ICYMI
“Paid For By”: Principles for Accurate and Effective Political Ad Disclaimers in the 21st Century
By Alex Baiocco
Disclaimers for ads supporting or opposing candidates or ballot measures tell viewers and listeners who is attempting to persuade them. While this information can be useful, laws requiring disclaimers burden First Amendment rights. Disclaimers take up time or space in an ad, detracting from the speaker’s message. Such laws are often complex and create substantial compliance burdens. As a result, groups risk inadvertently violating the law and may choose to avoid speech that triggers the requirements. Recently, some states and localities have reached far beyond requiring ads’ sponsors to identify themselves, instead mandating lengthy disclaimers with misleading and invasive information about supporters of the entity doing the speaking. Under some statutes, even issue advocacy triggers onerous disclaimer requirements…
Policymakers should consider the following key principles for crafting requirements that promote accurate and effective disclaimers while minimizing costs to speech, privacy, and associational rights. Successful implementation of these principles will inform voters about the source of a message while keeping compliance burdens manageable for speakers and ad sellers alike.
The Courts
By Matt Miller
In government, backing the wrong candidate – or candidates – can get you fired.
That’s what happened when the solicitors for a central Pennsylvania school board supported what turned out to be the losing side in the 2015 board elections.
After their candidates lost, they got the ax.
That firing was perfectly legal and not a violation of the solicitors’ free speech rights, a federal judge has ruled.
U.S. Middle District Judge Jennifer P. Wilson came to that conclusion while refereeing a three-year court battle between the Chambersburg Area School District and the law firm of its former solicitor, Black & Davidson…
In dismissing that suit, Wilson concluded the new school board had no legal or constitutional obligation to keep an obvious opponent as its solicitor.
“The court concludes that the role of district solicitor for the Chambersburg Area School District is a policymaking position because the district solicitor has meaningful input into the decision-making process of the board for the district,” Wilson wrote. “Therefore, the board and district are entitled to have a solicitor who shares their policy views.”
“Moreover, the board’s interest in maintaining a trusted relationship with the district solicitor in order to efficiently fulfill its duties outweighs the district solicitor’s interest in freedom of speech and association in this case,” she found.
Wisbar News: Federal District Court Dismisses Lawsuit Challenging Mandatory Bar
The U.S. District Court for the Eastern District of Wisconsin has dismissed a lawsuit against the State Bar of Wisconsin officers and all seven justices on the Wisconsin Supreme Court, a First Amendment challenge to the bar’s mandatory status…
The U.S. Supreme Court was recently presented with an opportunity to explicitly overrule Keller [v. State Bar of California], in Jarchow v. State Bar of Wisconsin, noted Judge Adelman.
“Because the Supreme Court passed up this opportunity to explicitly overrule Keller, it is impossible for a lower court to now conclude that the Supreme Court has already implicitly overruled it,” Judge Adelman wrote.
“Indeed, although two Justices dissented from the denial of certiorari in Jarchow, not even they suggested that the Court had already implicitly overruled Keller.”
Office of Special Counsel
Washington Times: Federal employees can support Black Lives Matter on the job, Office of Special Counsel rules
By Stephen Dinan
Black Lives Matter is not inherently political so federal employees are free to express their support for the movement while on the job, according to the government agency that polices such matters.
The Office of Special Counsel says employees can wear BLM pins, post supportive messages to their social media accounts during work time, or let fellow employees or members of the public know of their support.
They can even fundraise for the movement as long as they don’t back a specific political candidate while doing so, the OSC said in guidance sent to federal agencies late last week…
The agency had previously ruled that the tea party movement was a social force, not a political organization, and the agency said BLM fits the same mold…
“The bottom line is that Black Lives Matter is not a partisan organization, nor is it a partisan issue. And federal employees are and should be free to express their support for it, both in and out of the federal workplace,” said Nick Schwellenbach, senior investigator at [the Project on Government Oversight].
Hans von Spakovsky, senior legal fellow at the Heritage Foundation, said…as long as the groups avoid politicking they’re on safe legal ground.
“But while it may be legally OK for federal employees to post BLM posters on the walls of their office, I think doing so is unwise because it may make many of their clients – the public – who also disagree with BLM uncomfortable or intimidated,” he said.
First Amendment
JD Supra: “Trump Too Small” is Too Personal for Trademark Registration
By Dennis Loomis (BakerHostetler)
The Trademark Trial and Appeal Board (TTAB) – for the second time in the past six months – has decided that a proposed mark incorporating the name “Trump” may not be federally registered as a trademark. Relying on the Lanham Act prohibition against registration of any mark that identifies “a particular living individual” without that person’s consent, the board refused to register “Trump Too Small” for use on T-shirts and other apparel…
The applicant for Trump Too Small, an individual named Steve Elster, argued that his mark constituted “private, political speech” criticizing President Donald Trump and, therefore, was protected by the First Amendment under Matal v. Tam…Elster submitted an image of a Trump Too Small T-shirt, leaving no doubt that his intent was to editorialize against Trump.
But the board emphatically rejected this “free speech” defense. The cited Supreme Court opinions struck down Lanham Act provisions outlawing registration of marks whose content could be considered disparaging or immoral, thereby imposing “viewpoint discrimination.” The TTAB distinguished the separate statutory ban on marks comprising a living individual’s name without consent as a strictly objective test that did not turn in any way on the content or viewpoint communicated by the mark. Either it does or it does not include an identifiable individual’s name. If it does, and the individual has not consented, registration is banned without regard to any “message” that the mark may attempt to send.
Wall Street Journal: A Way to Curb Chinese Intimidation
By David B. Rivkin and Anastasia Lin
Facebook, Google and Twitter announced this month that they will refuse to comply with customer-information requests from Hong Kong authorities until the companies review the implications of a new Chinese security law designed to suppress dissent in the territory. If the tech companies don’t cave in, it will be a rare instance of Western businesses standing firm against Beijing’s intimidation.
Corporations typically kowtow, fearful of losing access to China’s massive market…
It’s too much to expect corporations, whose objective is to make money for shareholders, to take a lonely stand against a government that controls access to a major market. But U.S. lawmakers could stiffen corporate spines…
Congress should enact legislation prohibiting American companies, as well as foreign entities doing business in the U.S., from cooperating with any Chinese effort to enlist them for propaganda or furnish information on dissidents…
The goal would not be to prevent companies from speaking, or to compel their speech, on China-related issues. They could not, however, legally comply with Chinese government attempts to direct their speech.
Media
Bari Weiss: Resignation Letter
By Bari Weiss
It is with sadness that I write to tell you that I am resigning from The New York Times…
[T]he lessons that ought to have followed the [2016 presidential] election-lessons about the importance of understanding other Americans, the necessity of resisting tribalism, and the centrality of the free exchange of ideas to a democratic society-have not been learned. Instead, a new consensus has emerged in the press, but perhaps especially at this paper: that truth isn’t a process of collective discovery, but an orthodoxy already known to an enlightened few whose job is to inform everyone else.
Twitter is not on the masthead of The New York Times. But Twitter has become its ultimate editor. As the ethics and mores of that platform have become those of the paper, the paper itself has increasingly become a kind of performance space…
[T]he truth is that intellectual curiosity-let alone risk-taking-is now a liability at The Times. Why edit something challenging to our readers, or write something bold only to go through the numbing process of making it ideologically kosher, when we can assure ourselves of job security (and clicks) by publishing our 4000th op-ed arguing that Donald Trump is a unique danger to the country and the world? And so self-censorship has become the norm.
Candidates and Campaigns
Vice: The Only Way to Change a Voter’s Mind
By Harry Cheadle
[Aaron] Marquez’s team is trying to do the hardest thing in politics: change voters’ minds. The way to do that, they believe, is to get deeply, heart-rendingly personal with voters, sharing stories of love and death and prodding the voter to do the same thing, to swap intimate truths with a stranger in the name of building connection…
What Marquez…[is doing] is often referred to as “deep canvassing” ….
The political scientists Joshua Kalla and David Broockman have studied what campaigns can do to change voters’ minds during general elections, and the answer is basically nothing works. Even the most eye-catching campaign ad is likely to be ignored or forgotten; direct mail probably just goes straight into the trash. People tend to reject arguments that don’t already fit into their worldview, no matter how clever those arguments are. It makes sense that candidates generally focus on making sure their own supporters vote, rather than persuading unsympathetic voters to change sides. (Some political scientists now argue, controversially, that turnout is the only thing that decides elections and the persuadable voter is essentially a myth.) …
It remains to be seen how effective deep canvassing is in electoral contests…
Even if deep canvassing is effective, it won’t be able to influence enough voters to have much of an effect on the presidential election or major statewide races. But in down-ballot contests, every vote counts; in Arizona’s 28th legislative district, the Republican won the state senate seat in 2018 by fewer than 300 votes. That’s the sort of outcome deep canvassers think they can change.
Daily Beast: Bloomberg Pledged Hundreds of Millions to Defeat Trump. Where Is It?
By Hunter Woodall and Lachlan Markay
Mike Bloomberg’s presidential effort redefined campaign lavishness, a billion-dollar behemoth that for a time put the former New York City mayor at the center of the primary conversation until it became clear that many Democrats didn’t want to vote for him.
But after all that extravagance, the TV advertising blitzes, the free campaign memorabilia and outlandish social media ploys to try and boost his own political fortune, Bloomberg has yet to publicly do the same for the Democratic nominee.
After having pledged to help defeat President Donald Trump, Bloomberg has been largely a nonentity on the general election landscape considering his massive primary season spending, according to campaign finance records ending in May…
“He made a lot of pledges at the beginning,” said Rebecca Katz, a progressive Democratic strategist. “…’I’m going to do all these things for my staff, I’m going to do all these things for the Democratic party, I’m going to help the nominee.’ And he got great, great press for it. And then he just decided not to.”
The day after Super Tuesday in March, when the billionaire bowed out of the race, he pledged in a statement to “not walk away from the most important political fight of my life.” But according to federal election commission records through the end of May, Bloomberg hasn’t shown he’s willing to spend anywhere near the kind of cash he invested into his own campaign to help former Vice President Joe Biden’s effort.
The Fulcrum: Good-government groups ask Trump and Biden to unmask campaign bundlers
By Sara Swann
A coalition of 20 organizations, from across the ideological spectrum, sent letters to both the Trump and Biden campaigns on Tuesday requesting they disclose their most prolific “bundlers” – the rich and well-connected people whom politicians rely on to collect donations from their friends and business associates…
The groups want the candidates to name anyone who raises more than $50,000 for their campaigns, along with home address and occupation – information candidates are already supposed to report about donors to the Federal Election Commission…
“More and more money is flowing into presidential elections, yet, disturbingly, there is less and less transparency about the people helping both candidates raise mountains of campaign cash,” said Meredith McGehee of Issue One, the bipartisan democracy reform group that organized the letters. (It operates but is journalistically independent of The Fulcrum.)
The other signatories include Common Cause and Public Citizen on the left, the Campaign Legal Center and the League of Women Voters from the center, and Take Back Our Republic and the National Legal and Policy Center on the right.
The States
Politico: Florida Democrats took coronavirus aid. Now they face a reckoning.
By Matt Dixon
Florida Democratic Party officials are weighing whether to oust Chair Terrie Rizzo after the party accepted federal aid intended to help small businesses hammered by the coronavirus pandemic, according to two people with knowledge of the discussions…
In April, the party accepted $815,000 in Paycheck Protection Program funds, sparking an internal clash as Democrats openly criticized Rizzo and party Executive Director Juan Peñalosa, an adviser to Joe Biden’s presidential campaign, for accepting the money.
The move seemed at odds with Small Business Administration guidelines and raised ethical questions…
The party said last week it had returned $780,000 in loans, but Federal Election Commission records show it received $815,641 through PPP.
Jerusalem Post: Missouri joins 31 other states in passing anti-BDS legislation
By Donna Rachel Edmunds
Missouri became the 32nd state to pass anti-Boycott, Divestment and Sanctions (BDS) legislation on Monday when Governor Mike Parson signed into law a bill that prohibits it from contracting with companies that boycott Israel.
Under the Anti-Discrimination Against Israel Act, Missouri and its political subdivisions are prohibited from signing a contract with a company unless it includes written certification that the company is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of goods or services from the State of Israel or any company, person or entity doing business with or in Israel…
Other states to have already passed anti-BDS legislation include Florida, New York, New Jersey, California and Texas.
