We’re Hiring!

Senior Attorneys – Institute for Free Speech – Washington, DC or Virtual Office

The Institute for Free Speech is hiring three attorneys, including at least one Senior Attorney with at least 10 years of experience and two other experienced attorneys with at least four to six years of experience in an expansion of its litigation and legal advocacy capabilities.

This is a rare opportunity to work with a growing team to litigate a long-term legal strategy directed toward the protection of Constitutional rights. You would work to secure legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, threaten citizens’ privacy if they speak or join groups, and impose heavy burdens on organized political activity.

A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country. In addition to litigation or advocacy-related travel, a virtual candidate would be required to travel for quarterly week-long visits to IFS’s headquarters after the pandemic’s impact has receded.

[You can learn more about this role and apply for the position here.]

New from the Institute for Free Speech

Misleading H.R. 1 Poll Manufactures Support for Limiting Speech

By Luke Wachob

Once again, House and Senate Democrats have made it their top legislative priority to limit First Amendment rights, expose Americans to harassment and intimidation for their beliefs, crack down on political speech on the internet, pump millions of tax dollars into politicians’ campaigns, and transform the enforcement of federal campaign finance law into a partisan endeavor. The bill’s cheerleaders, meanwhile, have made it their top priority to lie to the public about the proposal.

The legislation in question is H.R. 1 and S. 1, the so-called “For the People Act.” We’ve said before these bills would be more accurately named the “For the Politicians Act” because they limit the people’s freedom to speak and associate with others by imposing enormous burdens on political advocacy and campaigning.

Yet a new poll from the progressive groups Data for Progress and Equal Citizens reports that 67% of national likely voters support the legislation, including majorities among both Democrats (77%) and Republicans (56%). How can this be?
Simple. The numbers are bullshit.

H.R. 1 and S. 1 Resource Guide (2021)

H.R. 1 and S. 1, better known as the “For the Politicians Act,” would impose sweeping new restrictions on speech about campaigns and public affairs. These radical bills would greatly harm the ability of Americans to freely speak, publish, and organize into groups to advocate for better government and the causes of their choice…

The provisions in H.R. 1 and S. 1 are so complex and open to so many possible interpretations that the Institute’s views may well understate the chill this legislation would impose on speech. To this end, the Institute for Free Speech has published numerous resources that highlight the many First Amendment problems in both bills.

Unless otherwise noted, the resources below refer to the version of H.R. 1 introduced by the U.S. House of Representatives in 2019. As many provisions in both 2021 bills are identical to their 2019 counterpart, the overarching arguments remain relevant. However, in the interest of accuracy and public awareness, the Institute for Free Speech is working to update these resources. All updated – and new – resources on H.R. 1 and S. 1 will appear below. This page will be updated on a regular basis.

Supreme Court

USA Today: Freedom of association is under attack. Will the Supreme Court protect it?

By Jennifer C. Braceras

Millions of Americans today are afraid to express their opinions on matters of public importance. A summer poll by the Cato Institute found that 62% of Americans were afraid to reveal their opinions; nearly one-third (32%) of employed Americans feared that they would lose their job or miss out on career opportunities if their views became known. 

Out of fear of harassment or social banishment, many donors to certain causes prefer to make their gifts anonymously. Unfortunately, some politicians today want to require charities to turn over their donor lists to the state. Democratic politicians in California, New York and New Jersey have been particularly aggressive in their attempts to force non-profits to reveal the names and addresses of their top donors – in some cases for publication on the internet.

Although proponents of donor disclosure laws claim they are needed to combat fraud, state officials already possess the power to subpoena donor information in conjunction with specific investigations, making bulk collection unnecessary.

Politicians may be seeking donor information in order to expose those who oppose their pet causes or to create informal enemy lists. And in the internet era, can there be any doubt that even well-intentioned donor disclosure laws will be compromised by hackers, leakers, or sheer incompetence?

This term, the Supreme Court has a chance to clarify that such laws violate the First Amendment right of free association.

PPLI: The Curious History of Schedule B

On January 8, 2021, the Supreme Court of the United States decided to review two cases challenging the California Attorney General’s requirement that any charity seeking to operate in California file an unredacted copy of Schedule B, a simple tax form listing major donors to the organization. The cases, Americans for Prosperity Foundation v. Becerra, No. 19-251, and Thomas More Law Center v. Becerra, No. 19-255, were consolidated and oral arguments may be held this spring or fall. Recently, some articles have appeared that suggest that these cases will dramatically affect campaign finance laws, but that’s a stretch.

Congress

The Hill: Politicians once again prioritize silencing those who disagree with them

By Ted Ellis

The latest version of the improperly named “For the People Act” purports to protect democracy and enhance transparency. It would do the opposite: protect incumbent politicians and suppress speech.
Our country benefits when we have a diversity of voices participating in public life. Each American should be able to amplify their individual voice alongside like-minded fellow citizens. H.R. 1 would make this harder to do by, among other things:

-Regulating more ways people can communicate about issues, forcing groups that engage in nonpartisan issue advocacy to, often falsely, declare that they support or oppose any candidate whose name appears in their materials.

-Compelling nonprofits that then make “campaign-related disbursements” of the above kind to disclose the names and addresses of donors who donate above a certain threshold, subjecting them to potential retaliation from those who would harass them…

-Requiring nonprofits to disclose their own donors, even if those donors would normally have been kept anonymous, if an organization they give money to spends dollars on the redefined “campaign-related disbursements” above a certain amount. This would make it much harder for burgeoning social entrepreneurs to find the funding and partnerships to grow. It also falsely implies that those donors funded a particular ad or issue…

Free Speech

Fox News: Rupert Murdoch condemns ‘awful woke orthodoxy’ attempting to suppress free speech

By Brian Flood

Fox Corporation co-chairman and News Corp executive chairman Rupert Murdoch condemned cancel culture as “awful woke orthodoxy” suppressing free speech around the globe.

Murdoch made the remarks when accepting a lifetime achievement award from the Australia Day Foundation. He began by noting that his career is far from over, before slamming a “wave of censorship” plaguing the media industry…

“For those of us in media, there is a real challenge to confront a wave of censorship that seeks to silence conversation, to stifle debate and ultimately stop individuals and societies from realizing their potential,” Murdoch continued.

“This rigidly enforced conformity, aided and abetted by so-called social media, is a straitjacket on sensibility. Too many people have fought too hard, in too many places, for freedom of speech to be suppressed by this awful woke orthodoxy,” he said.

PACs

Axios: How cutting GOP corporate cash could backfire

By Lachlan Markay

Companies pulling back on political donations, particularly to members of Congress who voted against certifying President Biden’s election win, could inadvertently push Republicans to embrace their party’s rightward fringe.

Scores of corporate PACs have paused, scaled back or entirely abandoned their political giving programs. While designed to distance those companies from events that coincided with this month’s deadly siege on the U.S. Capitol, research suggests the moves could actually empower the far-right.

• A 2016 study by Brigham Young University political scientist Michael Barber, which examined fundraising data and voting patterns in the 50 state legislatures, found that reductions in corporate PAC contributions resulted in more political polarization.
• Limits on donations from corporations, which are largely non-ideological access-seekers, pushed candidates to rely more heavily on contributions from individual donors more likely to back stridently ideological candidates.
• “It’s not as though they’re going to stop fundraising,” Barber said of lawmakers who voted against certification. “They’re just going to turn to other sources of money, and they’re going to turn to individual contributors who are motivated by that exact type of behavior.”

Lobbying

Forbes: How And Why Corporate Lobbying Will Continue To Matter During The Biden Administration

By Edward Segal

As the new Congress and administration settle in, corporate advocates have been ramping up to educate and convince lawmakers, regulators, and other government officials to help ensure that they see things their way…

The adage that, “If you are not at the table, you will be on the menu,” certainly applies to the world of lobbying. It is as important for companies and organizations to protect their legislative and regulatory victories as it is to seek new benefits and advantages from Congress, federal agencies, and 1600 Pennsylvania Avenue.

Paul Geller of Dialect Strategies said, “companies should absolutely maintain their lobbying activities during the Biden administration. The reason is simple. Many elected members of Congress appreciate the perspective of their constituents and do not have an intricate understanding of any issue. They are generalists and oftentimes rely on lobbyists for educating on the issues.

Online Speech Platforms

Politico: The ‘rug has been pulled out’: Campaigns flop amid Facebook, Google ad bans

By Elena Schneider

Facebook and Google’s on-again, off-again bans on political ads are hitting campaigns during a crucial fundraising window, cutting off a key pipeline to potential supporters and disrupting early planning for the next round of elections, from state and local races this year to looming midterm elections in 2022.

The self-imposed bans – put in place, lifted and then reimposed in some form by both companies since the week before Election Day 2020 – have essentially pressed pause on a political industry that spent $3.2 billion advertising on Google and Facebook in the last two and a half years. Some digital political firms are freezing hiring due to the uncertainty surrounding their biggest ad platforms. And the bans have interfered with organizing and early fundraising efforts piggybacking off a new administration and the start of a new election cycle.

Political campaigns have been moving more and more online every year, culminating with the leap into pandemic-era remote campaigning in 2020. Now, the main tools for digital advertising are still on ice for the political world, months after the first disruptions were put in place…

Candidates gearing up for 2021 elections, like the contenders for governor or state legislature in Virginia and New Jersey, are hardest hit by the ad bans right now. Many are just kicking off their organizing and fundraising in earnest. First-time candidates are feeling the pain most acutely, especially those facing entrenched or better-known opponents.

New York Times: Why Is Big Tech Policing Free Speech? Because the Government Isn’t

By Emily Bazelon

In the days after Jan. 6, [social media platforms] swiftly cracked down on whole channels and accounts associated with the violence [at the Capitol]. Reddit removed the r/DonaldTrump subreddit. YouTube tightened its policy on posting videos that called the outcome of the election into doubt. TikTok took down posts with hashtags like #stormthecapitol. Facebook indefinitely suspended Trump’s account, and Twitter – which, like Facebook, had spent years making some exceptions to its rules for the president – took his account away permanently.

Parler, true to its stated principles, did none of this. But it had a weak point: It was dependent on other private companies to operate. In the days after the Capitol assault, Apple and Google removed Parler from their app stores…

“We couldn’t beat you in the war of ideas and discourse, so we’re pulling your mic” – that’s how Archon Fung, a professor at Harvard’s Kennedy School of Government, put it, in expressing ambivalence about the moves. It seemed curiously easier to take on Trump and his allies in the wake of Democrats’ victories in the Senate runoffs in Georgia, giving them control of both chambers of Congress along with the White House. (Press officers for Twitter and Facebook said no election outcome influenced the companies’ decision.) And in setting an example that might be applied to the speech of the other groups – foreign dissidents, sex-worker activists, Black Lives Matter organizers – the deplatforming takes on an ominous cast.

The States

Daily Journal: New Albany legislator proposes flag burning bill despite Supreme Court ruling

By Caleb Bedillion

A New Albany legislator wants to criminalize flag burning in defiance of several U.S. Supreme Court rulings.

Sen. Kathy Chism, R-New Albany, has introduced a bill that would ban any burning of the U.S. flag other than for the disposal of a worn or soiled flag.

In a statement to the Daily Journal, Chism said she hopes the bill will ultimately lead the U.S. Supreme Court to overturn standing precedent that laws against flag burning are unconstitutional.