We’re Hiring!
Legal Director – Institute for Free Speech – Washington, DC or Virtual Office
The Institute for Free Speech anticipates the need for a highly experienced attorney to direct our litigation and legal advocacy. President Trump announced plans to nominate our longtime Legal Director to the Federal Election Commission, in which case he likely would be confirmed in late summer or fall.
This is a rare opportunity to develop and implement a long-term legal strategy directed toward the protection of Constitutional rights. You would work to create legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, that threaten citizens’ privacy if they speak or join groups, and that impose heavy burdens on organized political activity. The Legal Director will direct our litigation and legal advocacy, lead our in-house legal team, and manage and expand our network of volunteer attorneys.
A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country.
[You can learn more about this role and apply for the position here.]
New from the Institute for Free Speech
Amicus Brief: New Portland-Area Contribution Limits Are Unconstitutional
The Taxpayers Association of Oregon filed an amicus brief late Monday urging a state circuit court to strike down Multnomah County’s limits on campaign contributions. Attorneys from the Institute for Free Speech are representing the Taxpayers Association in the case.
“The Oregon Supreme Court has allowed contribution limits for the first time in more than twenty years, but those limits are subject to First Amendment constraints. By imposing limits over three times smaller than the lowest ever upheld by federal courts, Multnomah County has overstepped,” said Institute for Free Speech Attorney Owen Yeates.
The Supreme Court of Oregon upheld the limits under the state constitution but remanded to Judge Eric Bloch of the Multnomah County Circuit Court to consider whether they are too low under the First Amendment.
Multnomah County’s contribution limits are unconstitutional in two ways, the brief explains. The limits restrict a candidate’s contributions to his or her own campaign, contradicting Supreme Court precedent…
At the same time, the law is “wildly underinclusive” because it exempts small donor committees. Allowing these favored groups to contribute unlimited amounts undermines any purported anti-corruption rationale in the law. Moreover, the literature in support of the limits, which were passed by ballot measure, explains that they are intended to equalize influence. This is not a constitutionally valid justification for contribution limits.
The case is before the Circuit Court of the State of Oregon for the County of Multnomah. To read the Institute’s brief, click here (PDF).
The Courts
Courthouse News: Judge to Rule Thursday on Press Claims Against Federal Officers in Portland
By Karina Brown
Attorneys argued Tuesday over the question a federal judge said was likely to end up at the U.S. Supreme Court: whether journalists have First Amendment rights to cover protests that are distinct from the rights of the general public.
Federal agents never left Portland. They are just out of sight. In a proposed class action lawsuit, journalists and legal observers got a restraining order barring local police and federal agents from targeting them for assault and arrest as they cover protests sparked by the police killing of George Floyd that have continued for over 80 days. And although nightly clashes with federal agents have quieted, court documents in the case show White House senior policy adviser Stephen Miller contradicting Oregon Gov. Kate Brown’s July 29 announcement that federal agents would begin to leave Portland under via a “phased withdrawal.”
“It’s not a phased withdrawal either,” Miller wrote in an email to Chad Mizelle, acting general counsel for the Department of Homeland Security, and John Gountanis, acting chief of staff for the agency.
Court documents also show Ken Cuccinelli, acting deputy secretary for the Department of Homeland Security, scoffing at the restraining order.
“It’s offensive, but shouldn’t affect anything we’re doing,” Cuccinelli said about the temporary restraining order in an email on the day it was entered.
That’s why U.S. District Judge Michael Simon should grant an injunction making the restraining order more permanent, an attorney for the journalists and legal observers said at a hearing Tuesday.
Great Falls Tribune: US District Court judge strikes down Montana’s ‘truth in labeling’ law
By Phil Drake
A U.S. District Court judge has, in a lawsuit that pitted the political action committee Doctors for a Healthy Montana against Commissioner of Political Practices Jeff Mangan and Attorney General Tim Fox, struck down a state law that promoted truth in labeling of such groups.
Judge Dana L. Christensen wrote Aug. 11 that while “Doctors for a Healthy Choice” may be a misleading name, however, “at no point can it be said that the name was factually incorrect.”
The judge’s Aug. 12 decision stems from the Political Committee Naming and Labeling Act, which was enacted by the Legislature in 1985, calls for “truth in labeling” of political action committees to keep them from misleading the public. It requires the name of a political committee to identify the economic interest, special interest or employer of a majority of the committee’s contributors.
Doctors for a Healthy Montana formed in February for the 2020 elections to defeat Republican lawmakers who voted for Medicaid Expansion the year before. The group leased a billboard in Richland County, calling out Rep. Joel Krautter, R-Sidney, who was eventually defeated in the June primary.
But prior to the vote, he filed a complaint with the Commissioner of Political Practices, saying the group had violated the truth in labeling law because most of the group’s members were politicians and not doctors, the federal lawsuit stated.
The PAC then filed the federal lawsuit in April, seeking relief, court documents showed.
Congress
Wall Street Journal: Senate Panel’s Russia Probe Found Counterintelligence Risks in Trump’s 2016 Campaign
By Dustin Volz and Warren P. Strobel
Members of the 2016 Trump campaign represented a major counterintelligence risk to the U.S. due to their frequent contacts with individuals with close ties to the Russian government, a bipartisan Senate investigation has concluded.
The Senate Intelligence Committee released the fifth and final volume of its Russia investigation report Tuesday. The partially redacted document is nearly 1,000 pages and largely supports the key findings on Russian election interference made by former special counsel Robert Mueller, whose probe confirmed that Moscow meddled in the 2016 election but didn’t establish conspiracy or coordination between Moscow and members of President Trump’s campaign.
A substantial portion of the report focuses on the connections of onetime Trump campaign chairman Paul Manafort with Konstantin Kilimnik, who is officially described for the first time as a Russian intelligence officer, and Russia-aligned oligarchs in Ukraine. Mr. Manafort’s high-level campaign access and willingness to share information with Mr. Kilimnik and others “represented a grave counterintelligence threat,” the report concluded…
The report also found that the antisecrecy group WikiLeaks, which published hacked Democratic emails during the 2016 campaign, “likely knew it was assisting a Russian intelligence influence effort.”
Augusta Free Press: Cline, Phillips introduce bipartisan bill to bring greater transparency to lobbying industry
Congressmen Ben Cline (VA-06) and Dean Phillips (MN-03) introduced H.R. 8022 – the Lobbying Disclosure Reform Act, which will promote greater transparency within the lobbying industry.
When initially passed in 1995, the Lobbying Disclosure Act sought to bring about greater accountability among special interest groups and required lobbyists to register with both the Clerk of the House of Representatives and the Secretary of the Senate.
While the LDA has served its purpose well for the past twenty-five years, the law has not been updated in more than a decade. Therefore, to meet the needs of current practices in Washington, the Lobbying Disclosure Reform Act is necessary.
H.R. 8022 updates lobbying laws and closes loopholes often used to take advantage of the system. The legislation clarifies reporting thresholds, widens the scope of who must register as a lobbyist, moves enforcement of lobbying laws from the U.S. Attorney for D.C. to the Attorney General, and includes various other transparency-increasing measures.
Right to Protest
Intercept: How Northern California’s Police Intelligence Center Tracked Protests
By Micah Lee
The weekend after [George] Floyd’s killing, when Black Lives Matter protests were erupting throughout the country, [Northern California Regional Intelligence Center’s Terrorism Liaison Officer program] sent an email to its 14,406 subscribers – mostly local police officers across Northern California – with a PDF containing a list of upcoming protests, their times, locations, and sometimes links to more information…
Between May 31 and June 6, NCRIC sent these emails out every morning, and again with an updated list every evening…
“The fact that fusion centers are sending out lists of protests and other activities that are protected by the First Amendment is constitutionally suspect,” Vasudha Talla, a senior staff attorney with the American Civil Liberties Union of Northern California, told The Intercept. “They may try to justify it by attaching text alluding to the potentiality of certain criminal activity, but it’s clear from the documents that you showed me that there is no reasonable suspicions attached to any of these events.” She added, “Really what we have here is overbroad collection and dissemination of people’s protected First Amendment activity, and it’s untethered to any basis in the law.”
Mike Sena, NCRIC’s executive director, told The Intercept that the fusion center no longer distributes daily lists of protests.
WFPL: Louisville Police Suppressing Protests ‘To Mute Criticism’, Attorneys Say
By Ryan Van Velzer
Civil rights attorneys are challenging the Louisville Metro Police Department’s decision to more strictly enforce laws against marching in the streets.
Throughout American history, protesters have commandeered roadways in acts of civil disobedience. To cite one famous example, civil rights protesters crossed the Edmund Pettus Bridge not once, but three times in the fight to secure voting rights for Black Americans. But in Louisville, after months of protests and hundreds of arrests, LMPD said last week that officers will cite or arrest people for marching in the streets.
The ACLU of Kentucky and local attorney David Mour have both sued LMPD in recent weeks over actions they say could have a chilling effect on these constitutionally protected activities. ACLU Legal Director Corey Shapiro says LMPD’s latest decision to increase enforcement reflects a broader pattern of response that excessively targets protesters.
“They are choosing time and time again to escalate the conflict, showing up in riot gear, using tear gas, using excessive charges, making new rules of engagement in an effort and in a pattern that seems to be designed to mute the criticism against their police force,” Shapiro said.
Online Speech Platforms
Vice: The U.S. Army Makes an Awkward Return to Twitch
By Matthew Gault
After a month-long break, the U.S. Army esports team returned to Twitch on Friday, August 14…
In July, both the Army and Navy esports teams got into trouble when they started banning users who asked about war crimes on their Twitch chat. According to civil rights lawyers, tossing people out of government run spaces for differing views is a violation of the first amendment…
While the Army took time away from Twitch to retool its policies, the Navy has continued to stream. But both have changed the way they handle Twitch chat. First, both teams unbanned previously banned users. Jordan Uhl, a progressive activist and gamer who instigated legal action against both teams, told Motherboard he’s been unbanned by both the Army and Navy.
Now both teams have released updated chat policies which they claim will allow a divergence of viewpoints while maintaining a healthy chat room…
The Knight First Amendment Institute, a group that works to defend free speech, said it’s happy with the Army and Navy’s new chat policies, but it’s watching to see how they’re implemented. “We’re pleased that both the Army and Navy have agreed to unban users who were banned for engaging in core political speech. It’s also good to see that the Navy is committing not to ban users on the basis of viewpoint,” Meenakshi Krishnan, Legal Fellow at the Knight First Amendment Institute said in a statement. “Of course, it matters how these new policies are applied. We will monitor the Navy’s practices closely to ensure that the new policies are enforced consistently and in a viewpoint-neutral manner.”
Wall Street Journal: Facebook Faces Hate-Speech Questioning by Indian Lawmakers After Journal Article
By Newley Purnell and Rajesh Roy
Indian lawmakers want to question Facebook Inc. about extremist posts on its platform.
Opposition members of Parliament are acting following an article Friday in The Wall Street Journal that detailed what current and former Facebook employees said was a pattern of favoritism toward the ruling Bharatiya Janata Party and Hindu hard-liners.
Shashi Tharoor, a member of the opposition Congress party who heads Parliament’s information-technology committee, wrote on Twitter Sunday that the committee would seek input from Facebook on “safeguarding citizens’ rights” and preventing misuse of social-media platforms. It wants to ask the company about reports of favoritism and what it plans to do about hate speech, he wrote.
In a letter to Facebook Chief Executive Mark Zuckerberg Tuesday, Congress party General Secretary K.C. Venugopal said the party has requested a parliamentary probe and called on Facebook to investigate its India operation, to make transparent “all instances of hate speech” on the platform in recent years, and to consider changing the India operation’s management team…
The Internet Freedom Foundation, an Indian digital-rights advocate, said Monday that it had written to Parliament’s information-technology committee asking it to take steps such as summoning Facebook’s top global executives, holding hearings and ordering “an international human-rights audit leading to reparations for victims” of hate speech.
Candidates and Campaigns
Washington Post: With Democrats at home, a conservative super PAC comes knocking
By David Weigel
More than two dozen organizers for Americans for Prosperity Action, the AFP’s super PAC, [canvassed] across Virginia’s 7th District on Monday…
[AFP President Tim] Phillips’s group has done this for a decade, growing from semi-obscurity into the best-organized, and best-funded, organ of what became the tea party movement. David Koch, whose donations created and grew AFP, died last year, but in 2018, the group spent $10 million through the PAC, and door-to-door canvassing is one of its specialties…
AFP usually had more competition. With Democrats wary of traditional door-to-door canvassing in the pandemic, and with the Biden-Harris campaign discouraging it, conservatives have less competition…
“The Democrats are in a bind, and they can’t knock on doors, because their whole thing is to stoke fears about covid-19,” said John Fredericks, a radio host and co-chair of the Trump campaign in Virginia…”That’s a huge disadvantage for them right now. Republicans understand they can put a mask on, do social distancing and reach people at home. They’re going to answer the door, and you’re going to be able to have a safe conversation with them.” …
Democrats dispute that theory, arguing that their shift to a virtual outreach campaign has paid off.
The States
Cincinnati Enquirer: Cincinnati police officer anonymously sues those who accused him of racist gesture
By Cameron Knight
A Cincinnati police officer has sued at least four people who have accused him of racist behavior in the wake of the protests earlier this summer, and could sue as many as 24.
So far, he has successfully kept his name out of public court records for the case. The judge has ordered several of the defendants not to release any personal information about him.
According to the lawsuit, the officer says that his privacy was “tortiously violated,” that people disseminated personal information about him online, and that he was defamed.
The officer said he was falsely accused of racism for making the “OK” gesture with his hand after a Cincinnati City Council committee meeting on June 24…
Jennifer Kinsley is a lawyer representing two women who filed formal complaints against the officer. She said the First Amendment protects people who accuse public officials of racism.
“It always has been and always will be,” Kinsley said. “It’s the same as calling someone ignorant or biased or a Nazi.” …
In addition to the women, the officer is also suing freelance journalist and food writer Julie Niesen and another activist and up to 20 unnamed “John Does.” …
The Enquirer has filed motions in the case petitioning Hamilton County Common Pleas Judge Megan Shanahan to unseal the records…
“This lawsuit is being filed not only to stop these people from speaking up, but also to make people afraid to say something when they see something that is wrong,” Kinsley said…
Lawyer Erik Laursen is representing Julie Niesen in the case. He called the entire thing a SLAPP lawsuit…
Several states have laws protecting people from SLAPP suits, but Ohio is not one of them.
Reason (Volokh Conspiracy): Cincinnati Enquirer Writes About the Police Officer’s Pseudonymous Libel Lawsuit
By Eugene Volokh
I wrote about this case, which also involves what strikes me as an unconstitutional order forbidding defendants from naming the officer in the future, here (when the case seemed to be entirely sealed), here (as to the prior restraint), and here (as to pseudonymity and the remaining sealed document).
Springfield News-Leader: GOP lawmakers appeal rebuke of ‘unfair’ Cleaner Missouri ballot language they wrote
By Austin Huguelet
GOP lawmakers asking voters to repeal changes they made to the state’s redistricting process in 2018 on the 2020 ballot aren’t giving up on framing the question their way.
The day after a Cole County judge called the way they summarized a proposal they put on for the November ballot as “misleading” and “unfair” and wrote a new summary, the Attorney General’s Office filed notice that lawmakers plan to appeal.
Cole County Circuit Judge Patricia Joyce tore into Republican legislators in a ruling Monday, saying they failed “to even allude to” the main point of their plan in the language meant to describe it to voters on the ballot.
The language approved by Republican lawmakers in a resolution carried by Sen. Dan Hegeman, R-Cosby, was as follows:
“Shall the Missouri Constitution be amended to:
- Ban all lobbyist gifts to legislators and their employees;
- Reduce legislative campaign contribution limits; and
- Create citizen-led independent bipartisan commissions to draw state legislative districts based on one person, one vote, minority voter protection, compactness, competitiveness, fairness and other criteria?”
Joyce said nothing in that indicated how the proposal is about “the wholesale repeal of voter-approved rules for redistricting and replacing them with prior redistricting rules designed to benefit incumbent legislators.” …
Her submission for the ballot is as follows:
“Shall the Missouri Constitution be amended to:
- Repeal rules for drawing state legislative districts approved by voters in November 2018 and replace them with rules proposed by the legislature;
- Lower the campaign contribution limit for senate candidates by $100; and
Lower legislative gift limit from $5 to $0, with exemptions for some lobbyists?”
