In the News
Philanthropy Roundtable: Judge Amy Coney Barrett on Donor Privacy
By Patrice Onwuka
During Judge Barrett’s time on the Seventh Circuit Court of Appeals, she only provided opinions in a handful of free-speech cases that some groups such as the Institute for Free Speech suggest signal her willingness to expand free speech rights for individuals in certain circumstances. Private giving to organizations and causes is protected under the First Amendment freedom of speech and assembly. The cases Judge Barrett heard dealt with different circumstances and may not provide much insight…
On the bench, Judge Barrett may very well get to weigh in on [donor privacy]. Americans for Prosperity Foundation (AFPF) has challenged California’s disclosure law that requires charitable and other nonprofit organizations to include with their state registrations the IRS form known as Schedule B, which includes the names and addresses of top donors as well as the size of their gifts. AFPF fears that this disclosure would have “an irreparable chilling effect” and open its supporters up to threats, harassment, and violence if their affiliation is made public. The Philanthropy Roundtable filed an amicus brief in support of AFPF’s challenge to California’s donor disclosure law on the grounds that this violates donors’ constitutional rights and undermines philanthropic freedom.
[Ed. note: The Institute for Free Speech filed an amicus brief in AFPF v. Becerra in support of the petitioners. We also filed a related lawsuit challenging then-Attorney General Kamala Harris’s demand for nonprofit Schedule B information in IFS v. Becerra. Read more about that case here.]
American Viewpoints (Podcast): The Right Response To Social Media Bias
Hosted by Mike Ferguson
The Institute for Free Speech’s Research Director, Scott Blackburn, talks about the recent news that Facebook and Twitter specifically suppressed the spread of a NY Post article about Joe and Hunter Biden. The conversation centers on freedom of speech and how it applies to the social media companies and their users.
New from the Institute for Free Speech
New Hampshire Town Tells Councilors Not to Speak to the Press
The Institute for Free Speech sent a letter to the Londonderry, New Hampshire Town Council late Friday warning that recent directions given to councilors may violate the First Amendment. Councilor Debra Paul contacted the Institute after the town attorney and other councilors instructed her not to comment on public matters on social media or in local newspapers.
“Being a council member does not diminish a person’s First Amendment right to speak about public affairs. The town council has no more authority to control a councilor’s speech than it does an average citizen’s,” said Institute for Free Speech Attorney Owen Yeates, one of the attorneys who signed the letter.
At a July town council hearing, Chair John Farrell cited “an element of distrust and instances of incivility that reflect poorly on all of us” before urging that “neither social media nor [a] local newspaper is a proper place for a councilor to express the councilor’s opinion about town issues. The only proper place is here, in the town council chambers, at a town council meeting, so if you have something to say, bring it here.”
The warning was particularly chilling to Ms. Paul, who is the publisher of the Londonderry Times, Nutfield News, and the Tri-Town Times.
As a service to the public, the Institute for Free Speech analyzed the First Amendment record of the Supreme Court’s newest Justice, Amy Coney Barrett, during her tenure on the Seventh Circuit Court of Appeals. Though Judge Barrett’s record in this area during her time on the Seventh Circuit was limited, we did report on four opinions she joined or authored implicating the First Amendment’s speech, press, assembly, and petition protections. Two rulings were generally supportive of free speech rights for municipal employees, another decision vindicated the speech rights of a federal prisoner, and the final opinion involved a recent unsuccessful challenge to pandemic-imposed restrictions on the exercise of First Amendment freedoms in Illinois.
To supplement these resources, the Institute reviewed transcripts of Judge Barrett’s answers to questions from members of the U.S. Senate Judiciary Committee during her confirmation hearing to be an Associate Justice of the Supreme Court of the United States…
The following excerpts reflect First Amendment-related testimony from day two (October 13, 2020) and day three (October 14, 2020) of Judge Barrett’s confirmation hearing.
Supreme Court
New York Times: Senate Confirms Barrett, Delivering for Trump and Reshaping the Court
By Nicholas Fandos
Judge Amy Coney Barrett, a conservative appeals court judge and protégée of former Justice Antonin Scalia, was confirmed on Monday to the Supreme Court, capping a lightning-fast Senate approval that handed President Trump a victory ahead of the election and promised to tip the court to the right for years to come.
Inside a Capitol mostly emptied by the resurgent coronavirus pandemic and an election eight days away, Republicans overcame unanimous Democratic opposition to make Judge Barrett the 115th justice of the Supreme Court and the fifth woman. The vote was 52 to 48, with all but one Republican, Susan Collins of Maine, who is battling for re-election, supporting her.
It was the first time in 151 years that a justice was confirmed without the support of a single member of the minority party, a sign of how bitter Washington’s war over judicial nominations has become.
Politico: The Other Tool Democrats Have to Rein in the Supreme Court
By Kia Rahnama
Legal theorists largely agree that the Constitution actually allows Congress to restrict the Supreme Court’s authority to hear cases on a specific subject matter, such as abortion. Lawmakers have tried to use this power by passing legislation declaring certain topics off-limits for the court, but they have failed to rally the necessary majorities to pass those bills. Now, with what some see as a nakedly political play by Republicans to shape the ideology of the court, the American public and lawmakers might be more open to such a strategy, which might be a more palatable option to Americans for safeguarding precedent on issues like abortion.
The legislative maneuver could come in handy after the election. If Democrats keep control of the House and take over the Senate in November, they could be the first to put this little-known power of Congress to the test.
Congress
CNET: Facebook, Twitter, Google CEOs to testify before Congress: How to watch Wednesday
By Andrew Morse
They’re back. Facebook CEO Mark Zuckerberg, Twitter CEO Jack Dorsey and Google CEO Sundar Pichai are scheduled to appear before federal lawmakers on Wednesday for a hearing into the protection their companies receive under a nearly 25-year-old law.
The Senate hearing, which will take place virtually because of the coronavirus pandemic, concerns possible changes to Section 230 of the 1996 Communications Decency Act, a law many experts consider foundational to protecting free expression on the internet…
It’s set to begin Wednesday, Oct. 28, 2020 at 10:00 a.m. ET/7 a.m. PT.
The hearing will stream live on the committee’s webpage.
FEC
Law360: Reforming The FEC: Rulemaking Obligations Must Be Fulfilled
By Karl Sandstrom
The [Federal Election Commission] has all but abandoned rulemaking, leaving major issues unresolved…
As a result, large swaths of political activity are left ungoverned by clear regulation. This begins with the most basic of questions: when must an organization register and report as a political committee? Is it when an organization expressly solicits and accepts more than $1,000 for the purpose of influencing a federal election as the statute seemingly commands? Or is it only when it spends most of its funds that it raises on making political contributions and expenditures that expressly advocate for or against a candidate?
When the U.S. Supreme Court considered this question over 40 years ago in Buckley v. Valeo, it held that an entity’s spending would only trigger registration and reporting if the organization’s major purpose was to influence a federal election. Left unanswered was whether the solicitation and acceptance of contributions for a federal election itself would trigger registration and reporting.
First Amendment
Popehat Report: What Is An Anti-SLAPP, Anyway? A Lawsplainer Series
By Ken White
[W]elcome to the Popehat Report’s Anti-SLAPP lawsplainer series. This is a complicated topic, so I’m breaking it into separate posts. I’m making it basic for non-lawyers, but as the series progresses some of the policy issues will be of interest to lawyers in this field as well.
Free Speech
Reason (Volokh Conspiracy): Institutions and Platforms
By Stephen Sachs
A few days ago the CEO of Expensify, an expense reporting company, sent out a blast email endorsing Joe Biden. The email went, not just to the CEO’s friends and contacts, and not just to Expensify’s employees, but to all of Expensify’s customers, and to all of their employees-that is, to anyone who submits expense reports.
Some of those people might have been surprised at political spam from their expense reporting company. (But for Citizens United, would this be a felony?) And a few customers have dropped Expensify since, protesting the misuse of their email lists. But whatever happens to Expensify, the episode reminded me of a passage by Yuval Levin, on treating institutions as platforms:
We now think of institutions less as formative and more as performative, less as molds of our character and behavior, and more as platforms for us to stand on and be seen. And so for one arena to another in American life, we see people using institutions as stages, as a way to raise their profile or build their brand. And those kinds of institutions become much harder to trust.
Institutions get weaker as their purposes expand. Once every #brand has had to pick a side on Kashmir or the filioque clause, no one can tell them apart. Whatever makes Expensify distinct, whatever unique contribution it offers…seems pale and wan next to the great causes of the day.
But the great advantage of limited-purpose institutions is that they let us achieve their limited purposes while still disagreeing on other things.
The Media
New York Times: Trump Had One Last Story to Sell. The Wall Street Journal Wouldn’t Buy It.
By Ben Smith
By 2015, the old gatekeepers had entered a kind of crisis of confidence, believing they couldn’t control the online news cycle any better than King Canute could control the tides. Television networks all but let Donald Trump take over as executive producer that summer and fall. In October 2016, Julian Assange and James Comey seemed to drive the news cycle more than the major news organizations. Many figures in old media and new bought into the idea that in the new world, readers would find the information they wanted to read – and therefore, decisions by editors and producers, about whether to cover something and how much attention to give it, didn’t mean much.
But the last two weeks have proved the opposite: that the old gatekeepers, like The Journal, can still control the agenda. It turns out there is a big difference between WikiLeaks and establishment media coverage of WikiLeaks, a difference between a Trump tweet and an article about it, even between an opinion piece in The Wall Street Journal suggesting Joe Biden had done bad things, and a news article that didn’t reach that conclusion.
TPM: Trump Wants COVID-19 Media Coverage To Be Illegal: ‘Should Be An Election Law Violation’
By Cristina Cabrera
President Donald Trump argued on Monday morning that it ought to be against the law for the news media to cover the pandemic ahead of the elections…
“We have made tremendous progress with the China Virus, but the Fake News refuses to talk about it this close to the Election,” he tweeted. “COVID, COVID, COVID is being used by them, in total coordination, in order to change our great early election numbers. Should be an election law violation!”
Wall Street Journal: Media Watchdogs Aren’t Supposed to Guard Biden
By Gerard Baker
All Things, it seems, will not be Considered. In the long and dishonorable annals of journalistic cant, there have been few statements to compete with the one issued by National Public Radio last week explaining why it wouldn’t burden its listeners with any news about Hunter Biden.
“We don’t want to waste our time on stories that are not really stories, and we don’t want to waste our listeners’ and readers’ time on stories that are just pure distractions,” said Terence Samuels, the network’s managing editor for news.
NPR’s might have been the most baldfaced exercise in dishonesty but it wasn’t the only one. The gatekeepers of truth in our national news organizations have come up with an anthology of justifications for ignoring the New York Post’s story about Mr. Biden’s financial aspirations-and his use of his father’s name to advance them.
It wasn’t important. It was unverified (unlike, say, the claim that the Trump-Kremlin condominium stole the 2016 election). It was that all-purpose response to any inconvenient truth: a Russian plot.
Independent Groups
Daily Beast: Mitch McConnell’s Conservative Challenger Gets a Boost… From Dems
By Lachlan Markay
In a last-ditch effort to unseat Senate Majority Leader Mitch McConnell (R-KY), a deep-pocketed Democratic group has begun airing ads backing the Libertarian candidate in Kentucky’s U.S. Senate contest.
A new super PAC called True Kentucky Patriots started buying television and digital ads last week in support of Libertarian Brad Barron…
Federal Election Commission records show that True Kentucky Patriots is affiliated with one of the Senate race’s largest independent spenders, a pro-McGrath group called the Ditch Fund.
True Kentucky Patriots also shares a treasurer with the Ditch Fund, and both groups have paid a Democratic firm called Beacon Media to produce and place their respective digital ads.
It’s not uncommon for political operatives to attempt to boost third party candidates that they hope will act as spoilers, and split an opposing ideological coalition’s votes to the detriment of one major party candidate or the other. But it’s less common for groups doing so to disclose those efforts in publicly available campaign finance filings.
Online Speech Platforms
The Hill: Twitter adds ‘disputed’ and ‘misleading’ label to Trump mail-in ballots tweet
By Marina Pitofsky
Twitter added a label to President Trump’s tweet slamming mail-in voting on Monday, with the social media platform warning users that his post “might be misleading” or “disputed.”
“Big problems and discrepancies with Mail In Ballots all over the USA,” Trump claimed in the tweet, without providing evidence.
“Must have final total on November 3rd,” he added.
The social media platform added a label warning users that some or all of the content shared in the tweet “is disputed and might be misleading about how to participate in an election or another civic process.”
The Hill: Twitter launching ‘pre-bunks’ to anticipate election misinformation
By Chris Mills Rodrigo
Twitter on Monday announced that it will start placing messages preemptively debunking common election misinformation at the top of users’ feeds.
The first message, which the platform is calling a “pre-bunk,” focuses on the safety and accuracy of mail-in voting.
“With the 2020 US general election approaching on November 3, experts and fact-checkers have continued to assure American voters that voting by mail is a safe and secure option, especially in the middle of a pandemic,” the message reads. “Deadlines and rules vary from state to state, so it is important that voters check with their state and county about how to properly vote by mail if this is the voting method they choose, experts say.”
The next message, set to go live later this week, will remind users that elections results may be delayed because of the coronavirus pandemic.
The messages will also appear whenever users search for related terms or hashtags.
Candidates and Campaigns
New York Times: If A.O.C. Is So Heavily Favored, Why Has Her Race Drawn $30 Million?
By Jeffery C. Mays
All the money in the world is not likely to influence the outcome of Representative Alexandria Ocasio-Cortez’s re-election bid in November.
But that has not stopped people from trying: The contest has improbably become the second most expensive House race in the country…
Ms. Ocasio-Cortez has also spent heavily on Facebook ads, buying $1.6 million worth in the last 90 days. Part of the ad buy is geared toward building her own small-donor network to avoid having to rely on Facebook, which Ms. Ocasio-Cortez has criticized for not fact-checking political advertisements…
She has also spent campaign funds to support an effort to get New Yorkers to fill out the census and to distribute meals to New Yorkers struggling financially because of the pandemic. One digital advertisement Ms. Ocasio-Cortez ran about census participation in September had 2.1 million views.
“We ensure that our fund-raising yields real investments into the community beyond transactional politicking,” said Lauren Hitt, a spokeswoman for Ms. Ocasio-Cortez.
The States
Anchorage Daily News: Spending on ‘Better Elections’ ballot measure tops $7 million
By James Brooks
If approved by voters, Ballot Measure 2…would require additional financial disclosure by some groups that spend money in state-level elections.
The leading vote-yes group, “Yes on 2 for Better Elections,” has collected about $6.67 million since 2019, with more than 99.5% of the money coming from Outside groups.
The leading vote-no group, “Defend Alaska Elections,” has raised about $458,000, with about 70% of the money coming from within Alaska.
In a written statement, the vote-no group said that even though it has been operating for less than two months, it has more small, in-state contributors…
The leading donor to the vote-yes cause is the Action Now Initiative, which has contributed $2.66 million, according to campaign finance disclosures.
The Action Now Initiative is the work of John and Laura Arnold, a billionaire Texas couple.
Unite America, which bills itself as “a movement of Democrats, Republicans, and independents working to bridge the growing partisan divide,” has donated $3.1 million.
Much of Unite America’s money comes from Kathryn Murdoch, a moderate member of the family that founded Fox News.
