in Barr v. American Association of Political Consultants, the court at first seemed open to striking down the entire Telephone Consumer Protection Act. Some of the justices gave the government’s lawyer, deputy solicitor general Malcolm Stewart, a hard time about the idea that it could just get rid of the debt-collection exception. That, they suggested, would have the effect of placing more speech under the ban, which is a weird way to fix a First Amendment problem.
But when it came time to question Roman Martinez, the lawyer for the political consultants, the justices revealed themselves to be attuned to the practical reality of the situation…
So the cell phone robocall ban is probably going to survive. But there could be a broader downside to that victory. To see why, you have to understand the constitutional theory behind the plaintiffs’ argument. It stems from a controversial 2015 Supreme Court case called Reed v. Town of Gilbert.
The Courts
Center Square: Numerous lawsuits filed over Newsom’s executive orders, local government overreach
By Bethany Blankley
Protesters across California urging Gov. Gavin Newsom to reopen the state have been met with police wearing riot gear, helicopters, blockades of roads, and an order instructing California Highway Patrol to deny protest or rally permits at the state capitol building.
All of these issues and more are egregious examples of government overreach and violations of the state and federal constitutions, the Center for American Liberty, the Law Office of D. Gill Sperlein and Dhillon Law Group, argue, which have filed several lawsuits against the governor and local officials.
Prohibiting people to peacefully assemble at the capitol, “a core First Amendment speech venue,” the Dhillon Law Group argues, “denies all California residents the right to exercise their First Amendment rights to free speech, free assembly, and petition.”
At the latest rally at the state capitol, San Diego resident and U.S. Marine veteran, Cordie Lee Williams, confronted riot-geared police carrying batons who forcibly removed protesting mothers and young adult women, and pinned a Christian pastor to the ground…
Neither the governor’s order nor state public health directives exempt demonstrations, protests, or other First Amendment-protected activities from enforcement, the Dhillon Law Group argues.
Law360: NBC Unit Says Trump Campaign Libel Suit Chills Free Speech
By Nadia Dreid
President Donald Trump’s reelection campaign is trying to punish an NBC affiliate for “airing the president’s own words” in a political advertisement criticizing the administration’s handling of the coronavirus pandemic, the broadcaster told a Wisconsin federal court.
The defamation suit – the latest in a string that the campaign has filed against various media outlets it claims libeled the president in one way or another – fails on its face because the campaign isn’t the one that was allegedly defamed, and nothing in the ad was untrue, the affiliate said Wednesday…
[T]he campaign’s argument for why the advertisement was defamatory also stands on shaky legs, according to the NBC affiliate.
“The complaint’s allegations that it would sway voters – precisely what any political advertisement (or, for that matter, newspaper editorial) is designed to accomplish – does not render this advertisement defamatory,” it told the court…
“The First Amendment does not tolerate such speech-chilling litigation, and the court should swiftly dismiss it,” the broadcaster said.
Texas Lawyer: With Payment Deadline Looming, Plaintiffs Challenging Texas Bar Dues Are Requesting a Status Conference
By Angela Morris
The June 1 deadline to pay Texas bar dues is looming for three attorneys who are suing the State Bar of Texas, alleging that mandatory dues violate their constitutional rights.
In a new court filing Wednesday, the plaintiffs noted that they got their dues notices, which they see as coercing them into joining and funding the Texas bar just so they can engage in their profession.
“The bar continues to engage in political and ideological activities, including lobbying; and the bar continues to employ wholly inadequate opt-out procedures for members who object to its political activities,” said a May 6 notice in the case, McDonald v. Sorrels…
The attorney-plaintiffs claim the bar violates their First Amendment rights by forcing them to join and pay mandatory dues, which the bar then spends on alleged political and ideological activities. They object to the bar’s LGBT continuing legal education offerings, pro bono program for undocumented immigrants, attorney diversity programs, a $65 legal aid fee and the bar’s legislative affairs activities.
Congress
Washington Post: Senate committee advances nomination of FEC commissioner
By Michelle Ye Hee Lee
A Senate committee Thursday voted to advance President Trump’s nominee to fill a vacancy on the Federal Election Commission, which would restore the agency’s ability to conduct official business.
The Senate Rules and Administration Committee voted along party lines to nominate conservative Texas lawyer James E. “Trey” Trainor III and move his nomination to the full Senate, three years after he was first named for the position…
Trainor, an Austin-based elections lawyer, has pushed for less regulation of money in politics and fought efforts to require politically active nonprofit organizations to disclose their donors. Government transparency groups widely oppose Trainor’s confirmation.
Sen. Roy Blunt (R-Mo.), chairman of the committee, said it is important to restore the FEC’s ability to do its official work, with candidates seeking guidance on how to safely and legally campaign during the coronavirus outbreak.
“As candidates navigate the novel campaign issues that have been created by this pandemic, a fully functioning FEC will allow them to receive the guidance that they need in this uncertain time,” Blunt said Thursday.
Roll Call: Senate moves a step closer to restoring FEC quorum
By Kate Ackley
“Confirming Mr. Trainor will restore partisan parity at the commission, in addition to giving the commission a critical fourth vote in order to conduct its business,” said Sen. Roy Blunt, the Missouri Republican who chairs the Senate Rules and Administration panel, during Thursday’s committee vote…
Senate Majority Leader Mitch McConnell, R-Ky., noted during Trainor’s confirmation hearing that the three remaining commissioners are all operating on expired terms, and he said he’d like to “aim for a new clean slate of commissioners on both sides” of the aisle.
Advocates from some outside groups that focus on political money overhaul matters said they objected to Trainor.
“In his comments at his confirmation hearing, Trey Trainor demonstrated that he does not support common-sense enforcement of our election laws,” Meredith McGehee, executive director of Issue One, said in a statement Thursday. “Trey Trainor is the wrong choice for the FEC.”
Senate leaders have not yet scheduled a floor vote on the nomination, but that could happen in the coming days.
The Hill: Senate panel advances Trump FEC nominee in party-line vote
By Maggie Miller
Rules Committee Chairman Roy Blunt (R-Mo.) called Trainor “undoubtedly qualified” and said his confirmation is needed so that the FEC can carry out its duties.
“Without a quorum, the FEC cannot fulfill its most important functions, including providing formal guidance to federal candidates as they work to address the unique challenges they face during the coronavirus pandemic,” Blunt said. “Trey Trainor’s confirmation would fill a vacancy, balance party representation, and, most importantly, allow the FEC to do its job.”
FEC
Bloomberg: Gillibrand Hosts Women for Biden Event: Campaign Update
By Misyrlena Egkolfopoulou and Bill Allison
An outside group that spent $4.8 million trying to derail Bernie Sanders’s bid for the Democratic presidential nomination should be required to disclose its donors, a complaint filed with the Federal Election Commission says.
After Sanders won the New Hampshire primary in February, moderate Democratic donors funded the Big Tent Project, set up to run ads attacking him, according to the filing by the Campaign Legal Center…
The Big Tent Project ran online and digital ads attacking Sanders, arguing that his nomination and campaign policy proposals would ensure four more years of President Donald Trump. Most of the ads were targeted to Nevada, South Carolina and Super Tuesday states. Some ads implored voters to “Vote no on Bernie Sanders.”
That makes the group, which ranks ninth for outside spending in 2020, a political committee that should have disclosed its donors to the FEC, the Campaign Legal Center says. Instead, the Big Tent Project claimed to be a nonprofit, a status afforded to groups if they don’t influence federal elections as their primary purpose.
The donors behind the group that tried to stop Sanders have remained anonymous. Unlike political committees, nonprofits don’t have to disclose their donors to the FEC.
Right to Protest
City & State: Should protests be allowed during COVID-19?
By Zach Williams
The expression of free speech has been largely confined to social media posts, press releases and video conferences ever since the coronavirus pandemic hit New York two months ago, but that is beginning to change as public attention shifts to how the NYPD is handling protests.
New York City Mayor Bill de Blasio and NYPD Commissioner Dermot Shea have asserted that public protests should not be allowed, but civil rights activists are pushing back. “Although you, as government officials, have a strong interest in protecting the health and safety of New Yorkers,” Norman Siegel, a former head of the New York Civil Liberties Union, said in a Tuesday letter to de Blasio and Shea. “You cannot constitutionally nor legally ban/suspend protected fundamental First Amendment rights of all New Yorkers.”
Online Speech Platforms
New York Times: Who’s Up for the Job of Decontaminating Facebook?
By Kara Swisher
Half of Facebook’s Supreme Court members were finally announced on Wednesday morning, including four co-chairs…
As yet, there are no loudmouths, no cranky people and, most important, no one truly affected by the dangerous side of Facebook. I asked in a press call on Wednesday morning, for example, why there were no board members like the parents of the Sandy Hook victims, who were terrorized by the conspiracy theorist Alex Jones on the platform until he was finally tossed off. I also asked whether we could find out who turned down an offer to be on the oversight board.
I was given appropriate nonanswers to both those questions, along the lines of we’ll see and there are privacy concerns naming those who said no thanks. Which is why the rollout left me with the nagging feeling – especially after looking over the complex setup that is planned to hear cases – that the oversight board has all the hallmarks of the United Nations, except potentially much less effective.
I am not trying to be glib here, because solving the problem of how to deal with speech across the largest and most unwieldy communications platform in human history is not for the faint of heart. It may be beyond the capabilities of anyone: I am not sure that any deliberative body would be capable of doing so, given that Facebook and its founder and chief executive, Mark Zuckerberg, have purposefully created a system that is ungovernable.
Reporting by Matt Taibbi: The Inevitable Coronavirus Censorship Crisis is Here
By Matt Taibbi
Earlier this week, Atlantic magazine – fast becoming the favored media outlet for self-styled intellectual elites of the Aspen Institute type – ran an in-depth article of the problems free speech poses to American society in the coronavirus era…
Authored by a pair of law professors, Jack Goldsmith and Andrew Keane Woods, the piece argued that the American and Chinese approaches to monitoring the Internet were already not that dissimilar…
They went on to list all the reasons that, given that we’re already on an “inexorable” path to censorship, a Chinese-style system of speech control may not be such a bad thing. In fact, they argued, a benefit of the coronavirus was that it was waking us up to “how technical wizardry, data centralization, and private-public collaboration can do enormous public good.”
Perhaps, they posited, Americans could be moved to reconsider their “understanding” of the First and Fourth Amendments, as “the harms from digital speech” continue to grow, and “the social costs of a relatively open Internet multiply.”
This interesting take on the First Amendment was the latest in a line of “Let’s rethink that whole democracy thing” pieces that began sprouting up in earnest four years ago.
The States
Insider NJ: ELEC: Sweeney 2017 was Indeed the Most Expensive Legislative Campaign Ever
A historic burst of spending in 2017 funded the nation’s most expensive campaign ever in a single legislative district while also wiping out several state records, according to a new report by the New Jersey Election Law Enforcement Commission (ELEC).
“With the dust now settled, ELEC has further verified that the 2017 showdown in the third legislative district was the most costly campaign in American history,” said Joseph Donohue, deputy director and author of the study. “Inadequate disclosure by independent spenders made it impossible to specify the exact cost. However, ELEC estimates the price tag around $24 million disregarding inflation.” …
Donohue said the growing involvement of independent groups in New Jersey elections makes it imperative to enact a new state law that requires these groups to disclose their major contributions and spending just like candidates, parties and traditional political action committees.
“Better disclosure laws were important when our bi-partisan commission in 2010 unanimously urged reforms a few months after the Citizens United v. FEC ruling unleashed a major new wave of independent spending. They may be even more critical now that independent groups often seem to be calling the shots in today’s elections,” said Donohue.
Kansas City Star: Missouri Democrats file ethics complaint against dark money nonprofit
By Jason Hancock
The Missouri Democratic Party is asking the state ethics commission to investigate whether a conservative nonprofit that has targeted the party’s presumptive gubernatorial nominee violated state law and should be forced to disclose its donors.
Lauren Gepford, the party’s executive director, filed an ethics complaint Tuesday against Liberty Alliance USA, a nonprofit that is owned by another nonprofit called Cornerstone 1791.
The complaint alleges that the nonprofit was created to work against the candidacy of state Auditor Nicole Galloway, the Democrat challenging Gov. Mike Parson this fall. Because of this, the complaint argues that the nonprofit shouldn’t be allowed to shield its donors from public view. It should be required to file disclosure paperwork with the Missouri Ethics Commission like a political action committee…
Earlier this year the state ethics commission required another politically active nonprofit, Missourians for Patient Care, to file paperwork as a PAC and disclose its donors after determining it accepted contributions and made expenditures for the primary purpose of influencing an election.
