The Courts

Houston Chronicle: Cy-Fair ISD: District dismissed from Pledge of Allegiance case

By Massarah Mikati and Gabrielle Banks

Cypress-Fairbanks ISD refuted on Saturday the characterization that it had settled a lawsuit involving a student expelled after she sat during the Pledge of Allegiance.

District spokeswoman Leslie Francis said the district was dismissed from the case filed by India Landry, an African-American senior forced to leave Windfern High School last fall. Landry alleged that her expulsion was racially motivated and violated her constitutional rights.

A stipulation and joint motion for order for dismissal with prejudice was filed in Landry v. Cypress Fairbanks ISD and the State of Texas case on Wednesday in the U.S. District Court for the Southern District of Texas.

The parties “agree to and jointly move for entry of an order dismissing this case with prejudice. Plaintiffs and Defendants agree that Plaintiffs’ challenge to the constitutionality of Section 25.082 the Texas Education Code remains, but all other claims against all other defendants will be dismissed,” according to the court document…

A statement issued Friday by lawyer Randall Kallinen said: “A confidential settlement was reached, however, embattled Texas Attorney General Ken Paxton remains as counsel for defendant State of Texas in an effort to retain the statute in the face of Free Speech arguments and law.” …

The civil rights lawsuit is built around one of earliest civil rights rulings, the 1943 U.S. Supreme Court decision in West Virginia State Board of Education v. Barnette, which says that public school students have no obligation to salute the flag or say the Pledge of Allegiance.

Landry told reporters in July that her opposition to the pledge was political, inspired by NFL players kneeling during the National Anthem to draw attention to a surge of police violence against African-Americans.

The Oregonian: Federal judge finds state law governing who is an ‘engineer’ violates free speech

By Maxine Bernstein

A federal magistrate judge has declared that certain parts of state law and its administrative rules that govern engineering practices in Oregon violate the First Amendment.

U.S. Magistrate Judge Stacie F. Beckerman made the ruling Friday in a case filed by a Beaverton man, Mats Järlström , against the Oregon Board of Examiners for Engineering and Land Surveying.

Beckerman, in the 25-page written ruling, declared that Järlström may study and, communicate publicly or privately about his theories relating to traffic lights, as long as his remarks occur outside the context of any employment or contractual relationship with a governmental or other group that regulates traffic light-timing.

Jarlstrom also may describe himself publicly and privately, using the word “engineer,” the judge ordered…

The state’s limits that bar anyone who is not registered as a professional engineer in Oregon from describing themselves as an engineer violate the First Amendment, the judge ruled.

“First, the statutes prohibit truthfully describing oneself as an ‘engineer,’ in any context,” the judge wrote. “This restriction clearly controls and suppresses protected speech, and enforcement of the statute against protected speech is not a hypothetical threat. The record before this Court demonstrates that the Board has repeatedly targeted individuals for using the title ‘engineer’ in non-commercial contexts, including core political speech such as campaigning for public office and advocacy against a local ballot initiative.”

Congress

New York Times: Cleaning the Congressional Stables

By Editorial Board

While the details are still being hashed out, H.R. 1 will attempt to: establish nationwide automatic voter registration; promote online voter registration; end partisan gerrymandering; expand conflict-of-interest laws; increase oversight of lobbyists; require the disclosure of presidential tax returns; strengthen disclosure of campaign donations; set up a system of small-donor matching funds for congressional candidates; and revive the moribund matching-fund system for presidential campaigns…

Representative John Sarbanes of Maryland, the head of the caucus’s Democracy Reform Task Force and the father of H.R. 1, said that House passage of such a package would be “the Big Bang moment for creating a new universe of empowerment.”

Cheesy metaphors aside, central to realizing any new universe is one of the package’s boldest measures: a voluntary matching-fund system to multiply the power of small donors. As this system is currently proposed, candidates would receive public matching funds at a six-to-one ratio for donations of up to $200 in exchange for abiding by a lower dollar limit on individual contributions – say, $1,000 rather than the current limit of $2,700…

While H.R. 1 is near the top of the to-do list of the incoming House speaker, Nancy Pelosi, the package will take a while to make its way to a floor vote. At least five committees have oversight of pieces of it, and even among Democrats there are competing visions for various provisions that must be worked through. Democratic House leaders are hoping to get a bill passed early in the year. And then it is likely to go nowhere fast.

Supreme Court

National Review: ‘Free Speech’ Means Just That

By John Yoo and James C. Phillips

Conservatives have arguably pushed an erroneous free-speech argument as to why limits on campaign contributions, such as those upheld in Buckley v. Valeo, violate the First Amendment. Adopted in Citizens United v. FEC, conservatives on the Court reasoned that financial contributions facilitate candidate speech; thus, limiting donations unconstitutionally limits speech…

It would be different if a law banned spending money on speech directly by individuals or entities. Imagine a law making it illegal to buy billboard space or take out an ad in a newspaper. Such a law prohibits spending money to speak in a forum that one has to first pay to use. This would violate the free-speech clause…

Congress is not authorized to regulate campaigns, but the “times, places, and manner of holding elections.” As research on the framing suggests, regulating the manner of holding elections only included the actual running of the election, such as whether to have secret or voice voting, not the campaign leading up to the election. Citizens United may have reached the right result but taken the wrong path by neglecting to demand constitutional authority for the federal campaign laws.

What is more, there may be a free-press problem with the statute struck down in Citizens United. Today’s television, radio, and Internet ads are the equivalent of the pamphlets and handbills of 18th-century politics. It’s hard to believe that the founding generation would have understood the Constitution to tolerate a government ban on private ownership of printing presses, or the prevention of the use of money to buy them. Citizens United makes more sense under the original understanding of the First Amendment as a protection of the right to a free press than as a right to make unlimited campaign contributions.

Online Speech Platforms 

New York Times: Inside Facebook’s Secret Rulebook for Global Political Speech

By Max Fisher

How can Facebook monitor billions of posts per day in over 100 languages, all without disturbing the endless expansion that is core to its business? The company’s solution: a network of workers using a maze of PowerPoint slides spelling out what’s forbidden.

Every other Tuesday morning, several dozen Facebook employees gather over breakfast to come up with the rules, hashing out what the site’s two billion users should be allowed to say. The guidelines that emerge from these meetings are sent out to 7,500-plus moderators around the world. (After publication of this article, Facebook said it had increased that number to around 15,000.)

The closely held rules are extensive, and they make the company a far more powerful arbiter of global speech than has been publicly recognized or acknowledged by the company itself, The New York Times has found.

The Times was provided with more than 1,400 pages from the rulebooks by an employee who said he feared that the company was exercising too much power, with too little oversight – and making too many mistakes.

An examination of the files revealed numerous gaps, biases and outright errors. As Facebook employees grope for the right answers, they have allowed extremist language to flourish in some countries while censoring mainstream speech in others.

Privacy

Wiley Rein Election Law News: The First Amendment Right to Political Privacy Chapter 2 – The New Deal Witch Hunt

By Lee E. Goodman

The opening chapter in this series revealed the seed of First Amendment protection for anonymous political speech and association in the 1940s Red Scare cases of Barsky v. United States and the “Hollywood Ten” in the U.S. Court of Appeals for the District of Columbia Circuit. In Barsky, Judge E. Barrett Prettyman authored the 2-1 majority opinion elevating Congress’ right to investigate American communists over any vague “private right” to political belief and association. That opinion was met by Judge Edgerton’s dissent, an early articulation of the First Amendment right to political privacy. In 1950, the Supreme Court of the United States chose not to wade into the debate and denied review. Although the Edgerton Dissent did not protect the Hollywood Ten, the legal concept reverberated as a powerful jurisprudential idea. And the Edgerton Dissent would impress judges in future cases – including Judge E. Barrett Prettyman and a number of Supreme Court Justices.

FEC

Bloomberg Government: Foreign Money Threat High Priority for Incoming FEC Chairwoman

By Ken Doyle

The threat of foreign money influencing U.S. elections and the need for increased disclosure of campaign funding will be top priorities for Ellen Weintraub, the incoming chairwoman of the Federal Election Commission, next year.

Weintraub said she plans to initiate “outward-facing public events” to draw attention to campaign finance problems and possible solutions.

Such events could be important, she said, as the Democratic-controlled House is poised to take up campaign finance proposals as a top priority when the new Congress convenes in January…

Weintraub expressed frustration at her agency’s inaction on measures to curb foreign money from influencing elections in an interview Dec. 9 during a national ethics conference in Philadelphia. She appeared on a panel titled “More Than Meddling” to discuss the threat of foreign interference in elections, highlighted by Russian efforts to intervene in the 2016 presidential race.

“I keep throwing out ideas, hoping one will stick,” she said during the conference, sponsored by the Council on Governmental Ethics Laws (COGEL)…

One area where progress could be made, Weintraub said, is increased disclosure regarding online political ads.

Center for Public Integrity: By the Numbers: A 2018 Money-In-Politics Index

By Ashley Balcerzak, Sarah Kleiner, Carrie Levine, and Dave Levinthal

2011: The most recent year a U.S. House committee conducted an oversight hearing on the Federal Election Commission, which enforces and regulates campaign finance laws. Democratic Reps. Zoe Lofgren of California and Jamie Raskin of Maryland, both on the Committee on House Administration, told the Center for Public Integrity the committee would hold such a hearing in 2019 and “shine a spotlight on dysfunction” at the agency.

4: Number of Federal Election Commissioners whose terms have expired but continue to serve in “holdover status,” including 2019 Chairwoman Ellen Weintraub, D, and Vice Chairman Matthew Petersen, R.

2: Number of vacancies on the six-member FEC. President Donald Trump alone may nominate commissioners.

0: Number of people Trump has successfully appointed to the FEC. Trump’s lone nominee, Texas attorney Trey Trainor, who aided Trump’s 2016 presidential campaign, was first nominated in September 2017 and has yet to even receive a U.S. Senate confirmation hearing.

Candidates and Campaigns

Washington Post:  Potential 2020 candidates confront the need for campaign cash, and fewer sources of it

By Matt Viser

Most of the candidates will probably run on a package of proposals to restrict money in politics and would support legislation to help overturn Citizens United v. Federal Election Commission, the 2010 Supreme Court decision that allowed unlimited spending by outside campaigns.

But several are going beyond that, responding to demands that they spurn outside assistance from independent groups or cease accepting donations from employees of specific companies, among other strictures. The fiercest battle so far has been over whether candidates should accept money from those employed in the oil and gas industry – one seen as acting contrary to the party’s position on climate change.

Sen. Elizabeth Warren (D-Mass.) is poised to make self-imposed limits a key part of a campaign, pledging as she did in her recent statewide race to refuse contributions from corporate PACs or from registered federal lobbyists. She also plans to avoid backing from a super PAC – and would be unlikely to endorse any candidate who relies on a super PAC…

Sen. Cory Booker (D-N.J.), on the other hand, has significant ties to Wall Street and Silicon Valley and in past campaigns has raised the bulk of his money from major donors. A super PAC already has formed to back him…

The pledge not to take corporate PAC money – also made by Booker and Gillibrand earlier in the year – has as much a symbolic meaning as a financial one. Corporate PAC donations have not played a significant role in the financing of campaigns, and candidates who won’t take the PAC money from corporate interests often still take individual donations from corporate executives or lobbyists.

USA Today: Trump illegally asked Russia to help him win in 2016. He shouldn’t get away with it.

By Fred Wertheimer and Norman Eisen

Prosecutors triggered a national firestorm last month when they asserted that President Donald Trump conspired with his ex-fixer, Michael Cohen, to commit campaign finance crimes involving hush money payments to two women. But the discussion has so far overlooked another Trump campaign finance offense – one that is even easier to prove because it occurred in plain sight.

On July 27, 2016, Trump called on Russia to find presidential Democratic nominee Hillary Clinton’s missing emails. “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing,” Trump proclaimed. He added, “I think you will probably be rewarded mightily by our press.” Federal campaign finance law prohibits any person from soliciting campaign contributions, defined as anything of value to be given to influence an election, from a foreign national, including a foreign government.

In asking Russia to find Clinton’s emails, presidential candidate Trump violated this statutory prohibition on seeking help from a foreign country to influence an election. Trump in essence called on a foreign adversary to locate and release something that was of great value to him and his campaign.

The law provides that such a solicitation is illegal regardless of whether the person soliciting the help receives anything in return. The risks of foreign intrusion in our elections are so great that even asking for help from foreigners without consummation is a crime. But in this case, on or around the same day that Trump solicited help from Russia, Russia made its first attempt to break into servers that Hillary Clinton’s personal office used. That event is laid out in detail in an indictment of Russian hackers obtained by special counsel Robert Mueller.

Washington Post: Did your favorite company donate to Democratic or Republican campaigns? This startup will tell you.

By Rachel Siegel

The DC-based startup, Progressive Shopper, has set out to mine political spending from hundreds of major brands. The site shows shoppers what percentage of a company’s political spending went to Democrats and Republicans in the 2018 and 2016 election cycles. If a company is deemed too far in the red, Progressive Shopper offers a list of competitors where you might also find that sweater or sofa, but from a more left-leaning brand…

Political donations made by corporations and their employees are all publicly available through the Federal Election Commission. But those records are kept in dense databases that aren’t very user friendly. And the data aren’t always clean. For example, Chappell said that a Delta Air Lines employee who makes a campaign donation could cite his or her employer as “Delta,” “Delta Air Lines” or some other option altogether. It takes extra legwork to get an accurate picture of how a company’s employees square politically, and if their spending matches that of the company…

It’s nothing new for companies to make campaign donations. But increasingly, major brands can’t assume that their political spending won’t come to the surface, said Anthony Johndrow, a corporate reputation adviser. Rather than only react to controversies, companies have to work under the assumption that consumers are always watching. Johndrow called the Hyde-Smith donations “the wake-up call.”

In years past, companies “assume they can get away with the status quo,” Johndrow said, “which is to spread money around where you feel the need to politically, and that’s off most peoples’ radar.”

“That was the old world we lived in,” he said. “And transparency is the new world.”

The States

Reason: If Spreading Fake News on Facebook Is a Crime in Ohio, They Will Need More Jails

By Jacob Sullum

Social media are teeming with people who like to publicly worry about imaginary risks. That’s not a good thing. But is it a crime? According to an Ohio jury and judge, it is, at least when someone’s worries are echoed by others, resulting in irritating phone calls and emails to government officials.

Last week Barberton Municipal Judge David Fish sentenced Erin Croghan to three days in jail, a month of house arrest, and a year without social media for “inducing panic” by using Facebook to repeat an unfounded rumor about a pellet gun found at a local school. It could have been worse. Inducing panic is a first-degree misdemeanor in Ohio, meaning it is punishable by a maximum fine of $1,000 and up to six months in jail. Then again, some might question whether saying dumb stuff on Facebook should be a crime at all, given that the First Amendment is supposed to protect even ill-informed and misleading commentary…

This precedent might make people think twice before passing along unsubstantiated rumors, but it also could deter people from questioning the government’s position on any number of issues where the facts are unclear. Could strongly worded Facebook posts about a controversial police shooting be construed as “inducing panic” by convincing young black men that cops pose a deadly danger to them? What about tweets alleging that the government’s preparations for an impending natural disaster are woefully inadequate?

Croghan’s sentence is particularly troubling because it includes a prior restraint on her speech, banning her from social media during her year of probation. 

MLive.com: Bill shielding nonprofit donors vetoed by Snyder

By Emily Lawler

Gov. Rick Snyder on Friday vetoed a bill that would have prohibited state agencies like the Attorney General or Secretary of State from requiring nonprofits to disclose their donors.

Senate Bill 1176 would have prohibited a public agency from requiring disclosures from 501(c) nonprofits, which some lawmakers use for things like charitable giving and community events. Nonprofits are not currently required to disclose donors, but the bill would prevent state agencies like the Attorney General or Secretary of State’s office from requiring that in the future.

The bill would have also prevented public agencies from releasing any information about a nonprofit without permission from the organization’s members and donors.

Snyder said in his veto letter he understood the goal of the legislation was to prevent the creation of “target lists” of donors who support nonprofits with controversial viewpoints. However, he said, the legislation was “a solution in search of a problem which does not exist in Michigan.”

Washington Post: Disinformation campaign targeting Roy Moore’s Senate bid may have violated law, Alabama attorney general says

By Craig Timberg and Tony Romm

Alabama Attorney General Steve Marshall said Thursday that his office is exploring whether disinformation tactics deployed against Republican Roy Moore during last year’s special election violated state campaign laws and said he was worried that the operation could have affected the closely fought Senate race.

“The information is concerning,” Marshall, a Republican, said in a phone interview. “The impact it had on the election is something that’s significant for us to explore, and we’ll go from there.”

Moore lost the election to Democrat Doug Jones.

Marshall, who said he learned of the disinformation campaign called Project Birmingham through news reports over the past two weeks, stopped short of announcing a formal investigation but said his office was beginning to gather information about the effort.

“We’re planning to explore the issue further,” Marshall said.

Jones on Thursday also reiterated his support for a federal investigation into the matter, days after the Alabama Democratic senator said that the Federal Election Commission and the Department of Justice should study the effects of disinformation on the race. Jones added he had directed his team “to prepare a formal request to file with the appropriate federal authorities who have jurisdiction.”

Slate: Janus Unleashed

By Mark Joseph Stern

[T]he Washington Supreme Court agreed to hear a challenge to Seattle’s “democracy vouchers,” an innovative public financing scheme that’s already spreading to other cities…

The purpose of the program is to democratize campaign spending without running afoul of the First Amendment…

In June 2017, the libertarian Pacific Legal Foundation filed a lawsuit in state court to block the measure, asserting that it infringes upon the First Amendment. A superior court dismissed the suit in November 2017, but PLF appealed. In an unusual move, the appeals court declined to rule, instead sending the case directly to the Washington Supreme Court, declaring that it presented “a fundamental and urgent issue of broad public import” requiring swift resolution. The justices agreed and took the case, Elster v. City of Seattle; they will hear arguments in the new year.

The Washington Supreme Court’s apparent desire to decide Elster ASAP should be troubling for reformers. As one of the PLF attorneys on the case, Ethan Blevins, has noted, it seems likely that the justices are concerned that the U.S. Supreme Court’s Janus decision could render the vouchers constitutionally suspect. In Janus, the court ruled that states may not compel non-union members in the public sector to help finance collective bargaining. These mandatory dues, Justice Samuel Alito wrote, compel nonmembers “to subsidize private speech on matters of substantial public concern” in violation of the First Amendment.

PLF asserts that Seattle’s Democracy Voucher Program similarly “compels property owners to bankroll speech they do not wish to support.”

American Prospect: A New Playing Field for Democracy Reform

By Miles Rapoport and Cecily Hines

So, it looks like Fixing Our Democracy is officially Cool. Nancy Pelosi and the House Democrats have announced that their first bill out of the box-H.R. 1-will be an omnibus democracy reform bill including voting rights, partisan gerrymandering, campaign-finance reform, and ethics reform. For many people who have worked on these issues for years, this is a significant moment. Of course, there is the Senate, and the president, so no one thinks H.R. 1 will become law in anything close to its original form. But the message is major: that putting democracy reform front and center is not just “good government”; it is good politics.

But if you want to see where democracy reform was Really Cool in 2018, let’s take a look at what happened in the states, and how the stage has been set for even further reforms…

[T]here are some obvious states with new dynamics where real fights will take place and real victories can be won. Here are just a few examples…