New from the Institute for Free Speech
Speaking About Federal Elections Online Just Got Much Harder
By Eric Peterson
Unlike both Facebook and Google, Twitter’s changes to their advertising policy are far more limited in scope. Rather than this new policy applying to all candidates for any elected office, it will only apply to candidates seeking office at the federal level. Additionally, issue advertisements – ads that speak about policy topics such as taxation or firearms – will be subject to different, yet-to-be-announced requirements.
Even though the subjects of political speech Twitter’s new policy applies to are limited, the requirements regarding that speech are anything but. All promoted Tweets, trends, and accounts that “seek[] to influence the outcome of an election” will need to come from a “certified account.” Twitter’s “influence” standard for regulated speech is incredibly broad, since even simple factual information about a candidate for federal office could be deemed to “influence an election” and run afoul of these requirements…
These requirements will place a massive burden on less sophisticated speakers who wish to promote their political speech on Twitter. By their very nature, individuals and small groups will have fewer resources to deal with the compliance costs associated with Twitter’s new regulations.
While the most well-funded groups, who are currently registered with the FEC, will have little trouble meeting Twitter’s new standards, smaller groups and individuals will face significant hurdles…
Ultimately, while Twitter’s flawed advertising policy represents a lesser threat than government regulation of internet speech, such as the deceptively-named “Honest Ads Act,” online platforms are still a crucial venue for speech in the 21st century. The flaws in Twitter’s announced regulations should serve as a cautionary tale.
Event
Featuring Bradley Smith, Chairman and Founder, Institute for Free Speech and Josiah H. Blackmore II/Shirley M. Nault Professor of Law at Capital University Law School, Capital University; Lawrence Noble, former General Counsel, Federal Election Commission; moderated by John Samples, Vice President, Cato Institute.
Sixty years ago, the United States Supreme Court decided the landmark case of NAACP v. Alabama. In 1956, as part of the civil rights struggle, the state of Alabama sought the membership lists of the NAACP chapter in that state. The Court ruled against the state and discerned a “vital relationship between freedom to associate and privacy in one’s associations.” The decision remains a high point from the civil rights era. However, many now deny the Court’s assertion that a broad right to privacy offers a vital protection for the freedom to associate and to speak.
Since the decision, the Court has placed few limits on government’s power to mandate disclosure of political activities and associations. As the new online era of speech dawns, the principles at stake in NAACP v. Alabama remain at the center of public debates. Is the right to associational privacy recognized in NAACP v. Alabama still good law? Or should the Court reconsider the tie between privacy and association? Please join us for a vigorous debate that takes this important anniversary as a starting point for our common future.
Date: June 28, 2018
Time: 12:00 PM to 1:30 PM EDT
Location: Cato Institute
The Courts
Denver Post: After federal judge’s ruling, all Colorado campaign finance complaints will be vetted by secretary of state’s office
By Jesse Paul
After a federal judge ruled last week that significant portions of Colorado’s campaign finance complaint procedures are unconstitutional, state elections officials have adopted a new process under which they will now vet each grievance filed with their office before it can proceed…
“The adoption of these rules ensures Colorado’s campaign finance laws are enforced while protecting each Coloradan’s ability to participate in political speech,” Colorado Secretary of State Wayne Williams, a Republican, said in a written statement.
Under the new rules, adopted with consultation from the state’s Democratic and Republican parties and the Colorado Attorney General’s Office, elections officials will have 10 business days to make a decision on whether a campaign finance complaint is meritorious.
If the complaint is rejected by the Colorado Secretary of State’s Office, the person who filed the allegation can appeal. There is also a process under which a flawed complaint can be fixed by whomever filed.
If a complaint is reviewed and found to have merit, it will be forwarded to an administrative law judge – as was the process before…
Another significant portion of the new rules allow the Colorado Secretary of State’s Office to offer opinions on campaign finance law that can be used as an affirmative defense to complaints…
Finally, the new rules also mandate that complaints must be filed no more than 90 days after the person bringing an allegation knew or should have known about the alleged violation.
Free Speech
Wall Street Journal: The ACLU Retreats From Free Expression
By Wendy Kaminer
The American Civil Liberties Union has explicitly endorsed the view that free speech can harm “marginalized” groups by undermining their civil rights. “Speech that denigrates such groups can inflict serious harms and is intended to and often will impede progress toward equality,” the ACLU declares in new guidelines governing case selection and “Conflicts Between Competing Values or Priorities.” …
The 2018 guidelines claim that “the ACLU is committed to defending speech rights without regard to whether the views expressed are consistent with or opposed to the ACLU’s core values, priorities and goals.” But directly contradicting that assertion, they also cite as a reason to decline taking a free-speech case “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values.”
In selecting speech cases to defend, the ACLU will now balance the “impact of the proposed speech and the impact of its suppression.” Factors like the potential effect of the speech on “marginalized communities” and even on “the ACLU’s credibility” could militate against taking a case. Fundraising and communications officials helped formulate the new guidelines.
One half of this balancing test is familiar. The “impact of suppressing speech”-the precedents that suppression might establish, the constitutional principles at stake-is a traditional factor in case selection. But, traditionally, the ACLU has not formally weighed the content of speech and its consistency with ACLU values in deciding whether to defend it.
Reason: Leaked Internal Memo Reveals the ACLU Is Wavering on Free Speech
By Robby Soave
“Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed,” wrote ACLU staffers in a confidential memo obtained by former board member Wendy Kaminer…
It seems fairly clear to me what’s happening here. Leadership would probably like the ACLU to remain a pro-First Amendment organization, but they would also like to remain in good standing with their progressive allies. Unfortunately, young progressives are increasingly hostile to free speech, which they view as synonymous with racist hate speech. Speech that impugns marginalized persons is not speech at all, in their view, but violence. This is why a student Black Lives Matter group shut down an ACLU event at the College of William & Mary last year, chanting “liberalism is white supremacy” and “the revolution will not uphold the Constitution.” Campus activism is illiberal, and liberal free speech norms conflict with the broad protection of emotional comfort that the young, modern left demands.
The ACLU’s capitulation to the anti-speech left should serve as a wake up call for true liberals. What has taken place on campus over the last decade does matter, and though the scope of the problem is frequently overstated, we should all be concerned when the nation’s premiere civil liberties organization is increasingly afraid of defending the First Amendment-not because the Trump administration scares them, but because college students do.
Popehat: The Southern Poverty Law Center Surrenders Unconditionally To Maajid Nawaz. We Should Be Concerned.
By Ken White
The Southern Poverty Law Center has surrendered, completely and unconditionally, in the face of a threatened defamation lawsuit by British activist and politician Maajid Nawaz. That surrender includes a $3.375 million payment to Nawaz “to fund work fighting anti-Muslim bigotry and extremism” and prominent written and video apologies.
This is a rout by Nawaz, a crushing victory on a scale I don’t remember seeing in a threatened defamation suit. Though it inspires good feelings about fairness and truth, it ought also inspire concern about free expression and our broken court system.
The case begins with the SPLC’s October 2016 “Field Guide To Anti-Muslim Extremists,” which listed Nawaz…
Here, the SPLC’s fatuous Field Guide appeared to be classic opinion based on disclosed facts. The SPLC offered its opinion that certain people were “anti-Muslim extremists” based on facts it set forth and linked. Their conclusion appears unfair, narrow-minded, and uttered in bad faith, but opinions are absolutely protected whether or not they’re unfair, narrow-minded, and in bad faith…
[T]hough I celebrate an apology for wrongdoing, I can’t celebrate a surrender at swordpoint that encourages censorious litigation. Bad opinions are, and ought to be – must be – absolutely protected. If the SPLC surrendered because we’ve got a broken judicial system that makes litigation ruinously expensive and fails to protect free speech, the result is bad, not good. The threatened lawsuit appears to be part of a trend of suing the SPLC for its opinions and characterizations. The settlement will embolden that trend. The trend will not stay confined to the SPLC – that’s not the way the law works. Especially in such bitterly divided times, suing over opinions is deeply censorious and corrosive of free speech.
Internet Speech Regulation
Fast Company: As Facebook’s stock soars, here’s why it seems safe from new regulation-for now
By Daniel Terdiman
While Zuckerberg’s company publicly supports the Honest Ads Act-which aims to bring many of the transparency provisions that govern political ads on TV and the radio to Internet political advertising-and has already adopted some of the bill’s provisions, few hold out much hope of that legislation becoming law any time soon…
Some of those behind the Honest Ads Act are staying optimistic about the bill’s long-term prospects, noting that both Facebook and Twitter have adopted many of its provisions, particularly around transparency on who’s behind political ads…
Asked for comment by Fast Company, a Facebook spokesperson reiterated the company’s support for the Honest Ads Act.
The Media
Wall Street Journal: Publisher of National Enquirer Subpoenaed in Michael Cohen Probe
By Nicole Hong, Joe Palazzolo, Michael Rothfeld and Rebecca Davis O’Brien
Federal authorities have subpoenaed the publisher of the National Enquirer for records related to its $150,000 payment to a former Playboy model for the rights to her story alleging an affair with Donald Trump…
Prosecutors are examining whether the payment violated campaign-finance or other laws, the people said…
The Justice Department’s guidelines for federal prosecutors describe subpoenas sent to news organizations as “extraordinary measures, not standard investigatory practices.”
Corporations are barred from making contributions to candidates under federal election law. If investigators find evidence that Mr. Cohen pressed American Media to buy Ms. McDougal’s story to protect Mr. Trump’s campaign, prosecutors could bring charges against Mr. Cohen, the company or both, legal experts said.
In such a case, prosecutors would have to prove Mr. Cohen coordinated with American Media to provide Mr. Trump something of value for the purpose of influencing the election, said Douglas Spencer, a professor of law and public policy at the University of Connecticut. Proving coordination would likely be the most difficult prong of such a case, he said.
The Federal Election Campaign Act makes clear that news stories, commentaries or editorials aren’t considered campaign expenditures, a press carve-out that could add First Amendment complications to an investigation of American Media.
But the exemption isn’t absolute, said Thomas Frampton, a lecturer at Harvard Law School who studies criminal law. “If the other evidence is there, I don’t think AMI’s status as a media company will preclude liability,” he said.
National Review: The Kochtopus Crushes Nashville Transit
By Kyle Smith
The latest dastardly Koch scheme was exposed on Monday, and for this we must thank Hiroko Tabuchi, a climate-change reporter for the New York Times…
Using a front group called Americans for Prosperity (AFP), which deployed a sneaky election-rigging tactic known as “talking to people,” the Kochs destroyed a proposal for a light-rail system in Nashville…
So how much of their eleven-figure net worth did the Kochs’ AFP pump into Nashville in their fell scheme to protect their precious seatbelt industry? Less than $10,000. Apparently that largely went for a mailer sent out a week before the election. For context, the proponents of the rail plan spent $2.9 million. All opponents combined spent $1.2 million. (Of that $1.2 million, most came from a group called Smarter Nashville, Inc., which by law does not have to disclose its donors.) The Kochs say they don’t control AFP activities in individual states in the first place…
Ah, you say, but AFP made almost 42,000 phone calls and knocked on more than 6,000 doors before the measure lost by 35,000 votes. Meanwhile proponents of the measure were . . . doing the exact same thing. Those backers boasted that they made 4,000 phone calls a night for three months in advance of the vote.
Nonprofit Giving
USA Today: ‘Rage giving’ fuels record fundraising for immigrant children. ‘Every time I get mad, I do it again’
By Jessica Guynn
This new form of political protest took off in the tense aftermath of Trump’s election. Progressives began throwing money at causes such as women’s rights, climate change and immigration advocacy to express their bottled-up frustration with the administration’s policies…
Individuals who feel like there is nothing else they can do research, donate and promote organizations to send a political message…
The surge in donations has contributed to record charitable giving with a sharp rise in individual donors, particularly Democrats, expressing their frustration not at the polls, protest marches or by calling representatives, but by reaching for their wallets.
It helps that it’s never been easier to “rage give.” Facebook and other online services make it simple to make a donation in a couple of minutes.
Rage giving has begun to transform the nonprofit landscape. Traditionally, most donors give in response to fundraising requests. Now they are pouring out their generosity to organizations outside their home cities and states.
“Ever since Trump’s election, we’ve seen a wave of activism that consistently breaks records of activists engaged and money raised,” says Brian Young, executive director of Action Network, which provides digital tools to nonprofits. “But what has happened over the last few days has been more than anything we’ve seen so far.”
The States
Bangor Daily News: Maine public campaign funding hangs in limbo as lawmakers keep squabbling
By Christopher Cousins
Money to support candidates using Maine’s publicly funded campaign finance system is emerging as the major friction point at the State House as lawmakers slog through the second day of a planned three-day special legislative session.
Enough money for the Maine Clean Election Fund to support this fall’s elections was allocated in last year’s biennial state budget bill, but a technical error in that bill leaves the Maine Ethics Commission unable to spend any money from its own accounts after July 1. In addition to direct disbursements to dozens of participating legislative candidates and one gubernatorial candidate, in limbo is the commission’s ability to use the money for overhead costs such as its rent.
House Speaker Sara Gideon, D-Freeport, and House Minority Leader Ken Fredette, R-Newport, agreed that negotiations on the issue are nearing an impasse as lawmakers work toward adjourning the special session as early as Thursday.
