We’re Hiring!

Senior Attorneys – Institute for Free Speech – Washington, DC or Virtual Office

The Institute for Free Speech is hiring three attorneys, including at least one Senior Attorney with at least 10 years of experience and two other experienced attorneys with at least four to six years of experience in an expansion of its litigation and legal advocacy capabilities.

This is a rare opportunity to work with a growing team to litigate a long-term legal strategy directed toward the protection of Constitutional rights. You would work to secure legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, threaten citizens’ privacy if they speak or join groups, and impose heavy burdens on organized political activity.

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. In addition to litigation or advocacy-related travel, a virtual candidate would be required to travel for quarterly week-long visits to IFS’s headquarters after the pandemic’s impact has receded.

[You can learn more about this role and apply for the position here.]

In the News

American Thought Leaders: HR1: For the People or For the Politicians?-David Keating on How HR1 Curtails Free Speech (Video)

Hosted by Jan Jekielek

Last week, the U.S. House of Representatives approved HR1, the Democrats’ sweeping election reform package. While many have focused on how the bill changes voting and voter registration, the bill also has major implications for free speech-which have largely gone unnoticed. Critics of the bill say that the disclosure rules open the door for intimidation and harassment of Americans for their political beliefs. Some also say that it subsidizes political campaigning with taxpayer money and thrusts piles of paperwork upon Americans who want to criticize elected officials. To find out what’s really hidden in the weeds of this nearly 800-page bill, I decided to sit down with David Keating, president of the Institute for Free Speech. “It says ‘For the People Act,’ but… a more accurate title would be ‘For the Politicians Act,'” Keating argues.

Epoch Times: Democrats’ For the People Act ‘Worst’ Bill for Free Speech in Decades: Free Speech Group President

By Isabel Van Brugen and Jan Jekielek

House Democrats’ massive voter registration and campaign procedure reform bill-H.R. 1-is the “worst” bill in decades in terms of free speech protections, according to David Keating, president of the Institute for Free Speech (IFS)…

“This is the worst bill I’ve seen since the 1970s, in terms of any bill that had a good chance of becoming law. I mean, every bad idea about free speech practically has been put into this bill,” Keating told The Epoch Times’ American Thought Leaders program.

“It’s literally a kitchen sink of bad ideas put into one bill that will restrict our ability to speak out about government.” …

“It says For the People Act, but I actually think a better title, a more accurate title would be For the Politicians Act, because what it does is it subsidizes the speech of people who want to run for Congress, at least the House of Representatives, and it makes it harder for everyone else to speak through setting up a maze of regulations, requiring people to fill out a blizzard of forms,” Keating said. “And that is something that I think is the big problem.” …

“The bill would define any speech that’s published about a member of Congress or a candidate at any time of the year, it would suddenly define that as a campaign-related activity, as if it has something to do with their re-election,” Keating explained.

New York Post: Democrats’ all-out war on nonprofits’ free-speech rights

By Jacob Sullum

Under a policy at the center of a First Amendment case the Supreme Court will hear this term, [California Attorney General Xavier] Becerra requires that all 115,000 nonprofit organizations operating in the Golden State report information about their major donors. That information is supposed to be confidential, but in practice, it isn’t, because California has a history of accidentally posting it online and making it easily available to anyone with rudimentary hacking skills.

Unlike Becerra, the legislators who supported the For the People Act aren’t even pretending to keep the information required by the bill confidential. To the contrary, they aim to force public disclosure of donor information through a sweeping definition of “election-related” speech…

The bill also would require that nonprofits file publicly accessible reports of vaguely defined “campaign-related disbursements,” including donor information, with the Federal Election Commission. The reports would declare support of or opposition to particular candidates, even when the organizations have taken no such stand.

For example, says Institute for Free Speech Senior Fellow Eric Wang, “left-leaning organizations calling on President Biden to adopt a more left-leaning agenda could be required to affirmatively and publicly declare to the FEC that their ads ‘oppose’ Biden,” even when that isn’t true.

Supreme Court

National Review: Guess Who Just Admitted Harris and Becerra Violated the First Amendment

By Dan McLaughlin

The Supreme Court in January agreed to hear Americans for Prosperity Foundation v. Becerra, which alleges that California violated the First Amendment by demanding that conservative nonprofits in the state – indeed, all nonprofits – disclose their donors to the state attorney general. That policy started under Jerry Brown and was enforced by his successors, Vice President Kamala Harris and Secretary of Health and Human Services nominee Xavier Becerra. Becerra continues to defend the policy in court, even though it runs directly afoul of a 1958 decision, NAACP v. Alabama ex rel. Patterson, which established that the First Amendment right to association requires protecting the privacy of a group’s members and supporters.

Under Harris and Becerra, the California attorney general’s office was callous with the security of this sensitive information. The trial disclosed extensive evidence that the California AG’s office “systematically failed to maintain the confidentiality” of donor lists (filed on a form called Schedule B):

• 1,778 Schedule Bs had been posted online; in some cases, the AG had known for years of the public disclosures and did not notify the nonprofits. Not all of these were conservative organizations, either; one victim was Planned Parenthood.
• Evidence showed that the registry of some 350,000 Schedule Bs was “an open door for hackers.”
• The AG’s office interpreted its rules to allow disclosures to public-record and academic-research requests.

There was no supervision of third-party vendors who regularly accessed the registry.

Congress

Wall Street Journal: Sheldon Whitehouse vs. the Supreme Court

By The Editorial Board

Sheldon Whitehouse is at it again…

On Wednesday the Rhode Island Democrat will hold a Judiciary Committee hearing on “What’s Wrong with the Supreme Court: The Big-Money Assault on Our Judiciary.” Subtlety is not Sheldon’s specialty. The hearing is intended to advance his Amicus Act that would force the Court to change its rules on amicus briefs, which the Justices invite to inform them on the law and facts on cases.

Note the disrespect for the Court. The title of the hearing signals a foregone conclusion that the Justices are corrupted by money. This is a running theme of Mr. Whitehouse, whose preoccupations in the Senate have been undermining judicial independence and restricting the First Amendment rights of private citizens to influence their government.

The Supreme Court already has a rule-37.6-that governs amicus filings. It requires that amicus briefs “indicate whether counsel for a party” involved in the litigation “authored” or “made a monetary contribution” to the preparation of the brief. It further requires disclosure of “every person other than the amicus, its members or counsel, who made such a monetary contribution.”

Mr. Whitehouse wants to go further and require amicus filers to disclose all of their donors. This would hit groups on the left and right that aren’t required to disclose their donors but have scholars or legal experts who submit briefs. The Chamber of Commerce and NAACP would have to disclose all of their donors if they want to file briefs. This would deter some filers and thus less fully inform the Court, or it would open donors to these groups to political harassment-from the likes of Mr. Whitehouse and his political allies.

National Review: H.R. 1 Is a Partisan Assault on American Democracy

By The Editors

It would be an understatement to describe H.R. 1 as a radical assault on American democracy, federalism, and free speech. It is actually several radical left-wing wish lists stuffed into a single 791-page sausage casing…

H.R. 1’s crackdowns on political speech are at least as extensive and biased as its changes to election law, and some of the provisions on coordination and foreign-related activity are so complex that even election-law experts warn that their impact is impossible to determine. For example, one provision could be read to bar corporations from political activity if they have even a single foreign shareholder. The new anti-speech laws would generate years of litigation, and many of them would likely be struck down by the Supreme Court.

New disclosure rules would treat huge amounts of speech and advertising on matters of public concern as if they were campaign contributions, including any advertisement urging viewers to contact elected officials to support or oppose a program, policy, or law. This would require donors to, say, the AARP to be identified as supporters of any candidate if the AARP demands that the candidate keep a promise to protect Social Security. The cumulative effect is to further burden citizen rights to petition and further insulate the government from criticism.

501(c)(4) nonprofits would be required to disclose their donors, another potentially unconstitutional burden on the freedom to speak and associate. New limits on corporate political activity are extensive, and similar restrictions are not placed on unions. Previous rules in place to enable free speech on the Internet and prevent political bias in IRS audits are repealed.

Townhall: The Paranoid Stylings of Sheldon Whitehouse

By Christian Josi

At a moment when the leftmost fringe of the country wields massively disproportionate cultural power-the kind that can get presidents and children’s books wiped from the internet at the snap of a finger-it’s an especially cruel irony that they continue to make vintage 2009 arguments about the supposed omnipotence of conservative “dark money.”

In their latest effort to silence dissenting voices, “dark money” conspiracy theorists on the Left are on a mission to remove nonprofit donor privacy protections, threatening the First Amendment rights of Americans to freely associate with advocacy groups. Rhode Island Senator Sheldon Whitehouse leads this unconstitutional crusade on Capitol Hill. He recently took to Twitter to insult the intelligence of his followers with a video that warps the facts surrounding an upcoming Supreme Court case on this issue…

To further support his theory that “dark money” has influenced the court to hear this case, Whitehouse’s video includes a laundry list of right-of-center groups that “have urged the court to take the case.” But Whitehouse omits the crucial fact that the ACLU filed an amicus brief in conjunction with the NAACP Legal Defense and Education Fund, the Knight First Amendment Institute at Columbia University, the Human Rights Campaign, and PEN America arguing the Court should rule in favor of donor privacy…

Whitehouse’s own followers were understandably baffled. “So you’d be ok with turning over donor lists for Planned Parenthood and BLM,” one asked. Would “forcing non-profits to turn over donor lists bring us closer to the requirement to name names during the days of the Red Scare,” asked another. 

Fulcrum: HR 1 doesn’t go far enough. It still wouldn’t make it easy being Green.

By Michael Feinstein

[H.R. 1] contains a poison pill designed to reduce political competition and voter choice, entrenching the polarizing duopoly electoral system that made Donald Trump’s presidency possible…

[I]nstead of broadening and deepening our democracy, the provision labeled Section 502(a) would make it harder for minor parties and their presidential candidates to appear on the ballot. It would do so by raising the fundraising threshold required to earn presidential federal matching funds by 500 percent, and the minimum number of contributions to reach that threshold by 625 percent. Without these funds, minor party presidential nominees would have fewer resources to promote their messages, with the public seeing a narrower range of policy approaches and perspectives.

FEC

Wall Street Journal (LTE): H.R. 1 Would End Bipartisanship at the FEC

By Darryl R. Wold

In “An Unconstitutional Voting ‘Reform'” (op-ed, Feb. 17), David B. Rivkin Jr. and Jason Snead show that H.R. 1, the so-called “For the People Act,” is unconstitutional (besides being a bad bill on policy grounds) in its many provisions that would federalize the conduct of our elections. Former Federal Election Commission Chair Trevor Potter disagreed in a Feb. 25 letter, citing his credentials at the FEC. However, as a former chair of the FEC, I know that the FEC doesn’t regulate the conduct of elections, as Mr. Potter intimates; it only regulates the financing of political campaigns. It counts the money, not the votes.

H.R.1 is nevertheless troubling for its fundamental changes to the FEC. It would end that agency’s bipartisan structure that prevents either major party from controlling the commission and using its enforcement and rule-making powers to the partisan detriment of candidates of the other party. The FEC’s present statutory structure provides that no more than three members of the six-member commission may be from the same political party, and requires four votes to find violations or promulgate regulations, ensuring bipartisan support for those critical actions.

H.R.1 would change all that by revamping the commission to only five members, with no more than two from any one party but the fifth potentially swing vote ostensibly independent (like Sen. Bernie Sanders is an independent), appointed by the president, and who would likely be ideologically-aligned with the two partisan members of the president’s party to form an effectively partisan majority.

Destruction of the present bipartisan structure of the FEC is one reason that nine former FEC commissioners, including myself, have submitted a letter to Congress opposing H.R. 1.

The States

Reason (Volokh Conspiracy): City Council Member’s Harassment Restraining Order Against Critics Reversed

By Eugene Volokh

Carlsbad City Council member Cori Schumacher got a temporary civil harassment restraining order against Carlsbad resident Tony Bona and former resident Noel Breen over their speech, essentially claiming their speech about her was threatening; they moved to dismiss under the California anti-SLAPP statute, and on Thursday, Superior Court Judge Cynthia Freeland granted the defendants’ motion (filed by lawyer Erik Jenkins). A bit of factual background, from The Coast News (Steve Puterski):