In the News
Federalist Society: Is It Transparency or Is It Censorship? Washington Post v. McManus (Teleforum)
Featuring Tyler Martinez and Erin Chlopak
In Washington Post v. McManus, various newspapers brought suit to strike down a new Maryland law as unconstitutional under the First Amendment. The statute, aimed at Russian online election interference, requires media outlets to collect and make available for public inspection information about persons who purchase online political ads and their donors. Early this year, the District of Maryland issued a preliminary order under both strict and exacting scrutiny. The state appealed to the Fourth Circuit, which will hear oral arguments on Wednesday, October 30.
Erin Chlopak of the Campaign Legal Center and Tyler Martinez of the Institute for Free Speech, who authored amicus briefs for the appellants and appellees, respectively, will offer first impressions of the argument.
[Read the amicus brief of the Institute for Free Speech here.]
Wall Street Journal: Blocking Political Ads Favors Liberal Elites (LTE)
Regarding “Notable & Quotable: Twitter” (Nov. 5): Bradley A. Smith in his City Journal commentary addresses deficiencies in Twitter’s new ban on political candidate and “issue ads.” Twitter’s CEO Jack Dorsey explained that the ban is directed at those who “pay for reach” (e.g., politicians and activist groups) as opposed to those who have “earned” influence (e.g., celebrities). The latter can receive substantial revenues for speaking in favor of or mentioning a politician or campaign issue.
Twitter’s new paid political speech ban is the social-media version of the left’s goal for all media-tilting free speech toward progressive influences. For a decade, liberals have railed against the Supreme Court’s Citizens United ruling that approved spending by corporations on political communications. Most of America’s political news and commentary comes from corporate-owned news organizations, but the left has few concerns about giving those for-profit businesses near-monopoly power in news reporting (with the exception of Fox News). Liberals also aren’t bothered by nonprofit organizations spending money on political advocacy. The Capital Research Center reported last year that liberal foundations and nonprofits spend three or four times as much as conservative peers on advocacy.
Celebrities in the U.S. are by and large liberals, so Twitter’s stacking the free-speech deck in their favor has obvious and significant ideological implications. The magnitude of Hollywood’s political bias is hard to measure, but the left-wing tilt is indisputable. The effect in practice is freer speech for liberals than for conservatives.
Eric Paulson
Free Speech
Wall Street Journal: A Centenary for Free Speech
By Ilya Shapiro and Michael T. Collins
Americans may take free speech for granted, but they couldn’t do so a century ago. Courts convicted newspapermen, pamphleteers and politicians for nothing more-and sometimes less-than trying to sway the public against U.S. involvement in World War I. On Nov. 10, 1919, the Supreme Court affirmed the conviction of antiwar protesters under a law that made it a crime to “hinder” the war effort. But a dissent in Abrams v. U.S. laid the foundation for today’s robust protection of controversial speech.
The idea that speech could pose a “clear and present danger” to the government, and thus lacked First Amendment protection, came from a quartet of 1919 cases, three of which were unanimous. In March, in Schenck v. U.S., the court, led by archprogressive Justice Oliver Wendell Holmes Jr., upheld the convictions of pamphleteers who encouraged draft-dodging. A week later, Frohwerk v. U.S. upheld the conviction of a newspaperman who criticized U.S. involvement in foreign wars, while Debs v. U.S. affirmed the conviction of Socialist Party leader Eugene Debs for denouncing the war in a speech…
In October the court in Abrams upheld another antiwar protest conviction-but this time not unanimously. Like Charles Schenck, Jacob Abrams was a socialist who had distributed antiwar pamphlets…
The defendants were convicted under the Sedition Act of 1918, which made it a crime to “urge, incite, or advocate any curtailment of production . . . with intent by such curtailment to cripple or hinder . . . the prosecution of the war.”
The court affirmed the convictions over the surprising dissent of Schenck’s author, Holmes, joined by Justice Louis Brandeis…
Abrams and the other cases were effectively overturned in Brandenburg v. Ohio (1969), which held that speech can be prosecuted only if intended to foment “imminent lawless action.” Since then, the court has vigorously defended speech that offends or provokes, ranging from the publication of the Pentagon Papers, to violent rap lyrics, from pornographic humor to burning the American flag.
New York Times: The Unlikely Birth of Free Speech
By Thomas Healy
A contrarian with a love of books and a fondness for debate, [Holmes] was troubled by the wave of persecution that swept the country once the dangers of war had passed. He was especially troubled when that wave threatened to engulf two of his own friends, a legal scholar named Felix Frankfurter and a British political theorist named Harold Laski…
[W]hen the two men came under attack for their “radical” views – Frankfurter for his support of labor unions, Laski for his socialist leanings – Holmes sprang to their defense. He wrote to the president of Harvard, where both men taught, and sought help from the Harvard Law School alumni association.
He also began to rethink his stance on the First Amendment, an endeavor his young friends encouraged. For more than a year, they waged an intense behind-the-scenes campaign to strengthen Holmes’s appreciation for free speech. They fed him books on political liberalism, wrote him long letters on the value of tolerance and engaged him in impassioned debates. At one point, Laski even arranged a meeting at his summer bungalow between Holmes and Zechariah Chafee, a Harvard law professor who had written an article criticizing the justice’s views…
Holmes did not change his mind all at once. In March 1919, he wrote three opinions for the court upholding the convictions of socialists for criticizing the war. These opinions hinted at an internal struggle…
Eight months later, when the court heard another case under the Espionage and Sedition acts, Holmes’s conversion was complete. By this point, Laski was in serious trouble, having spoken out in support of a labor strike by Boston police officers…
It was against this backdrop that Holmes wrote his famous defense of free speech.
Supreme Court
Pacific Legal Foundation: Seattle homeowners ask Supreme Court to rule on the constitutionality of “Democracy Vouchers”
By Ethan Blevins
Pacific Legal Foundation asked the Supreme Court of the United States to grapple with the constitutionality of Seattle’s new-fangled campaign finance scheme, known as the “Democracy Voucher.”
“Democracy Vouchers” impose a special property tax levy, then give the revenue to private citizens in the form of vouchers, which they can use only to give to the political candidate of their choosing. In other words, the City forces property owners to underwrite other people’s campaign contributions…
Pacific Legal Foundation represents two Seattle property owners, Mark Elster and Sarah Pynchon, who don’t want to sponsor viewpoints they oppose. The Supreme Court has long held that compelling someone to pay for someone else’s private speech violates the First Amendment. Government cannot conscript citizens into betraying their convictions by forcing them to amplify ideas they abhor. For example: the government can’t force a progressive voter to support Donald Trump, or a libertarian voter to support Bernie Sanders…
The case is not just a local oddity-Seattle’s program has gained national traction. Presidential candidate Andrew Yang has a “Democracy Dollars” proposal in his platform, and federal, state, and municipal legislators around the country have also proposed similar measures.
Pacific Legal Foundation urges the Court to address this case now, protect taxpayers’ freedom of speech, and prevent similar First Amendment violations from rearing their ugly-and expensive-heads.
Slate: How the Roberts Court Abandoned Bipartisan Consensus
By Dahlia Lithwick
On this week’s Amicus, Dahlia Lithwick spoke with Democratic Rhode Island Sen. Sheldon Whitehouse about the current state of the federal judiciary, the problems that come when the Supreme Court makes decisions across partisan lines, and what to make of all the recent 5-4 decisions. Here is a portion of their conversation, edited and condensed for clarity.
Congress
Daily Caller: Conservatives Should Oppose Republican Effort To Target ‘Big Tech’
By Curt Levey
Facebook must stop President Trump from “mislead[ing] the American people,” says the Democratic National Committee. Demands from Democrats that social media platforms “fact-check” or otherwise censor political ads and posts are rapidly accelerating this fall and having an impact. Twitter responded two weeks ago by banning political ads altogether.
These attacks on free speech from the left are chilling but sadly predictable. What’s surprising is that more and more conservatives are calling for top-down intervention – by the government no less – into social media content…
Most prominently, many conservatives are supporting a bill introduced by Republican Missouri Sen. Josh Hawley that would hold hostage the law that allows social media to flourish by shielding websites from liability for user-posted content. The bill would strip big platforms of that protection unless they can prove to the federal government – specifically the Federal Trade Commission – that their content moderation has no political bias.
I thoroughly share Hawley’s concern for instances of conservative bias on tech platforms. But his big-government solution is worse than the problem. In fact, it would require the FTC to monitor social media content in ways similar to what Democrats are demanding of Facebook and Twitter…
The Hawley bill would create an even more dangerous concentration of power than the self-censorship Democrats want, because the censor would be the biggest monopoly of all, the federal government…
If free speech on the internet is legislated away, it will likely be Republican votes in Congress that enable what Democrats cannot do alone.
Online Speech Platforms
BuzzFeed News: Twitter Will Make Exceptions To Its Political Ad Ban. Here’s One Of Them.
By Alex Kantrowitz
Representatives from Twitter met with advertisers last week to discuss the specifics of what might be – and won’t be – included in its ban on political advertising. In those meetings, Twitter staffers suggested that ads that spread awareness about issues of national significance would still be allowed after the ban takes effect. Ads that advocate for a specific candidate or piece of legislation will be banned, according to one advertiser briefed on Twitter’s plans.
“For candidates, it seems like none of that advertising is going to be allowed,” the advertiser said. “For issue advocacy, the rules are a little bit more permissive.”
“The exceptions, from what Twitter [Global VP of Revenue and Content Partnerships Matt] Derella has told me, will be for organizations that are not directly talking about a legislative issue,” the advertiser said…
“Issue awareness ads would be allowed, issue action-oriented ads that are based on a specific policy are definitely not,” the advertiser said, according to their interpretation of the meeting with Twitter.
Twitter still hasn’t hammered out the exact contours of the policy, which is due to be announced Nov. 15…
Dorsey indicated that there would be exceptions to the policy on political ads last week, in response to criticisms from Democratic presidential candidate Sen. Elizabeth Warren, who claimed on Nov. 5 that Twitter would allow ads from fossil fuel companies while banning ads from organizations fighting the climate crisis. Dorsey wrote, “We haven’t announced our new rules yet. They come out 11/15. Taking all this into consideration.”
When Instagram head Adam Mosseri added, “You can’t ban these ads without significantly inhibiting the ability of activists, labor groups, and organizers to make their cases too,” Dorsey responded, “That’s not exactly right, Adam. We gave ourselves until the 15th to make sure we’re addressing concerns like this thoughtfully.”
Washington Post: Ban political ads on Facebook? Upstart, anti-Trump candidates object.
By Isaac Stanley-Becker
[I]f Facebook were to cut off political ads, it could end up undercutting the scrappy, first-time candidates inspired to enter politics by Trump’s election, including some of the Democrats who helped the party retake the House in 2018. Facebook creates a more level playing field for challengers than television does, according to a review of campaign ads from federal, statewide and state legislative races during the 2018 midterm elections.
Voters are more likely to see Facebook ads than television ads from challengers, according to the findings, published in a working paper whose first author is Erika Franklin Fowler of Wesleyan University. She and her co-authors also discovered that Facebook advertising was less negative than messaging on television. At the same time, the material focused less on issues and was more partisan, suggesting that promoted digital posts are geared more toward base mobilization and fundraising than persuasion.
“Online advertising lowers the cost and the barriers to entry,” Fowler said, in part because advertisers can pay for specific impressions rather than having to display ads to an entire local television audience, which may exceed a particular electoral district, creating unnecessary costs.
That targeting ability was critical to Democrat Rui Xu, who won election to the Kansas House of Representatives last year. He attributes his victory in part to his advertising campaign on Facebook.
“I really, really honed my messaging on Facebook,” said Xu, 30, who used the platform’s microtargeting tools, in combination with a list of voters in the district, to reach specific users…
While local Democrats say they understand the case for change, they also lack the resources to navigate a web of new regulations…
These candidates say updates to Facebook’s rules for authenticating pages for political advertising – announced at the end of August – serve as a cautionary tale for those calling on the company to clamp down.
TechCrunch: Banning digital political ads gives extremists a distinct advantage
By Jessica Alter
[B]anning digital political ads will not only hurt the very candidates people should want to help, it will also damage our democratic process. Analog mediums are significantly more expensive and inefficient than digital ones, so candidates who have a lot of money and/or have spent time cultivating their followings will continue to dominate. In other words, incumbent candidates, rich people and reality TV stars enjoy an outsized advantage when digital advertising is denied.
A recent Stanford study found that, at the state house level, more than 10 times as many candidates advertise on Facebook than advertise on television. The research found that digital ads lowers advertising costs, which expands the set of candidates for whom advertising – and thus the potential to reach voters and seriously contest an election – is a real possibility.
Washington Post: I worked on political ads at Facebook. They profit by manipulating us.
By Yaël Eisenstat
I joined Facebook in June 2018 as “head of Global Elections Integrity Ops” in the company’s business integrity organization, focused specifically on political advertising…
During my interviews, I was asked whether I thought the company should ban political ads, and at the time, the answer was obvious to me. I said that although it seemed like the easiest solution, banning political advertising on the world’s largest social media platform would tilt the scales toward incumbents who already had disproportionate access to media, especially in countries with dictatorial regimes; Facebook would risk squashing the voices of smaller parties and candidates. This is the one point on which I agreed with Facebook chief executive Mark Zuckerberg’s defense of political advertising in his speech last month.
But couching the issue as simply a question of free speech is both disingenuous and an intentional distraction. Many of the fixes found in the company’s new ad transparency rules are laudable and necessary, but the core issue will not be solved before 2020 without addressing the fundamental, systemic problem the business model causes…
Free political speech is core to our democratic principles, and it’s true that social media companies should not be the arbiters of truth. But the only way Facebook can prevent abuse of its platform to harm our electoral process is to end its most egregious targeting and amplification practices and provide real transparency.
Banning political ads would unleash larger problems, such as determining what is an “issue ad” and stifling the ability of advocates on issues such as climate change to advertise. But allowing candidates to spread disinformation using sophisticated targeting tools that exploit our data cannot be the only other option.
The States
Albany Times Union: Commentary: It’s free speech, not lobbying
By Steven Sanders
[W]hat the Joint Commission On Public Ethics, which oversees lobbying in New York, is doing with Kat Sullivan goes beyond anything that is reasonable…
Sullivan, a victim of sexual assault, spoke out about the need for legislation to allow more time for civil actions to be brought against people suspected of abusing children. She spent her own money on billboards around Albany urging state legislators to pass the Child Victims Act, which they did earlier this year. She has also been quoted in the news about such heinous crimes and the need to pursue child abusers.
She does not represent any organization, nor is she paid by anyone to express her views. She is speaking from her heart and out of personal experience. She is not only trying to bring sexual predators to justice but she is helping to make sure that others are not abused as she was.
For her efforts, JCOPE insists that she is a lobbyist for forcefully speaking her mind and exercising her First Amendment rights. As a lobbyist, she would have to fill out and submit reams of paperwork as well as pay a registration fee. She rightfully refuses to do so. She is not engaging in the lobbying of public officials, but rather is expressing her views in the most effective means at her disposal. She was speaking truth to power by telling her own story in the hopes that the Legislature would be moved to act on an issue that it avoided for years.
For her courage and honesty, JCOPE threatens Sullivan with tens of thousands of dollars in fines for refusing to declare herself a lobbyist.
Bloomberg: Cuomo’s Move to Revamp N.Y. Campaign-Finance Laws Stirs Doubts
By Henry Goldman
When New York created a commission last summer with the power to set rules for publicly financed campaigns, Governor Andrew Cuomo said it showed his commitment to reform.
Now as the commission faces a Dec. 1 deadline to issue its rules, good government groups and political outsiders across the ideological spectrum have united to express alarm. They say the panel — which Cuomo and state legislature leaders appointed — will ensure insiders retain power…
“It’s far from clear they’re building a good plan,” says Lawrence Norden, an elections specialist at the Brennan Center for Justice at New York University School of Law. “There are signs it may only help incumbents and that would be bad after it had been sold as promising reforms.”
The commission would discourage newcomers with a ban on public matching funds from out-of-district donors. The prohibition, approved by a 5-to-4 vote, could hurt legislative candidates running in low-income areas, Norden said. Members are also proposing to require that legislative candidates meet higher thresholds of fundraising prowess than required by New York City’s widely praised public-finance program.
