We’re Hiring!
Legal Director – Institute for Free Speech – Washington, DC or Virtual Office
The Institute for Free Speech is searching for a highly experienced attorney to direct our litigation and legal advocacy. In September, President Trump announced the nomination of our longtime Legal Director to the Federal Election Commission. The Senate voted to confirm our Legal Director in early December, and the Institute for Free Speech is in the process of interviewing qualified applicants to fill the vacancy on our staff.
This is a rare opportunity to develop and implement a long-term legal strategy directed toward the protection of Constitutional rights. You would work to create legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, that threaten citizens’ privacy if they speak or join groups, and that impose heavy burdens on organized political activity.
The Legal Director will direct our litigation and legal advocacy, lead our in-house legal team, and manage and expand our network of volunteer attorneys.
A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country.
[You can learn more about this role and apply for the position here.]
New from the Institute for Free Speech
Top 4 Money in Politics Takeaways from the 2020 Election Cycle
By Nathan Maxwell
If money suppresses turnout, it’s apparently quite bad at it – even worse if it purports to buy elections. Contrary to the popular narrative, money does not corrupt the democratic process or discourage voters from participating. Even so-called “dark money,” a frequent victim of the vendetta against privacy and free association (despite accounting for a relatively insignificant portion of overall spending), is not a mechanism for corruption. If 2020 has shown us anything, it’s that the campaign against money in politics is mistaken on virtually every score.
- Record Spending. Record Turnout.
At an estimated $14 billion, 2020 federal election spending totaled $1 billion more than the 2012 and 2016 federal elections combined. Moreover, independent spending far exceeded previous records at over $2.7 billion, compared to roughly $1.1 billion and $1.4 billion during the 2018 and 2016 cycles, respectively. Meanwhile, voter turnout was at its highest since 1908, at over 66% of the voting-eligible population.
Of course, correlation is not causation, but it’s clear that historic levels of spending did not suppress turnout. This squares with research showing that political advertising may lead voters to become more engaged, better informed, and thereby more likely to vote. Money doesn’t buy elections, but it does buy recognition, and without it, you could reasonably expect voter turnout to decline.
Congress
The Hill: Graham introduces bill to repeal tech liability shield targeted by Trump
By Tal Axelrod
Sen. Lindsey Graham (R-S.C.) Tuesday introduced legislation that would repeal a key tech liability shield by 2023 as debate over the protection has put a top defense bill in jeopardy.
Graham’s bill would implement a sunset for Section 230, the 1996 law that grants legal protects to tech platforms for third party content posted on their sites. The law has come under fire from lawmakers of both parties, and President Trump has said he will veto the National Defense Authorization Act (NDAA), the annual defense policy bill, because it does not include a Section 230 repeal…
“The time has come for these largely unregulated Big Tech giants to either be broken up, regulated, or subject to litigation for their actions,” Graham said in a statement. “It’s time we put the Section 230 protections these companies enjoy on the clock.”
“These companies have an enormous impact on the day-to-day lives of the American people and enjoy protections other industries do not have,” he added. “Both Democrats and Republicans agree: the time has come for Section 230 to be reformed or eliminated.”
Online Speech Platforms
Axios: Facebook lifts political ad ban for Georgia runoffs
By Sara Fischer
Facebook said Tuesday it will begin letting advertisers run ads targeting Georgia voters about the state’s Jan. 5 runoff elections, starting Dec. 16 at 9am Pacific Time, even as its broader temporary political ad ban remains in place.
The move comes days after Google lifted its full post-election political ad ban that went into effect after polls closed on Nov. 3. The updates from the two tech giants mean more digital ads will likely start being used to target voters in Georgia.
Prior to these announcements, the vast majority of the hundreds of millions of ad dollars being spent on the Georgia election runoff races were being poured into local broadcast ads, which are harder to target narrowly and measure for engagement…
The company didn’t say why it decided to allow ads to target voters in Georgia now, other than that it’s heard feedback in recent weeks from experts and advertisers across the political spectrum about how important Facebook’s tools are for managing political campaigns.
For campaigns and political groups, digital ads are easier to buy and can be targeted to a much more narrow set of people than broadcast ads, making them more cost-effective. Digital ads make it easier to solicit funding and they allow advertisers to leverage data about ad engagement to improve their messaging and campaign tactics.
The Atlantic: Facebook Is a Doomsday Machine
By Adrienne LaFrance
Today’s social networks, Facebook chief among them, were built to encourage the things that make them so harmful. It is in their very architecture…
Facebook has conducted social-contagion experiments on its users without telling them. Facebook has acted as a force for digital colonialism, attempting to become the de facto (and only) experience of the internet for people all over the world. Facebook has bragged about its ability to influence the outcome of elections. Unlawful militant groups use Facebook to organize. Government officials use Facebook to mislead their own citizens, and to tamper with elections. Military officials have exploited Facebook’s complacency to carry out genocide. Facebook inadvertently auto-generated jaunty recruitment videos for the Islamic State featuring anti-Semitic messages and burning American flags.
Even after U.S. intelligence agencies identified Facebook as a main battleground for information warfare and foreign interference in the 2016 election, the company has failed to stop the spread of extremism, hate speech, propaganda, disinformation, and conspiracy theories on its site. Neo-Nazis stayed active on Facebook by taking out ads even after they were formally banned…
I still believe the internet is good for humanity, but that’s despite the social web, not because of it. We must also find ways to repair the aspects of our society and culture that the social web has badly damaged. This will require intellectual independence, respectful debate, and the same rebellious streak that helped establish Enlightenment values centuries ago.
Candidates and Campaigns
Politico: Georgia runoffs become high-stakes GOP fundraising experiment
By Elena Schneider
Top Republicans are using the expensive Georgia Senate runoffs to sell their party on a deeper investment in digital fundraising, pointing to the surge in donations for next month’s races in Georgia as an example of what GOP candidates could reap in 2022 and beyond – if they put the right infrastructure in place early.
National Republican Senatorial Committee executive director Kevin McLaughlin urged Republican senators at their Nov. 10 weekly lunch to capitalize on the “manna from heaven” opportunity in Georgia, where intense interest in the runoffs means senators can grow their own online fundraising programs by making appeals to donors to help Sens. Kelly Loeffler and David Perdue, according to Republicans with direct knowledge of the meeting.
The effort is introducing some senators to online fundraising tactics that have been popular among Democrats for years but are not nearly as prevalent among Republicans. Thirty-one Republicans, including 17 who are up for reelection in 2022, are tapping into their donor lists in “tandem” email efforts benefiting themselves and the Georgia candidates, raising nearly $10 million online, according to Republicans briefed on the program. The NRSC is encouraging candidates to send asks for money up to three times a week, according to one Republican consultant – a familiar rate on high-metabolism Democratic email lists but one that is less widely used on the GOP side, which has been much slower to adapt to online fundraising.
Washington Examiner: Election price tag: $4.9B, $22 per voter, Biden outspent Trump
By Paul Bedard
According to figures provided to the Federal Election Commission, 2020 was the most expensive [presidential election] in history with over $4.9 billion spent, enough to give every voter $22.
And, according to an analysis of those numbers by the reform group Issue One, Joe Biden and his associated groups outspent President Trump and his team, significantly.
In a list of 12 highlights, Issue One made this a big point:
“$2.74 billion: The total amount of money that was spent by the campaigns of President Donald Trump and Democratic presidential nominee Joe Biden as well as by outside groups supporting them during the general election. Biden and his allies controlled about 61% of this sum ($1.68 billion), while Trump and his allies controlled about 39% ($1.06 billion).”
And top researcher Michael Beckel tweeted this key point, “The 10 top-spending super PACs accounted for more than 60% of all spending by non-candidate groups in the 2020 presidential race. The top 4 each spent more than $100 million.”
The Mercury News: Stop political spending by foreign-influenced U.S. firms
By Michael Sozan
Although the aftermath of the presidential election has dominated headlines since Election Day, California saw a development that strikes at the heart of its own self-governance. Foreign-influenced U.S. corporations spent tens of millions of dollars to help pass Proposition 22, invalidating a California law and allowing the companies to classify their workers as contractors instead of employees.
One of these corporations – Uber – is partially owned and controlled by the government of Saudi Arabia. Another corporation – Lyft – is partially owned by a Chinese conglomerate. This means that Saudi Arabian and Chinese investors played a role – at least indirectly – in determining the fate of important California policy…
The good news is that a popular solution exists that is gaining momentum: a ban on election-related spending by foreign-influenced U.S. corporations. For example, if a single foreign entity (government, company, or person) owns more than 1% of a U.S. company, that company would be prohibited from spending money in elections…The prohibition would also apply if a group of foreign entities owns at least 5% of a U.S. company. Most of America’s largest publicly-traded corporations exceed the 5% threshold, although many smaller companies do not.
The States and D.C.
Washington Post: In first D.C. election with public financing, candidates and donors bumped up against rules
By Julie Zauzmer and Michael Brice-Saddler
In the first year of public campaign financing in the District, Washingtonians made enough small-dollar donations to generate $3.4 million in taxpayer funding- fueling campaigns for several well-known politicians and many newcomers…
Fifty-six candidates sought funding to run in either a primary or general election in 2020, and 36 of them collected sufficient donations from the public to qualify for city funding for either D.C. Council or State Board of Education races, according to Office of Campaign Finance records.
Of the three dozen who qualified, seven won their races…
To participate in the Fair Elections Program, candidates had to follow more-stringent rules on donations and expenditures than their competitors who opted out of public financing…
The rules of the program proved in many cases to be confusing – not necessarily to candidates but to donors.
On at least 194 occasions, campaigns reported that they had to refund the donations of contributors who sent more than the amount participants in the Fair Elections Program are allowed to accept…
At-large council candidates who did not seek public financing could accept up to $1,000 from any donor. Among those candidates, just six donations had to be refunded this election cycle.
New York Post: Cuomo signs bill banning sale of Confederate flags
By Bernadette Hogan and Carl Campanile
Gov. Andrew Cuomo signed a bill into law aimed at banning the sale of “hate symbols” such as the Confederate Flag or the Swastika on state property – even while admitting the new edict might clash with the First Amendment and be struck down as unconstitutional.
The new law – effective immediately – prohibits the sale of hate symbols on public grounds including state and local fairs, and also severely limits their display unless deemed relevant to serving an educational or historical purpose.
But Cuomo said the rule likely needs “certain technical changes” so the Empire State doesn’t get caught treading upon free speech protections codified in the U.S. Constitution’s First Amendment…
But noted First Amendment lawyer Floyd Abrams argues Cuomo may have a larger problem on his hands, extending beyond a quick “technical” fix.
“Governor Cuomo is correct that the First Amendment may require changes in the law in light of the First Amendment. A private entity can choose to sell or not sell offensive symbols but when the government bans the sale of offensive, but constitutionally protected symbols, on its property the First Amendment comes into play,” Abrams told The Post.
Reason (Volokh Conspiracy): Heckler’s Veto: $1.5 Million Nuisance Verdict Against Abortion Clinic, Chiefly Based on Actions of Protesters and Arsonists
By Eugene Volokh
The case in McBrayer v. Governors Ridge Property Owners Ass’n, Inc…
Here is the Summary of the Argument from our amicus brief …
Under the lower court’s reasoning, many controversial businesses and organizations-churches, synagogues, mosques, bookstores, gun stores, political party offices, and more-may face economic ruin and be forced to shut down because they are targeted by protesters or criminals (or are even just morally disapproved of by their neighbors, despite being completely legal). Opponents could picket or attack those entities until neighbors file a nuisance lawsuit, forcing the opponents’ targets to either pay massive damages or to abate the nuisance by closing up shop, which is the opponents’ goal.
This sort of heckler’s veto is inconsistent with Georgia law, which generally does not hold businesses liable for behavior of third parties that it cannot control, and which generally requires a showing that a nuisance was proximately caused by defendants rather than by the supervening acts of third parties. Indeed, the lower court’s decision creates incentives for people to commit crimes; and it undermines the legal and constitutional rights of law-abiding businesses and their clients. The decision should be reversed.
