CCP
Cato Institute Holds First Amendment-Focused Constitution Day Symposium
By Joe Albanese
The first panel, titled “First Amendment Challenges,” was moderated by Ilya Shapiro, a Senior Fellow in Constitutional Studies at Cato and the Editor-in-Chief of the Cato Supreme Court Review. That discussion featured Clay Calvert, Director of the Marion B. Brechner First Amendment Project at the University of Florida; Bob Corn-Revere, a First Amendment litigator and Partner at Davis Wright Tremaine LLP; and Paul Sherman, a Senior Attorney with the Institute for Justice and co-counsel in SpeechNow.org v. FEC…
Later in the afternoon, the symposium’s fourth panel returned to First Amendment issues when it discussed what the Court’s next term would entail. Moderated again by Shapiro, the discussion featured Christopher Landau, a Co-Founder and Senior Partner at Kirkland & Ellis LLP; Neal Katyal, a Partner at Hogan Lovells and former Acting Solicitor General under President Obama; and Nina Totenberg, Legal Affairs Correspondent for National Public Radio.
Katyal discussed Trump v. International Refugee Assistance Project, an upcoming case challenging President Trump’s “travel ban,” where Katyal is representing the State of Hawaii. (CCP recently filed an amicus brief in the case in support of neither party, arguing that executive actions should not be blocked on the basis of campaign speech.)
First Amendment
Concurring Opinions: FAN 162 (First Amendment News) Online First Amendment Encyclopedia Launched
By Ronald K.L. Collins
It’s online now: The First Amendment Encyclopedia. Among other things, it is a impressive collection of more than 1,500 articles on First Amendment topics, court cases, and history. The online encyclopedia was culled and updated from the two-volume Encyclopedia of The First Amendment edited by John R. Vile, David L. Hudson, Jr. & David Schultz.
Two of the three original editors of the volumes – John Vile and David Hudson – spent the past several months reviewing and updating entries and adding new ones.
This online treasure trove of information was originally published by Congressional Quarterly in 2009 and listed for $355.00. The online encyclopedia (now free of charge) comprehensively examines the political, historical, and cultural significance and development of freedom of religion, freedom of speech, freedom of the press, the right to peaceably assemble, and the right to petition the government.
Free Speech
Press & Sun-Bulletin: The steep cost of cheap speech
By George F. Will
Now, Richard L. Hasen of the University of California, Irvine offers a commentary on Volokh, “Cheap Speech and What It Has Done (to American Democracy),” forthcoming in the First Amendment Law Review…
Courts have rejected the idea of government bodies declaring campaign statements lies; besides, as Hasen delicately says, this is “an era of demagoguery and disinformation emanating from the highest levels of government.” But because “counterspeech” might be insufficient “to deal with the flood of bot-driven fake news,” Hasen thinks courts should not construe the First Amendment as prohibiting laws requiring “social media and search companies such as Facebook and Google to provide certain information to let consumers judge the veracity of posted materials.”
Hasen errs. Such laws, written by incumbent legislators, inevitably will be infected with partisanship. Also, his progressive faith in the fiction of disinterested government causes him to propose “government subsidizing investigative journalism” – putting investigators of government on its payroll.
The most urgent debate concerns the First Amendment implications of regulating foreign money that is insinuated into campaigns.
Seattle Times: Punching the Nazi was actually the least dramatic free-speech showdown this week
By Danny Westneat
[T]o the 12 state Democratic politicians who just wrote a formal letter to the president of Washington State University asking him to ban the WSU College Republicans as a group: What country do you think you’re in?
The premise of the request, spearheaded by state Rep. Gerry Pollet of Seattle, is that the former president of the club was a racist who marched with the neo-Nazis in Charlottesville, Va., last month. Fair enough. But that was one guy, and he resigned.
It’s also that the club last year seemed consumed with provocation – by building a replica of “Trump’s Wall” in a demonstration and inviting controversial speakers such as Milo Yiannopoulos in order to “trigger” outrage from the Left.
All of this appears to be true but … so? Supporting the building of a wall along the Mexico border is hardly hate speech. It would be chilling if partisan lawmakers persuaded a university president to boot out a student club because they don’t like a policy the students are advocating…
Here, representatives of the state are petitioning a state employee to censor students. Government overreach like this is why they invented the First Amendment.
HuffPost: Trump Supporters Invite Black Lives Matter On Stage In A Rare Moment Of Unity
By Carla Herreria
These days, confrontations between President Donald Trump’s supporters and left-leaning activists are expected to be filled with anger, insults and, at worst, violence.
But a different scene played out during the right-wing “Mother of All Rallies” at the U.S. Capitol on Saturday when Trump supporters invited Black Lives Matter counter-protesters to speak on stage…
Speaking to the video news site Now This after the speech, Newsome said the moment “restored my faith in some of those people,” meaning the Trump supporters who let him speak.
“I feel like we made progress. Two sides that never listen to each other actually made progress today,” he said. “If not on a grander level, but just person to person, I think we really made some substantial steps without either side yielding anything.”
Congress
CNN: After Russian Facebook ads, Democrats seek new FEC rules on social media politics
By Dylan Byers
House and Senate Democrats sent a letter to the Federal Election Commission on Wednesday asking them to consider new rules that would prevent foreigners from using online advertising platforms like Facebook and Twitter to influence voters.
“We encourage the Federal Election Commission to take immediate steps to understand the threats posed to our democratic process by foreign influenced internet and social media advertisement, and to promulgate new guidance on how advertisement platforms can better prevent foreign nationals from illicitly spending in future U.S. elections,” the letter states…
Rep. John Sarbanes, the chair of the Democracy Reform Task Force, an initiative of House Democrats, told CNN the letter represented “an opportunity for the FEC to step up and show what it’s made of, to show its mettle.”
“This could be its finest hour to respond this threat to American democracy,” Sarbanes said…
Sen. Mark Warner’s office is also looking at crafting legislation that would require disclaimers on who paid for advertisements, Rachel Cohen, one of his spokespeople, told CNN.
Bloomberg BNA: Fate Is Uncertain for House GOP’s Campaign Finance Riders
By Kenneth P. Doyle
The House and Senate will negotiate several provisions curbing federal powers on campaign finance that were tacked onto the House’s $1.2 trillion spending package earlier this month…
The spending package’s riders include a provision to lift or ease the IRS’s longstanding ban on politicking by churches, called the Johnson Amendment…
Under the riders, the IRS would continue to be barred for another year from writing new rules to clarify how much political spending is allowed by so-called Section 501(c)(4) nonprofits; the SEC would remain barred from writing new rules requiring disclosure of corporate political spending.
A new provision in the appropriations bill would restrict the FEC’s enforcement of fundraising rules for political action committees linked to trade associations…
Supporters of eliminating restrictions on association PACs say it would put them on a level playing field with other types of PACs.
CBS News: Facebook “seems to have been less than forthcoming” with Congress, intel chairman says
By Associated Press
The chairman of the Senate intelligence committee says Facebook should testify as part of its probe into Russian meddling in the U.S. 2016 presidential election, and that the social media giant “seems to have been less than forthcoming” with Congress…
Facebook has briefed members of Congress and also provided the ads and other information to Robert Mueller, the special counsel in charge of the Russia investigation, the company said…
Burr said a hearing could likely involve Twitter and other social media companies as well. He said the panel hasn’t yet issued any invitations, but a hearing would be this fall…
Former federal prosecutor Renato Mariotti told CBSN on Sunday that if a warrant was issued for Facebook materials could be the “the biggest news” in the investigation since the raid on Manafort’s home in May.
ABC News: The Latest: Twitter to meet with Senate investigators
By Associated Press
The social media company, Twitter, says it will meet with a Senate committee investigating Russia’s interference in the presidential election.
The company says in a statement Wednesday evening that its representatives will meet with staff of the Senate Intelligence committee next week.
The committee has been scrutinizing the spread of false news stories and propaganda on social media during the election. The panel has heard from Facebook. The committee’s top Democrat, Sen. Mark Warner of Virginia, had said he wanted to hear from Twitter as well to learn more about the use of fake accounts and bot networks to spread misinformation.
Twitter says it has been cooperating with the panel’s investigation and is working to strengthen its efforts to combat activities that violate its terms of service.
The Courts
San Francisco Chronicle: San Francisco’s soda law blocked by appeals court
By Bob Egelko
San Francisco’s groundbreaking effort to curb soda consumption by requiring health warnings in display ads hit a judicial wall Tuesday when a federal appeals court barred enforcement, saying the messages were one-sided and would violate advertisers’ freedom of speech…
The warning language would specify that the message comes from the city, not the advertiser. But the Ninth U.S. Circuit Court of Appeals in San Francisco said free speech includes the right of advertisers to refuse to convey warnings about their products, except when the warnings are clearly factual…
The court recognized the importance of “the right not to speak,” said Attorney Richard Samp of the Washington Legal Foundation, which filed arguments supporting the beverage industry.
“When government wants to speak, it should do so itself,” through public-service announcements, “and not compel other people to speak,” Samp said.
The Media
Politico: Tagging fake news on Facebook doesn’t work, study says
By Jason Schwartz
Facebook touts its partnership with outside fact-checkers as a key prong in its fight against fake news, but a major new Yale University study finds that fact-checking and then tagging inaccurate news stories on social media doesn’t work.
The study, reported for the first time by POLITICO, found that tagging false news stories as “disputed by third party fact-checkers” has only a small impact on whether readers perceive their headlines as true. Overall, the existence of “disputed” tags made participants just 3.7 percentage points more likely to correctly judge headlines as false, the study said.
The researchers also found that, for some groups-particularly, Trump supporters and adults under 26-flagging bogus stories could actually end up increasing the likelihood that users will believe fake news.
The States
Detroit News: Snyder approves unlimited super PAC cash
By Michael Gerstein
Michigan Gov. Rick Snyder on Wednesday signed legislation letting political candidates raise unlimited money for super political action committees just a day after the Legislature approved the controversial plan…
Snyder, a Republican, and other GOP supporters say the new law squares Michigan with a 2010 U.S. Supreme Court’s decision.
“The Supreme Court of the United States ruled on this issue more than seven years ago, and still there has been confusion about how this decision affects Michigan law,” Snyder said in a statement. “Under the bills signed into law today, the Department of State finally has clear statutory authority to regulate independent expenditure committees, to mandate registration and reporting of contributions and expenditures, and to investigate and punish entities violating those regulations.”
New Haven Register: Advocates say elimination of clean elections program would cost Connecticut
By Christine Stuart
A handful of lawmakers, state officials, and advocates rallied against sections in the Republican budget that eliminate Connecticut’s landmark clean elections program.
During a more than half-hour Legislative Office Building press conference Tuesday, proponents of the program argued it’s not about taxpayers footing the bill for campaign stickers or lawn signs, it’s about stopping corrupting influences from donating to campaigns.
As budget negotiations move forward, Democratic Gov. Dannel P. Malloy has said he would veto the Republican budget which includes the elimination of the program, but the group wants to make sure the Citizens Election Program is preserved in any future budget proposals…
Eliminating the program would save the state $23.4 million in 2018 and $11.4 million in 2019.
Albuquerque Journal: Public election financing needs an overhaul
By Eric Griego, Former Albuquerque City Councilor and N.M. State Senator
In a rare demonstration of bipartisan cooperation, Democratic and Republican mayoral candidates and their operatives have teamed up to discredit the Albuquerque Open and Ethical elections system…
There is no question that the city’s public financing system needs to be overhauled. Making it more accessible, accountable and viable is fundamental to reducing the oversized role of powerful interests such as big developers and city contractors in city elections. However, mayoral candidates and their political operatives undermining the system for their own political gain may be great for their own campaigns but it is bad for clean elections…
If any of the three 2009 mayoral candidates would have raised private money, their opponents would have been given matching funding to level the playing field. The system worked.
However, in 2011 the same Supreme Court behind the 2010 Citizen’s United decision struck down a similar Arizona matching-funds provision, which essentially gutted the Albuquerque system, at least for mayoral candidates.
The Intercept: Authorities Close In On Pro-Charter School Nonprofit For Illicit Campaign Contributions
By Rachel M. Cohen
The Massachusetts operation, called Families for Excellent Schools-Advocacy, a pro-charter group, was hit with a record $426,500 fine for failing to disclose its donors related to a 2016 Massachusetts ballot campaign – a race that became the most expensive ballot measure in state history.
FESA is a 501(c)(4) offshoot of the New York-based Families for Excellent Schools, a 501(c)(3). That connection raises the stakes for New York Attorney General Eric Schneiderman, who has jurisdiction over Families for Excellent Schools in New York and has made clean campaigns a centerpiece of his agenda.
In exchange for their tax-exempt status, federal law bars 501(c)(3) organizations from engaging in political activity, and some are calling on Schneiderman to investigate why Families for Excellent Schools made a multimillion-dollar contribution, now that the Massachusetts Office of Campaign and Political Finance has acted.
