In the News
Sioux Falls Argus Leader: Free speech group sues state ahead of November election
By Jonathan Ellis
A national group that opposes restrictions on political speech is asking a federal judge to declare a South Dakota campaign finance law unconstitutional.
The Institute for Free Speech contends that South Dakota’s law regulating independent communication [“concerning” a ballot measure] is vague, broad and a violation of the group’s First Amendment rights.
The group says it wants to distribute literature on two upcoming ballot issues: Amendment W, which would impose more campaign finance requirements and lower contribution limits for candidates and political parties, and Initiated Measure 24, which seeks to ban out-of-state donations to committees sponsoring statewide ballot issues.
“South Dakota laws,” the group’s petition says, “pose a trap for the unwary.” …
In its complaint, the group says it wants to distribute “educational publications” about the two ballot measures but can’t because of the vagueness of South Dakota law.
“IFS intends to publish an analysis off two South Dakota ballot measures – proposed Constitutional Amendment W and Initiative 24 – with an emphasis on the ways in which those measures will impact citizens’ First Amendment rights. IFS’s publication will not urge passage or defeat of either measure.”
Keloland News: Institute For Free Speech Files Lawsuit Regarding Two South Dakota Ballot Issues
By Anna Peters
A national non-profit organization says two measures on South Dakota’s November ballot may violate your First Amendment Rights.
A federal lawsuit says the measures in question are Constitutional Amendment W and Initiated Measure 24. But the Institute for Free Speech says it can’t tell you why the measures would affect your rights without violating state law.
IFS has filed a lawsuit against Attorney General Marty Jackley and Secretary of State Shantel Krebs. It claims South Dakota laws violate the U.S. Constitution by restricting the organization’s rights to publicize views of ballot measures.
It’s asking for permission from a federal judge to publish an analysis of the measures.
USA Today: Out-of-state donors are pouring cash into local campaigns of Democrats across the country
By Rui Kaneya, Joe Yerardi, The Center for Public Integrity
In a little-known case out of Alaska, the federal courts have been weighing whether the U.S. Constitution allows states to impose limits on out-of-state contributions, an issue that could soon come to a head at the U.S. Supreme Court.
The case, Thompson v. Hebdon, is challenging Alaska’s stringent campaign finance rules that limit how much candidates for state-level offices can raise from out of state.
Wisconsin resident David Thompson filed the case after he tried to give $100 in 2015 to the re-election bid of his brother-in-law, former Alaska state Rep. Wes Keller. Thompson’s contribution couldn’t be accepted because the Republican lawmaker had already reached the $3,000 limit on out-of-state contributions to his campaign…
The case is now pending before the 9th U.S. Circuit Court of Appeals after a lower court upheld the contribution limit.
One of Alaska’s legal arguments has been that the contribution limit is analogous to the federal ban on foreign money in U.S. elections. “Just as a Canadian citizen is not part of the political community governed by the U.S. federal government, a Florida resident is not part of the political community governed by the Alaska state government,” the state’s attorneys wrote in court filings.
But David Keating, president of the Institute for Free Speech, which supports the deregulation of campaign finance, said the analogy falls short on a fundamental point.
“It’s quite different from Russian money influencing U.S. elections,” Keating said. “Alaska isn’t an independent, sovereign state that can do whatever it wants to do. It has to respect the people’s constitutional rights just like the other 49 states do – unless, of course, it manages to secede from the country.”
New from the Institute for Free Speech
Massachusetts Fiscal Alliance Sues State Over Compelled Speech Requirements
Today, Massachusetts Fiscal Alliance (MassFiscal), a nonpartisan nonprofit represented by the Institute for Free Speech, will file a federal lawsuit alleging that some Massachusetts campaign finance laws are unconstitutional. Unlike most states, Massachusetts requires ads that name candidates within 90 days of a general election to include a statement from a principal officer of the organization running the ad, a list of the organization’s top five contributors, and a link to a government website. The group believes this information is irrelevant and cannot be required in disclaimers.
“There is no legitimate reason for the government to require a group’s CEO to appear on-screen during an ad. Nor is there justification for listing individual donors on ads they may know nothing about. These requirements simply raise the cost of speaking about government by forcing speakers to waste their resources promoting the government’s message,” explained Institute for Free Speech Legal Director Allen Dickerson…
“The two major revisions to our state’s campaign finance laws that have occurred over the last several years are classic examples of intimidation legislation, plain and simple. Our state government should be working to expand our First Amendment rights, not contract them. This lawsuit is not about getting rid of disclosure. Rather, this is about removing intimidation from the process,” commented Paul Craney, a member of the Massachusetts Fiscal Alliance Board of Directors and spokesman for the organization…
MassFiscal wants to advertise legislative scorecards and educate the public on the Legislature’s vote to increase its pay while raising taxes. However, MassFiscal will choose silence rather than allow the government to co-opt its message and violate the rights of its members.
MassFiscal’s dilemma illustrates the ultimate effect of political speech laws: fewer groups are willing to speak about government…
To read more about the case, click here.
“[T]he First Amendment ‘has its fullest and most urgent application’” in the context of “[f]ree discussion about candidates for public office.” Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)).
Nevertheless, the Commonwealth of Massachusetts compels speakers that mention representatives or candidates for office to accompany their “nonpartisan public discussion of issues of public importance,” Buckley v. Valeo, 519 F.2d 821, 870 (D.C. Cir. 1975) (en banc), with a number of State-mandated pronouncements, some publicizing otherwise private information.
Plaintiff contends that this compulsory regime, principally codified at Massachusetts General Laws chapter 55, § 18G and its attending regulations, violates the First Amendment’s instruction, incorporated against the States by operation of the Fourteenth Amendment, that governments “shall make no law…abridging the freedom of speech.” U.S. Const. amend. I.
Additionally, these requirements unconstitutionally infringe upon the First Amendment liberty of all Americans “to pursue their lawful private interests privately and to associate freely with others in so doing.” NAACP v. Ala., 357 U.S. 449, 466 (1958).
With Floyd Abrams, Counsel of Record
If this Court were to create a new exception to Mount Healthy which barred retaliatory arrest claims in cases in which probable cause can be demonstrated, people could be arrested in retaliation for criticizing the police or offending them for any reason, including their expression of political views not shared by a particular police officer. In a nation awash with criminal statutes that are enforced with varying degrees of regularity-and thus often generally unenforced-it is not difficult to find probable cause to arrest. For example, the case at hand arose in Alaska, a state that regulates alcohol so strictly that it is illegal to be intoxicated inside a bar or any other establishment licensed to sell liquor. AS § 04.16.040 (“A drunken person may not knowingly enter or remain on premises licensed under this title.”). This statute is routinely violated, but police retain the discretion to enforce it, and have stated to the press that they do so selectively. It is not difficult to imagine a plainclothes policeman who cannot feasibly arrest every intoxicated person on the premises being drawn to target a patron loudly proclaiming political views with which the officer vehemently disagrees.
Petitioners acknowledge, as they must, that their framework “might preclude recovery for meritorious claims.” Pet Br. at 48. Notwithstanding their acknowledgement of the risk, articulated by this Court in Lozman, that “some police officers may exploit the arrest power as a means of suppressing speech,” Pet Br. at 49 (quoting Lozman, 138 S. Ct. at 1953), they maintain that the likelihood that officers will actually suppress speech is minimal in practice, and that the speech suppressed is not terribly important. Pet Br. at 51-52. These contentions simply overlook numerous non-hypothetical scenarios memorialized in court cases and news reports.
First Amendment
ACLU: Trump Administration Seeks to Stifle Protests Near White House and on National Mall
By Arthur Spitzer
[T]he Trump administration proposes to dramatically limit the right to demonstrate near the White House and on the National Mall, including in ways that would violate court orders that have stood for decades. The proposal would close 80 percent of the White House sidewalk, put new limits on spontaneous demonstrations, and open the door to charging fees for protesting.
Fee requirements could make mass protests like Martin Luther King Jr.’s historic 1963 March on Washington and its “I have a dream” speech too expensive to happen.
The public has until October 15 to comment on the plans, and on Monday, we submitted our formal written comment explaining why the planned changes are unconstitutional.
In 1967, in the middle of the Vietnam War, the federal government tried to impose severe limits on protests near the White House. The ACLU of the District of Columbia sued, and after years of litigation, the courts rebuffed the government’s effort and reminded the National Park Service, which administers these areas, that Lafayette Park is not Yellowstone and that the White House area and the National Mall “constitute a unique [site] for the exercise of First Amendment rights.” Under court orders, the park service issued regulations allowing large demonstrations, guaranteeing quick action on applications for permits, and accommodating spontaneous protests as much as possible.
Free Speech
Reason: Partisans United Against Free Speech
By Matt Welch
The Supreme Court this June expanded First Amendment protections to cover public employees who don’t want the state extracting union dues, voters who seek to wear political clothing or paraphernalia at the polls, and some businesses that chafe at being told by the government that they must display certain information…
The citizenry, meanwhile, was moving in the opposite direction. In a memo leaked in June, staffers at the American Civil Liberties Union (ACLU) agonized that the organization’s fabled commitment to the First Amendment might have a “harmful impact on the equality and justice work to which we are also committed.” All summer long, rightists and leftists took turns trying to get their political opponents fired from their jobs and banished from social media platforms over speech deemed intolerable. Even on the Supreme Court, Justice Elena Kagan warned that her conservative colleagues were “weaponizing the First Amendment.” …
[W]e don’t have to wait to see whether the cultural turn against free speech will filter into law and the enforcement thereof. It’s already happening…
[E]ven on issues like antitrust enforcement and the long-dead, ill-advised Fairness Doctrine, Republican politicians and commentators are abandoning positions they’ve held for decades…
Politicians respond to incentives created by voters, and right now voters want speech suppressed. Sens. Bernie Sanders (I-Vt.), Elizabeth Warren (D-Mass.), and nine of their colleagues have asked the FCC to consider revoking Sinclair’s license altogether, based on content concerns. Sen. Ted Cruz (R-Texas) recently said that breaking up big tech companies in the name of free speech is an issue he is “looking at seriously.” …
The culture of free speech has been deteriorating for long enough that politics, sadly and predictably, is catching up.
The Courts
The Atlantic: The Trump Campaign Says Exploiting Hacked Emails Is Free Speech
By Natasha Bertrand
In a motion to dismiss a new lawsuit accusing President Donald Trump’s campaign team of illegally conspiring with Russian agents to disseminate stolen emails during the election, Trump campaign lawyers have tried out a new defense: free speech.
The lawsuit, filed last month by two donors and one former employee of the Democratic National Committee, alleges that the Trump campaign, along with former Trump adviser Roger Stone, worked with Russia and WikiLeaks to publish hacked DNC emails, thereby violating their privacy.
But the Trump campaign-represented by Jeffrey Baltruzak, Michael A. Carvin, Nikki L. McArthur, and Vivek Suri, all of the law firm Jones Day-responded in a brief filed Tuesday that the campaign can’t be held legally responsible for WikiLeaks’s publication of the DNC emails.
Furthermore, the Trump lawyers argued, the First Amendment protects the campaign’s “right to disclose information-even stolen information-so long as (1) the speaker did not participate in the theft and (2) the information deals with matters of public concern.”
Inside Sources: PayPal, Tech Companies Have the Right to Free Association
By Michael McGrady
Alex Jones, the controversial right-wing conspiracy theorist, filed a lawsuit on behalf of his holdings company against PayPal. Jones’ suit is a result of PayPal’s business decision to cancel merchant accounts for his Infowars web store…
According to the suit brought by Jones and his counsel, PayPal’s actions, in this case, are a violation of the First Amendment. Not to mention, the suit claims discrimination under the California Unruh Civil Rights Act, unfair business practices, monopolization of a particular market segment, and failure to act in good faith on the part of PayPal and the company’s working relationship with Jones and his properties.
The sentiment that eludes the suit, based on a sampling of legal experts, is a recognition of PayPal’s right to regulate usage of its platform.
If you apply the principal protections of the Communications Decency Act, Section 230, under settled federal positive law, PayPal, as an interactive computer service broadly defined under this statute, can pursue “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Berin Szoka of TechFreedom, a tech policy think tank, believes that this standard merits dismissal of this case.
“I’ve read the complaint,” he said. “This will be tossed out on 230 grounds easily.” …
Elliot Harmon of the Electronic Frontier Foundation wrote: “Online platforms are within their First Amendment rights to moderate their online platforms however they like, and they’re additionally shielded by Section 230 for many types of liability for their users’ speech. It’s not one or the other. It’s both.”
FEC
San Diego Union-Tribune: Federal election officials question Rep. Duncan Hunter campaign’s identification of donors
By Morgan Cook
The Federal Election Commission sent a letter to Hunter’s campaign treasurer this week informing him that “information requested per best efforts” is not an acceptable answer to the question of a contributor’s occupation or employer – information that was missing not just for Hunter’s uncle on Hunter’s campaign forms…
James H. Hunter is among more than 90 donors for whom Hunter’s campaign has reported employer and occupation as “information requested per best efforts” since 2007, according to The San Diego Union-Tribune’s review of FEC records. Their contributions totaled more than $67,000.
Hunter and his wife and former campaign manager, Margaret, were indicted in August on 60 counts of felony crimes including fraud and conspiracy to knowingly falsify entries in reports to federal agencies including the FEC. The couple allegedly committed the crimes to cover up more than $250,000 allegedly stolen from Hunter’s campaign over several years. The two pleaded not guilty to all charges at their federal court hearing in August and were quickly released on bond.
The letter this week regarding missing occupational information is unrelated to the criminal case – although the origin of the criminal investigation was a similar inquiry letter from the FEC about campaign reports. The FEC is asking Hunter’s campaign to amend its filings to add occupation information or to document its “best efforts” to gather the information.
The States
MetroWest Daily News: Question 2 asks Massachusetts voters to consider money in politics
By Eli Sherman
American Promise is the organization behind the political group People Govern, Not Money, which is calling on voters to approve Question No. 2. The ballot measure, which voters will address on Nov. 6, would establish a nonpartisan, 15-member Citizens Commission to consider and recommend an amendment to the U.S. Constitution.
The amendment — if approved by Congress and ratified by the states — would essentially overhaul the current system of political finance, including the 2010 U.S. Supreme Court ruling on Citizens United that determined campaign spending by companies and other groups is protected by the free-speech clause of the First Amendment…
American Promise is pushing the idea across the country, claiming to have established grassroots operations in all 50 states. The group is led by its president, Jeff Clements, a lawyer who served under former Mass. Attorney General Martha Coakley.
The nonprofit, which touts widespread bipartisan support, has set a goal to get the amendment – which would become the 28th Amendment – ratified within the next seven to eight years. The Mass. Citizens Commission would become the first in the nation, and Gubits hopes it will be replicated in other states.
