We’re Hiring!
Summer Associate Legal Fellowship
The Institute for Free Speech Summer Associate Legal Fellowship is a unique opportunity for law students to explore a career in public interest and First Amendment law. The program is open to students who will finish their first or second year of law school by the summer of 2021.
Fellows are expected to work full time for 10 weeks in our Washington, D.C. area headquarters, but other arrangements may be available to especially outstanding candidates. In light of the ongoing pandemic, the possibility remains that fellows will work remotely for some or all of the summer fellowship.
Fellows are eligible to earn $10,000 in salary for their 10 weeks of employment.
During the fellowship, students will work with Institute for Free Speech attorneys for a portion of their time. Each fellow will also be expected to complete a project. Applicants are encouraged to be creative in suggesting a project as part of their application. While many projects may produce papers suitable for publication, we will consider any project related to protecting or advancing First Amendment rights.
[You can learn more about this role and apply for the position here.]
Congress
Federalist: 2020 Election Fiasco Favored Democrats, So Now Congress Is Working To Make Sloppiness Permanent
By Jordan Davidson
One month after Democrat Rep. John Sarbanes of Maryland introduced [H.R. 1], a group of nine former Federal Elections Commission officials wrote a letter to congressional leadership urging them to consider the ramifications of the potential law on the bipartisan elections agency, including removing a member from the six-person body to gain “partisan control.” …
A coalition letter led by People United For Privacy and signed by 130 organizations also expressed concerns with the bill’s provisions requiring federal record and public exposure of citizens’ private donations to nonprofits and other organizations, expanding the definition of “electioneering communications” to police online ads, and forcing the disclosure of past donations from political appointments…
Not only would the various acts included in the legislation provide opportunities for harassment and bullying, some warn, but it would also impose “excessive” burdens on organizations that want to run political advertisements.
“It puts excessive regulation on these nonprofit organizations that they don’t currently have in terms of running ads and for smaller organizations especially that have limited resources. This really just could kill their ability to advocate on the causes that they care about,” Heather Lauer, executive director for People United for Privacy, told The Federalist.
Independent Women’s Forum: Coalition Letter: Conservatives Oppose H.R. 1, The Ultimate Fantasy Of The Left
By Carrie Lukas and Jennifer C. Braceras
Conservatives are united in opposing H.R. 1, the attempt by House and Senate Democrats to fundamentally undermine the American electoral system. We further oppose any effort to modify budget reconciliation rules to pass this legislation…
H.R. 1 undermines the First Amendment. H.R. 1 undoes key Supreme Court cases that protect elections as fundamental to free speech. It would allow the Federal Election Commission to track and catalogue more of what Americans are saying, register even very small political donations, and make public those who donate to different charitable and nonprofit organizations. The legislation will subject private citizens to intimidation and harassment for their private and political beliefs, far broader than what was done in the IRS targeting scandal in 2013.
First Amendment
Tablet: Are Douglass Mackey’s Memes Illegal?
By Eugene Volokh
In 2016, a Florida man named Douglass Mackey (using the online alias “Ricky Vaughn”) allegedly conspired to distribute a meme aimed at deceiving pro-Hillary voters.
Four years later, Mackey is now being prosecuted (as to this and as to other memes) for violating 18 U.S.C. § 241, a federal law that punishes conspiracies “to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution”-namely, the right to vote. Lying to voters in a way that keeps them from voting, the theory goes, is a crime.
Is this sort of prosecution constitutional? After all, people often lie in political campaigns. Candidates do it, activists do it, political operatives do it. Can election lies simply be outlawed?
Surprisingly, the Supreme Court has never resolved the question. It hasn’t resolved the big-picture question: When can the government punish lies? It hasn’t resolved the medium-size question: Can the government punish lies in election campaigns? And it hasn’t resolved the particular question: Can the government punish lies about the mechanisms of voting, and in particular about how to vote?
Washington Post: The landmark Klan free-speech case behind Trump’s impeachment defense
By Michael S. Rosenwald
In the summer of 1964, not long after President Lyndon B. Johnson signed the landmark Civil Rights Act, a Ku Klux Klan member named Clarence Brandenburg invited a TV news reporter to a rally near Cincinnati.
Brandenburg, a television repairman, was wearing a hood, as were a dozen other Klan members who gathered. Some had guns. They burned a cross while spewing racist and antisemitic commentary. Brandenburg also made a threat about seeking vengeance.
“We’re not a revengent organization,” he said, inventing a new word. “But if our president, our Congress, our Supreme Court continues to suppress the White, Caucasian race, it’s possible that there might have to be some revengence taken.”
What happened next has shaped First Amendment law for more than 50 years, laying down a legal doctrine at the center of former president Donald Trump’s Senate impeachment trial.
Online Speech Platforms
Wall Street Journal: Facebook Moves to Muffle Politics on Its Platform
By Jeff Horwitz
Facebook Inc. said it is beginning to reduce how much political content users see in their news feeds, potentially diminishing the role that the world’s largest social network plays in elections and civil discourse more broadly.
The announcement, made in a Wednesday blog post, follows Facebook Chief Executive Mark Zuckerberg’s declaration on the company’s earnings call last month that most users wanted to see less political content. He said at the time that cutting back on politics would allow Facebook to “do a better job of helping to bring people together and helping to promote healthier communities.”
Facebook says that political content currently constitutes only 6% of what people see on the platform. It will begin running experiments to reduce that amount for a small percentage of people in Canada, Brazil and Indonesia immediately, with tests in the U.S. in weeks to come.
The company said it isn’t removing political content but rather exploring ways to reduce the exposure for users who would prefer not to see it. In practice, that means Facebook will still allow users to post about politics and argue among friends, but its algorithms will de-prioritize those conversations and spread them less widely across the network, especially for people who have not expressed interest in those topics.
The company didn’t specify how it will define political content.
CNN: Twitter CFO says Trump’s ban is permanent, even if he runs for office again
By Brian Fung
Former President Donald Trump will not be permitted back on Twitter even if he runs again for office and wins, according to the company’s chief financial officer.
Asked during an interview on CNBC Wednesday whether Trump’s tweeting privileges could be restored if he wins the presidency again, CFO Ned Segal clarified that Trump’s ban is permanent.
“The way our policies work, when you’re removed from the platform, you’re removed from the platform,” he said, “whether you’re a commentator, you’re a CFO, or you are a former or current public official. Remember, our policies are designed to make sure that people are not inciting violence, and if anybody does that, we have to remove them from the service and our policies don’t allow people to come back.”
Wall Street Journal: Instagram Bans Robert F. Kennedy Jr. Over Covid-19 Vaccine Misinformation
By Sebastian Herrera
Instagram removed the account of prominent vaccine skeptic Robert F. Kennedy Jr., one of the highest-profile steps in parent company Facebook Inc.’s intensifying effort to combat false and misleading information about Covid-19.
An Instagram spokeswoman said Wednesday that the company permanently removed the account “for repeatedly sharing debunked claims about the coronavirus or vaccines.” Mr. Kennedy had more than 800,000 followers on Instagram before the account was closed, according to the company.
Candidates and Campaigns
Politico: Campaigns return to old trick after Facebook cuts off fundraising
By Elena Schneider
Companies and groups like Avalanche are popping up to fill the gaping hole left by Facebook and Google’s prolonged political ad bans, which bar campaigns and political groups from running ads on their platforms to draw in small-dollar donors. By cutting off that pipeline to voters and potential supporters, the tech giants have set off a race to find new ways to reach those contributors, according to interviews with more than a dozen digital strategists. And one old-school fundraising tactic is regaining fresh traction: buying, renting and swapping email lists, tactics that have been in use for a decade but have become newly important – and, some expect, lucrative – in the world of online politicking.
Center for Responsive Politics: Trump’s political operation paid more than $3.5 million to Jan. 6 organizers
By Anna Massoglia
As former President Donald Trump faces a Senate impeachment trial on charges of inciting attacks on the U.S. Capitol on Jan. 6, unanswered questions about the full extent of his ties to a nearby rally the same day highlight the need for more campaign finance transparency.
Newly identified payments in recent Federal Election Commission filings show people involved in organizing the protests on Jan. 6 received even larger sums from Trump’s 2020 campaign than previously known.
OpenSecrets unearthed more than $3.5 million in direct payments from Trump’s 2020 campaign, along with its joint fundraising committees, to people and firms involved in the Washington, D.C. demonstration before a violent mob stormed the U.S. Capitol…
But the American public may never know the full extent of the Trump campaign’s payments to organizers involved in the protests. That’s because the campaign used an opaque payment scheme that concealed details of hundreds of millions of dollars in spending by routing payments through shell companies where the ultimate payee is hidden.
By Dave Levinthal
Last March, an unauthorized “external actor” used the Biden campaign bank card to spend $6,000 at a Philadelphia interior-design company, according to federal disclosures reviewed by Insider. Then, in June, “fraudulent activity” caused a nearly $65,000 Biden campaign payment to be “misdirected” from a vendor to an “unknown account” at Bank of America.
The criminal incidents that befell the campaign of the future president of the United States are among several dozen examples of bad actors plundering political committees during the most recent election cycle. In all, federal political committees together reported at least $2.7 million worth of initial losses, Insider’s analysis of campaign income and spending records shows…
Together, the thefts underscore an open secret in politics: that some political committees’ operations are far from secure, potentially exposing them to other kinds of trouble beyond the financial, such as meddling by foreign actors or the hacking of sensitive information.
The States
SDPB: Nonprofit Privacy Legislation Could Hide Political Donors, Watchdog Group Says
By Seth Tupper
A watchdog group says legislation presented by Gov. Kristi Noem as a nonprofit protection effort could hide political contributions.
Noem sent her lawyer, Mark Miller, to testify on the bill during legislative committee hearings.
“What is this bill about? It’s really about the American way of life,” Miller said…Miller said privacy is a fundamentally democratic principle. He gave the example of Thomas Paine, who anonymously inspired American revolutionaries with his pamphlet called “Common Sense,” and several Founding Fathers, who wrote the Federalist Papers under the pen name “Publius.”
“They wanted their privacy, and even then, at the nation’s founding, they were entitled to it,” Miller said.
Miller said that founding ideal is now under attack. When people contribute to a nonprofit, including those with a political agenda, they can be exposed. Activists share documents and information about donors they disagree with, and that can result in harassment (it’s sometimes called “doxing”).
Miller said House Bill 1079 guards against that. The bill prohibits state officials from ordering nonprofits and charitable trusts to disclose anything more than state and federal laws require…
The bill’s prospects are good in the Republican-dominated Legislature. The House of Representatives has already approved it.Related legislation endorsed by the Noem administration, Senate Bill 103, says anybody who supports a nonprofit has a right to privacy. That bill is just beginning its legislative journey.
Associated Press: Police ‘unlawful assembly’ powers come under fire in Oregon
By Andrew Selsky
As racial injustice protesters swarmed the streets of Portland, Oregon, day after day last year, a voice would come over a police loudspeaker, announcing they had assembled unlawfully and would be arrested or face tear gas and rubber bullets if they didn’t disperse.
Law enforcement agencies can respond that way under an arcane Oregon law that critics say allows them to violate people’s First Amendment rights to free speech and peaceful assembly. Now, state Rep. Janelle Bynum, a Black Democratic lawmaker, is seeking to repeal the law in this predominantly white state…
Supporters of the measure say it shouldn’t be up to police to decide if a protest has the potential to become violent. The law also gives officers the power to arrest people before there’s a crime. The American Civil Liberties Union of Oregon says that because unlawful assembly is not a crime in Oregon, the vast majority of protesters who were arrested were charged with interfering with a peace officer…
The Oregon law is still unconstitutional because it gives police outsized power to silence dissent, said Kelly Simon, the ACLU of Oregon’s interim legal director.
Atlanta Journal-Constitution: Bill aims to strengthen Georgia ethics laws after Oxendine, Balfour cases
By James Salzer
Legislation filed Monday would give state investigators more tools to make ethics cases and makes clear that some uses for leftover campaign money are illegal.
House Bill 333, sponsored by Judiciary Chairman Chuck Efstration, R-Dacula, addresses issues raised by two ongoing, high-profile cases that have made headlines the past few years…
Efstration said he has Republican and Democratic support for the measure. It was co-sponsored by Rep. Scott Holcomb, D-Atlanta…
Ethics commission staffers tried to get some of the provisions in the measure through the General Assembly last session. The legislation stalled, however, when Republicans tried to tack on a provision legalizing “leadership funds,” which allow chamber leaders to raise unlimited amounts of money, usually from lobbyists and business interests they represent.
