The Free Speech Records of Judges on Trump’s Short List
The Free Speech Record of Judge Brett Kavanaugh, Part I
By IFS Staff
Judge Kavanaugh has seen his fair share of campaign finance and political speech cases. That’s for good reason. The United States Court of Appeals for the District of Columbia Circuit, where he has served since 2006, has jurisdiction over most challenges to federal campaign finance laws and regulations. We analyze the following such cases in this post.
– Emily’s List v. Federal Election Comm’n, 581 F.3d 1 (D.C. Cir. 2009)
– SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 686 (D.C. Cir. 2010) (en banc)
– Independence Institute v. Fed. Election Comm’n, 816 F.3d 113 (D.C. Cir. 2016)
– Pursuing America’s Greatness v. Fed. Election Comm’n, 831 F.3d 500 (D.C. Cir. 2016)
-Wagner v. Fed. Election Comm’n, 793 F.3d 1 (D.C. Cir. 2015) (en banc)
Judge Kavanaugh ruled in favor of free speech in four of these cases. The exception was Wagner, where he joined an 11-0 opinion siding with the Federal Election Commission. His opinion in Emily’s List is particularly impressive. Foreshadowing later rulings in Citizens United and SpeechNow, Judge Kavanaugh clearly articulated a First Amendment right for associations to spend money in support of candidates. The opinion demonstrates an ability to anticipate trends in First Amendment jurisprudence before they fully take hold.
In the other three cases, Judge Kavanauagh applied careful scrutiny to government regulations that impeded free political speech. He authored the opinion in Independence Institute, which ordered that a special three-judge district court review the Institute’s challenge to McCain-Feingold’s donor disclosure requirements, and joined rulings striking down FEC regulations in SpeechNow and Pursuing America’s Greatness.
Part II: More on Judge Brett Kavanaugh’s Campaign Finance Opinions
By IFS Staff
This post explores three First Amendment opinions written or joined by Judge Kavanaugh. In these decisions, he sided with the government and declined to approve First Amendment challenges, although his opinions nevertheless showed some concern for the First Amendment rights raised, albeit in dicta. Whether he would translate those words into action on the Supreme Court is an open question.
In the first of these cases, Holmes v. Federal Election Commission, Judge Kavanaugh joined a unanimous, en banc D.C. Circuit when it missed the opportunity to require that individual provisions of a law meet heightened scrutiny when they burden an individual’s rights, even when the law as a whole has previously survived a facial challenge.
In the second case, Republican National Committee v. Federal Election Commission, the plaintiffs presented a more straightforward challenge to prior precedent, McConnell v. Federal Election Commission, in light of recent limits the Supreme Court had placed on the Bipartisan Campaign Reform Act in Citizens United v. Federal Election Commission. Writing for a special three-judge district court, Judge Kavanaugh upheld BCRA’s contribution limits, holding that it was up to the Supreme Court to clarify or refine the McConnell decision.
Finally, in Bluman v. Federal Election Commission, again writing for a special three-judge district court, Judge Kavanaugh upheld BCRA’s prohibition on political contributions by foreign nationals. The court held that foreign nationals do not have a constitutional right to spend any money advocating for or against candidates in American elections, and that the government has a compelling interest in preventing foreign influence over the political process. Treading in an area of fundamental liberties, however, Judge Kavanaugh warned the government that the court’s analysis did not address the rights of lawful permanent residents or the ability of foreign nationals to speak about American politics. Importantly, he also interpreted the law narrowly so as to apply only to express advocacy and electioneering communications.
Part III: Judge Brett Kavanaugh Joins Pro-Speech Opinion Upholding Rights of Protesters
By IFS Staff
This post explores two opinions Judge Kavanaugh wrote or joined addressing the rights of protesters under the First Amendment. In these decisions, Judge Kavanaugh demonstrated a solicitude for First Amendment speech freedoms, but one limited to activities that are peaceful and non-destructive.
Boardley v. U.S. Dep’t of the Interior, 615 F.3d 508 (D.C. Cir. 2010)
In Boardley, Judge Kavanaugh joined an opinion holding that National Park Service rules requiring permits, in addition to existing restrictions limiting speech to free speech areas, were overbroad and unconstitutional…
Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011)
Here, the D.C. Circuit held that a law against the defacement of public property did not violate the First Amendment rights of anti-abortion protestors who wished to chalk the street in front of the White House.
Judge Kavanaugh wrote a short concurring opinion to emphasize that “[n]o one has a First Amendment right to deface government property.” Id. at 1122. The law here, according to Judge Kavanaugh, was “a reasonable time, place, and manner restriction for purposes of First Amendment doctrine” because it was content and viewpoint neutral. Id.
Part IV: Judge Brett Kavanaugh Authors Pro-Speech Dissents in Two Communications Act Cases
By IFS Staff
Previous posts have focused on cases squarely raising claims related to political free speech and press rights. But Judge Kavanaugh has shown a willingness to protect speech rights in other contexts, including while interpreting the expansive Communications Act of 1934.
In contrast to campaign finance law, which sharply limits the Federal Election Commission’s discretion, the Communications Act and its amendments give the Federal Communications Commission (“FCC”) wide power to regulate wire and radio systems to promote equality and efficiency in communications. One hotly contested issue is whether the FCC may regulate Internet companies as “common carrier” utilities (like landline telephones) under the Communications Act-a debate commonly referred to as “Net Neutrality.”
In a pair of dissents, Judge Kavanaugh staked out the importance of protecting the freedom of speech, even for corporations…
The Institute agrees that the First Amendment is designed to keep the hands of the government out of the editorial decisions of speakers. That includes those who speak on the Internet. Though he wrote in dissent, Judge Kavanaugh’s view of the First Amendment as a shield from bureaucratic meddling is important to consider. The Internet’s success comes from the freedom it enjoyed in allowing those with modest means a voice to reach many.
Judge Kavanaugh appears to see the importance of the freedom of speech both in what one says and what one chooses not to say. Likewise for freedom of association. Both views-the right to speak and the right to not be compelled to speak-are at the heart of the First Amendment.
Judge Amy Coney Barrett: No Substantial Free Speech Opinions Yet
By IFS Staff
Judge Amy Coney Barrett has been a judge for less than a year. In that time, unsurprisingly, she has ruled on a relatively small number of appeals. None has implicated the core questions of political speech and association that the Institute is evaluating as part of its review of potential Supreme Court justices.
This is not a black mark; the cases a judge reviews are, in large part, random. This is especially true for political speech cases, many of which (as we explain in our discussion of Judge Kavanaugh) are brought in the District of Columbia, where federal agencies are headquartered and where Congress has sometimes required them to be sued.
Nevertheless, the Institute conducted a review of Judge Coney Barrett’s opinions, as well as her extensive academic record. Those articles, which were the subject of controversy at her confirmation to be a federal appeals court judge, and which will doubtless be discussed if she is nominated for elevation, did not directly address issues of free political speech and association.
All that can be said, then, is that Judge Coney Barrett has yet to be tested on these difficult questions of First Amendment law. It is up to the President and Senate to decide whether that test will come, in time, at the Supreme Court.
UPDATED: Judge Joan Larsen’s Record Offers Few Clues about Her Views on Free Speech
By IFS Staff
UPDATE: Since our original analysis, we have reviewed Judge Joan Larsen’s rulings and have found no new cases relating to free speech. Larsen joined the United States Court of Appeals for the Sixth Circuit on November 2, 2017. This analysis was originally published on January 11, 2017.
Supreme Court
Wall Street Journal: Trump Has Finalists for Supreme Court Pick
By Peter Nicholas
President Donald Trump said he has narrowed his search for a Supreme Court justice to two to four candidates and expects to settle on a nominee this weekend ahead of a prime-time announcement Monday night.
Speaking to reporters on Air Force One en route to Montana for a campaign appearance for a Senate candidate, Mr. Trump didn’t name the finalists…
Since the week began, Mr. Trump has interviewed a total of seven candidates…
He said he would announce his selection at 9 p.m. on Monday.
In evaluating prospective nominees, Mr. Trump has been working off a list of 25 candidates that was vetted by leaders of the conservative Federalist Society and the Heritage Foundation for ideological reliability.
People close to the search process have said that Mr. Trump has winnowed the field to three finalists: appeals court judges Brett Kavanaugh of Maryland, Raymond Kethledge of Michigan and Amy Coney Barrett of Indiana.
A fourth possibility, a person close to the White House said, is the runner-up in last year’s search: Thomas Hardiman of the Third U.S. Circuit Court of Appeals in Philadelphia.
Mr. Hardiman was among the seven candidates interviewed by the president, as were Judges Barrett, Kavanaugh and Kethledge.
Mr. Trump isn’t likely to interview any more new candidates, a White House official said Thursday.
National Review: Judge Thapar and Judicial Duty
By Lillian BeVier (Ed. Note: Lillian BeVier is a longtime member of the Institute for Free Speech’s Board of Advisors)
For the last seven years Judge Thapar and I have co-taught an intensive week-long class about judicial philosophy at the University of Virginia Law School. In this context, I have learned much about his approach to judging and his understanding of the judicial role…
Judge Thapar is an originalist in matters of constitutional interpretation, which means that he believes the words of the Constitution should be understood to mean what they were understood to mean when the Constitution was ratified. He is a textualist when it comes to interpreting statutes, which is to say that he believes judges should interpret statutes as they are actually written and not as they might have been written to achieve a judicially-favored outcome.
To put some flesh on these theoretical bones, it might be useful to recount the fact that, when we first taught our course, Judge Thapar wanted to call it “Judicial Modesty.” We perhaps should have called it “Judicial Duty.” Judge Thapar wanted the title to reflect what he most wanted the students to appreciate, namely that judges have a limited role in our constitutional system. Their authority is constrained by constitutional and statutory texts; they have no legitimate authority to change the meaning of the Constitution or to rewrite statutes. Lower-court judges are also constrained by the legal precedents set by the courts above them. However, as important as the constraints, Judge Thapar also wanted to emphasize that judges have the unequivocal duty to interpret legal texts so as to get the law right. Always the law constrains judges; and always it requires them to obey its commands.
Judge Thapar is a masterful legal analyst who can sort through complex statutes as well as anyone. And as a lower-court judge, he faithfully follows precedent. At the same time, he often writes separately to suggest that the precedent itself might be in error and ought to be reconsidered.
Washington Examiner: Conservatives, civil libertarians pan Supreme Court finalist Brett Kavanaugh’s ‘troubling’ NSA ruling
By Steven Nelson
Kavanaugh, a judge on the U.S. Court of Appeals for the D.C. Circuit, offered an expansive legal justification for the National Security Agency’s discontinued call record dragnet in a little-noticed November 2015 concurrence…
Kavanaugh wrote that the collection of these records did not constitute a “search” under the Fourth Amendment, citing the third-party doctrine precedent created by the Supreme Court in Smith v. Maryland in 1979 – a common perspective among judges.
But he added that even if it was a “search” under the Fourth Amendment, the government was allowed to take the records because it had a “special need” in preventing terrorism, overriding the privacy interests of people whose records were taken without a warrant…
George Washington University law professor Jonathan Turley said that Kavanaugh’s concurrence “reflects a sweeping view of national security as an exception to core protections.”
“The concurrence is particularly notable because it is largely dicta,” Turley went on. “Kavanaugh went out of his way to position himself at the outer limits of executive power.
“Notably, it runs against the type of protective approach of recent cases like Carpenter,” he added, referring to a Supreme Court ruling from last month requiring a warrant for authorities to collect cellphone location data.
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, previously represented the American Civil Liberties Union in a lawsuit against the call record collection and said it would be incongruous for Trump to express concern about surveillance practices, then nominate a forceful backer of the discontinued historical dragnet.
Fa on First: Kethledge: First Amendment Hawk
By Wen Fa
Not many can fill Justice Kennedy’s shoes when it comes to the First Amendment. But one who might is Justice Kennedy’s former law clerk: Judge Raymond Kethledge of the Sixth Circuit.
In one case, Judge Kethledge wrote an opinion invalidating an Ohio law that prohibited candidates for state prosecutors’ office from accepting campaign contributions from Medicaid providers. Ohio argued that a law which banned the speech of all 93,000 Medicaid providers was necessary to prevent corruption. Yet Kethledge explained that “a state must do more than merely recite a general interest in prevent corruption.” It must “demonstrate how its [law] furthers a sufficiently important interest.” Examining the evidence, Judge Kethledge noted that although only about 300 of Ohio’s Medicaid providers were implicated in Medicaid fraud, the Ohio law prevented nearly 100,000 providers from speaking. A law with such an imprecise fit between means and ends flunks the First Amendment.
In another case, the police threatened to arrest two people who were walking around a festival with a sign conveying a Christian message. The city defended its actions, pointing to a ban on the “soliciting of causes outside of booth space” during the Sweet Corn Festival. The city argued that the ban was necessary for crowd control, but it identified no crowd concerns at the festival. Judge Kethledge fully joined the opinion striking down the law. In so doing, he found the ban far too restrictive, since it prohibited all signs, leaflets, and even one-on-one discussions.
Washington Post: Inside the Christian legal powerhouse that keeps winning at the Supreme Court
By Jessica Contrera
Though far from a household name, the results of [Alliance Defending Freedom’s]work are well known. Masterpiece Cakeshop v. Colorado Civil Rights Commission was just one of ADF’s cases at the Supreme Court this term. The organization has had nine successful cases before the court in the past seven years, including Burwell v. Hobby Lobby…
ADF regularly sues colleges for creating versions of “safe spaces” that it sees as First Amendment violations…
In court briefs, press releases and interviews, they repeat mantras such as “Tolerance is a two-way street” and “If we want freedom for ourselves, we must extend it to others.” In other words, it doesn’t matter if you don’t agree with the baker’s views. The government can’t force him to express something that goes against them…
ADF’s second win of the term [was] NIFLA v. Becerra , a case about California’s mandate that religious pregnancy centers notify women that the state provides free or low-cost access to abortions.
Free Speech
Bloomberg: The Left and the Right, Consistent on Free Speech
By Cass R. Sunstein
In American constitutional law, many of the defining free-speech battles were fought in the 1950s, 1960s and early 1970s. They tended to involve political dissenters – civil-rights advocates, opponents of the Vietnam War, socialists and communists.
In the three defining battles, those on the left argued for broad protection of political speech.
First, they argued that unless the government could show a “clear and present danger,” dissenters should be allowed to say what they liked…
The second defining battle of the period involved the use of libel law. Free-speech advocates, mostly on the left, argued that dissenters should have a robust right to criticize public officials, even if the criticisms turned out to include false statements of fact…
The third defining battle involved “prior restraints” on speech – meaning the use of injunctions and licensing schemes to forbid speech. Free-speech advocates, again mostly on the left, argued that prior restraints were almost always unacceptable, even when the government claimed that national security was at risk…
Turn in this light to the great free-speech battles of the last two decades. Many of them have involved two issues: campaign-finance restrictions and commercial speech.
Internet Speech Regulation
The Hill: Free speech means a free internet – even if Democrats don’t like it
By Dan Backer
The Federal Election Commission (FEC) recently held two days of hearings on proposed internet regulations. While the hysterical media has ginned up a new “red scare,” the FEC’s proposals will do nothing to stop bad actors, but will undermine our First Amendment rights to online political speech.
The FEC used the hearings, at which I testified, to consider different approaches – some more restrictive than others – to “improve” disclaimers for online political advertising. Yet FEC regulations already require political action committees (PACs) and other online spenders to use disclaimers where they can, or to click through to fully-disclaimed pages if they can’t. PACs are also required to disclose all of their expenditures monthly or quarterly, and file special reports whenever spending more than modestly to support or oppose candidates.
Existing regulations are clear and comprehensive. The law isn’t the so-called problem being addressed here, though; it’s all that persnickety speech outside the political establishment.
The FEC’s Democrats, most notably Vice Chairwoman Ellen Weintraub, condemn advertising “paid for by Russia or other foreign countries,” urging Congress to “regulate political spending on the internet.” But that’s silly: The law already forbade those bad actors in the first place.
Bad actors won’t comply with the law – because they’re bad actors. For the political elites, who can afford to hire campaign finance lawyers and well-paid vendors, the FEC’s proposals will at most be a nuisance as they continue delivering their messages online.
Regulating the internet will only overburden everyone else who would seek to comply with the law, or simply stay silent.
Washington Post: Facebook censored a post for ‘hate speech.’ It was the Declaration of Independence.
By Eli Rosenberg
At first glance, the Vindicator’s Facebook promotion did not seem designed to make waves.
The small newspaper, based out of Liberty, a Texas town of 9,175 outside of Houston, planned to post the Declaration of Independence on Facebook in 12 daily installments leading up to the Fourth of July – 242 years since the document was adopted at the Second Continental Congress in 1776.
But on the 10th day, the Vindicator’s latest installment was removed by Facebook. The company told the newspaper that the particular passage, which included the phrase “merciless Indian Savages,” went against its “standards on hate speech,” the newspaper wrote.
The story about how Facebook had censored one of the United States’ founding texts on the grounds that it was hate speech has traveled around the world. And it is another glaring example of how the mechanisms that tech companies use to regulate user content – many of which involve algorithms and other automated processes – can result in embarrassing errors.
FEC
Washington Examiner: FEC Dem rips ‘white, old, rich, male’ donors, ‘not really representative’
By Paul Bedard
In a conference focused on ridding money from the political system, Ellen Weintraub, FEC vice chair, said the nation’s big Democratic and Republican donors are not representative of the overall voting population.
Speaking at an American Promise conference she said that donors plan to spend $750 million in the midterm elections, up from $550 million in 2014. And, she said, the top 1 percent of donors, or some 541, according to the Center for Responsive Politics, have already funded 93 percent of 2018 donations.
“Who are these guys,” she asked in a YouTube video of the late June event just recently posted.
“It may not surprise you to learn that they are overwhelmingly white, old, rich, and male. So they’re not really a very representative group if you look at the population as a whole,” she added…
Weintraub also revealed that the Supreme Court’s Citizen United decision opening up donations from corporations hasn’t resulted in the wave of money into the political system as Democrats feared.
“The good news is that business corporations are not actually swamping our politics with money,” she said.
Candidates and Campaigns
Salon: Alexandria Ocasio-Cortez proves that money doesn’t win elections: Are Democrats listening?
By Conor Lynch
There are plenty of lessons to take away from Ocasio-Cortez’s victory, but the most important for the Democratic Party may be the fact that in our current era, a grassroots candidate with an effective political message can trump a candidate who knows how to raise the most cash. Crowley outraised Ocasio-Cortez by 10-to-1, taking in $3.3 million compared to her roughly $300,000, which should have been enough to guarantee him an easy victory, according to the prevailing logic of many in the Democratic Party. It didn’t, of course. Like the 2016 presidential election, this upset reveals how politically out of touch the Democratic leadership can be.
Sludge: The Anti-Big Money PAC Backing Corporate-Financed Democrats
By Donald Shaw
Following Alexandria Ocasio-Cortez’s primary win last week, a political action committee aimed at ending “Big Money in politics” had a realization.
“Democrats should take the initial step of rejecting money from corporate PACs and removing the primary barrier to Americans trusting them,” End Citizens United said in a memo co-published with the Center for American Progress in the wake of the race results.
End Citizens United supported Ocasio-Cortez’s opponent, the powerful incumbent Democrat Rep. Joseph Crowley, despite his embrace of corporate funding…
End Citizens United taps into the same populist angst as [other] reform groups, and they have been wildly successful at using anti-corruption messaging to gain supporters and raise money. But they distinguish themselves by using a large part of their campaign contributions to re-elect corporate-financed Democratic incumbents…
Their acquisition and fundraising programs are high-volume and aggressive. They typically send at least three emails per day, but sometimes they send six or more. Emails from End Citizens United received by the author in the past week came with subject lines like, “need 1 donation from [author’s zip code] to SAVE the Supreme Court” and “Give up. Go Home. TED CRUZ WINS.”
Other groups working on electing candidates who reject corporate PACs say End Citizens United’s tactics have negatively impacted their own efforts…
Adam Smith, communications director with Every Voice-a group that has received $50,000 from End Citizens United this cycle-says they have been a helpful ally.
Harassment
By Marlene Lenthang
A 16-year-old boy’s Make America Great Again hat was ripped right off his head in a vicious attack while dining at a Texas restaurant.
Hunter Richard was with his friends at a Whataburger in San Antonio when he was suddenly affronted by another diner, later identified as Kino Jimenez, Tuesday evening.
Jimenez allegedly pulled off Richard’s cap off his head, grabbing some of his hair with it, before going off on him.
He then threw Richard’s cup filled with ice and soda at him yelling ‘F*** the President!’ in his filmed attack that has gone viral.
The States
Mitchell Daily Republic: Critics concerned about power of initiative’s ethics panel
By Associated Press
Opponents of a South Dakota ballot question that would create a new government ethics commission are raising concerns about the amount of power that would be given to an unelected panel if voters approve it in November.
South Dakota Chamber of Commerce and Industry President David Owen said Tuesday that the group would help lead opposition to what’s billed as an anti-corruption initiative, which voters will decide in the general election. Constitutional Amendment W would tighten campaign finance and lobbying restrictions, establish the independent ethics board and prevent the Legislature from changing laws approved by voters without returning to the ballot.
Owen said the ethics commission would have a “scope of power that’s kind of unbelievable.” …
The panel would investigate allegations of corruption and violations of lobbying, campaign finance and government ethics regulations. It would also have the authority to conduct audits of disclosures including for lobbying and campaign finance and impose sanctions such as fines on public officials…
But critics have labeled the measure an out-of-state proposal because it has been funded by Represent.Us, a Massachusetts-based organization working to reduce the influence of money in politics that also supported the 2016 South Dakota ballot measure campaign.
“I think we’re going to get outspent,” Owen said. “I think they’re going to whoop up a false impression that South Dakota is massively corrupt.”
Other groups opposing the amendment include the Sioux Falls Area Chamber of Commerce, South Dakota Bankers Association, South Dakota Farm Bureau, South Dakota Municipal League, South Dakota Retailers Association and AGC of South Dakota Highway Heavy Utility Chapter.
Washington Times: Young Americans for Liberty notches free-speech win at Berkeley over club recognition
By Valerie Richardson
When students applied last year to start a Young Americans for Liberty chapter at the University of California Berkeley, they were told the organization was “too similar to Cal Libertarians.”
That won’t happen again under a settlement reached Monday. The university agreed to revise its policies on club recognition by prohibiting organizations from being rejected based on their “purpose or uniqueness, mission statement, or other viewpoint.”
The agreement was hailed on the right as a free-speech victory for student organizations fighting viewpoint discrimination at the famously left-of-center campus.
“Public university officials can’t discriminate against students because of their personal beliefs,” said Caleb Dalton, legal counsel for the Alliance Defending Freedom, which sued the university in December.
Wall Street Journal: Wisconsin High Court Backs Marquette Professor in Academic Free-Speech Case
By Melissa Korn
The Wisconsin Supreme Court ruled Friday that Marquette University was out of line to discipline a tenured professor for something he wrote online that resulted in threats against another instructor, reversing a lower court decision.
The ruling hands a victory to advocates of a broad definition for academic freedom, though the court’s focus on what it determined were flawed disciplinary proceedings at the university may have implications for other private employers outside academia.
In the 4-2 decision, with one other judge not participating, the court determined that Marquette breached its contract with political science professor John McAdams after suspending him for a November 2014 blog post that he said was protected speech, but that the school argued crossed the line to an unprofessional attack.
On his blog, Dr. McAdams had called out a graduate-student instructor, Cheryl Abbate, for telling an undergraduate in her ethics class that arguing against gay rights and same-sex marriage was homophobic and unwelcome in her classroom.
The post, which was picked up by conservative media outlets, included the instructor’s name and a link to her personal blog. She received hostile messages, including what the school says were threats to her safety.
Marquette’s president accepted a faculty recommendation to give Dr. McAdams two semesters unpaid leave and asked the professor to express remorse. Dr. McAdams hasn’t yet done so and remains suspended without pay, according to the school.
