In the News
FIRE: First Amendment News 273
By Ronald K.L. Collins
Judge Barrett on free speech
“Three Seventh Circuit Cases Showcase Judge Amy Coney Barrett’s Willingness to Expand Free Speech Protections in Certain Contexts,” Institute for Free Speech (Sept. 23)
Judge Barrett has written or joined an opinion in at least three free speech-related cases worthy of commentary. We continue to review other cases in which Judge Barrett participated and may release further analyses.
–Adams v. Bd. of Educ. of Harvey Sch. Dist. 152, 968 F.3d 713 (7th Cir. 2020) (Easterbrook, J.) (3-0 decision)
–Lett v. City of Chicago, 946 F.3d 398 (7th Cir. 2020) (3-0 decision)
–Smadi v. True, 783 F. App’x 633 (7th Cir. 2019) (per curiam)
Barrett authored the opinion in only one of those cases. Reading them together, however, Judge Barrett may be willing to expand free speech protections in limited but nevertheless important contexts. . . .
“Recent Panel Ruling Involving Judge Barrett Rejects First Amendment Claim but No Firm Conclusions Can Be Drawn from the Opinion,” Institute for Free Speech (Sept. 29)
Institute for Free Speech releases report on Citizens United
The Institute for Free Speech recently released a report written by Alec Greven entitled “Has Citizens United Increased Corruption? An Examination of Public Corruption Prosecutions.” A summary of the report is below:
Did the Supreme Court’s ruling that corporations and unions can speak without limit and contribute unlimited amounts to finance independent political expenditures increase the amount of corruption in our democracy?
We find no evidence to support this claim. A comparison of public officials charged with corruption offenses by the U.S. Department of Justice nine years before and nine years after the Court’s decision show a
decline rather than an increase in corruption. Further, states that were most affected by Citizens United saw a larger decrease in corruption than states unaffected by the decision.
Ballotpedia: The Disclosure Digest
By Jerrick Adams
What we’ve been reading
Supreme Court
Free Speech Center: Justice Ruth Bader Ginsburg and the First Amendment
By David L. Hudson, Jr.
One of the more interesting fault lines in modern First Amendment jurisprudence concerns campaign-finance law. Justice Ginsburg generally supported state and federal efforts to limit political campaign contributions. However, a central theme of the era of the Court of Chief Justice John Roberts has been the deregulation of campaign finance, often on First Amendment grounds.
The Roberts Court invalidated various pieces of federal campaign-finance laws in Citizens United v. FEC (2010), McCutcheon v. FEC (2014) and other decisions. Ginsburg joined the dissenters in those 5-4 opinions. Ginsburg said she wished Citizens United would someday be overruled, though she termed it “an impossible dream.”
Justice Ginsburg also believed that states should have considerable latitude in regulating judicial elections. She fervently believed that judges are different from other political actors.
“When the political campaign-finance apparatus is applied to judicial elections, the distinction of judges from politicians dims,” she warned in her concurring opinion in Williams-Yulee v. Florida Bar (2015), a decision in which the Court narrowly upheld Florida rules limiting solicitations by judicial candidates during campaigns. “The Court’s recent campaign-finance decisions, trained on political actors, should not hold sway for judicial elections,” she wrote.
Insider NJ: Approval of Judge Barrett to the U.S. Supreme Court Hopefully Will Leave Alone Campaign Finance Precedents
By Jeffrey Brindle
What will Judge Barrett’s addition to the Supreme Court mean for campaign finance law? …
Potential cases that could be heard by the Supreme Court include Libertarian National Committee v. FEC; Americans for Prosperity Foundation v. Becerra; Lair v. Motl; McCutcheon, et. al. v. FEC, and several other cases involving the Federal Election Commission brought by liberal and conservative legal activist groups.
Despite Justice Clarence Thomas’ persistent arguments against disclosure and contribution limits for candidates, the Roberts’ Court will look to precedent and uphold disclosure as well as reasonable contribution limits as important deterrents against political corruption.
The Court may seek ways to strengthen political parties by raising or eliminating entirely limits on contributions to them and to allow parties more freedom to coordinate with candidates.
Finally, the Court will continue to support transparency by independent groups and continue to allow unlimited contributions to them.
As for Judge Barrett herself, I could find no known campaign finance cases she helped decide.
But as a clerk for the late Justice Scalia in 1998 and 1999, she was mentored by one of the high court’s strongest champions ever for political disclosure…
There is no guarantee that Judge Barrett will be guided in all instances by the former justice.
The Courts
Associated Press: Lawmaker, others sue over protest arrest after 2018 election
By Kate Brumback
A Georgia state lawmaker and nine others arrested while protesting at the state Capitol in the wake of the 2018 midterm elections have filed a lawsuit seeking to prohibit further enforcement of the law cited in their arrest…
The federal lawsuit filed Tuesday against a dozen Department of Public Safety officers targets a state law that makes it illegal for any person “recklessly or knowingly to commit any act which may reasonably be expected to prevent or disrupt a session or meeting of the Senate or House of Representatives.” The suit says the law is “nearly identical” to one that was previously declared unconstitutional by the Georgia Supreme Court.
The law is unconstitutional and overly broad, the lawsuit says, alleging that it violates the First Amendment free speech protections because it does not require proof of intent to disrupt or proof of any actual disruption.
The demonstrators fear being arrested again if they participate in protests against voter suppression and disenfranchisement in the November general election, according to a news release from the Southern Center for Human Rights, which filed the lawsuit along with other attorneys, including Democratic state Rep. David Dreyer…
“Surely, at the core of free speech is the right of citizens to speak their minds about voter suppression in the seat of their own state government,” Southern Center for Human Rights lawyer Gerry Weber said in the release. “Our clients simply want the protection of a court order so that they can voice their concerns about voting rights without fearing unconstitutional arrests.”
Congress
Politico: At White House’s urging, Republicans launch anti-tech blitz ahead of election
By Cristiano Lima and John Hendel
The Trump administration is pressuring Senate Republicans to ratchet up scrutiny of social media companies it sees as biased against conservatives in the run-up to the November election, people familiar with the conversations say. And the effort appears to be paying off.
In recent weeks, the White House has pressed Senate Republican leaders on key committees to hold public hearings on the law that protects Facebook, Twitter and other internet companies from lawsuits over how they treat user posts, three Senate staffers told POLITICO. They requested anonymity to discuss private communications.
And action is following. Senate Commerce Chair Roger Wicker is having his committee vote Thursday on whether to issue subpoenas to the CEOs of Facebook, Twitter and Google to testify about how they police content on their platforms. That’s after the Mississippi Republican tried and failed last week to push through subpoenas that could have compelled the CEOs to testify with only a few days’ notice.
Senate Judiciary Chair Lindsey Graham (R-S.C.), meanwhile, is holding a markup of new legislation on Thursday aimed at addressing allegations of an anti-conservative bias on social media. It’s the fastest any bill to revamp the legal shield has moved from introduction to a markup on Capitol Hill in recent memory.
Techdirt: Why Do Republican Senators Seem To Want To Turn Every Website Into A Trash Heap Of Racism & Abuse?
By Berin Szoka
Imagine if you could be sued for blocking other users on Twitter, or limiting who could see your Facebook posts. Or if every website were full of racial slurs, conspiracy theories, and fake accounts. Parental control tools could no longer prevent your kids from seeing such heinous content. If that sounds like the Internet you’ve always wanted, then you’ll love Republicans’ new “Online Freedom and Viewpoint Diversity Act” and “Online Content Policy Modernization Act!”
Right to Protest
The Atlantic: Only About 3.5 Percent of Americans Care About Democracy
By Graeme Wood
Nearly all Americans say democracy matters. But how many will actually punish their preferred candidate and withhold a vote when that candidate does something undemocratic? [An article in the American Political Science Review by Matthew H. Graham and Milan W. Svolik of Yale University studies this issue.]
Graham and Svolik’s answer: About 3.5 percent of voters will defect from a candidate whom they otherwise support, but who does something destructive of democratic norms. Those 3.5 percent come from the right and the left in equal proportions, but they tend to be moderates…
Three and a half percent does not sound like a very healthy number. It means that nearly everyone you know who says democracy is sacrosanct is basically lying-which probably includes you and me. In the privacy of the voting booth, we reveal our hypocrisy…
But there is good news. First, Svolik said, the hypocrisy is evenly distributed. Democrats seem to be just as willing to break democracy as Republicans. On one measure, Svolik said, Republicans do slightly better: They are more willing to respect the First Amendment rights of their opponents. “Republicans actually punish those Republicans who would want to bar far-left protests,” Svolik said. Democrats also punish Democrats for barring far-right protests, but not as much.
Online Speech Platforms
New York Times: Facebook will forbid ads that undermine the legitimacy of the coming election.
By Mike Isaac
Facebook on Wednesday said it would prohibit the purchase of ads that seek to delegitimize the outcome of the Nov. 3 election, as the social network prepares for a turbulent next few weeks.
Facebook, under its amended policy, said it would not allow paid ads on its site that try to undermine the election process, such as by declaring voter fraud. The change builds on the company’s recent moves to keep out political ads that make premature declarations of victory and to stop candidates from purchasing political ads entirely in the week before Nov. 3.
“For example, this would include calling a method of voting inherently fraudulent or corrupt, or using isolated incidents of voter fraud to delegitimize the result of an election,” said Rob Leathern, a director of product management at Facebook, in a tweet on Wednesday.
The changes will apply to ads on both Facebook and Instagram, Mr. Leathern said, and are effective immediately.
NBC News: Facebook removes Trump ads on refugees and Covid-19
By Jo Ling Kent and David Ingram
Facebook said Wednesday that it had taken down ads from the Trump campaign that claimed without evidence that accepting refugees from abroad would increase risks related to the coronavirus pandemic.
“We rejected these ads because we don’t allow claims that people’s physical safety, health, or survival is threatened by people on the basis of their national origin or immigration status,” Facebook spokesperson Andy Stone said in a statement.
The ads included a video of Joe Biden talking about the border, overlaid with text about “the health risks” from an “increase in refugees.” It also alleged that Biden would increase the number of refugees arriving from Syria, Somalia and Yemen by 700 percent. The ads cited no sources.
The Trump campaign began running the ads Tuesday with at least 38 different versions before Facebook determined that the ads ran afoul of the company’s advertising policies.
ABC News: Critics call for Facebook to protect democracy with 3 urgent steps
By Catherine Sanz and Fergal Gallagher
A self-appointed Facebook watchdog group formed by academics and advocates claim the company has not done enough to clamp down on misinformation and protect democracy ahead of the 2020 election.
The “Real Facebook Oversight Board” claimed at a virtual press conference on Wednesday that the platform has “actively and knowingly facilitated the flow of poison into the population.” The group said it was formed as an emergency intervention aimed at Facebook CEO Mark Zuckerberg and his employees to protect the integrity of the general election.
“We demand comprehensive action to ensure Facebook cannot be weaponized to undermine the vote and with it American democracy,” said Shoshana Zuboff, a member of the board, author and professor emeritus at Harvard Business School. “History is watching.”
The 24-person board called for Facebook to take three immediate steps in order to protect U.S. democracy. First, it is calling for a ban on all paid advertising mentioning presidential election results in the critical period when the ballots are being counted. It said the ban should run from election night until one candidate is declared president-elect and the other concedes, adding this could prevent violence from breaking out if the results are contested.
Secondly, the group said there should be “strict oversight” of all posts that mention the presidential election results in the same period, including the labeling of posts about election results as untrue until one candidate is declared president-elect.
Candidates and Campaigns
Business Insider: New document shows how Biden transition team plans to curb lobbyists’ influence
By Robin Bravender and Dave Levinthal
Democratic presidential nominee Joe Biden’s transition team released a new ethics plan Wednesday directed at limiting lobbyists’ role in laying the groundwork for a Biden administration.
The six-page document, which was legally required to be released before October 1, lays out a broad ethics plan from the Biden transition team that restricts how lobbyists…can sway a new administration’s staffing and priorities…
The ethics plan bars transition-team members from working on matters where they have a financial conflict of interest. It largely prohibits people who have been federally registered to lobby in the previous year from serving on the team. People who have engaged in lobbying activities – even if they weren’t federally registered – can’t work on the specific issues they lobbied on.
But both of those lobbying limitations are subject to exemptions from the transition team’s general counsel, the document says, a loophole that troubles good-government advocates. The transition team’s general counsel is Jessica Hertz, a former associate general counsel at Facebook.
“It is disappointing that the ethics plan allows exemptions on the restrictions applicable to lobbyists simply at the will of the general counsel,” Craig Holman, Public Citizen’s Capitol Hill lobbyist on ethics, said.
Fox News: Kyle Rittenhouse to sue Biden, campaign for libel, attorney says
By Stephanie Pagones
An attorney representing alleged Kenosha shooter Kyle Rittenhouse has announced plans to sue Democratic presidential nominee Joe Biden and his campaign for libel on his client’s behalf after Biden shared a video that appears to suggest the teenager is a White supremacist.
Lin Wood, Rittenhouse’s civil attorney, confirmed to Fox News on Wednesday his intention to sue the former vice president and his campaign on his client’s behalf, just hours after Biden posted the 50-second clip to Twitter.
The States
The Oregonian: Portland police union chief introduces 2022 ballot initiative to limit right to assemble
By K. Rambo
A 2022 ballot initiative seeking to institute restrictions on the freedom of assembly — and place liability on local governments if the limits are not followed — was submitted Monday to the Oregon Secretary of State.
Among the chief petitioners is Portland Police Association president Daryl Turner, the police union’s attorney Anil Karia and Rep. Jeff Barker, D-Aloha.
The initiative is titled “protect free speech and safe streets.” It seeks to establish more expansive criteria for a city to institute time, place and manner restrictions on the freedom of assembly…
The vast majority of the criteria the initiative seeks are already used by authorities as a justification for declaring an unlawful assembly or riot and demanding demonstrators disperse, including blocking streets, use of laser pointers, lighting off fireworks, starting fires and damaging private or public property. The initiative also seeks to add blocking sidewalks to the list…
It would also force officers to display identification while interacting with protests that facilitate officers being identified when complaints are being filed…
It seeks to create policy for when a protest can be declared an unlawful assembly or riot, which has occurred on various occasions during protests without detailed explanation.
Colorado Politics: State court to decide if 180 days means 180 days on a campaign finance complaint
By Marianne Goodland
A decision from an administrative law judge could open the door to a flurry of campaign finance complaints that exceed the state’s statute of limitations, or make it clear that 180 days means 180 days.
The 180-day limit for filing a campaign finance complaint is set in state law. It says that a “complaint must be filed no later than 180 days after the date on which the complainant either knew or should have known, by the exercise of reasonable diligence [emphasis added]” of the alleged violation.
It’s whether a complainant knew or should have known about the violation – and when – that’s at issue with a May 2020 complaint filed against Suzanne Staiert by Dorota Wright-O’Neill of Denver.
The Sentinel: Dark money controversy fuels churlish campaign for Centennial state Senate seat
By Sandra Fish, Colorado Sun
Suzanne Staiert’s state Senate campaign slogan is “Practical. Not Political.”
But the Republican competing for an open Centennial seat is finding herself in the midst of a political maelstrom and new questions are surfacing about her work as a lawyer…
The latest questions…center on a complaint involving Unite for Colorado, the conservative nonprofit organization whose affiliated campaign arm is working to elect Staiert.
Unite for Colorado…is the subject of a complaint filed with the Secretary of State’s Office by Scott Wasserman, the president of Bell Policy Center and Bell Action Network.
In late August…Wasserman alleged that Unite for Colorado provided inappropriate financial help to two ballot campaigns – propositions 116 and 117 – on taxes and fees, arguing that Unite for Colorado should have filed as an issue committee and disclosed its donors under state law.
Staiert is Unite for Colorado’s lawyer. But that nonprofit also funded Unite for Colorado Action, which paid for ads supporting Staiert’s campaign.
Wasserman questioned whether the relationship between Staiert and Unite violates laws that prohibit coordination between candidates and independent spending committees.
