In the News
Newseum Institute: First Amendment Report Card – Winter 2017/18
The composite grade point average for the five freedoms of the First Amendment slightly increased to from 2.25 to 2.29 – still a modest C+ – in the fourth installment of the Newseum Institute’s First Amendment Report Card…
The Winter 2018 report card is based on the opinions of the same panel of 15 First Amendment experts – academics, lawyers, journalists and activists from across the political spectrum – who contributed their insights to the Spring 2017, Summer 2017 and Fall 2017 report cards.
We asked our panelists to start with their grades from the previous quarter’s report card and alter or confirm them based on changes in legislation, executive orders, judicial decisions, and indicators of public opinion that have occurred since the last report card…
Following his statement in the last report card that “the courts continue to treat assembly as a second-class right,” Bradley Smith, a former chairman of the Federal Election Commission, noted this quarter that “Harvard is expelling students who join off-campus organizations of which the university doesn’t approve. That is private action, of course,” Smith notes, “but it pretty much sums up society’s current disregard for this important right.”
FEC
Washington Examiner: FEC commish who blocked regulation of Drudge, internet, steps down
By Paul Bedard
[Lee E.] Goodman, an elections lawyer and advisor, plans to leave February 16. He will join the political law group of Wiley Rein in Washington.
“Serving the American people as a commissioner of the Federal Election Commission has been a profound honor,” he said in a resignation letter to President Trump…
“Since the agency’s inception, the Federal Election Commission’s unique mandate to respect the core constitutional rights of citizens acting, speaking and associating for democratic purposes has provoked criticism from those who disagree with the balance drawn,” he wrote Trump.
“But protecting First Amendment rights is an inherent part of the Commission’s mission. Thus, I have endeavored throughout my service to preserve the Constitutional right of American citizens to speak, hear, and think freely about their democracy. It has been my duty and privilege to defend this fundamental human freedom,” penned Goodman…
Goodman is in his fifth year of what is typically a six year appointment. He will be the second commissioner to retire in the last year, joining Democrat Ann Ravel. It will leave the commission split between two Republicans and two Democrats.
First Amendment
ACLU: 6 Ways Government Is Going After Environmental Activists
By Jenna Bitar
With President Trump’s approval of the Keystone XL pipeline, the FBI, along with local law enforcement agencies, could ramp up its attacks and surveillance of environmentalists in the near future. So far, the government methods have been downright chilling: from shooting down media drones in the airspace above protests to introducing laws that equate common protest tactics with domestic terrorism. Here are some of the creepiest ways the government has gone after environmental protesters in recent years…
1. Law enforcement authorities have partnered with private security companies to surveil activists and control protests…
2. Known FBI agents have infiltrated activist spaces and camps…
3. The federal government has implemented “no-fly zones” to black out media coverage during heightened police crackdowns…
4. Both lawmakers and law enforcement agencies are working to characterize indigenous-led nonviolent movements as domestic terrorism…
5. States are passing “ag-gag” bills to criminalize First Amendment-protected undercover investigations of agricultural facilities…
6. The government has sought constitutionally protected Facebook activity.
The Intercept: The First Amendment Transcends the Law. It Gives Us Strength in Dark Times.
By Jamie Kalven
On December 13, I entered the Cook County Courthouse in Chicago prepared to be taken into custody and jailed for contempt. At issue was a subpoena demanding I answer questions about the whistleblower whose tip prompted me to investigate the fatal 2014 police shooting of 17-year-old Laquan McDonald…
Imagine how harrowing such a situation could be for a reporter who was not as well-positioned as I was. Or for a publication struggling, as so many are, to survive economically. Imagine living in a society in which attorneys could routinely haul reporters into court and inflict comparable costs on them and their publications with no more showing of relevance than was made in this case.
It would thus be a mistake to see the quashing of the subpoena as a legal victory for freedom of the press. Yet it was a victory of another sort. The support I received was extraordinary. My attorney Matt Topic and his colleagues at Loevy & Loevy provided superb pro bono legal representation. The Reporters Committee for Freedom of the Press filed an amicus brief and recruited 18 major media organizations to join it. The judges of the Hillman Prize issued a statement of support that was signed by hundreds. And I received words of encouragement and offers of assistance from numerous individuals and organizations.
Internet Speech
Newsweek: Who Should Police the Internet? Neo-Nazi Ban Was ‘Really, Really Dangerous,’ Says Cloudflare CEO
By Anthony Cuthbertson
Since pulling its services from the Daily Stormer, Prince says Cloudflare has received over 7,000 requests to take down websites-all citing the Daily Stormer case.
“It spanned the political spectrum,” Prince says. “People wanted us to take down other neo-Nazi sites, as well as extreme left wing sites…
“I’m skeptical of slippery slope arguments but every once in a while they’re really true. And once you start to say ‘we are the content police,’ then it’s hard to stop.”
Cloudflare is not the only technology company to be criticized for content policing. Google and GoDaddy both blocked the Daily Stormer from their platforms, though they did not offer detailed reasons for the bans.
“These companies are just pointing at their terms of service and they’re not taking the time to engage in the conversation,” Prince says…
“This is an issue that’s full of nuance in a conversation that doesn’t lend itself to nuance, because it’s Nazis or ISIS or god knows what else. We broke our policy before. Now we’re trying to figure out what our new policy should be.”
Independent Groups
NPR: Campaign Finance System Of Big Money Now Overshadows Watergate-Era Reforms
By Peter Overby
“SuperPACs as a vehicle for individual giving – their significance cannot be overstated,” said Stanford Law School professor Nate Persily at a recent conference in Washington, D.C. Persily spearheaded the two-year research project for the Bipartisan Policy Center…
“Candidates under federal law may actually appear at superPAC events,” said Bob Bauer, a top Democratic lawyer and a co-author of the report. There are bars against coordination between superPAC and campaign, he said, but “it’s a bit of a lawyers’ festival, as you can imagine.” …
The McCain-Feingold law barred party committees from taking unregulated money. Critics say those dollars now flow to superPACs, and they blame McCain-Feingold for the current woes of the national and state parties…
Ginsberg, also a coauthor of the report, said the contribution limits for individual donors – currently $2,700 per person for each primary or general election – make it hard for candidates to start a campaign well-funded. SuperPACs don’t have that problem…
The report notes that a pipeline of unlimited, secret contributions, 501(c)(4) social welfare groups, has slowed to a trickle since 2012. But that might be a temporary dip.
The States
Washington Post: D.C. Council sends public campaign finance bill to Bowser, setting up showdown
By Fenit Nirappil
The D.C. Council on Tuesday gave final approval to legislation authorizing publicly financed campaigns, clashing with Mayor Muriel E. Bowser (D), who vowed she wouldn’t fund the program.
The bill sailed through passage without discussion or debate, as was expected after the council unanimously approved the measure in January. Under the voluntary system, qualified candidates would receive a base sum that varies by office, maxing out at $160,000 for the mayoral contest, along with a 5-to-1 match on small donations…
The program is expected to be in place for the 2020 election cycle.
While Bowser said she wouldn’t include money for the program in her budget, legislative sponsors say they could allocate money anyway.
Aides to the mayor did not answer questions about whether she would veto the bill or block its implementation, instead repeating an earlier statement that money spent on “attack ads and donor receptions” shouldn’t be diverted from “pressing needs for residents.”
Washington Times: D.C. Council approves Fair Elections Act
By Julia Airey
The D.C. Council gave final approval Tuesday to a bill that would provide public for political campaigns – legislation modeled after a New York City program plagued with fraud and other abuses…
New York’s program enjoys high participation rates, with as 70 percent of all city candidates using it in 2017, said a spokesperson for the Campaign Finance Board (CFB).
However, the CFB in 2016 fined six campaigns for exceeding contribution limits or failing to correctly document donations, according to the Gotham Gazette. As of August 2017, at least 77 people owed the CFB $2.16 million in outstanding fines or unreturned public funds.
Over the years, the CFB has been tested in more serious cases: In 2003, city council candidate Sheldon S. Leffler tried to break up large contributions to make them look like small donations eligible for matching public funds. In 2014, a candidate named Ruben Wills used a nonprofit and a shell company he owned to try to profit from matching funds.
In 2013, the CFB denied matched funding to mayoral candidate John Liu after an audit discovered his campaign treasurer was creating fake donors to increase contributions.
