In the News
Daily Caller: The Mets Aren’t Good, But Free Speech Is
By Eric Peterson
Ben is like many high school students. He enjoys his extracurricular activities, computers and, above all else, the New York Mets. But unlike other teenage Mets fans, Ben has a super PAC to prove his loyalty.
Ben recently completed the Federal Election Commission (FEC) paperwork to register the “Mets Are A Good Team Committee” super PAC…
According to Ben, his goal wasn’t to promote the (crazy) idea that the Mets are actually a good team. Instead, as Ben revealed in an interview with Sports Illustrated, he created the super PAC as a joke and to illustrate the problem he sees with money in politics. “Look how easy this is to do. If I could do it, anyone can,” Ben told SI.
Wait a minute. Isn’t that a good thing?
Super PACs are just groups where Americans pool their money and speak out about candidates they support or oppose. Americans speaking about a cause or candidate they believe in is what the First Amendment is all about.
The fact that the FEC made the forms simple enough for a high school student to figure out (although he later received help from a lawyer in his family) is a feature, not a bug. Unalienable rights guaranteed by the Constitution should be easy to exercise for anyone, not restricted by a maze of red tape…
Although his group started as “sort of a joke,” Ben quickly realized it was more serious than he intended. He is now looking to use his group to support candidates who will work against corruption and who lack the means to get their message heard. This is exactly the kind of speech that super PACs were created for.
Idaho Press-Tribune: Lawmakers on campaign finance reform panel spar over definition of ‘electioneering communication’
By Betsy Z. Russell
The Idaho Legislature’s Campaign Finance Reform Interim Committee is meeting at the state Capitol today, and heard dueling presentations this morning from attorneys for differing institutes that are for and against requiring more disclosure of electioneering communications and independent expenditures. After Tyler Martinez of the Institute for Free Speech told the lawmakers, by phone, that he thought their proposal would make someone disclose as an electioneering communication a comment made while playing an X-Box live game, because the X-Box live requires a subscription, the panel asked Deputy Idaho Attorney General Robert Berry to respond, in the context of Idaho law.
Berry said that wouldn’t qualify as an electioneering communication in Idaho, because the cost wasn’t incurred for sending that particular communication; the subscription was a “sunk cost” that occurred whether or not the communication was sent. Similarly, he said, someone retweeting a paid political message wouldn’t themselves be engaging in a reportable electioneering communication, because they’ve made no expenditure that could be reported. “I don’t believe that is an electioneering communication that needs to be filed with the the Secretary of State,” Berry told the committee. “It ties back to when the expenditures are made. Really it’s a two-fold analysis: Is it an electioneering communication, have there been funds expended, and when were they expended.”
New from the Institute for Free Speech
Supreme Court Should Hear Challenge to Montana Law, IFS Brief Says
The Institute for Free Speech and the Cato Institute yesterday filed a friend of the court brief asking the Supreme Court to hear a challenge to Montana campaign finance laws. The case presents an opportunity to shield groups who speak about government from overregulation.
“The Supreme Court has said that only groups with the major purpose of influencing elections can be heavily regulated. Yet many states now require anyone who spends small amounts on advocacy to register and report their activities like a PAC,” said Institute for Free Speech Legal Director Allen Dickerson.
The case, Montanans for Community Development v. Mangan, challenges Montana’s reporting and disclosure requirements for groups that may spend minimal sums on election-related activity. Montana is one of several states that fails to apply the “major purpose requirement” mandated by Buckley v. Valeo. In that landmark decision, the Supreme Court limited the reach of similar regulations to groups whose major purpose is influencing elections, generally defined as spending more than 50% of their resources on electoral advocacy.
“This rule, designed to save an otherwise overbroad statute from invalidation under the First Amendment, ensures that the registration and disclosure burdens of PAC status fell only upon unambiguously political organizations, those which are ‘by definition, campaign related,’” explains the brief by the Institute for Free Speech and the Cato Institute.
Some lower courts of appeal have failed to uphold the major purpose requirement. That has sowed confusion in the law and permitted some states to regulate more broadly than the Court intended.
In 1976, this Court narrowly construed a federal campaign finance law in order to shield civil society from overregulation. Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). And while Buckley remains this Court’s cornerstone case governing questions of money and elections, the Court has failed to police one of its core holdings: the requirement that comprehensive regulation may only be imposed upon groups spending a majority of their funds on unambiguous electoral advocacy. This case provides an opportunity for the Court to reassert that standard.
Certiorari would do more than restore foundational case law. Several states, including Montana, have chosen to enforce their campaign finance laws via a single, often politically involved, individual. As Commissioner Mangan’s predecessor’s experience teaches, such arrangements raise the specter of partisan enforcement of the laws, or at the very least, the appearance of such corrupt enforcement. Because the major purpose requirement is clear and objective, it greatly reduces such risks compared to the vague political committee laws at issue here. Mandating its application can alleviate the appearance of partisan enforcement not only in Montana, but nationwide.
Supreme Court
Courthouse News Service: Amicus Briefs Flood Supreme Court in Prison-Censorship Case
By Eva Fedderly
Urging the Supreme Court to lift a ban it faces in Florida correctional facilities, Prison Legal News found support for its censorship appeal this month from more than 100 groups across the political spectrum.
A monthly magazine put out by the Human Rights Defense Center, Prison Legal News brought its petition for certiorari last month after the 11th Circuit found that security concerns justified a blanket ban on the publication across Florida jails and prisons.
In the last two weeks leading up to an Oct. 19 deadline for friend-of-the-court briefs, more than 100 groups and individuals argued that Supreme Court intervention is needed to correct arbitrary government suppression of the First Amendment.
“There is no evidence that ads in its magazine have ever caused a security breach,” 18 media groups argued in the first brief, filed on Oct. 11 by attorneys at the Miami firm Gunster Yoakley & Stewart. “As amici are all too aware, this approach is a censor’s dream. With enough time and ingenuity, prison officials and their lawyers can usually imagine some way in which some aspect of a particular written work might conceivably have some marginal effect on prison order or security.”
Supporters of Prison Legal News filed eight briefs in total, and editor Paul Wright noted in an email that the support it has received “is unprecedented in criminal-justice circles at the cert stage.
First Amendment
U.S. News & World Report: In Chaotic Era, Conference Aims to Amplify 1st Amendment
By Ted Anthony, AP
For two days in Pittsburgh, a national exploration of what the First Amendment means to America in 2018 dug into every corner of this notion to understand where we are, and where we’re going, in terms of the rights Americans have to express themselves.
“Too many people in this country don’t understand how freedom works in their native land,” said Maxwell King, former editor of The Philadelphia Inquirer and head of the Pittsburgh Foundation, a philanthropy that co-sponsored the event at Duquesne University…
Among news leaders, government officials and academics, the consensus seemed to be this: In an era upended by technology and the behaviors that have grown up around it, the First Amendment remains pivotal to a functioning democracy – perhaps more so than ever in a society increasingly suspicious of the role that the mass media plays.
“I don’t believe democracies can exist without a free press,” Tom Ridge, secretary of Homeland Security under former Republican President George W. Bush and the onetime governor of Pennsylvania, said Monday…
“I think it’s really hard to have a democracy when we don’t agree on a baseline set of facts,” said Martin Baron, executive editor of The Washington Post. That, he said, is where responsible journalism must play a role…
Noel Francisco, the solicitor general of the United States, marveled at how many more methods of communication exist than when the First Amendment was ratified in the 18th century. “We have a lot more speech today,” he said. “And I think that just means we will have a lot more kinds of speech that are protected.”
Donor Privacy
Goldwater Institute: Video: Is Free Speech Under Attack?
By Rachel McPherson
Earlier this week, Goldwater Institute Senior Attorney Matt Miller and National Review Senior Writer David French discussed free speech and the privacy of nonprofit donors at two Goldwater Institute-hosted events in Phoenix and Tucson…
“For a government official to just say, ‘You have a right to know,’ does not bestow upon you a right to know, especially when that right to know impairs my right to engage in political advocacy-which is actually protected in the Constitution,” French said. “Political speech is why the First Amendment exists. It exists for other reasons as well, but the core of it is to protect political speech. Now we’re running around treating political speech like it is somehow inherently suspect? So suspect that the government has to know-needs to know-who’s doing it?”
And so the Goldwater Institute has gone to court to defend this essential right: The Institute is currently involved with two donor privacy cases, one in Denver, Colorado and another in Santa Fe, New Mexico. What’s the big issue? Namely, these cities are trying to police political speech by requiring organizations to disclose their donors’ names, home addresses, and employer information, then posting said information online for anyone to see.
“In both cases, the cities have passed laws that require nonprofits, or any other group, who are communicating with voters about ballot measures to disclose their donors to the government,” Miller explained. “So if you choose to engage in speech that is trying to influence people’s decision about a ballot measure, you then have to disclose your donors in a report that is filed with the government and then provided by them on a website for anybody who wants to access it.”
“These are laws that target quintessential political speech about ballot measures that the government is trying to pass,” Miller said.
Congress
By Rep. Jim Jordan
Any attack on free speech is troubling, but big tech’s assault is the most troubling. Social media are now part of every American’s life, and big social media companies have unbelievable control over the type and flow of information. If they can restrict certain types of speech, then their ability to impact elections and public policy is virtually unlimited.
The First Amendment was written to protect speech – and not just speech that we agree with. Congress needs to have more hearings and more oversight, which would mean more information for the American people.
Congress should also look to appoint a task force to examine all restrictions placed on the First Amendment, with a specific focus on social media companies. This is not a partisan issue. Free speech is fundamental to the health of our great country, and Congress should treat it with the respect it deserves.
Trump Administration
Augusta Free Press: Dems to Zinke: Extend comment period for rule limiting free speech on National Mall
Reps. Don Beyer (VA-08), Steny H. Hoyer (MD-05), Gerald E. Connolly (VA-11), Eleanor Holmes Norton (DC-AL), Anthony G. Brown (MD-04), and Jamie Raskin (MD-08) sent a letter to Interior Department Secretary Ryan Zinke urging him to extend the public comment period for the National Parks Service’s proposal to modify the types of demonstration activities allowed on the National Mall.
The proposal included changes to how applications are processed, the locations where activities are allowed and adding potential fees for demonstrations.
Letter: …
“Given the historic importance of President’s Park and the National Mall to the exercise of the First Amendment right of free speech and assembly, the American people deserve sufficient opportunity to understand and comment on changes that would impact their rights. Of particular concern is the possible introduction of a fee attached to holding demonstrations and the implication that could have to effectively price out many protests.
It is worth remembering the history of Park Service efforts to institute limits on protest. When it occurred during the Vietnam War, the Park Service was sued for attempting to curtail these freedoms. Thus, given this historic legacy and the historic importance of the Mall and President’s Park as a unique site for the exercise of First Amendment rights, sufficient public comment is imperative. Due to the magnitude of the proposed changes, we write to request a 90-day extension for public comment.”
The States
Idaho Press-Tribune: Idaho lawmakers endorse campaign finance reforms, will pitch to full Legislature in January
By Betsy Z. Russell
A panel of Idaho lawmakers on Wednesday endorsed a slate of campaign finance reforms that it will pitch to the full Legislature in January, from requiring more frequent reporting, to expanding disclosure requirements to all levels of government, to changing rules for independent expenditures….
While most of the senators and representatives on the panel favored requiring more reporting of those to get at “dark money” in Idaho politics, others raised concerns that free speech could be infringed upon, and onerous reporting requirements placed on Idahoans who just are having their say about politics.
Lawmakers agreed to extend the reporting period for those types of expenditures to run from the close of the candidate filing period in the spring through the general election. But they also agreed to raise the reporting threshold from the current $100 to $1,000…
The panel also split over requiring more reporting from those independent groups of who funded their efforts. Rep. Sage Dixon, R-Ponderay, said he was concerned about “fear of reprisals” against people who may donate to a cause, and then be identified in state reports. While the committee had been considering requiring all donors of $50 or more toward independent campaign expenditures or electioneering communications to be named, Dixon proposed raising the reporting threshold to $1,000…
The committee finally settled on $250 as the point at which donors would have to be identified when they’ve donated toward independent expenditures or electioneering communications. Idaho’s current law requiring identification of donors of $50 or more to candidates or political committees would remain unchanged.
Action News Jax: Attempts to regulate protests in St. Augustine raises questions about free speech
By Kevin Clark
St. Augustine city commissioners are taking up a controversial ordinance aimed at regulating protests in the city’s Plaza de la Constitucion.
This is where major events, such as the Nights of Light’s kickoff are held.
During last year’s event, there was a large protest against city Confederate monuments, led by the Rev. Ron Rawls of St. Paul AME Church.
The proposed ordinance requires protesters and counter-protesters to remain on the perimeter sidewalk while event participants occupy the Plaza.
According to the ordinance, protest and counter-protest participants may also be separated by law enforcement personnel at a designated location in order to maintain peace.
Rev. Rawls says protesters are being targeted, and he sees this as an attack on First Amendment rights and free speech.
“To put us on the outside and to limit our ability to do what we’re there to do, they are definitely trying to silence our voices,” he said.
New York Times: New York Sues Exxon Mobil, Saying It Deceived Shareholders on Climate Change
By John Schwartz
The investigation has spanned the tenures of two New York attorneys general and has also involved attorneys general from other states. Exxon has attempted to block the inquiry in courts in three states, and has painted it as an attempt by bullies to restrict the company’s First Amendment rights and as part of an anti-fossil-fuel conspiracy backed by, among others, the Rockefeller family.
Scott J. Silvestri, an Exxon Mobil spokesman, said Wednesday that the New York attorney general’s office had “doubled down on its tainted, meritless investigation by filing a complaint against Exxon Mobil.”
The “baseless allegations,” Mr. Silvestri said, “are a product of closed-door lobbying by special interests, political opportunism and the attorney general’s inability to admit that a three-year investigation has uncovered no wrongdoing. The company looks forward to refuting these claims as soon as possible and getting this meritless civil lawsuit dismissed.” …
The investigation first came to light in November 2015, about a year after it was begun by former Attorney General Eric T. Schneiderman. Before long, other state attorneys general announced their support for Mr. Schneiderman’s efforts; some, notably Maura Healey of Massachusetts, started investigations of their own…
The company pledged to stop funding groups that directly challenged the science of climate change in the mid-2000s…
In addition, Exxon recently announced it would spend $1 million over the next two years to finance a group promoting “carbon dividend” legislation that would tax carbon dioxide emissions and then return the money that is collected back to taxpayers.
Washington Post: Watchdog group says D.C. mayor’s rally may have violated campaign finance rules
By Fenit Nirappil
A government watchdog group has accused D.C. Mayor Muriel E. Bowser (D) of violating campaign finance rules by holding a rally to boost council candidates in the most competitive race of the November general election.
The complaint filed by Public Citizen alleges that the Bowser campaign’s Oct. 14 get-out-the-vote rally featuring at-large council contenders Anita Bonds (D) and Dionne Reeder (I) constituted an improper donation to their campaigns.
It’s not unusual for elected officials to campaign for other candidates. But Public Citizen, a nonprofit organization advocating to reduce the influence of money in politics, said Bowser appeared to have crossed a line by spending campaign funds on the event.
A mailer advertising the rally sent to households across the city and signs posted at the event described it as a “get-out-the-vote” rally and referred to the two candidates as “special guests.” Bowser, who faces no serious competition in November, endorsed Bonds and Reeder at rally.
In its complaint, Public Citizen said the event appeared to be coordinated with Bonds and Reeder and therefore subject to a $1,000 limit for in-kind campaign contributions. The complaint cited no specific evidence of coordination, but urged campaign finance officials to investigate.
