The Courts
Wall Street Journal: Judge Rules Trump May Not Block Critics on Twitter
By Rebecca Ballhaus
Judge Naomi Reice Buchwald of the Southern District of New York ruled that the president’s blocking of Twitter users from viewing his feed based on their political speech “constitutes viewpoint discrimination that violates the First Amendment.” She termed Mr. Trump’s Twitter feed, on which he issues tweets multiple times a day on a variety of issues, a “designated public forum.”
In July 2017, Columbia University’s Knight First Amendment Institute filed a lawsuit alleging the president’s habit of blocking users who “disagreed with, criticized or mocked” him violated the free-speech protections of the First Amendment…
“This case requires us to consider whether a public official may, consistent with the First Amendment, ‘block’ a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States,” Judge Buchwald wrote. “The answer to both questions is no.”
When a Twitter user blocks another, the blocked individual is unable to view the user’s tweets. While Mr. Trump typically tweets from his personal account, @realdonaldtrump, rather than his official account, @POTUS, Judge Buchwald ruled that the president presents the account as “being a presidential account…and, more importantly, uses the account to take actions that can be taken only by the president as president.”
Washington Post: No, Twitter still isn’t subject to the First Amendment – even if a judge said Trump’s account is
By Brian Fung
The ruling pointedly does not rule on Twitter as a whole, nor even the entirety of Trump’s Twitter account. It only looks at portions of his account: “The content of the tweets sent, the timeline comprised of those tweets, the comment threads initiated by each of those tweets, and the ‘interactive space’ associated with each tweet in which other users may directly interact with the content of the tweets by, for example, replying to, retweeting, or liking the tweet.”
The court did not find that Twitter is beholden to the First Amendment. It affirmed the principle that the Constitution applies only to the government and not private individuals…
“The decision finds that President Trump, as a government official, created the type of public forum on the @realDonaldTrump feed that only the government can create, and to which the First Amendment then applies,” [Joshua] Geltzer said. “The decision may have implications for other government officials’ blocking of critics on social media, but it doesn’t even come close to making all of Twitter a public forum, as the vast majority of the Twittersphere is not being converted into a public forum by government actors.” …
Twitter users can indeed view Trump’s profile publicly without having an account. But, Buchwald wrote, Trump could have ignored the offending followers or muted them. Instead, he blocked them – “limiting the blocked user’s right to speak in a discrete, measurable way.”
Reason (Volokh Conspiracy): Blocking of Twitter Users from @RealDonaldTrump Violates First Amendment
By Eugene Volokh
I think there’s a plausible case that the comment space should be labeled a “limited public forum” rather than a “designated public forum,” but that is not relevant here-the key distinction between the two kinds of fora is that restrictions on speech in designated public fora must be content-neutral and in limited public fora need only be viewpoint-neutral, but here the plaintiffs are alleging viewpoint discrimination, which is equally barred in limited and designated public fora…
As I’ve argued before, even when the President is giving a public speech, he is understood at least in part as expressing his own views. One way we see it is when the President is running for reelection; I think we would recognize his stump speeches as him speaking as a person, not speaking as a government official. Likewise, consider a related issue under another First Amendment provision, the Establishment Clause-even Supreme Court justices who believe that the government may not endorse religion think that it’s fine for government officials to express religious views in their speeches…
This having been said, I think the court’s position is plausible, especially given that White House Social Media Director and Assistant to the President Daniel Scavino seems to be closely involved with the Twitter feed-this doesn’t distinguish the religion-in-a-public-address scenario, but probably does distinguish the reelection stump speech scenario, where the elected official is generally not allowed to use government staff. I suspect that, if the case is appealed, the Second Circuit will agree with the district court’s decision here, though it’s hard to know for sure.
For a court decision that, contrary to the holding in this case, upheld a governor’s decision to block commenters from his Twitter and Facebook feeds, see Morgan v. Bevin (E.D. Ky. 2018).
National Review: A Federal Judge Blocked Donald Trump From Blocking People on Twitter: Here’s Why That’s Wrong
By David French
While the decision isn’t as egregious as some recent court decisions against the Trump administration, it’s still wrong. Here’s the core question. Did Donald Trump create a forum “owned or controlled by the government” when he decided to use his personal Twitter account for official purposes? The judge says yes. I disagree. In reality, the forum is owned entirely by Twitter, and it’s controlled entirely by Twitter…
Using Twitter isn’t like renting out a concert hall or reserving space in a public park. Twitter is in command, not Trump, and to the extent that Trump does anything, he does so only with Twitter’s permission. Twitter can alter his account – and his account alone – in its sole discretion and according to its corporate whims. “Control” is simply not a word that applies to anyone’s Twitter account. Twitter’s terms of service are so sweeping, that even Trump’s speech isn’t solely Trump’s speech any longer…
In other words, Trump is just like any of us. He’s playing in Twitter’s sandbox. He’s using Twitter’s forum according to terms and conditions that Twitter – and Twitter alone – sets.
There are other issues in play – such as whether the plaintiffs suffered a legally-cognizable injury when their sole complaint is that they can’t use the Twitter account of their choice to reply to Trump’s tweets, or whether Trump’s own free speech rights are impaired when a federal judge prohibits him from blocking hostile accounts – but ultimately the decision is wrong for the simplest of reasons. Donald Trump’s Twitter feed isn’t a government-controlled forum.
U.S. News & World Report: Appeals Court Upholds Montana Campaign Finance Reform Law
By Associated Press
A federal appeals court has upheld Montana’s campaign finance reform law by rejecting a group’s claims that it is vague and overly broad.
A three-judge panel of the 9th U.S. Circuit Court of Appeals said in an order Wednesday that the 2015 state law to increase campaign reporting and disclosure meets constitutional muster.
A group called Montanans for Community Development sued to strike down the law because it wanted to distribute mailers before the 2016 election that would have named candidates as impeding coal development.
The group was unwilling to register and disclose its donors and spending as required under the 2015 Disclose Act.
The judicial panel called the group’s constitutional claims against the law “scattershot.” It also called the group’s argument “absurd” that the law’s requirement to file electronic campaign reports may be unconstitutional.
Austin American-Statesman: Lawsuit: Texas GOP judge fired secretary for anti-Trump Facebook posts
By Chuck Lindell
A federal lawsuit claims that a 14-year secretary was illegally fired last year because her boss, a Republican judge on the state’s highest criminal court, disapproved of her Facebook posts disparaging President Donald Trump and other GOP politicians.
Olga Zuniga argued that her Facebook activity, which included support for Democrats, was done in her role as a private citizen, that she had no public role with the Court of Criminal Appeals, and that the firing violated her free-speech rights.
Zuniga sued her former boss, Judge Kevin Yeary, for whom she worked after his election to the court in 2014 until he fired her last October after searching for her Facebook profile and finding comments on “politicians and political issues that were different than his,” the lawsuit said.
Zuniga also sued the Austin-based appeals court, a nine-judge body that has the final say on criminal law matters in Texas.
“The Constitution of the United States limits the power of government to control and intrude on the lives of American citizens,” said the lawsuit, filed Tuesday in Austin federal court. “Instead, Yeary and the court violated the First Amendment of the Constitution and ended the career of a public servant for exercising her right to free speech.”
Congress
Washington Examiner: Congressional hearing explores freedom of speech crisis on college campuses
By Joey Vazquez
The House Committee on Oversight and Government Reform held a joint hearing on Tuesday to continue the conversation about freedom of speech on college campuses.
With the intention to better understand the climate on college campuses, propose solutions, and uphold the First Amendment, the committees invited experts who are “at the forefront of this debate.”
“There has been a trend of intolerance against those voicing unpopular ideas or speech being disagreeable or offensive, by some students and faculty at some colleges and institutions,” said Rep. Jim Jordan, R-Ohio. “This is occurring across the ideological spectrum and even at law schools.”
In opening statements by witnesses, there was widespread agreement on the increasing dangers accompanied with the suppression of speech that has alienated students, speakers, and faculty from being able to express opinions freely, without penalization by their respective schools.
Contribution Limits
Regulatory Review (Penn Program on Regulation): Reforming Campaign Finance Regulation
By Jane Komsky
Then-candidate Trump tweeted campaign messages to over 10 million voters at a time, practically for free. The emphasis that President Trump placed on social media during the campaign made it clear that the Federal Election Campaign Act (FECA)-which Congress created before the existence of social media-has become outdated, according to a recent paper by Anthony J. Gaughan of Drake University Law School.
FECA is made up of four pillars: contribution limits for individuals, disclosure laws, a ban on foreign contributions, and the Federal Election Commission. Although few of these pillars function properly, the advent of social media has made the contribution limit pillar especially archaic, argues Gaughan. He proposes that Congress simply eliminate contribution limits from federal campaign finance law.
Contribution limits have become obsolete in the age of the Internet and social media because technology puts at a disadvantage candidates who are not well-known celebrities, explains Gaughan…
Gaughan contends that candidates from more ordinary means have to spend all their time fundraising to obtain the name recognition that celebrity candidates get for free and that extremely wealthy candidates can pay for on their own. Their time spent fundraising greatly detracts from their ability to spend time talking about the issues.
Independent Groups
Center for Responsive Politics: These two super PACs used a loophole to hide donors as they spent millions in West Virginia primary
By Jordan Muller
The conservative Mountain Families PAC and liberal Duty and Country PAC, which combined spent more than $3 million in the West Virginia race, both used an FEC loophole to shield their respective donors before the May 8 election. None of those donors were from West Virginia, Sunday’s FEC filings showed…
Both super PACs were able to hide their out-of-state donors before the election by exploiting FEC reporting rules.
PACs that file FEC disclosures on a quarterly basis are required to submit a pre-primary report showing donation sources, but PACs that file monthly aren’t bound by that same requirement. The two West Virginia super PACs both registered on quarterly reporting schedules before the first reporting period ended in March but then switched to a monthly reporting schedule in April. The Mountain Families PAC didn’t disclose any donors on the first quarterly report, while the Duty and Country PAC only disclosed $150 in donations, according to FEC filings.
After switching schedules, the PACs’ monthly reports didn’t need to be filed until Sunday. That technicality allowed the PACs to shield their donors from voters before the election.
Candidates and Campaigns
BuzzFeed News: The Bernie-Trump Campaign Finance Legacy: Rejecting Corporate PAC Money
By Molly Hensley-Clancy
Experts point out that PAC money typically makes up just a third of the dollars that most House candidates rake in, and corporate PACs – which are subject to $5,000-per-candidate limits – are an even smaller slice…
Logistically, rejecting corporate PAC money is much easier for insurgent House candidates like Slotkin and Phillips, who are already unlikely to get the donations in the first place. It’s a far more difficult proposition for incumbents, especially in the Senate, where PACs are more likely to donate and candidates must raise much larger sums to compete.
With the exception of a few big national names like Sanders and Warren, most incumbents aren’t capable of raising large quantities of individual donations off of their email lists. In 2018, the Democrats’ most vulnerable incumbents – Heidi Heitkamp, Joe Donnelly – have taken in significant quantities from corporate PACs…
“The kind of people who can reject money from big corporations altogether are people like Donald Trump,” [Sarah] Bryner said: wealthy candidates…
If candidates reject corporate PAC money, the other feasible alternative for the party is picking people who raise large sums of money from small-dollar donors, Bryner said. That’s helped in part by new organizations like Daily Kos and Swing Left, which vacuum up small individual donations and hand them out to progressive candidates after their primaries.
But that can lead to candidates who are forced to be “nationally focused, rather than regionally,” Bryner said, especially in non-wealthy districts.
The States
Kansas City Star: Force Greitens’ campaign, nonprofit to hand over documents, lawmakers ask judge
By Jason Hancock
Mark Kempton, a former Pettis County prosecutor hired to serve as special counsel for a House committee investigating allegations of criminal wrongdoing by the governor, argued in Cole County Circuit Court that previously gathered evidence points to possible campaign finance violations by the governor’s network…
On Wednesday, Kempton told the Cole County judge that because the special session to consider impeachment must be complete by June 17, the House has decided to narrow its request and only ask the court to enforce subpoenas demanding communications between A New Missouri and the governor’s campaign, as well as information about expenditures by A New Missouri…
“We’re not asking for donor identification or bank records or tax records,” Kempton said.
Catherine Hanaway, a former Missouri House speaker who is representing A New Missouri and the governor’s campaign, had argued that releasing the identities of donors would violate their privacy and their First Amendment rights. On Wednesday, she continued to push back against complying with the subpoenas, saying the House has not demonstrated any evidence of wrongdoing against A New Missouri.
“You’re being asked to invade the confidentially and privacy of donors to A New Missouri,” Hanaway said to Cole County Circuit Judge Jon Beetem. “Your decision will set the boundaries into how invasive the House can be and how disruptive the House can be to individuals who are not Eric Greitens.”
