Free Speech
Reason: 7 Things You Should Know About Free Speech in Schools
By Eugene Volokh & Austin Bragg
Watch the first episode of Free Speech Rules, a new video series on free speech and the law that’s written by Eugene Volokh, the Gary T. Schwartz Distinguished Professor of Law at UCLA, and the co-founder of the Volokh Conspiracy, which is hosted at Reason.com.
The first episode looks at the seven things you should know about how the First Amendment is applied in schools…
The Courts
FIRE: In blow to free speech, Fourth Circuit reinstates lawsuit against University of Mary Washington
By Samantha Harris
The alarming upshot of the ruling is its suggestion that Title IX may sometimes require colleges to censor or block all students’ access to certain internet sites or services based solely on anonymous statements made in an online forum that the university does not control, by people who may not be on campus, or even affiliated with the university at all…
In a ruling that has far-reaching implications for universities’ obligation to monitor and address the off-campus, online speech of its students, the court held that because UMW had the “technical capacity to control the means by which the harassing and threatening messages were transmitted” (that is, the ability to block campus network access to Yik Yak altogether) and because they could have taken other actions (such as “mandatory assemblies” or “anti-sexual harassment training”) to make clear that sexual harassment by its student body would not be tolerated,” the plaintiffs had sufficiently alleged that UMW had substantial control and thus could be liable for the harassment.
Unfortunately, the opinion does not address one of the most significant issues in the case, which is whether the speech in question even rose to the level of unprotected harassment or true threats in the first place. FIRE strongly believes it did not, and we submitted an amici curiae brief – joined by the Cato Institute, the National Coalition Against Censorship, and law professor (and former ACLU president) Nadine Strossen – on that point, arguing that “[t]his case turns exclusively on the university’s response to offensive but constitutionally protected speech.” Ultimately, it is almost impossible to conceive of this case being resolved without addressing this enormous elephant in the room; if the speech was constitutionally protected, and was not harassment, then the question of substantial control is irrelevant.
Wall Street Journal: Trump Testimony From Decades Ago Indicates Knowledge of Campaign-Finance Laws
By Rebecca Ballhaus and Joe Palazzolo
Sworn statements by President Trump dating back several decades indicate he has a deep understanding of campaign-finance laws, legal experts say, which could be critical if investigators ever pursue a case against him over his alleged direction of hush-money payments in the 2016 campaign.
Mr. Trump’s statements were made as part of a 2000 regulatory investigation into his casino company and in 1988 testimony for a government-integrity commission. They contrast with the portrayal by some of the president’s allies that he is a political novice with little understanding of campaign-finance laws and therefore couldn’t be charged with violating them.
In 2000, the Federal Election Commission investigated allegations that Trump Hotels & Casinos violated the law related to a fundraising event for a Senate candidate. Mr. Trump’s sworn affidavit “indicates that Trump had a very thorough understanding of federal campaign finance law, especially regarding what he could and could not legally do when raising money for a federal candidate,” said Brett Kappel, an election-law lawyer at Akerman LLP.
In the four-page affidavit that Mr. Trump signed, he stressed he had a particular familiarity with laws governing corporate contributions to candidates. Mr. Trump said he was acting in his “individual,” not corporate, capacity when he hosted the event; that he had paid for the reception costs “from my personal funds”; that he “took no action, of any nature, kind or description, to compel or pressure” any employee to donate to the campaign ahead of the event; and that he wasn’t reimbursed for any of the costs.
Cato: The First Amendment Protects Boozy Talk
By Ilya Shapiro and Michael Finch
A restriction of free speech by any other name is still unconstitutional. No matter how much the Missouri government wants to regulate alcohol it may not do so by restricting the freedom of speech. Cato joins the ACLU and the Freedom Center of Missouri on an amicus brief supporting a challenge to a Missouri law prohibiting alcohol producers from advertising alcohol prices unless the prices are displayed inside a retailer-and they may not advertise who their retail partners are unless they list more than one. This both limits and compels speech.
The government argues that advertising is “commercial speech” and therefore not afforded the same protections under the First Amendment as every other type of speech. The “commercial speech” doctrine traces back to Valentine v. Chrestensen, an infamous case from the 1940s in which the Court arbitrarily decided commercial advertising wasn’t constitutionally protected. The Court has slowly been hacking away at this arbitrary rule, eventually creating an intermediate protection for commercial speech in under the Central Hudson Gas & Electric Corp. v. Public Service Commission (1980), where courts must balance four factors before deciding whether to nullify a restriction on commercial speech…
Our brief argues that alcohol advertising is just as much a form of speech as literature and political speech, deserving of protection from arbitrary government restrictions. The Central Hudson test should be eliminated in favor of the standard First Amendment protection for any kind of speech-which of course isn’t absolute, but is also not subject to government whim.
Congress
Vox: Senate Democrats join the push for sweeping anti-corruption legislation
By Ella Nilsen
House Democrats’ first bill of the year – a sweeping anti-corruption and pro-Democracy reform bill known as HR 1 – is getting a companion bill in the Senate.
Sen. Tom Udall (D-NM) is planning to introduce a companion bill in the Senate early next year, he told senators on Tuesday in a Dear Colleague letter obtained by Vox. The bill text would likely be an update of an existing bill Udall introduced in 2017, tweaked to mirror the House legislation.
HR 1 is the first bill House Democrats will tackle once they retake the gavel next year; it’s aimed at stamping out the influence of money in politics, curtailing Washington lobbying, and expanding voting rights.
Democrats are hoping to get some Republicans on board as well, but the reality is that Republican leadership in the Senate likely won’t let Udall’s bill make it to the floor. Still, it’s a sign that Democrats in the House and the Senate are serious about proposing a wide swath of reforms that could dramatically change American campaign finance laws, expand voting rights, and institute new rules that crack down on lobbying.
“Having strong, complementary democracy reform proposals in both the House and Senate, as a unified approach in Congress, will be an important step forward in repairing our broken political system and our destructive campaign finance system,” Udall told his fellow senators in the Dear Colleague letter…
Udall is waiting for the House to produce a bill before he rolls out his own version, but there is already a blueprint for what will be in his Senate bill – his “We the People” Democracy Reform Act of 2017.
Washington Post: Mueller seeks Roger Stone’s testimony to House intelligence panel, suggesting special counsel is near end of probe of Trump adviser
By Carol D. Leonnig, Ellen Nakashima, Rosalind S. Helderman and Manuel Roig-Franzia
Special counsel Robert S. Mueller III asked the House Intelligence Committee on Friday for an official transcript of Trump adviser Roger Stone’s testimony, according to people familiar with the request, a sign that prosecutors could be moving to charge him with a crime.
It is the first time Mueller has formally asked the committee to turn over material the panel has gathered in its investigation of Russian interference of the 2016 campaign, according to the people.
The move suggests that the special counsel is moving to finalize his months-long investigation of Stone – a key part of Mueller’s inquiry into whether anyone in President Trump’s orbit coordinated with the Russians.
Stone, who has advised Trump on and off for decades and was in contact with the candidate during the 2016 campaign, has been a focus of the special counsel as Mueller probes whether the Trump campaign had advance knowledge of WikiLeaks’s release of Democratic emails allegedly hacked by Russian operatives.
Center for Responsive Politics: Religious groups battle over Johnson Amendment as House Republicans eye last-minute repeal
By Karl Evers-Hillstrom
In May 2017, Trump signed an executive order to promote free speech for religious groups. Though the order did not overrule the longstanding law, Trump’s rhetoric emboldened a small group of conservative Christian groups to fight for a repeal…
[A] new tax bill from Rep. Kevin Brady (R-Texas) once again includes a repeal of the amendment…
Campaign Legal Center Director of Federal Reform Brendan Fischer argued a repeal could release “super dark money” into elections by encouraging special interests to funnel anonymous money through 501(c)(3) organizations to get a charitable tax deduction.
The nonpartisan Joint Committee on Taxation estimated that the U.S. Treasury would lose $2.1 billion by weakening the amendment, as political donors shift their contributions to a new kind of dark money group to get a tax break.
The House Rules Committee [met] Wednesday to consider the bill. It’s unclear whether it will pass the House before the lame duck session ends, as a large number of GOP Representatives have already left the building.
New York Times: Curbing Speech in the Name of Helping Israel
By Editorial Board
One of the more contentious issues involving Israel in recent years is now before Congress, testing America’s bedrock principles of freedom of speech and political dissent.
It is a legislative proposal that would impose civil and criminal penalties on American companies and organizations that participate in boycotts supporting Palestinian rights and opposing Israel’s occupation of the West Bank.
The aim is to cripple the boycott, divestment and sanctions movement known as B.D.S., which has gathered steam in recent years despite bitter opposition from the Israeli government and its supporters around the world.
The proposal’s chief sponsors, Senator Ben Cardin, a Maryland Democrat, and Senator Rob Portman, an Ohio Republican, want to attach it to the package of spending bills that Congress needs to pass before midnight Friday to keep the government fully funded…
Although the Senate sponsors vigorously disagree, the legislation, known as the Israel Anti-Boycott Act, is clearly part of a widening attempt to silence one side of the debate. That is not in the interests of Israel, the United States or their shared democratic traditions.
Critics of the legislation, including the American Civil Liberties Union and several Palestinian rights organizations, say the bill would violate the First Amendment and penalize political speech.
Independent Groups
Issue One: Super PACs and dark money groups combined to outspend candidates in a record number of races in 2018
By Michael Beckel
As Democrats and Republicans battled for dominance in both the House of Representatives and the Senate in 2018, super PACs and dark money groups collectively outspent the candidates’ own campaigns in a record-breaking 16 races, according to data provided to Issue One by the Center for Responsive Politics…
The new data shows that candidates were outspent by outside groups in seven Senate races and nine House races. This amounted to more than half of the 13 competitive Senate contests and about 10 percent of the House races ranked as competitive by the Cook Political Report.
Non-candidate, non-party groups have now outspent candidates in 48 congressional races since the Supreme Court’s 2010 Citizens United decision, with one-third of that total occurring in 2018. This phenomenon occurred 11 times in 2016, and only once in 2010, according to the Center for Responsive Politics…
Spending by super PACs and dark money organizations has been on the rise in recent years, with both Democrats and Republicans embracing big-money outside groups in an ever-escalating political arms race.
In fact, super PACs and dark money groups close to party leaders on both sides of the aisle played crucial roles in the 2018 spending frenzy that led to candidates being outgunned in so many races.
These groups included super PACs such as the Republican-aligned Congressional Leadership Fund and Senate Leadership Fund as well as the Democrat-aligned House Majority PAC and Senate Majority PAC. They also included dark money groups such as Majority Forward and Patriot Majority USA, which were major drivers of the unprecedented surge of Democratic dark money in 2018.
Candidates and Campaigns
Center for Responsive Politics: Trump 2020 campaign used a shell company to pay ad buyers at the center of alleged illegal coordination scheme with NRA
By Anna Massoglia
The Trump campaign funneled money to ad buyers alleged to have facilitated illegal coordination between the campaign and the NRA by routing funds through a secretive LLC that appears to be little more than a shell company, an investigation by the Center for Responsive Politics has found.
While the Trump campaign stopped reporting payments to ad buyers alleged to have facilitated illegal coordination between the campaign and the NRA after the 2016 election cycle, Trump’s 2020 campaign has continued to deploy the same individuals working for the firms at the center of the controversy through payments to Harris Sikes Media LLC – a low-profile limited-liability company operating with no website or public-facing facade whatsoever.
Facing the illegal coordination allegations are National Media, Red Eagle Media Group and American Media & Advocacy Group (AMAG), closely tied consultancies that share staff, resources and adjacent storefronts in Alexandria, Va.
CRP’s analysis of Federal Communications Commission (FCC) records found that Trump campaign political ad disclosures on file with stations across the country have continued to include signatures and names of individuals working for National Media, despite no mention of National Media or its known affiliates on any FCC or Federal Election Commission (FEC) disclosures. Those individual ad buyers’ names have simultaneously continued to be included in ad documents for the National Rifle Association (NRA) and America First, but with the ad buyers’ affiliation listed as National Media or one of its affiliates.
The States
Pacific Legal Foundation: Seattle “democracy vouchers” head to state supreme court
By Ethan W. Blevins
A few years back, Seattle cooked up something called a “democracy voucher.” Here’s how the vouchers work: each election year, Seattle dishes out four $25 vouchers to each city resident. People can then give those vouchers to a candidate running for local office.
But someone pays for those political contributions, and it isn’t the person making the contribution. In this case, Seattle funds its vouchers from a special property tax. In other words, property owners must pay for other people’s political donations.
So PLF filed a lawsuit on behalf of two Seattle property owners, arguing that the city cannot force them to sponsor the political views of their neighbors. We lost at the trial court, but after a long wait the court of appeals has just issued a highly unusual order. The court of appeals did not decide the case. Instead, the court said the case “presents a fundamental and urgent issue of broad public import” and then asked the state supreme court to figure it out. The supreme court has granted that request.
The supreme court may have granted the case because a major U.S. Supreme Court decision about compelled subsidies, Janus v. AFSCME, was issued after PLF appealed the trial court decision. Whatever their reason, the state supreme court recognizes the significance of this case and has concerns with the trial court’s handling of the case. We look forward to persuading the Washington Supreme Court that no one should be forced to support viewpoints they oppose.
Detroit News: Pro-Whitmer ads violated ‘issue advocacy’ rules, state finds
By Jonathan Oosting
An allied group that spent big on primary-season television ads featuring Gov.-elect Gretchen Whitmer went beyond “issue advocacy” by identifying her as a candidate, the state said as part of an ongoing campaign finance probe that could lead to significant penalties and fines.
Michigan Secretary of State Ruth Johnson, in a Nov. 27 letter obtained by The Detroit News, told the Build a Better Michigan group that a pair of ads featuring the East Lansing Democrat and the phrase “Gretchen Whitmer candidate for governor” were a form of express advocacy that directly urged viewers to support her election.
Groups that run issue ads are typically exempt from state campaign finance rules and disclosure laws if they avoid using words like “Smith for governor.” Johnson, a term-limited Republican, said it was the “clear intent” of the Legislature to prohibit using substantially similar expressions like those in the pro-Whitmer ads to “circumvent” the Michigan Campaign Finance Act.
