New from the Institute for Free Speech
Foresight is 20/20: Free Speech Developments to Follow This Year
By Alex Baiocco
A number of trends that will continue to unfold in 2020 have the potential to significantly impact Americans’ political speech rights. As policymakers, pundits, and the public continue to debate the contours of free speech amid technological change and the emergence of new tools for speaking, Institute for Free Speech staff will be following each of these trends closely with an eye toward protecting Americans’ speech, press, assembly, and petition rights.
In 2020, state legislators will undoubtedly continue to pursue laws that trample on the right to associate privately. But a significant question for the new year is whether the Supreme Court will hear a case asking it to reaffirm this right.
Several current cases ask the Supreme Court to uphold free speech precedents set during the civil rights era that prevent states from compelling nonprofits to hand over lists of their donors to the government. One of these cases, IFS v. Becerra, was filed by the Institute for Free Speech.
Supreme Court
Atlantic (Book Review): The Supreme Court’s Enduring Bias
By Michael O’Donnell
Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America
By Adam Cohen (Penguin Press)
One of Supreme Inequality’s strengths is Cohen’s ability to spot parallels and draw connections for readers over a range of legal disciplines. This signposting is essential for a book that covers so much ground. Take his discussion of the controversial 2010 decision Citizens United v. FEC, which famously invalidated a federal law prohibiting corporations from spending money to support or denounce political candidates (while still forbidding direct contributions to them). Cohen contrasts the Court’s solicitude for corporate speech with its unwillingness to protect ordinary citizens wishing to post campaign signs or distribute political leaflets in public spaces:
“When the wealthy and powerful wanted to use their money to influence elections, the Court swept aside an elaborate campaign finance regime that had been enacted by Congress and signed by the president, responding to strong popular demand, to help a nation heal after a scandal [Watergate] that went all the way to the White House. When poor and middle-class people challenged bans on their ability to hand out leaflets or post campaign signs, the Court suppressed their speech, out of deference to Postal Service mailbox rules and municipal concerns about clutter.”
DOJ
Hollywood Reporter: DOJ Won’t Tackle Politically Biased Media: “It’s Not Our Job”
By Eriq Gardner and Ashley Cullins
Asked whether it’s the role of antitrust regulators to ensure diversity of viewpoints in social media, DOJ Antitrust Division chief Makan Delrahim is hesitant. “It’s not my job to ensure diversity,” he says. “It is my job to ensure that there’s competition should there be, in what we call in economic parlance, a revealed preference on behalf of consumers to want that type of diversity.”
But Delrahim does imagine a scenario where the DOJ could get involved. “Obviously, Rupert Murdoch at Fox showed there was a market for half the country who wanted a different viewpoint of news presented to them,” he says. “And they did that. Now, if the market was blocked for him to invest and create something that he felt the market needed or demanded, that would be a problem. But otherwise, it’s not our job to regulate the content of speech.”
Congress
The Hill: Senate GOP blocks three election security bills
By Jordain Carney
Senate Republicans blocked an effort by Democrats to unanimously pass three election security-related bills Tuesday, marking the latest attempt to clear legislation ahead of the November elections.
Democrats tried to get consent to pass two bills that require campaigns to alert the FBI and Federal Election Commission (FEC) about foreign offers of assistance, as well as legislation to provide more election funding and ban voting machines from being connected to the internet.
Independent Groups
Courthouse News: GOP Group Spends Millions on Democratic NC Primary
By Erika Williams
The Faith and Power PAC, which was formed Jan. 29, filed a document with the FEC on Saturday that shows the expenses it incurred to support Democratic candidate Erica Smith…
Neylan and Partners, which is the PAC’s ad purchaser, has a record of past clientele that includes the campaign of Carly Fiorina, a candidate in the 2016 Republican presidential primary.
In addition, the Faith and Power PAC selected a bank in northern Virginia that has been used by previous Republican presidential candidate committees…
When it was discovered that the conservative PAC – and not Smith’s campaign – funded an expensive TV ad promoting the candidate, North Carolina Democrats accused GOP actors of trying to interfere in the election.
Free Expression
Yale Law School: Statement from the Floyd Abrams Institute for Freedom of Expression
Last Friday, Lt. Col. Alexander Vindman was relieved of his duties at the National Security Council for nothing more or less than telling the truth in sworn testimony, provided under subpoena, to the House Intelligence Committee…
This retaliation sends a chill through the ranks of government employees and seems plainly intended to do so. It is an affront to the First Amendment.
There can be no doubt that Col. Vindman’s speech lies at the heart of First Amendment protection. It was speech that addressed a matter of urgent public concern. Indeed, speech by government employees on subjects related to their jobs hold distinct value because these employees have access to information of clear public interest.
Online Speech Platforms
CNET: Twitter rolls out new tool to combat misinformation about US census
By Queenie Wong
Twitter said Tuesday that users looking for information about the US census will see a link to the official website at the top of their search results, a tool meant to crack down on misinformation…
Twitter also said that a policy that bars users from posting content that misleads others about how to participate in a civic event such as elections also applies to the US census…
The new search tool is an expansion of what the company already does when users search for content about vaccines, the coronavirus and other health information. It’s unclear, though, how effective this tool works against combating misinformation. Misinformation about the coronavirus and the 2020 census still surface on Twitter. Unlike Facebook, Twitter doesn’t send content to third-party fact checkers.
Techcrunch: Facebook will pay Reuters to fact-check Deepfakes and more
By Josh Constine
Eye-witness photos and videos distributed by news wire Reuters already go through an exhaustive media verification process. Now the publisher will bring that expertise to the fight against misinformation on Facebook. Today it launches the new Reuters Fact Check business unit and blog, announcing that it will become one of the third-party partners tasked with debunking lies…
The four-person team from Reuters will review user generated video and photos as well as news headlines and other content in English and Spanish submitted by Facebook or flagged by the wider Reuters editorial team. They’ll then publish their findings on the new Reuters Fact Check blog, listing the core claim and why it’s false, partially false, or true. Facebook will then use those conclusions to label misinformation posts as false and downrank them in the News Feed algorithm to limit their spread.
Forbes: Political App Faces Legal Challenge Over Donation Reveals
By John Scott Lewinski
A growing app and web service designed to peer inside the world of corporate campaign finance is catching the ire of companies who’d rather not share such information publicly.
Put simply, Goods Unite Us makes public who gives how much to whom on an industry-wide level…
The app makes it a legal matter of clear public record what companies and their parent corporations spend on political influence and who receives that money. The user can view various scores on how much a brand invests on the left or right. The happiest numbers are reserved for firms that stays out of the fray entirely as the app’s creators would like to see dollars from public firms step out of politics in favor of individual donations.
Abigail Wuest, co-founder and CEO, explains she watched a massive rush of money coming into politics over the years and joined with a team of like-minded activists to fight the trend.
“Corporate money really felt like a huge step in the wrong direction for me in terms of defending our democracy,” she adds…
Co-founder Brian Potts reports some companies are striking back with legal threats if they’re not removed from the app or if their data isn’t amended.
Financial Times: Ofcom to be handed expanded role as internet watchdog
By Mark Di Stefano, Madhumita Murgia, and Laura Hughes
Broadcasting regulator Ofcom is to become Britain’s first internet watchdog, given the role of holding online platforms to account for illegal and harmful content. Nicky Morgan, digital media and culture secretary, will announce the expanded role on Wednesday, according to government officials. The online harms legislation, which is still being drafted, intends to place a legal “duty of care” on companies such as Facebook and YouTube for ensuring their users are not exposed to illegal material. Ofcom will have to decide when and how those companies have breached that “duty of care” and then choose whether punishment should extend to fines or legal prosecution…
When the online harms legislation proposals were first announced in July last year, the Washington-based Internet Association said the laws had implications for privacy and risked producing a “chilling effect on freedom of speech”.
Slate: Introducing the Free Speech Project
By Jennifer Daskal and Andrés Martinez
Not long ago, the ubiquitous, open internet promised unfettered, borderless communication and, along with it, the democratizing, empowering values traditionally associated with free speech. But while the internet has undeniably connected people and allowed for near-instantaneous sharing of information, it has not always been free and open, and some of its transformative impacts have been decidedly unhealthy. Bullies, pedophiles, violent extremists, malicious foreign governments, and a range of other nefarious players have capitalized on online platforms’ power to disseminate their hateful behavior, ideologies, and images online-putting at risk our personal and national security, our democracy, and even our faith in the defining line between truth and lies.
In response, countries around the world are taking steps to limit what can and can’t be distributed online-increasingly going so far as to shut the internet down entirely. Some of the major gatekeepers controlling access to the dissemination of speech online, such as Google, Facebook, and Twitter, have hired thousands of content curators to try to address the harms. As platforms find themselves stuck between the promise of connecting the world and the demands that they police harmful speech and actors, they have developed shifting terms of service, ad policies, and accountability mechanisms. Faced with abuse and misinformation, many Americans find themselves questioning our nation’s historically staunch belief in the absolute nature of our First Amendment free speech rights, and not only online.
Candidates and Campaigns
Washington Post (LTE): We need public matching to counter megadonors
By Ian Vandewalker
In his Feb. 9 Outlook essay, “Small donors, big changes,” Richard Pildes argued there is a threat in campaign finance programs that match small donations with public funds. These reforms curb the growing dominance of wealthy interests since Citizens United. Yet Mr. Pildes seemed worried that such efforts would worsen the polarization of politics, claiming small donors prefer ideologically extreme candidates. Experience suggests otherwise.
Many of the small donations raised by platforms such as ActBlue in 2018 went to centrists to flip House seats. Long-standing matching programs haven’t accelerated polarization in Los Angeles or New York City. The once-robust matching system for presidential primaries produced wins for mainstream candidates such as Bob Dole, George H.W. Bush, Bill Clinton and others.
One study Mr. Pildes cited in support of his thesis shows small donors are less polarized than others. The true risk today is dominance by megadonors, many ideological themselves. In 2016, 400 wealthy donors gave more money than 5 million small donors combined. Donations from individuals giving more than $1 million made up 31 percent of the funds for the entire election. Support from people who gave $200 or less accounted for 21 percent of the election funds. Small-donor public financing remains our best chance at effective reform.
Sludge: Fact Check: Does Bernie Sanders Get Support From Big-Money Super PACs?
By Alex Kotch
Asked whether billionaires should be allowed to spend colossal amounts of their own money in the Democratic presidential primary, Sen. Elizabeth Warren (D-Mass.) said no. In her answer, she wagered that she and Sen. Amy Klobuchar (D-Minn.) were the only two candidates on stage who were running without the support from wealthy super PAC donors…
Her Twitter account tweeted out the highlight, implying that by “PACs” she meant “super PACs.” The full text of her answer is here.
While the statement may be technically true, not all super PACs are the same. In fact, there’s a wide chasm between super PACs backing three Democratic candidates, each funded with six-figure donations from wealthy finance executives, and the super PACs backing Sanders, which consist of a nurses union’s PAC and a coalition of progressive organizations that represent over two million working-class people of color…
In a Meet the Press interview with Chuck Todd on Feb. 9, Sanders reiterated that he does not want help from outside groups. But he was clear about who makes up these groups. “Some of them are nurses, some of them are immigration activists, and some of them are civil rights activists,” Sanders said. Todd asked if Sanders would accept the help since it’s already out there, and the candidate answered, “It’s legal. What can I do? People have the right to participate in the political process.”
Reuters: Paid social media influencers dip toes in U.S. 2020 election
By Elizabeth Culliford
The tactic of paying micro-influencers – people with a few thousand engaged social media followers – to spread political messages or make content is gathering momentum ahead of the 2020 race…
Several agencies who connect influencers with brands told Reuters they had been approached by political campaigns, though they would not name individual politicians or organizations…
Marketer James Nord said influencers had earned tens of thousands of dollars for several pieces of political content during campaigns he had worked on…
Gil Eyal, who runs influencer platform HYPR, said he generally advises politicians to stick to unpaid deals, to avoid legal or reputational risks…
The U.S. Federal Election Commission’s rules do not explicitly address social media influencers. But it does say that public online communications advocating for the election or defeat of a candidate for a fee must include a disclaimer to inform who paid for the content.
The States
NorthJersey.com: Parents running for NJ office could pay for child care with campaign cash
By Ashley Balcerzak
Parents running for political office in New Jersey may soon have some financial relief.
Candidates and public officeholders would be able to use campaign funds raised from donors to pay for certain child care expenses, under a bill, S698, the state Senate passed Monday, 35-0.
Lawmakers are trying to encourage more parents to serve in office that wouldn’t normally have the time or resources to raise their children and travel the state drumming up support and attending campaign events…
New Jerseyans could use checks collected on the campaign trail for costs that exist only because of their political race or job. So, donor funds could be used to pay for a babysitter watching a child during a campaign event, or day care.
Atlanta Journal-Constitution: Atlanta City Council candidate alleges violation of free speech rights
By Stephen Deere
Matthew Cardinale, a frequent Atlanta City Hall critic, has alleged in a lawsuit filed Friday that the city clerk and elections supervisor violated his first amendment rights when he ran for a council seat last year…
Cardinale says in the suit that during a candidate briefing in January, 2019, that City Clerk Foris Webb III told the candidates they were prohibited from identifying themselves as candidates during the public comments portion of council meetings.
Webb told The Atlanta Journal-Constitution on Monday that he merely cautioned the candidates against identifying themselves as candidates during public comment because the city televises the meetings and it could be considered using city resources for campaign purposes, which is prohibited under city code.
Cardinale finished fourth in the race.
Capital Research Center: Where Does the Money Go?
By Kevin Mooney
Government unions spent about $135.5 million on politics [between 2007 and 2009] with about 40 percent of this money coming from PACs, according to the Pennsylvania State Department’s campaign finance reports, and 59 percent coming from political dues, according to U.S. Department of Labor LM-2 forms. The teachers unions, AFSCME, and SEIU locals all figure into the equation.
In other words, a lot of money taken from Pennsylvania taxpayers is funding the political activism of government union operatives…
Under Pennsylvania law, teachers such as Meier who object to paying mandatory union fees on religious grounds, can divert money from their paychecks into the charity of their choice instead of having those funds go to the union. The catch is that the union has say over which charity is selected. Meier had selected the National Right to Work Legal Defense Foundation, the Virginia-based nonprofit that advocates on behalf of workers opposed to mandates-the same outfit that successfully brought suit on behalf of Janus before the Supreme Court and is partnering with the Fairness Center to represent Hartnett and others. The PSEA objected because it saw a “conflict of interest.”
Jane Ladley, who taught in the public schools for 25 years before retiring in 2014… is the lead plaintiff in the case with Meier.
Voice of OC: Put Up or Shut Up: Court Warns Fullerton Officials They Have To Prove Local Bloggers Stole Secret Fullerton Documents
By Spencer Custodio
Fullerton city officials must prove resident Joshua Ferguson and the blog he writes for stole secret city hall documents – including files on how a former city manager potentially escaped a DUI – or else the city’s case against Ferguson is in jeopardy.
Orange County Superior Court Judge James Crandall said Ferguson and the blog are protected by the First Amendment, regardless of the city’s claim Ferguson stole the documents from a Dropbox account and published the documents…
“News reporting and newsgathering constitute such protected conduct, even where the plaintiff (Fullerton) contends that the conduct used to gather information was unlawful or illegal,” reads Crandall’s tentative ruling. “The defendants (Ferguson and the blog) here do not concede that their activity was illegal, and the evidence has not been properly presented to the court. As a result, the burden shifts to plaintiff (Fullerton) to show a probability of prevailing on its claims.” …
David Snyder, executive director of the First Amendment Coalition, said…the files may have been accidentally disclosed since they were kept on a Dropbox account.
He said Ferguson and the blog are protected under the First Amendment as long as it’s proven they didn’t hack Fullerton’s Dropbox.
