In the News
NPR: Democrats Say Their First Bill Will Focus On Strengthening Democracy At Home
By Peter Overby
Democrats will take control of the U.S. House in January with big items topping their legislative to-do list: Remove obstacles to voting, close loopholes in government ethics law and reduce the influence of political money.
Party leaders say the first legislative vote in the House will come on H.R. 1, a magnum opus of provisions that Democrats believe will strengthen U.S. democratic institutions and traditions.
“It’s three very basic things that I think the public wants to see,” said Rep. John Sarbanes (D-Md.), who spearheads campaign finance and government ethics efforts for the House Democratic Caucus…
Other provisions would overturn the Supreme Court’s Citizens United ruling, which declared political spending is First Amendment free speech; they would mandate more disclosure of outside money and establish a public financing match for small contributions…
Much of what’s proposed in the Sarbanes bill is controversial. “A lot of it looks to be unconstitutional,” said David Keating, president of the Institute for Free Speech, a group that’s opposed to many campaign finance regulations. “They say they want to amend the First Amendment,” he said, referring to the language repealing Citizens United. “What gives government the right to regulate speech about the president and Congress?”
New from the Institute for Free Speech
The Institute for Free Speech is pleased to announce its new website at IFS.org.
The new website is easier to navigate, pleasing to browse, and serves as a one-stop shop for all of the Institute’s work defending the First Amendment.
The website’s new design is modern, mobile-friendly, and boasts an improved search function. Our extensive libraries of First Amendment research, litigation, analysis, and commentary are now more accessible than ever before. The site also offers a variety of options to contact us, whether you are looking to join our e-mail lists or want us to represent you in court.
Lawmakers, journalists, and citizens hearing about us for the first time will be able to quickly learn about our mission, the issues we work on, and why our work is crucial to promoting and defending the political rights to free speech, press, assembly, and petition guaranteed by the First Amendment. Users can more easily find information about our latest cases, legislative and regulatory analyses, original research, and commentary in prominent media outlets.
The new website also has a new and improved donation page.
We will continue to refine and improve IFS.org to provide users the most convenient and informative experience possible. We invite you to check out the new site today.
First Amendment
Project Syndicate: Why Freedom of Assembly Still Matters
By Jan-Werner Mueller
New restrictions on the right to assemble often come with innocuous-sounding justifications such as “public safety.” In the United States, the Trump administration has asserted a prerogative to recover cleaning fees after demonstrations, effectively allowing the government to charge protesters for exercising their constitutional right. And in an even more blatant effort to curtail public dissent, the administration has tried to bar assemblies from 80% of the sidewalks around the White House…
In fact, protests in streets and public squares are essential to democratic life. The right to assemble freely emerged from the right to petition kings. Historically, it has always been subject to more prior restraints than has speech. Even in many well-functioning democracies, public authorities try to keep crowds away from official government buildings.
In the US, for example, demonstrators could not assemble close to Congress until the early 1970s, when the Supreme Court finally rejected the argument that Capitol Hill was an especially dignified space deserving of refuge from the unwashed masses…
Still, is protesting outside particular public buildings really necessary? The Internet may not be the unalloyed democratizing force that many first thought it was, but it nevertheless opens up vast possibilities for “assembly” and expressing dissent online…
Nonetheless, assembly in physical space fulfills functions for democracy that online activity, however permanent or passionate, simply cannot…
Hence, the civil rights marchers in the US during the 1950s and 1960s often evoked the “meaning of our numbers.” The sheer “mass” of citizens who were willing to come out – often at the risk of physical harm – lent credence to the cause.
The Courts
CNN: CNN sues President Trump and top White House aides for barring Jim Acosta
By Brian Stelter
CNN has filed a lawsuit against President Trump and several of his aides, seeking the immediate restoration of chief White House correspondent Jim Acosta’s access to the White House.
The lawsuit is a response to the White House’s suspension of Acosta’s press pass, known as a Secret Service “hard pass,” last week. The suit alleges that Acosta and CNN’s First and Fifth Amendment rights are being violated by the ban.
The suit was filed in U.S. District Court in Washington, D.C. on Tuesday…
CNN’s lawsuit cites, among other precedents, a 1977 ruling in favor of Robert Sherrill, a muckraking journalist who was denied access to the White House in 1966.
Eleven years later, a D.C. Court of Appeals judge ruled that the Secret Service had to establish “narrow and specific” standards for judging applicants. In practice, the key question is whether the applicant would pose a threat to the president.
The code of federal regulations states that “in granting or denying a request for a security clearance made in response to an application for a White House press pass, officials of the Secret Service will be guided solely by the principle of whether the applicant presents a potential source of physical danger to the President and/or the family of the President so serious as to justify his or her exclusion from White House press privileges.”
There are other guidelines as well. Floyd Abrams, one of the country’s most respected First Amendment lawyers, said case law specifies that before a press pass is denied, “you have to have notice, you have to have a chance to respond, and you have to have a written opinion by the White House as to what it’s doing and why, so the courts can examine it.”
“We’ve had none of those things here,” Abrams said.
Politico: White House, in fight with CNN, argues Trump has ‘broad discretion’ to police journalists’ access
By Jason Schwartz and Matthew Choi
President Donald Trump said Wednesday that his administration has “broad discretion” to regulate journalists’ access to the White House, a sweeping claim that could have a dramatic impact on news organizations’ ability to cover government officials if it is upheld in court.
CNN argued in a lawsuit filed Tuesday that the administration infringed on correspondent Jim Acosta’s First Amendment rights by yanking his White House credentials in response to a dispute over a press conference last week. Trump’s administration said in its formal response that the decision was made because of conduct that “disrupts press events” and not because the president disagreed with CNN’s coverage.
“The President and White House possess the same broad discretion to regulate access to the White House for journalists…that they possess to select which journalists receive interviews, or which journalists they acknowledge at press conferences,” the White House said in a legal filing Wednesday.
“No journalist has a First Amendment right to enter the White House,” the White House said…
First Amendment experts say that the administration’s position – which, if upheld by a court, would give it wide latitude to ban reporters from White House grounds – is a departure from established case law, stemming from a 1977 D.C. Circuit court ruling, which held that the government cannot deny a White House hard pass “arbitrarily or for less than compelling reasons” and must follow a clear process to do it.
Congress
Axios: Scoop: Democrats to probe Trump for targeting CNN, Washington Post
By Mike Allen and Jim VandeHei
House Democrats plan to investigate whether President Trump abused White House power by targeting – and trying to punish with “instruments of state power” – the Washington Post and CNN, incoming House intelligence committee chairman Adam Schiff said in an interview for “Axios on HBO.”
Why it matters: Until now, all Trump critics could do is complain about his escalating attacks on the media. With subpoena power and public hearings, the incoming House Democratic majority can demand emails and testimony to see if Trump used “the instruments of state power to punish the press,” Schiff said.
“It is very squarely within our responsibility to find out,” he said in the interview…
Schiff brought up two avenues of inquiry with press-freedom themes, aimed at investigating possible administration actions targeting two of the nation’s highest profile corporations.
Schiff said Trump “was secretly meeting with the postmaster [general] in an effort to browbeat the postmaster [general] into raising postal rates on Amazon.”
“This appears to be an effort by the president to use the instruments of state power to punish Jeff Bezos and the Washington Post,” Schiff said. Jeff Bezos is founder, chairman and CEO of Amazon, and he owns the Washington Post.
Schiff said Congress also needs to examine whether Trump attempted to block AT&T’s merger with Time Warner as payback to CNN.
“We don’t know, for example, whether the effort to hold up the merger of the parent of CNN was a concern over antitrust or whether this was an effort merely to punish CNN,” Schiff said.
Online Speech Platforms
Daily Caller: Don’t Try To Kill Social Media. Let It Die
By Paul H. Jossey
Conservatives are rightly steamed at social media oligarchs Facebook, Twitter and YouTube/Google limiting vibrant, volatile nationwide political debate. Especially during election season, simple bias suspiciously resembles meddling.
Some frustrated otherwise clear thinkers are calling for a Bureau of Internet to stop tofu-eating potentates from viewpoint discrimination. This would be a mistake. It would entrench the powerful and place barriers to competitors already offering better solutions.
While the near future may be painful, market forces are shaping a nascent censorship-free idea bazaar.
Despite tech overlords’ congressional committee talk; the triumvirate actively censors speech that clashes with progressive-feminist orthodoxy. And it’s not just kooky conspiracists like Alex Jones.
Christian beliefs by Activist Mommy, kid-friendly comedy by Conservative Momma, all-American fare by Gay Patriot, pro-Life messages from Susan B. Anthony List and even educational videos by Prager University have all been suspended, banned, or demonetized through opaque terms-of-service violations…
Yes, it’s unfair, but trying to kill social media biases will just make it worse. Lobbyists will craft rules and lawyers will interpret them most favorable to power players in the well-known Washington game of regulatory capture. With a little patience, the invisible hand will do its work.
It is hard in moments of marketplace dominance to accept consumer fickleness and the capitalist drive for efficiency and innovation. Sears catalogs were once staples of American life. Pan Am Clippers ruled the foreign skies. Eleven years ago, a Forbes Magazine cover wondered if anyone could catch Nokia, the “Cell Phone King.”
The social-media oligarchy will fall, too, unless government extends its reign.
Wall Street Journal: Why Did Facebook Fire a Top Executive? Hint: It Had Something to Do With Trump
By Kirsten Grind and Keach Hagey
Facebook Inc. executive and virtual-reality wunderkind Palmer Luckey was a rising star of Silicon Valley when, at the height of the 2016 presidential contest, he donated $10,000 to an anti-Hillary Clinton group.
His donation sparked a backlash from his colleagues. Six months later, he was out. Neither Facebook nor Mr. Luckey has ever said why he left the social-media giant. When testifying before Congress about data privacy earlier this year, Facebook Chief Executive Mark Zuckerberg denied the departure had anything to do with politics.
Mr. Luckey, it turns out, was put on leave, then fired, according to people familiar with the matter. More recently, he has told people the reason was his support for Donald Trump and the furor that his political beliefs sparked within Facebook and Silicon Valley, some of those people say.
Internal Facebook emails suggest the matter was discussed at the highest levels of the company. In the fall of 2016, as unhappiness over the donation simmered, Facebook executives including Mr. Zuckerberg pressured Mr. Luckey to publicly voice support for libertarian candidate Gary Johnson, despite Mr. Luckey’s yearslong support of Mr. Trump, according to people familiar with the conversations and internal emails viewed by The Wall Street Journal…
Executives from Facebook, Twitter Inc. and Google, a unit of Alphabet Inc., have had to answer questions from lawmakers about potential bias in their treatment of conservative viewpoints. Tech executives concede that Silicon Valley is predominantly liberal-Mr. Zuckerberg said in Senate testimony that it is “an extremely left-leaning place”-yet they have steadfastly maintained that politics doesn’t play a role in how they police content on their sites.
Candidates and Campaigns
The Atlantic: An Open-and-Shut Violation of Campaign-Finance Law
By Bob Bauer
The deal that Trump reached and executed with AMI violates federal campaign-finance laws. AMI made an illegal corporate in-kind contribution to the Trump campaign, and the campaign and Trump share in the liability by accepting this illegal support…
[F]or a media organization to make a prohibited corporate contribution to a candidate, it has to depart materially from its performance “in its legitimate press function.” Media companies enjoy wide latitude in the production and dissemination of news stories, commentaries, and editorials. Any questions about legality are typically resolved in favor of the press. So if a media company sympathetic to a political candidate steers away from critical coverage, it may have committed an offense against journalistic ethics, but it is not operating outside of legal boundaries. This affords ample leeway for news editorials and coverage that are coordinated-that is, discussed and even planned-with a candidate.
But when the media duck does not quack like a duck and the actions taken are distinctly not ducklike, those legal protections fall away…
So AMI’s Pecker might have directed his tabloids to ignore the claims made by women alleging they had had affairs with Trump and stayed within the range of exempt press activity. But Pecker went much further, the Journal reported. He concluded an arrangement with a candidate to spend funds to quash a story that other media organizations would have chosen, in their legitimate press function, to publish and disseminate…
This case has exposed the limits of legal protections for self-proclaimed press entities engaged in blatant electioneering activity.
The States
MLive: ACLU says new Ann Arbor ordinance infringes on free speech rights
By Ryan Stanton
Ann Arbor is facing criticism from the American Civil Liberties Union of Michigan over a new city ordinance banning unauthorized displays of the city’s seal and flag.
The City Council approved the ordinance in July, imposing up to $10,000 in penalty fines for violations, but the ACLU argues it infringes on protected free speech rights under the First Amendment.
The ordinance prohibits anyone from displaying the city seal or flag “on any written or printed materials that are not official city publications,” unless they have special permission from the mayor. And special approval can be given only if the display “promotes the interests of the city and is not detrimental to the image of the city.”
“Such a restriction is clearly unconstitutional,” the ACLU argued in a Nov. 1 letter to Mayor Christopher Taylor and City Attorney Stephen Postema, calling for immediate repeal.
“We strongly urge the city to repeal the ordinance, and in the meantime the city attorney’s office should disclaim any intent to enforce it,” states the three-page letter signed by Dan Korobkin, ACLU of Michigan deputy legal director, and Gayle Rosen, co-chair of the Washtenaw County ACLU Lawyers Committee.
