In the News

USA Today: Listen up Supreme Court: Warrantless tracking of smartphones violates our rights

By Zac Morgan

On Nov. 29, the Supreme Court will review whether the government can get this information without a warrant. The case, Carpenter v. United States, will decide if the Fourth Amendment protects your information.

But the case also raises serious First Amendment issues about the right to free and private association.

Consider what happened during the 1950s when pro-segregation Southern states tried to get the NAACP’s membership list. Those states justified that effort using a range of governmental powers, including corporate registration, legislative investigations, and tax laws. Each time, no matter the excuse, the Supreme Court said no…

If the government can get location data of attendance at private gatherings, there’s little need to demand a membership list…

The Institute for Free Speech filed a brief in Timothy Carpenter’s case raising these concerns. Two left-leaning racial justice organizations, Color of Change and the Center for Media Justice, joined the brief. So did Americans for Prosperity Foundation and Tea Party Patriots, right-leaning organizations which advocate for limited government. Our brief warned that the “chilling effects from this invasive form of government oversight will do grave damage to the First Amendment.” 

New from the Institute for Free Speech

There’s Nothing Sweet About Censorship

By Alex Cordell

Instead of releasing their own ad that disputed the health claims of Educar Consumidores and communicated reasons why they believed the soda tax was a bad policy to voters, Postobón – Colombia’s largest soda manufacturer – chose to use the power of the government to squelch their opponent’s ability to speak…

After a report was filed with the Colombian government saying the pro-soda tax advertisement was misleading, Educar Consumidores was forced to take their content down. To make matters worse, the government agency ruled that Dr. Cerón and her colleagues were prohibited from publicly commenting on the health risks of sugar consumption, under threat of a $250,000 fine…

But this could never happen in a country like the United States, right? …

In 2010, civilians in Wisconsin who supported the policies of Governor Scott Walker woke up one morning to the sound of police battering down their doors and raiding their homes in search of computers and personal documents. Much like what occurred to Dr. Cerón and her colleagues, they were prohibited from speaking about the incident at all. In 2013, the IRS admitted it had been targeting organizations with conservative-sounding names to demand additional donor information and delay their applications for tax-exempt status. False statement laws, which still exist in a handful of states, have the same chilling effect as the actions taken against Educar Consumidores.

Free Speech

New York Times: Free Speech, Personified

By Peter Salovey

In 1963, the Yale Political Union, one of the oldest collegiate debate societies in the United States, invited the defiant segregationist governor of Alabama, George Wallace, to Yale…

The provost and acting president of Yale, Kingman Brewster Jr., advised the students to withdraw their invitation. Mayor Richard C. Lee said Wallace was “officially unwelcome” in New Haven.

Not everyone agreed. Pauli Murray, a lawyer and civil rights activist pursuing her doctorate of jurisprudence at the law school, wrote to Brewster, urging him to send a clear message that Wallace should be allowed to express his views at Yale…

Murray hated what Wallace represented. Segregation, she had written years before, was “a monster, dividing peoples, thwarting personalities, breeding civil wars.” Yet she told Brewster, “The possibility of violence is not sufficient reason in law to prevent an individual from exercising his constitutional right.” Her defense of free expression at a private institution went beyond even what the First Amendment required, and she was less sensitive than we are today about the fact that speech that could incite imminent violence is not protected. At stake, Murray believed, were the rights of all Americans to speak freely – including her fellow civil rights activists.

Supreme Court

The Guardian: Supreme court cellphone case puts free speech – not just privacy – at risk

By Jameel Jaffer and Alexander Abdo

On Wednesday, the supreme court will consider whether the government must obtain a warrant before accessing the rich trove of data that cellphone providers collect about cellphone users’ movements. Among scholars and campaigners, there is broad agreement that the case could yield the most consequential privacy ruling in a generation.

Less appreciated is the significance of the case for rights protected by the first amendment. The parties’ briefs make little mention of the first amendment, instead framing the dispute – for understandable reasons – as one about the right to privacy. Yet the court’s resolution of the case is likely to have far-reaching implications for the freedoms of speech, press and association…

In a brief filed in support of Carpenter, 19 leading technologists explain how easy it is to use a person’s location data to learn about her beliefs and associations. (We represent the technologists.) With very few data points, the technologists observe, an analyst can learn whether a given person attended a public demonstration, attended a political meeting, or met with a particular activist or lawyer. With more data, an analyst can identify social networks and learn not only whether a given person was at a public demonstration but who else attended the demonstration with her.

IRS

U.S. News & World Report: Last Chance for the Truth

By Peter Roff

Lerner and her former deputy, a woman named Holly Paz, have asked a federal judge to seal “in perpetuity” tapes and depositions they gave in a court case earlier this year arising from complaints made against the agency for which they both once worked…

The public has the right to know what Lerner and Paz said when they were being deposed. They were public officials working for the U.S. government. We paid their salaries. We have the right to know what they said they did under oath, something Lerner didn’t do in front of Congress because, save for an inflammatory opening statement she made to the members of the committee who wanted to question her, she went mum.

Lerner and Paz say there’s no reason for their statements to become public now that the legal cases that were filed have been settled. They could not be more wrong. By being able to read through the transcripts and listen to the tapes we may finally learn what happened, who gave the orders and who ordered it all covered up. The truth matters – and if the Lerner tapes are made public we might finally get some.

Public Policy Legal Institute: Comments with the IRS on Proposed Form 1024-A Actually Show Differences in How the IRS Rules Should Work

By Barnaby Zall

In addition to the substance of the proposed form and what it means (see far below), there’s a much bigger issue at work here:

Should the IRS issue rules designed to capture every possible problem or violation, at a cost of burdening speech by smaller organizations or those without good lawyers? Or should the IRS use modern techniques of computer modeling and analytics to focus on the problem areas and take some of the burdens off the little guys?

The IRS’s deadline for commenting on the proposed Form 1024-A, for organizations that want to get an official IRS determination letter on their section 501(c)(4) status is tomorrow. Other organizations, such as the American Bar Association’s Section on Taxation, have filed generally favorable comments.

PPLI’s Comments on Form 1024-A, in contrast, are generally quite negative about the Form, and more importantly, about the IRS’s approach to the whole issue of Congressional intent and actions responding to its recent processing of applications for exemption for advocacy and small organizations.

FEC

Bloomberg BNA: FEC Party-Line Vote Drops NRCC Enforcement Case

By Kenneth P. Doyle

The Federal Election Commission voted along party lines to drop an enforcement complaint alleging the National Republican Congressional Committee’s spending of $465,161 to air a television ad in a 2016 congressional race was an illegal campaign contribution.

The ad aired in the race for a U.S. House seat from California narrowly won by Rep. Ami Bera (D), according to FEC documents released Nov. 22. The NRCC ad supported Bera’s Republican opponent, Scott Jones, and contained B-roll video footage that Jones’s campaign committee had posted on YouTube…

The FEC counsel’s report said there was no evidence the Jones campaign gave the video footage to the NRCC directly or otherwise illegally coordinated with the party committee to create the ad. The report recommended the FEC find “no reason to believe” an allegation of illegal coordination between the campaign and the NRCC.

Congress

New York Times: In Tax Debate, Gift to Religious Right Could Be Bargaining Chip

By Kenneth P. Vogel and Laurie Goodstein

The change could turn churches into a well-funded political force, with donors diverting as much as $1.7 billion each year from traditional political committees to churches and other nonprofit groups that could legally engage in partisan politics for the first time, according to an estimate by the nonpartisan congressional Joint Committee on Taxation…

Critics warn that the change could dramatically increase untraceable political spending and lead to the creation of “sham churches” to take advantage of the new avenue for political spending, which – unlike donations to candidates, “super PACs” and party committees – would allow donors to deduct contributions…

The Johnson Amendment traces its origins – and its name – to Senator Lyndon B. Johnson and his 1954 re-election campaign. Concerned that his electoral prospects could be diminished by attacks from a pair of conservative nonprofit groups, he slipped a provision into a tax code overhaul to bar certain nonprofit groups from participating in political campaigns.

There is only one known instance of a church losing its tax-exempt status for running afoul of the law, despite ample documentation of churches explicitly endorsing or opposing candidates.

The States

Spokesman-Review: Campaign Finance Working Group convenes at Capitol, working on changes…

By Betsy Z. Russell

A bipartisan working group of Idaho lawmakers has convened at the state Capitol this morning to continue working on proposed changes in the state’s Sunshine Law to require more frequent and more detailed campaign finance disclosures, including adding new reporting in local races and requiring information about who’s behind shadowy outside groups that run independent expenditure campaigns in the state. The Campaign Finance Reform Legislative Workgroup is reviewing a 28-page draft bill this morning…

Also before the committee today are several other decision points, according to committee Co-Chair Rep. Fred Wood, R-Burley: Rep. Tom Loertscher’s proposal to enact Idaho’s first personal financial disclosure requirements; the possibility of banning campaign fundraising for all candidates during the legislative session and possible constitutional issues surrounding that; Secretary of State Lawerence Denney’s proposal for a $1.2 million technology upgrade next year in the state’s campaign finance reporting system, plus $90,000 a year in additional operating expenses; and a request to legislative leadership to continue the working group for another year.

Pittsburgh Post-Gazette: Was anti-cop rap song ‘artistic’ or ‘threat’? Pa. high court to decide

By Paula Reed Ward

Knox, 23, and Rashee Beasley, 26, also of Pittsburgh, wrote and performed their song in 2012, and someone – they say it wasn’t them – uploaded it to YouTube. Shortly thereafter, they were charged by Pittsburgh police who construed the song’s lyrics as threats made specifically against Det. Daniel Zeltner and Officer Michael Kosko, both of whom had previously arrested the men.

Following a nonjury trial before Allegheny County Common Pleas Judge Jeffrey A. Manning, both men were found guilty, and in February 2014, Knox was ordered to serve two to six years in state prison. He was released in December 2016.

Knox appealed his conviction to the state Superior Court, which upheld it last year. But the state Supreme Court agreed to hear the case based solely on the issue of whether the song qualifies as a threat under the case law or if it is protected free speech…

In a friend-of-the-court brief, the American Civil Liberties Union of Pennsylvania argued that artistic expression is often disturbing, offensive, and shocking.

“This is especially true of rap, Knox’s musical genre,” attorneys wrote. “As scholars of the genre have described it, rap is a form of political expression that gives voice to urban poverty, street crime, and limited life options, and a criminal justice system that sweeps up young men of color.”