In the News
Federalist: Court Rebuffs Attempt To Make Politically Engaged Missourian Register As A Lobbyist
By Zac Morgan
Nobody likes lobbyists, except maybe their families…
There’s a reason candidates don’t brag about the number of lobbyists who gave them money or tout the endorsements of lobbyists when advocating for specific legislation. Perhaps that distaste is why a man named Ron Calzone was so surprised when the state of Missouri ordered him to register as a lobbyist.
Ron doesn’t look or act the part of a “lobbyist.” A rancher from Dixon, Missouri, Ron is a devout believer in limited government. He often takes up the post of a citizen’s “watchmen on the walls” in the capitol at Jefferson City. He talks to legislators, volunteers to testify in committees, and has even won pro se lawsuits against the state.
This behavior upset some folks. Specifically, some powerful legislators who didn’t care for Ron. To punish him for speaking his mind, they engineered an ethics complaint that accused Ron of flouting lobbyist registration and reporting laws. The government eventually told Ron he had to pay a $1,000 fine and submit to the state’s arcane lobbyist registration regime if he wished to continue his civic engagement…
That’s where my organization, the Institute for Free Speech, along with another pro bono constitutional shop, the Freedom Center of Missouri, came in…
For the last four years, before the state’s ethics commission and in state and federal court, we consistently argued that Ron could not be forced to bear the burdens of paying a fee and filing reports as a “lobbyist” in order to talk to lawmakers…
It took a while for the Constitution to be vindicated. Ron first lost his case in both federal district court and the court of appeals. But after a three-judge panel of the Eighth Circuit sided with the state by a 2-1 margin over a vigorous dissent, the entire court-all 11 judges-took the unusual step of rehearing the case.
Almost five years to the day after this all started, the full Eighth Circuit Court of Appeals handed down its ruling. The court declared that because “Calzone’s political activities do not involve the transfer of money or anything of value, either to him or to anyone else,” Missouri’s efforts to regulate Ron like a professional lobbyist were unconstitutional.
Arkansas Democrat Gazette: Injunction upheld in campaign case; panel says Arkansas law likely unconstitutional
By Linda Satter
A panel of federal appellate judges agreed Monday that a campaign contribution blackout law that has been in place in Arkansas since 1996 is probably unconstitutional.
The panel upheld a preliminary injunction that U.S. District Judge James Moody Jr. imposed June 17 to prohibit Arkansas Code Annotated 7-6-203(e) from being enforced while its constitutionality is determined.
The law, part of a package of campaign-finance measures approved by voters in 1995, bars candidates for state offices from accepting campaign contributions more than two years before an election…
The Institute for Free Speech, an Alexandria, Va.-based [nonpartisan] organization, filed a friend-of-the-court brief with the 8th Circuit in September, siding with Jones.
The Courts
Bloomberg Law: Arkansas’ Campaign Contribution ‘Blackout Period’ Halted
By Mary Anne Pazanowski
Arkansas can’t enforce a law prohibiting “a longtime political activist” from donating to political campaigns until two years before election day, because the law likely violates her First Amendment rights, the Eighth Circuit said Monday.
Potential donor Peggy Jones is likely to win her case challenging the law, as Arkansas didn’t present any evidence supporting the state’s rationale for it, namely, that the “blackout period” prevents corruption or its appearance, the U.S. Court of Appeals for the Eighth Circuit said. The court affirmed a trial court order that halted the provision while the lawsuit proceeds.
Jones wants to donate money to candidates running for state office in 2022. But, if she does so, she could be prosecuted under a law that prohibits candidates from accepting contributions more than two years before an election.
She sued various county and state officials to prevent them from enforcing the law. The First Amendment protects political expression and political association, so “any attempt to restrict political contributions must withstand exacting scrutiny,” the court said…
The case is Jones v. Jegley, 8th Cir., No. 19-2260, 1/27/20.
New York Times: Michigan Ballot Law Changes Struck Down by a 2nd Court
By Associated Press
Another Michigan court has vacated controversial changes to the state’s ballot drive law, declaring that a geographic limitation on collecting petitions unconstitutionally takes power out of the hands of voters.
The state appeals court, in a 2-1 decision Monday, affirmed a lower judge. It struck down the 15% cap on signatures that can be used from any one of Michigan’s 14 congressional districts and nullified a new requirement that each petition indicate whether a circulator is paid or a volunteer.
The appellate judges went further than the Court of Claims and also invalidated a requirement that paid gatherers file an affidavit with the secretary of state, saying “it can be seen as imposing a significant burden on the right of political speech protected by the First Amendment.” …
“Setting a 15% geographic limitation serves to take power out of the hands of the people and requires, in essence, a pre-vote of agreement in a certain number of congressional districts as to whether or not a matter should be put to a general vote,” [Judge Deborah Servitto] wrote. “This places the cart before the horse and unduly burdens the initiative and petition process.”
The House and Senate could appeal to the Michigan Supreme Court.
The lawsuit was filed in May by the League of Women Voters of Michigan, a ballot committee and voters who said lawmakers could not amend the constitution with legislation and contended the 15% requirement would dramatically increase the cost and difficulty of mounting successful citizen petition campaigns.
The law is backed by business groups and GOP legislators who have said it adds transparency and accountability to the petition-gathering process and ensures statewide input earlier on ballot drives funded by out-of-state interests.
Courthouse News Service: Law Firms
By CNS Staff
LawHQ and Thomas Alvord brought federal complaints against the Offices of Chief Disciplinary Counsel in Texas, New York and Nebraska, claiming their rule that prohibits law firms from advertising using trade names violates the First Amendment and serves no valid purpose.
Reason (The Volokh Conspiracy): Journalists Might Be Felons for Publishing Leaked Governmental “Predecisional Information”
By Eugene Volokh
In U.S. v. Blaszczak, decided four weeks ago, a Second Circuit panel concluded (by a 2-1 vote) that a federal agency “has a ‘property right in keeping confidential and making exclusive use’ of its nonpublic predecisional information.” Because of this, the panel held that a federal employee’s leak of the information-and the receipt of that information by someone cooperating with the employee-could be felony wire fraud and conversion of government property…
Say then that investigative journalists have a relationship with a federal government employee, and cooperate with the employee to get a leak of confidential government “predecisional information” about the government’s planned policy changes. Under the panel’s theory, they too would be guilty of felony conversion of federal property and wire fraud…
Nor would journalists have an obvious First Amendment defense that others don’t possess. As I’ve canvassed in my Freedom of the Press as an Industry, or for the Press as a Technology? From the Framing to Today article, the First Amendment generally doesn’t give institutional media more protection than other speakers.
Even if a court could distinguish use of government property for public speech purposes (whether by the media or other speakers) from such use for private purposes, the statutes on which the panel relies draw no such distinction.
Detroit News: Attorney General Dana Nessel must not weaponize her office
By Robert J. Muise
The American Freedom Law Center filed a federal civil rights lawsuit against Dana Nessel, the Michigan Attorney General, and Agustin Arbulu, director of the Michigan Department of Civil Rights, challenging a policy directive…to target groups in Michigan designated by the radical, left-wing Southern Poverty Law Center as “hate groups.” …
In their official joint press release, Nessel and Arbulu linked to SPLC’s “Hate Map report” and vowed to “stand up to hate in Michigan” through the creation of Nessel’s “hate crime unit initiative” and by “developing a process by which (the MDCR) can document hate and bias incidents in the state,” including “incidents” fully protected by the First Amendment…
It is one thing for a radically-partisan private organization like SPLC to express its falsehoods about political opponents. However, when the Michigan attorney general and the civil rights director join and officially endorse this partisan attack by lending government resources and thus becoming the government enforcement agency for SPLC’s radical agenda, the protections of the U.S. Constitution are triggered.
Last April, Nessel and Arbulu each filed motions to dismiss our lawsuit. Last week, the court denied the motions. In his twenty-one-page ruling, Judge Paul L. Maloney concluded that AFLC has “standing” to pursue its legal claims…
Maloney further concluded that our lawsuit properly alleged claims arising under the First (freedom of speech and freedom of expressive association) and Fourteenth (equal protection) Amendments. Maloney stated, in relevant part:
“AFLC asserts that the hate group label and the surveillance and investigations have a deterrent effect on its activities and on its rights to free speech and expressive association. These allegations are sufficient to set forth a plausible claim under the First Amendment.”
Privacy
By Lee E. Goodman
This series has attempted to illuminate the legal principles at stake through the real experiences of the people who, at great personal expense, forged the First Amendment right of political conscience. That they suffered profound invasions of personal liberty guaranteed to them by the Bill of Rights is established by the court decisions. But they suffered severe personal pain too. Some were arrested and went to prison. Even those who ultimately prevailed in the legal system did so at great personal, financial, and psychological cost.
These kinds of individual experiences impose a collective injury to the democracy at large. John Stuart Mill in his treatise On Liberty, published in 1859, articulated the concept of a collective social cost to society that results from the loss of individual freedom in thought and speech.When the cost of participating in the exchange of ideas becomes so high that individuals choose not to participate, to censor themselves, everyone is poorer collectively. They are poorer because they are denied the freedom to hear or even to think the ideas that might otherwise have enriched democratic debate, society, and themselves personally.
Thus, when compelled exposure causes individuals to refrain from speaking or joining associations, or funding a cause, because exposure carries too high a price in the form of stigma, boycotts, ignominy, harassment, law enforcement, or other official or social retaliation, the deterrence of individuals becomes a collective problem. There is a cost to democracy and society at large when individuals speak or associate less and share fewer ideas.
Regrettably, the censorship of ideas and the banishment of certain speakers often has been the specific purpose of public exposure campaigns and the transparency policies that facilitate those campaigns. And, indeed, such initiatives have been ecumenical throughout history, being employed by all parts of the political spectrum.
Online Speech Platforms
Fox News: Internet watchdog calls on Congress to revoke big tech protections to counter political bias
By Nick Givas
The Internet Accountability Project, a self-described conservative watchdog, called out Congress for failing to exercise oversight of big tech…
“We are really focused on Section 230 this year and are hoping that Congress can bring oversight to this because it’s a sweetheart deal for tech, with the government,” said Senior IAP advisor Rachel Bovard…
“Reporting from the Wall Street Journal indicates that big tech is grossly violating the terms of 230 which requires political neutrality,” Bovard explained…
Despite their denial of wrongdoing, Bovard accused Google of using thousands of contractors to sway search results and said revoking their Section 230 status may be the only way to rein them in…
“Other congressional members have suggested different ways to deal with it. Sen. Josh Hawley is the most prominent member who has suggested allowing the government to sort of, determine political speech.”
Hawley, an outspoken critic of big tech, introduced Senate Bill 1914, or The Ending Support for Internet Censorship Act, in June…
However, not all of Hawley’s Senate colleagues agree with this approach. The office of Sen. Mike Lee, R-Utah, said in a statement to Fox News regarding the bill that he’s concerned about the power it would give the FTC.
“Sens. Lee and Hawley share the same desire to see the internet remain free and open so that all individuals can exchange ideas and express their beliefs and political opinions – no matter your views,” the statement began.
“At this time, Sen, Lee has not been convinced that S. 1914 will achieve this objective. Like many Americans, Sen. Lee has been frustrated and disappointed by the bias and censorship imposed by some internet platforms… However, S. 1914 assumes that the federal government, mainly the Federal Trade Commission, is in a neutral position to determine what constitutes ‘political bias.’ Sen. Lee is concerned with the consequences of giving federal bureaucrats the authority to be the arbiter of political speech with the power to determine difficult issues like speech ‘neutrality’ or ‘bias.'”
The Atlantic: Hillary Clinton: Mark Zuckerberg Has ‘Authoritarian’ Views on Misinformation
By Adrienne LaFrance
[Hillary Clinton is] specifically alarmed by what she views as Mark Zuckerberg’s unwillingness to battle the spread of disinformation and propaganda on his own platform. There was the time, last spring, when a slowed-down video of House Speaker Nancy Pelosi caught fire online. The distorted speed, which made Pelosi appear as though she was slurring her words, seemed designed to make her appear cognitively impaired. “Google took it off YouTube … so I contacted Facebook,” Clinton said. “I said, Why are you guys keeping this up? This is blatantly false. Your competitors have taken it down. And their response was, We think our users can make up their own minds.”
Listening to Clinton, I was struck by how remarkably similar her account was to something Zuckerberg had once told me. Facts, Zuckerberg had suggested, are best derived from foraging many opinions, ideally from the billions of humans who use his publishing platform, so that each individual might cherry-pick what to believe. (Cherry-pick is my word, not his.) If journalism’s mantra is “Seek truth and report it,” Facebook’s might be “Seek opinions and react to them.” …
I wrote at the time that Zuckerberg’s interpretation was unsatisfying for one thing, and Trumpian for another. When I asked Clinton today whether she too sees a Trumpian quality in Zuckerberg’s reasoning, she nodded. “It’s Trumpian,” she said. “It’s authoritarian.” …
Facebook often defends its equivocations about the truth by claiming that it must protect the “free speech” of its users. “They have, in my view, contorted themselves into making arguments about freedom of speech and censorship,” Clinton said, “which they are hanging on to because it’s in their commercial interests.” Of course, the right to free speech is about protecting citizens from government overreach-and does not concern a person’s use of corporate publishing platforms.
Vice: Online Whiz Kid Joe Biden Thinks We Should Trash a Crucial Law for the Internet
By Samantha Cole
Joe Biden, who might not know the difference between a URL and a text message and who punctuates tweets like a grandpa, has very strong opinions on one of the most nuanced and controversial guiding principles of the internet: Section 230.
“The idea that [Facebook is] a tech company is that Section 230 should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms,” the former vice president and current presidential candidate said in a nearly impenetrable response to a question about Facebook’s power during an interview published last week in the New York Times…Biden’s not the first presidential hopeful to poke the bear that is Section 230. Beto O’Rourke…made revising it part of his platform around reducing gun violence, by holding social media platforms responsible for hateful content by their users. Several other Democratic candidates have suggested that the Communications Decency Act needs to be amended. But Biden is the first Democratic candidate to say, in no uncertain terms, that it needs to be repealed entirely…
Gaurav Laroia, policy counsel at nonprofit Free Press, said in a statement to Motherboard that although Biden is correct to be concerned about privacy, surveillance, and misinformation abuses by big tech, he “has it wrong in almost every way” in his criticism of Section 230. “Any fixes to Section 230 should be undertaken carefully and cautiously with an eye to protecting marginalized and vulnerable communities,” Laroia said, “and with an understanding that it’s the First Amendment, not Section 230, that allows individuals to engage in the speech of their choosing, for good and for ill.”
Washington Post: Sanders supporters have weaponized Facebook to spread angry memes about his Democratic rivals
By Craig Timberg and Isaac Stanley-Becker
Since the beginning of 2019, nearly 3,000 active Facebook pages supporting Sanders have generated more than 290 million interactions – meaning shares, likes or other user actions – according to an analysis by Trevor Davis, a research professor at Livingston’s institute. For contrast, about 350 pages devoted to former vice president Joe Biden have generated just 9 million interactions; nearly 300 pro-Warren pages come in at under 20 million interactions.
That breakdown is vastly out of sync with projected support for the candidates in polls, which show Sanders gaining ground but still behind Biden in an average of surveys. This underscores a new reality: Facebook gives individual users power over public discourse disproportionate to their authority at the ballot box.
Such outsized influence once required significant resources – money for printed materials, access to a broadcast studio or time to reach people face-to-face. Now all it requires is a smartphone.
One popular technique introduced by Facebook last spring allows sharing to multiple groups with a few simple clicks on a mobile device, allowing enthusiasts such as Walters to broadcast their views even more quickly than before…
[A]ggrieved Americans who, distrustful of mainstream gatekeepers of information, turn to Facebook. There, the traditional guardrails of political discourse don’t exist, and individual users can share torrents of divisive memes and other charged content to audiences far beyond the “Friends” once central to the Facebook experience.
Candidates and Campaigns
New York Times: Recording Shows That the Swamp Has Not Been Drained
By Kenneth P. Vogel and Eric Lipton
[A]s President Trump ramps up his 2020 re-election bid, it is clear that he has tolerated if not fostered a swamp of his own in Washington, granting up-close access to deep-pocketed supporters and interest groups willing to write six- and seven-figure checks to his political operation…
The latest evidence came over the weekend, with the release of a secret recording of an April 2018 dinner for major donors and prospective donors to a super PAC supporting Mr. Trump…
The recording is a glimpse into a broader pattern in which the administration appointed industry lobbyists to key policymaking jobs, heeded the deregulatory wishes of big corporations and granted regular access to donors…
Mr. Trump’s assiduous courtship of major donors closely mirrors behavior for which he chastised his opponents in 2016, when he cast himself as a billionaire whose ability to finance his own campaign would ensure that he was not beholden to financial backers…
“And you look at Hillary – let’s go to the other side – they have super PACs, where they control the candidate just like you control a puppet,” Mr. Trump said. “We don’t want anybody to form super PACs for me. We sent legal notices: ‘Please give all the money back.’ We don’t want it.”
It was not long before Mr. Trump reversed himself.
His campaign began aggressively courting donations to supplement the personal money he was spending on his 2016 bid, and his team eventually blessed the formation of a super PAC that solicited large checks from major donors…Once elected, Mr. Trump’s team signaled that he did not intend to spend his own money on his re-election.
NBC News: Could Bloomberg’s (huge, ginormous, oh my gosh!) money really topple Trump?
By Alex Seitz-Wald
Michael Bloomberg could spend $1 billion or more in his quest to beat President Donald Trump – and experts and consultants in both parties say that unprecedented sum could tip a close presidential election.
“He’d be a super super PAC,” said Bob Shrum, a longtime Democratic strategist. “Obviously, it makes a big difference. If he’s going to spend a billion dollars, I see no way that Republicans could match that.” …
“The straight answer is that nobody has any idea what that would do, because no one has talked about spending that kind of money in a presidential race,” said Whit Ayers, a leading Republican pollster who runs North Star Opinion Research. “It’s an absolutely breathtaking amount of money.” …
The conventional wisdom among political insiders is that campaign spending, which primarily goes toward advertising, eventually reaches a point of diminishing returns. “But no one has really tested the proposition,” Ayers said.
History shows money doesn’t always win elections, but it often does…
“A lot of ads can potentially swing an election that is close,” said Jörg Spenkuch of Northwestern University, who conducted one of the most-cited studies on the impact of political advertising. “But ads are probably not effective enough to change the outcome of a race that wasn’t close to begin with.”
And how money gets spent can be just as important as how much. Research suggests that a lot of it is wasted. A 2017 analysis of 49 field experiments testing various campaign tactics, such as canvassing door-to-door, having volunteers make phone calls, and sending direct mail found an “average effect of zero in general elections.”
The States
Wiley: Los Angeles Bans Campaign Contributions From Certain Developers
By D. Mark Renaud and Eric Wang
Last month, the City of Los Angeles enacted an extension of its existing ban on campaign contributions from city lobbyists and certain city contractors to apply also to certain city developers. The new law goes into effect on January 23, 2020, and applies to any contributions that are made beginning when candidates for L.A. city office are first permitted to start raising money for the 2022 general election.
Specifically, the ban affects contributions from any applicant for what is known as a “Significant Planning Entitlement” under the city’s ordinances – basically certain land uses that require discretionary city action that “are not solely ministerial.” The ban applies not only to applicants, but also to any property owner identified on the application and any of the applicant’s “principals.” The ban applies to contributions to the mayor, city attorney, city council members, candidates for those offices, and their “controlled committees” (including campaign committees, legal defense committees, and officeholder committees).
Developers and individuals covered by the ban are prohibited from making such contributions beginning from the time an application for a “Significant Planning Entitlement” is first submitted until 12 months after the date a letter of determination is issued by the city or the date when a final decision is made on the application. Violations of the ban will result in a 12-month “time-out” during which the offender may not submit any additional application to the city.
OPB: Oregon Senate Scraps Campaign Finance Committee Months Ahead Of Major Vote
By Dirk VanderHart
Oregonians might be on the verge of passing historic campaign finance policy this year. The Oregon Senate? Not so much.
In a further sign that Senate leaders are in no rush to move to limit campaign contributions, Senate President Peter Courtney, D-Salem, is not bringing back the chamber’s Campaign Finance Committee for the 2020 legislative session.First created last year, the committee was a central forum for the politically fractious debate over what such limits might look like. Oregon is currently one of a handful of states that has no limitations on how much individuals, businesses, trade groups and anyone else can donate to candidates and causes…
The committee’s absence raises questions about whether the legislature will so much as discuss potential campaign finance limits during a session expected to be dominated by bills on guns and greenhouse gas emissions.
Voice of San Diego: Sacramento Report: There’s No Shortage of Anti-AB 5 Bills and Candidates
By Sara Libby and Jesse Marx
As the legislative session gets rolling, a clearer picture of the efforts underway to amend or roll back AB 5, the law limiting the use of independent contractors, is starting to emerge…
That brings us to two bills written by Sen. Pat Bates, who represents southern Orange County and parts of northern San Diego County, that attempt to address criticisms made by the most vocal opponents of AB 5: freelance journalists…
The other bill, SB 868, would exempt all freelance journalists regardless of how many submissions they make to a single publication in a year…
When I spoke with her about the bill this week, Bates focused specifically on the work of freelance journalists and said newspapers should be able to treat them like service providers, as opposed to journalists who are performing part of the core business of a journalism entity…
Speaking of Republicans Rallying Against AB 5 …
The Republican Party of San Diego County is hoping to capitalize on the backlash to AB 5 by supporting a candidate running against Assemblywoman Lorena Gonzalez whose campaign is laser-focused on opposing the measure.
John Vogel, an IT analyst from Chula Vista, filed his paperwork at the last minute in December, and he’s made a “full and immediate repeal” of AB 5 the centerpiece of his 80th Assembly District challenge.
