Supreme Court
By Howard M. Wasserman
In Monday’s argument in Nieves v. Bartlett, the justices pushed all sides for a compromise approach to handle the broad range of cases that might qualify as First Amendment retaliatory arrests, an approach that would neither allow all claims nor defeat all claims…
Justice Samuel Alito introduced the problem of the broad range of “retaliatory arrest” cases. On one end of a spectrum is the “disorderly person situation,” in which police officers encounter a group of people and someone insults the officers (what Justice Ruth Bader Ginsburg describes as “contempt of cop”); on the other end is a case in which a journalist who wrote something critical of the police department is arrested or cited for a minor speeding violation. A rule that probable cause precludes a retaliatory-arrest claim would be well-suited for the first situation, Alito suggested, but would create problems in the second. Justice Elena Kagan followed up, noting that “the point is that there are so many laws that people can break that police officers generally look the other way, but, you know, you’re saying something that the officer doesn’t much like, so he doesn’t look the other way.” …
Kagan asked about the solicitor general’s proposal of a probable-cause requirement limited to crimes identified by police around the time of the arrest. Wilson [arguing for Bartlett] responded that evidence of probable cause is a significant and perhaps dispositive factor, but it should not be controlling or necessary in all cases. Wilson instead proposed that a probable-cause element should apply to arrests for “serious offenses” but not to petty offenses. The problem of retaliation for speech arises not in murder investigations and arrests, but around petty offenses such as disorderly conduct, in which the officer’s discretion to arrest or not is at its zenith and it is easy to arrest for no reason other than because the officer wishes to retaliate against an individual who exercised his free-speech rights.
Read the amicus brief of the Institute for Free Speech, with Floyd Abrams, here.
By Amy Howe
[Tomorrow] the Supreme Court will hear oral argument in the case of Tyson Timbs, an Indiana man who lost his Land Rover after his conviction on state drug charges. A state trial court agreed with Timbs that requiring him to forfeit his car went too far, violating the Eighth Amendment’s ban on “excessive fines,” but that won’t be the issue before the justices. Instead, the question is whether the Eighth Amendment applies to state and local governments at all…
A state trial court ruled that requiring Timbs to forfeit the Land Rover would violate the excessive fines clause because the car was worth roughly four times more than the maximum monetary fine that the state could impose and therefore would be “grossly disproportional to the gravity” of his crime.
An intermediate appeals court agreed with Timbs that the excessive fines clause applies to the states and that the forfeiture of the Land Rover was unconstitutional because it was an excessive fine. But the Indiana Supreme Court reversed, holding that the U.S. Supreme Court has never specifically said that the excessive fines clause applies to the states.
Timbs, represented by the libertarian law firm Institute for Justice, appealed to the Supreme Court, and the justices agreed in June 2018 to review his case…
Timbs came to the Supreme Court with one of the most diverse collections of allies in recent memory – everyone from the conservative watchdog Judicial Watch and the U.S. Chamber of Commerce, which bills itself as “world’s largest business organization,” to the American Civil Liberties Union and the Southern Poverty Law Center, which told the Supreme Court that state and local governments are using fines and forfeitures to generate money to pay for the criminal justice system without having to raise taxes.
Read the amicus brief of the Institute for Free Speech here.
The Courts
Associated Press: Appeals court ruling mixed on Alaska campaign finance laws
By Becky Bohrer
A divided federal appeals court panel ruled Tuesday that Alaska’s limit on what nonresidents can contribute to candidates is unconstitutional.
The three-judge panel, however, unanimously upheld other campaign contribution limits it said were tailored to prevent corruption or the appearance of corruption.
The case brought by three individuals and an Alaska Republican Party district challenged elements of state campaign finance law.
The judges upheld limits on contributions made by individuals to candidates and groups that are not political parties. They also upheld limits on the total amount a political party can give municipal candidates.
They split on nonresident contributions. The majority found the aggregate limit on what candidates can get from nonresidents violates the First Amendment.
The opinion says states must show limits fight potential corruption and can’t simply go after “undue influence.”
First Amendment
Politico: Do Bots Have First Amendment Rights?
By Laurent Sacharoff
“There is a rough consensus among experts that automated speech such as that generated by online bots” at least implicates the First Amendment, writes law professor Ryan Calo of the University of Washington School of Law…
The question of bot-speech-rights suddenly took on real-world significance this summer when California passed what is, perhaps, the first bot law. This law, going into effect next summer, requires online bots to identify themselves as bots, at least those that interact with human beings trying to sell stuff or promote a candidate in an election…
[B]ot rights, and the new California disclosure law, sit at the juncture of several strands of free speech doctrine that might come together in a uniquely powerful way: the free speech rights of corporations; the right against being compelled to say something, as opposed to being banned from saying something; the right to anonymous speech; and finally, the right to lie…
Regardless of your broader view of Citizens United, the underlying principle makes at least some sense. If, for example, a candidate wants to raise the minimum wage to $15 an hour, many of us would at least like to hear from corporations what effect they anticipate such a raise will have on prices and employment. A state ban on corporations telling their side of the story would strike many as the government imposing its will on the debate.
Online bots, like corporations, may well fill a similar role…
But the California law does not ban bots outright, so we cannot simply assert bots enjoy a First Amendment right in general. Here is where context becomes so critical. We ask not whether bots enjoy free speech rights, but whether they enjoy a particular kind of free speech right: the right to remain anonymous, and the right not to be compelled to say a message, even if true, that they are bots.
Disclosure
Politico: Foreign Dark Money Is Threatening American Democracy
By Joseph Biden and Michael Carpenter
While foreign funding of campaigns is prohibited by federal statute, the body that enforces campaign finance laws – the Federal Election Commission (FEC) – lacks both teeth and resources. Sophisticated adversaries like Russia and China know how to bypass the ban on foreign funding by exploiting loopholes in the system and using layers of proxies to mask their activities…
One of the key loopholes is the ability of so-called super PACs to accept money from U.S. subsidiaries of foreign corporations. And while super PACs are required to file financial disclosure reports, non-profit 501(c) organizations (for example, the National Rifle Association or the U.S. Chamber of Commerce) are not. So if a foreign entity transfers money to a 501(c), that organization can in turn contribute funds to a super PAC without disclosing the foreign origin of the money…
A federal requirement to disclose the true owners and controlling interests of LLCs would allow law enforcement to scrutinize the “ghost corporations” that pop up overnight in states like Nevada or Delaware – and that could be used to funnel dark money into our politics.
Real estate deals are also susceptible to foreign money laundering because they are largely exempt from the “know your customer” rules that apply to the banking industry. This allows foreign entities to use shell companies to park their wealth in the United States or to channel that money to U.S. political interests …
With a new Congress about to be sworn in, there’s an opportunity to finally end the permissive environment for foreign dark money in this country. Campaign finance reform is certainly a necessary part of the solution, but so too is disclosure of beneficial ownership and greater transparency in real estate transactions.
Online Speech Platforms
Facebook Newsroom: Elliot Schrage on Definers
By Outgoing Head of Communications and Policy Elliot Schrage
We hired Definers in 2017 as part of our efforts to diversify our DC advisors after the election. Like many companies, we needed to broaden our outreach. We also faced growing pressure from competitors in tech, telcos and media companies that want government to regulate us.
This pressure became particularly acute in September 2017 after we released details of Russian interference on our service. We hired firms associated with both Republicans and Democrats – Definers was one of the Republican-affiliated firms.
While we’re continuing to review our relationship with Definers, we know the following: We asked Definers to do what public relations firms typically do to support a company – sending us press clippings, conducting research, writing messaging documents, and reaching out to reporters.
Some of this work is being characterized as opposition research, but I believe it would be irresponsible and unprofessional for us not to understand the backgrounds and potential conflicts of interest of our critics. This work can be used internally to inform our messaging and where appropriate it can be shared with reporters. This work is also useful to help respond to unfair claims where Facebook has been singled out for criticism, and to positively distinguish us from competitors…
In January 2018, investor and philanthropist George Soros attacked Facebook in a speech at Davos, calling us a “menace to society.” We had not heard such criticism from him before and wanted to determine if he had any financial motivation. Definers researched this using public information.
Later, when the “Freedom from Facebook” campaign emerged as a so-called grassroots coalition, the team asked Definers to help understand the groups behind them. They learned that George Soros was funding several of the coalition members. They prepared documents and distributed these to the press to show that this was not simply a spontaneous grassroots movement.
The Media
Rolling Stone: Why You Should Care About the Julian Assange Case
By Matt Taibbi
Courts have held reporters cannot be held liable for illegal behavior of sources. The 2001 Supreme Court case Bartnicki v. Vopper involved an illegal wiretap of Pennsylvania teachers’ union officials, who were having an unsavory conversation about collective bargaining tactics. The tape was passed to a local radio jock, Frederick Vopper, who put it on the air.
The Court ruled Vopper couldn’t be liable for the behavior of the wiretapper.
It’s always been the source’s responsibility to deal with that civil or criminal risk. The press traditionally had to decide whether or not leaked material was newsworthy, and make sure it was true.
The government has been searching for a way to change that equation. The Holy Grail would be a precedent that forces reporters to share risk of jail with sources….
It’s impossible to know exactly what recent news about an indictment means until we see it (the Reporters’ Committee for the Freedom of the Press has already filed a motion to unseal the charges). If there is a case, it could be anything in the federal criminal code, perhaps even unrelated to leaks. Who knows?
But the more likely eventuality is a prosecution that uses the unpopularity of Assange to shut one of the last loopholes in our expanding secrecy bureaucracy. Americans seem not to grasp what might be at stake. Wikileaks briefly opened a window into the uglier side of our society, and if publication of such leaks is criminalized, it probably won’t open again.
Vox: How the media should respond to Trump’s lies
By Sean Illing
As Vox’s Ezra Klein argued recently, the press is in a lose-lose situation – and we all know it. Trump thrives on opposition, and often the media plays right into his hands, feverishly chasing every lie and half-truth he utters or tweets.
George Lakoff, a professor of linguistics and cognitive science at UC Berkeley and the author of the 2004 book Don’t Think of an Elephant, recently published an article laying out the media’s dilemma. Trump’s “big lie” strategy, he argues, is to “exploit journalistic convention by providing rapid-fire news events for reporters to chase.”
According to Lakoff, the president uses lies to divert attention from the “big truths,” or the things he doesn’t want the media to cover. This allows Trump to create the controversies he wants and capitalize on the outrage and confusion they generate, while simultaneously stoking his base and forcing the press into the role of “opposition party.”
I reached out to Lakoff to talk about Trump’s media strategy, but also, more importantly, about solutions. If the president has indeed turned journalistic conventions to his advantage, how can we, the media, respond constructively?
A lightly edited transcript of our conversation follows.
The States
Washington Times: D.C. Council passes first campaign finance reform bill vote
By Julia Airey
The D.C. Council gave overwhelming preliminary approval Tuesday to a sweeping campaign finance reform bill…
The council passed the bill in an 11-0 first vote. Democratic members Brandon Todd (Ward 4) and Kenyan McDuffie (Ward 5) abstained from Tuesday’s vote, citing opposition to the legislation.
Mr. Todd said he was “concerned that we’re embarking on a policy that will selectively disenfranchise” some D.C. residents in order “to fight a feeling of impropriety, not a reality.”
Gesturing to his colleagues on the dais, Mr. McDuffie said the fact that some lawmakers had won their elections despite being out-raised by incumbents proves that voters can “see through” the “pay-to-play” culture…
Council member Trayon White, Ward 8 Democrat, said he disagreed with portions of the bill but ultimately supported it because of his experience in defeating then-incumbent LaRuby May, who outraised his campaign 8-to-1 in 2016.
“The constant thing I keep hearing was that, ‘I don’t trust politicians. I don’t trust what’s going on D.C.,'” he said. “It was an issue for me.” …
Council Chairman Phil Mendelson, at-large Democrat, said that some people were “very quick” to make pay-to-play accusations after his championing the repeal of Initiative 77, which voters had passed in June’s primary elections to raise the city’s minimum wage for tipped workers.
He said there’s a misconception that “that contributions are what make the decisions, when often times the contributions reflect one’s politics.”
Milwaukee Journal Sentinel: Wisconsin, attorneys for conservative group in fight over legal fees related to John Doe probe of Scott Walker
By Patrick Marley
The legal fight over an investigation of Gov. Scott Walker is mostly over, but a battle continues over more than $250,000 in legal bills related to it.
The issue has been simmering for well over a year and there is no sign of when it might be resolved.
The lawsuit dates to 2014, when conservative allies of the Republican governor were bringing a legal fusillade challenging the legitimacy of the investigation and the state’s enforcement of campaign finance laws. Their efforts were ultimately successful, resulting in a 2015 state Supreme Court ruling that ended the probe.
Among the numerous lawsuits that were filed was one brought by Citizens for Responsible Government Advocates…
CRG brought its case so it could publish a website ahead of the 2014 election and contends it was able to do so because of a favorable ruling in the case. CRG attorney David Rivkin wrote in court filings that the victory entitles CRG to get all its legal fees paid by the state because if it hadn’t brought its lawsuit its advocacy plans would have been “completely stifled.”
But Sam Hall, an attorney representing the state, responded in court filings that CRG got only a temporary order and later agreed to dismiss the case after the Legislature and Walker adopted less restrictive campaign finance laws…
The two sides made their filings on legal fees in July 2017 but nearly a year and a half later there has been no decision. The case is before U.S. Magistrate Judge David Jones.
