In the News

Washington Times: Eight years after Obama’s unusual State of the Union attack, Citizens United endures

By James Varney

None of the analysts interviewed by The Washington Times believes Citizens United is in any near-term jeopardy. The 2016 election of Donald Trump and his appointment of Justice Neil M. Gorsuch has probably cemented the decision…

That opinion is shared by most analysts, including Bradley Smith, a legal scholar and the chairman and founder of the Institute for Free Speech.

His group was involved with SpeechNow v. FEC, a case that came before the U.S. Court of Appeals for the D.C. Circuit in an en banc hearing right on the heels of Citizens United…

Among outside spending in federal elections, the “dark money” whose sources aren’t fully disclosed accounts for a good chunk, but when that is put into the total spending column it amounts to less than 4 percent, Mr. Smith said…

“There’s been some amount of ‘dark money’ around always, and it can be a pejorative term,” Mr. Smith said. He pointed to the U.S. Chamber of Commerce, one of the biggest players. “Sure, voters may not know every group that contributes to the Chamber of Commerce, but it’s not like, ‘Oh, the Chamber of Commerce! What’s their agenda?’ Voters have a pretty good idea what it is about.

“I think they’ve been good for the system overall,” Mr. Smith concluded of the Citizens United and other rulings. “None of the catastrophe situations opponents wailed would come about have come about, and there have been a lot of competitive races.”

New from the Institute for Free Speech

Cato Institute Hosts Discussion on Corruption and Virtue in a Republic

By Joe Albanese

Last week, the Cato Institute hosted a book forum on The Republic of Virtue: How We Tried to Ban Corruption, Failed, and What We Can Do About It by F.H. Buckley. Buckley is a Foundation Professor at George Mason University’s Scalia School of Law. The event featured comments by Michael B. Levy, Policy Director at Brownstein Hyatt Farber Schreck, and was moderated by John Samples, Vice President of Cato.

The speakers touched upon the concept of corruption and its history in American (and British) government. Buckley began by calling the U.S. Constitution an “anti-corruption covenant” and discussed classical notions of virtue and the institutional remedies to corruption. While he believes there are systemic causes for corruption in the U.S., unlike some, he does not blame this issue on “money in politics.” In fact, he proclaimed himself to be quite libertarian on the subject, advocating for sweeping rollbacks of campaign finance laws and blaming American corruption primarily on other factors…

This event showcased various viewpoints on how institutions and individual virtue relate to corruption, but one thing that should never be up for discussion is our essential liberties. You can’t end corruption by restricting free speech or the First Amendment. Doing so may just end up exacerbating corruption at the expense of our speech rights.

ICYMI

Institute for Free Speech to Handle Appeal in Tennessee Sign Case

The Institute for Free Speech yesterday notified a federal court and Tennessee state officials that it will represent William H. Thomas, Jr. in the state’s appeal of a ruling that Tennessee’s sign rules are unconstitutional. Last March, a federal judge ruled for Thomas, saying Tennessee law violated the First Amendment by creating “an unconstitutional, content-based regulation of speech.”

Mr. Thomas owns several roadside signs. This appeal concerns one such sign, which Mr. Thomas has used to express various non-commercial messages and opinions, such as cheering on U.S. athletes during the Olympics and celebrating “the glory of the season” during the holidays. Tennessee has sought to tear down Mr. Thomas’s sign, but crucially, it would not attempt to do so had it advertised on-site commercial activity or the sale of his property. Such ads are exempt under the law governing billboards in Tennessee. So if a nearby auto body shop wanted to advertise its sale on tires with the same-sized billboard, it could do so. As a result of this exemption, the state must look to a sign’s content to determine whether it should be regulated. This creates a major First Amendment problem…

The case, known as Thomas v. Schroer, is currently before the Sixth Circuit Court of Appeals. 

Supreme Court

New York Times: When a T-Shirt Gets You in Trouble at the Voting Booth

By Adam Liptak

Minnesota has a dress code for voting. The idea, the state says, is to create a safe space for democracy.

To make sure voters are in a properly contemplative mood at their polling places on Election Day, the state bans T-shirts, hats and buttons that express even general political views, like support for gun rights or labor unions. The goal, state officials have said, is “an orderly and controlled environment without confusion, interference or distraction.”

Critics say the law violates the principle at the core of the First Amendment: that the government may not censor speech about politics. They add that voters can be trusted to vote sensibly even after glancing at a political message. “A T-shirt will not destroy democracy,” a group challenging the law told the Supreme Court this month.

The court will hear arguments in the case, Minnesota Voters Alliance v. Mansky, No. 16-1435, next month. By the time the term ends in June, the justices will decide whether people can be forced to choose between their right to express themselves and their right to vote.

National Review: The Trump Administration’s Dangerous Free-Speech Brief

By David French

Traditionally, the state may compel a citizen to speak only if the policy passes the most stringent of constitutional tests, called “strict scrutiny.” Under strict scrutiny, the government’s censorship may prevail only if it is narrowly tailored to advance a compelling governmental interest and uses the least restrictive means for achieving that interest…

In the NIFLA case, however, the Trump administration argues that strict scrutiny is not the relevant standard of review. Instead, it would like the Court to apply so-called “heightened scrutiny” to the mandatory advertisement for free or low-cost abortions…

Cutting through the legalese, let’s make this plain – the Trump administration is arguing for a standard that grants the state greater power to censor. It is extending the “broad power to establish standards for licensing practitioners and regulating the practice of professions” to the non-commercial speech of nonprofit advocacy organizations that are in the very business of persuasion…

The Court should reject the DOJ’s reasoning. Strict scrutiny should apply to any effort to force a nonprofit – even a professional nonprofit – to engage in speech that is contrary to its very mission and purpose.

First Amendment

The Hill: In our post-television age, a new opening for campaign finance reform

By David Schultz

Buckley thus came near the halfway or high water mark between the rise of the television-centric era of politics and its coming demise. These alternative forms of reaching voters do not suffer the same scarcity problems as network television did. The longer-term cost curves for communicating ideas to voters, or fundraising, is dropping, with candidates such as Bernie Sanders and even Donald Trump showing the changing dependence on money and traditional television. Over time, television will simply be less important to politics….

The central claim, then, that campaign donations implicates First Amendment interests may be less the true today, and rests on unstable grounds.

If the above is true, the core premises of Buckley that provided the framework for the linkage between the First Amendment and money in politics have eroded and the precedent might be overturned, as it is no longer empirically or conceptually valid.

That decoupling of money from the First Amendment does not mean the former is not still important in politics or that it does not influence campaigns and elections. Instead it suggests that if money is no longer connected to free speech in the way it was during the television-centric era, then perhaps it would be possible to regulate it in ways consistent with this new reality.

Internet Speech Regulation 

National Review: The Russia ‘Fake News’ Scare Is All about Chilling Speech

By David Harsanyi

Not long before she demanded forensic investigations into hashtags, Feinstein was demanding that Twitter, Facebook, and Google restrict their content more tightly, threatening, “Do something about it – or we will.” Democrats have attempted to control interactions through the Fairness Doctrine or the IRS, and now through the Russia scare. Part of living in a free country is dealing with messy, ugly misinformation.

Lots of people in the United States seem pretty impressed by how they do things in Europe. In Britain, Prime Minister Theresa May is launching a “rapid response unit” run by the state to “battle the proliferation of ‘fake news’ online.” The “national security communications unit” will be tasked with combating misinformation – as if it had either the power or ability to do so. In France, President Emmanuel Macron is working on a plan to combat “fake news,” which includes the power to institute an emergency block on websites during elections. What could possibly go wrong?

Me? I’d rather we live with Russian troll bots feeding us nonsense than with authoritarian senators dictating how we consume news. I mean, has anyone yet produced a single voter who lost his free will during the 2016 election because he had a Twitter interaction with an employee of a St. Petersburg troll farm? 

Political Parties 

Politico: Local Democrats warn DNC: Cash crunch threatens November gains

By Gabriel Debenedetti

At a time when many Democratic candidates and groups are reporting record-breaking fundraising, the top state party officials gathered here for the meeting of the Association of State Democratic Committees say their local parties are cash-starved, raising the prospect that they won’t be able to take full advantage of what could be a historic opportunity in the midterm elections…

State party chairs and executive directors expressed frustration with the party’s biggest donors, who remain wary of contributing to state parties that have been decimated in recent years and instead view individual candidates and emerging groups as more attractive short-term investments…

Much of their frustration is directed toward the Democratic National Committee, which recently started doling out nearly $1 million worth of competitive grants to a handful of states. While the first round of so-called State Party Innovation Fund grants were a welcome move, the state leaders who failed to score them were left to stew over their predicament.

FEC

NPR: Alleged Link Between NRA And Russia Becomes Fodder For The Left

By Tim Mak

A liberal group is filing a complaint with the Federal Election Commission on Monday to demand an investigation into whether the National Rifle Association took contributions from Russians, which would be a violation of the law.

The American Legal Democracy Fund, a group with ties to liberal Super PAC American Bridge and headed by former DNC spokesman Brad Woodhouse, filed this complaint in response to reporting by McClatchy earlier this month. The report indicated the FBI is investigating whether a Russian banker with ties to the Kremlin illegally funneled money to the NRA in order to aid President Donald Trump’s campaign…

The ALDF’s complaint helps draw attention to the issue, but faces long odds on whether the FEC will actually take action. If it does, the process will take years and would need to work its way through a notoriously gridlocked commission that currently has more Republican than Democratic members.

“You should be skeptical about whether the FEC will take any action… Before the 2018 elections, you’re not going to learn anything,” campaign finance lawyer Brett Kappel said. “The odds are against [an imminent FEC investigation], especially if there’s an ongoing criminal investigation. The FBI may contact the FEC and say, please put that on the backburner… and that fact would not be made public.”

The States

Forbes: Outlawing The ‘Heckler’s Veto’: Drive To Restore Free Speech On Campus Gathers Steam In The States

By Tom Lindsay

A wave of support for legislative efforts to restore free speech and debate on campus appears to be taking shape in a number of states across the country…

Although the successful free-speech bills vary in their terms, all seem to unite in the conviction that campus shout-downs (through the “heckler’s veto”) and/or dis-invitations of speakers on public, taxpayer-funded campuses is both unconstitutional and toxic to democratic deliberation…

The heckler’s veto, if tolerated, will teach our students that justice is the advantage of those with stronger vocal cords, of those who are more passionate and angry, of those who better intimidate others from speaking. But the health of any democracy requires that we endeavor to subordinate passion to reason and refuse to intimidate into silence those with whom we disagree. Such moral and intellectual self-restraint is indispensable to ensuring that our public disagreements-and such disagreements will always be with us-are rational, peaceful, and constructive. For all these reasons, friends of democracy should be heartened by the efforts nationwide to restore the freedom to disagree on campus, without which no genuine learning can take place.