New from the Institute for Free Speech
New Jersey Agrees Not to Enforce Unconstitutional Anti-Privacy Law
In a letter filed in federal court yesterday, New Jersey’s Attorney General announced an agreement not to enforce a law requiring nonprofits to publicly expose their donors’ identities. The Institute for Free Speech was one of the first to warn of the proposal’s unconstitutional and speech-chilling effects.
“New Jersey’s law was among the nation’s worst for speech and association rights,” said Institute for Free Speech President David Keating. “Americans have the right to support social causes without being exposed to potential harassment and retaliation for their beliefs.” …
“[T]he compelled identification of contributors to independent groups that expend money on political causes can seriously infringe the rights to privacy of association and to belief guaranteed by the First Amendment,” wrote Judge Brian R. Martinotti…
In an opinion article for NJ.com, IFS President David Keating and ACLU of New Jersey Executive Director Amol Sinha wrote: “The most significant social movements of the last century – for civil rights, racial equality, and LGBTQ rights, to name just a few – were powered by the ability of like-minded people to join and support groups, and to do so privately. Our society would not be where it is today without this fundamental right.”
To read the letter and proposed consent order, click here.
Supreme Court
Wall Street Journal: Psst . . . I Want You to Illegally Immigrate
By The Editorial Board
Acting to “encourage” illegal immigration is itself against the law. Is this a sensible ban on solicitation? Or a First Amendment violation that could make a criminal of “a loving grandmother who urges her grandson to overstay his visa”? That theoretical was cited in 2018 when the law was struck down by the U.S. Court of Appeals for the Ninth Circuit.
The Supreme Court took up the case Tuesday in U.S. v. Sineneng-Smith…
During oral arguments this week, the High Court seemed to grope for a way to be assured of free speech without throwing out the statute. If mere words of encouragement aren’t illegal, Justice Samuel Alito wondered, how about a defendant who “says it 10 times in a forceful voice”? Justice Elena Kagan asked if the risk of abuse was so dire, given “the absence of actual prosecutions that you can point to and say, ah, that went wrong.”
RealClearPolicy: Why Should Lawyers Be Forced to Fund Their Political Adversaries?
By Timothy Sandefur
North Dakota lawyer Arnold Fleck practices family law. So it made sense that he’d be interested when a ballot initiative was proposed to change how courts handle child custody cases. He supported the initiative and even donated $1,000 to the “yes” campaign.
Unfortunately, he was also donating to the “no” campaign.
That wasn’t his choice. But, like all North Dakota lawyers, Fleck was required to join the state’s bar association and pay it hundreds of dollars per year for membership dues. The Association then used some of that money to oppose the measure – just as it often takes positions on political issues and even lobbies the state legislature. So in the same campaign in which he supported the “yes” side, Fleck was also forced to chip in for the Bar Association’s $50,000 donation to the “no” side.
It’s unconstitutional to force people to subsidize a political campaign they disagree with – and now, Fleck is asking the Supreme Court to take his case to vindicate his First Amendment rights.
The Courts
Sacremento Bee: California bosses can’t trash government unions. A new lawsuit wants to undo ‘gag clause’
By Wes Venteicher
Two libertarian think tanks have filed a lawsuit challenging a California law that says public employers shall not “deter or discourage” workers from joining unions.
Orange County-based California Policy Center and the Washington-based Center for Individual Rights filed the lawsuit last week on behalf of seven local elected officials who say the law has come to function as a broad blanket on discussing unions at all.
The officials, who represent school boards, city councils and a community service district, say they no longer feel they can mention unions during discussions of pay, benefits and policies for fear of triggering complaints under the law, according to the California Policy Center.
Wall Street Journal: Tech Platforms Aren’t Bound by First Amendment, Appeals Court Rules
By Jacob Gershman
A federal appeals court in California on Wednesday ruled that privately operated internet platforms are free to censor content they don’t like.
Though not unexpected, the unanimous decision by the Ninth U.S. Circuit Court of Appeals in San Francisco marks the most emphatic rejection of the argument advanced in some conservative circles that YouTube, Twitter, Facebook and other giant tech platforms are bound by the First Amendment.
The case concerned a YouTube channel operated by Prager University, a nonprofit founded by talk-radio host Dennis Prager that produces short explainer videos promoting conservative ideas. In 2017, PragerU sued YouTube and its parent, Alphabet Inc.’s Google, after YouTube flagged dozens of its videos as “inappropriate,” stripping the clips of advertising and making them less accessible to students, library users and children…
“Obviously, we are disappointed,” said PragerU attorney Peter Obstler. “We will continue to pursue PragerU’s claims of overt discrimination on YouTube in the state court case under California’s heightened antidiscrimination, free-speech and consumer-contract law.”
Congress
Herald-News: Foster bill aims to increase political transparency for investors
By Alex Ortiz
U.S. Rep. Bill Foster introduced legislation this week that he said would shed light on corporate political spending by public companies and increase transparency to investors and the public.
The Shareholder Political Transparency Act, H.R. 5929, would mandate that public companies periodically share political spending information with their shareholders, according to a news release.
The bill would amend the Securities Exchange Act of 1934 to require public companies to make quarterly disclosures to their shareholders to provide them with descriptions of the kinds and amounts of political spending they engage in…
The bill has garnered 15 Democratic cosponsors in the House of Representatives. Supporters say the bill would empower shareholders to know more about and better control their companies’ political spending.
Media
New York Times: Barr Criticizes Mainstream Media as ‘Monolithic in Viewpoint’
By Katie Benner
In a wide-ranging speech on the importance of Christianity in public life, Attorney General William P. Barr said on Wednesday that religious news publications and broadcasters were essential checks on a mainstream media that has consolidated far too much power.
Mr. Barr, speaking at the National Religious Broadcasters annual convention in Nashville, called the mainstream press “remarkably monolithic in viewpoint” and said that “an increasing number of journalists see themselves less as objective reporters of the facts and more as agents of change.”
Washington Post: Trump campaign lawsuit against New York Times exposes honesty of New York Times
By Erik Wemple
On Wednesday, the Trump campaign filed a defamation complaint in the New York State Supreme Court against the New York Times over an opinion piece from March 2019…
The allegations, argues the complaint, are false, as proven by the Mueller report and “many other published sources.” It continues: “Among other things, there was no ‘deal,’ and no ‘quid pro quo,’ between the Campaign or anyone affiliated with it, and Vladimir Putin or the Russian government.” …
By any honest – or even lazy – reading of the Frankel opinion piece, it’s clear that the author wasn’t alleging any acts of specific collusion or coordination between the Trump campaign and Russia.
Free Speech
WNYC Studios: Money, Power, Glory
This week, On the Media examines the conflicting narratives around how each candidate raises money. Plus, how changes at the National Archives could distort the historical record of the Trump administration.
- Michael Grynbaum [@grynbaum], media correspondent for The New York Times, and Kathy Kiely [@kathykiely], former news director at Bloomberg Politics and journalism professor at University of Missouri School of Journalism, on how Bloomberg News is – and isn’t – covering the candidacy of its owner. Listen.
- Taylor Lorenz [@TaylorLorenz], reporter for The New York Times, on Bloomberg’s meme-ification. Listen.
- Sarah Bryner [@AKSarahB], Director of Research & Strategy at Open Secrets, on the state of campaign financing, ten years after Citizens United. Listen.
Online Speech Platforms
New York Times: Facebook to Publicly Track Political Sponsored Content After Bloomberg’s Paid Memes
By Reuters
Facebook will provide a way for people to track political sponsored content on Facebook and Instagram ahead of the U.S. presidential election, it said Thursday.
The move comes after U.S. Democratic presidential candidate Michael Bloomberg’s campaign started paying popular meme accounts on Facebook-owned Instagram to post content as part of its social media offensive…
Facebook said it had reached out to the Bloomberg campaign asking them to use this tool to properly disclose the posts.
Financial Times: How to combat the threat of Facebook ads in US elections
By Hannah Murphy and Javier Espinoza
Ahead of the US presidential election in November, do Facebook’s powerful “microtargeting” advertising services threaten democracy? …
“It’s amazing to me how microtargeting is largely being justified on grounds that it’s “cost-effective”, retorts Ellen Weintraub, chair of the US Federal Election Commission. “You know what else is cost-effective? Child labor. Dumping sewage into rivers. Fraud.” In a recent Twitter post, she added: “I strongly urge Facebook to go back to the drawing boards and come back with something much more robust. This will not do.”
RealClearPolitics: Twitter ‘Misinformation’ Demo App Stirs Free Speech Questions
By Kalev Leetaru
Last week, NBC reported on a leaked internal demonstration app from Twitter showcasing one of the company’s ideas for fact-checking elected officials. Tweets by public figures that are contested by fact-checkers, journalists and even ordinary users would be visually flagged with large bright orange warning boxes proclaiming that the tweet is “harmfully misleading” and linking to statements countering it. While the company emphasized that the demo app was merely one of many internal ideas under consideration and there are no immediate plans to roll it out, a closer look reminds us just how much power Silicon Valley increasingly wields over the future of “truth.” …
Twitter is increasingly used by elected officials to hear from their constituents. The moderation decisions that Twitter makes each day in removing content and users it disagrees with therefore mean the social media giant increasingly controls the kinds of views our nation’s citizens are permitted to communicate to their representatives.
New York Times: The Political Pundits of the Future Are on TikTok
By Taylor Lorenz
As Twitter and Facebook continue to dominate conversations about social media and the 2020 presidential election, TikTok is quietly becoming a political force.
Teenagers in America – many of them too young to vote – are forming political coalitions on TikTok to campaign for their chosen candidates, post news updates and fact check opponents. They are sharing real-time commentary for an audience that is far more likely to watch YouTube videos than turn on a cable news channel…
In recent months, content on TikTok has been getting more political…
A TikTok spokeswoman wrote in an email: “We encourage our users to have respectful conversations about the subjects that matter to them. However, our Community Guidelines do not permit misinformation that could cause harm to our community or the larger public.”
Candidates and Campaigns
Washington Post: Ugly pro-Trump ad weaponizes audio of Obama, showing what’s coming
By Greg Sargent
[I]t’s interesting that a pro-Trump super PAC is currently running a TV ad in South Carolina targeting Biden.
The ad hitting Biden from the Committee to Defend the President is a remarkable piece of work: It weaponizes audio of former president Barack Obama against Biden, in what is clearly an effort to turn African American voters against him.
Obama himself is now denouncing the ad. Katie Hill, a spokesperson for Obama, told us his office is calling on TV stations to stop airing the spot, denouncing it as an effort to “sow division and confusion” and “suppress turnout among minority voters in South Carolina.”
The ad is pure disinformation of the ugliest sort.
Federalist: How Bloomberg And Bernie Used Campaign Finance To Hack Democracy
By Brad Todd
When Democrats wake up this Sunday after the South Carolina primary, there’s a fair chance their presidential race will be down to just two candidates with the resources to compete in March’s slew of pricey state contests: moneybags Bloomberg and socialist Bernie Sanders…
How did it happen? You can blame Russ Feingold, John McCain, Common Cause, and rank-and-file progressives who, mostly lacking a religion aside from climate eschatology, now worship at the altar of campaign finance restrictions.
In 2002, they jammed through Congress an update of U.S. campaign finance laws that were then three decades old, throwing the votes of all but 14 Democrats in Congress behind an obscure legislative procedure that prevented any rational amendments perfecting the law before passage. As a result, we got exactly the campaign finance law that these self-styled radical reformers wanted. While eviscerating political parties, this new law barely changed the failing central tenet of the post-Watergate campaign finance rubric: a draconian limitation on individual donations to federal campaigns.
Politico: Rep. Matt Gaetz, top Trump ally, swears off PAC money
By Quint Forgey
Rep. Matt Gaetz (R-Fla.) announced Thursday that he will no longer accept campaign contributions from federal political action committees, a stance increasingly adopted by Democratic candidates who decry the influence of corporate money in politics…
“Irrespective of which party is in power… the winner in Congress is often the special interest that shuttles the most money to political campaigns.” …
“I’ve never turned tricks for Washington PACs, but as of today, I’m done picking up their money in the nightstand,” Gaetz said, explicitly likening public service under the PAC donation process to prostitution…
“Remember our independence from special interests is our loyalty to America and the America First movement that President Trump began when he came down that escalator, armed with our well-wishes and prayers,” Gaetz said.
Lawfare: Warren Has a Plan for Disinformation-What About Everyone Else?
By Alicia Wanless
The 2020 U.S. presidential election is playing out in the shadow of disinformation, but few candidates are promising to take action against it.
Questionable information about presidential candidates abounds in the upcoming election. The content and claims vary. There are those abject lies, like the tweet citing a fake news story to claim Pete Buttigieg harmed dogs as a teenager. Other examples are misleading, such as the heavily edited video that takes Joe Biden’s comments about culture so out of context that he appeared to be espousing white supremacist rhetoric. One thing remains consistent: Consumption of mis- and disinformation by unsuspecting voters threatens to shape the nature and, potentially, outcome of the election…
So, where in the various candidates’ platforms are the commitments to tackle disinformation? In most cases, they’re entirely absent.
The States
Charlotte Observer: A week before election, judge asks court to block critical TV story she says is untrue
By Michael Gordon
An increasingly contentious local court race boiled over onto new ground Tuesday when a Mecklenburg County judge went to court to block a story that she believes will cause “irreparable harm” to her re-election.
Attorneys for District Judge Aretha Blake said a story planned by WBTV investigative reporter Nick Ochsner on Blake is inaccurate and defamatory. In an extraordinary move, they asked Superior Court Judge Daniel Kuehnert to issue a temporary restraining order blocking publication…
[Ochsner’s attorney Jonathan] Buchan acknowledged WBTV’s reporting could hurt Blake’s re-election chances and her professional reputation. “But that happens with all news stories about elected officials particularly around election time,” he said.
To limit publication, he argued, would clearly violate the U.S. Constitution.
Texas Scorecard: Harris County To Primary Poll Workers: Don’t Talk to Media
By Erin Anderson
On the opening day of early voting last Tuesday, voters and poll workers at multiple locations across Harris County discovered the county’s electronic poll books contained the wrong voter registration and mail-ballot data…
On Saturday, Harris County Clerk Diane Trautman, who is in charge of conducting elections in the county, issued a directive to all early voting poll workers, telling them not to speak to anyone from the media…
Harris County Republican Party Chairman Paul Simpson responded Monday with a letter demanding Trautman retract the anti-free speech directive…
“Your directive infringes on the First Amendment rights of all election workers. … [Y]our directive attempts to silence election workers from publicly reporting issues with your voting systems and seeks to prevent the media from accurately reporting on the election process and integrity,” he said.
KXLY: Proposed ordinance would limit how loud protests could get outside Spokane health care facilities
By Emily Oliver
An ordinance to restrict the amount of noise outside health care facilities like Planned Parenthood isn’t in place yet, but the Spokane City Council is considering one.
If the ordinance passes, demonstrators like the ones at Church of Planned Parenthood could be ticketed or even jailed for exceeding noise limits.
Pastor Ken Peters says his services are something he’s willing to go to jail for.
Peters also said if the ordinance passed, it could open up a lawsuit because he believes it’s a violation of the First Amendment.
The Spokane City Council is scheduled to put the issue to a vote on Monday.
Reason (Volokh Conspiracy): Connecticut Commission Opposes Repeal of “Racial Ridicule” Law
By Eugene Volokh
The [Connecticut “racial ridicule statute”] is unconstitutional in three ways:
[1.] It restricts constitutionally protected speech based on its content and viewpoint…
[2.] The statute has in practice been applied to things that aren’t “advertisement[s]” at all…
[3.] Even if the statute were somehow read as banning race- or religion-based fighting words-contrary to its text-there’s a Supreme Court decision squarely holding such selective restrictions unconstitutional: R.A.V. v. City of St. Paul (1992)…
Fortunately, some Connecticut legislators (such as state senator John Kissel) are taking their constitutional duties seriously, and suggesting that the law be repealed; the ACLU of Connecticut agrees (see this Hartford Courant article (Amanda Blanco)). But not the Connecticut Commission on Human Rights and Opportunities, which writes (and this is the only analysis it gives):
At a time when hate and bias incidents are on the rise [citing data], it is crucial that the state not remove these types of prohibitions that deter or punish this unacceptable behavior.
Politico: Massachusetts Playbook
By Stephanie Murray
A lengthy disagreement between Rep. Joe Kennedy III and Sen. Ed Markey over the role of outside spending in the Senate primary is spilling into another week.
Markey and Kennedy clashed over a so-called People’s Pledge during a televised debate on WGBH last week. Kennedy called on Markey to sign a pledge to limit outside spending in the race, which Markey signed in his 2013 race for the seat.
Markey disagreed with Kennedy, instead calling for an updated version of the pledge that would allow for outside spending by groups that disclose their donors and use positive messaging, like environmental groups or labor unions…
Markey’s campaign pointed to Sen. Elizabeth Warren’s pivot…
“Elizabeth Warren is accepting help from a super PAC because the world has changed, not because she’s evil,” Walsh said. “It’s not 2012 anymore … the world has changed.”
Advance-Titan: Group organizes to get dark money out of politics
By Amber Brockman
Wisconsin United to Amend, a nonpartisan state network of concerned citizens dedicated to removing “dark money” from politics, is organizing in Oshkosh to collect signatures in order to fulfill its goal of restoring representative democracy.
“Our goal is to get the referendum on the city of Oshkosh’s November ballot,” WIUTA leader Cheryl Hansen said. “We know that our state legislature is not interested in pursuing a resolution at this time, so hopefully when a large enough number of communities have passed it, the state will have to consider it.” …
WIUTA supports a constitutional amendment to overturn Citizens United…
An amendment would allow federal and state legislatures to again regulate campaign spending.
“Likely, this would result in elected politicians paying more attention to their constituents’ desires and less to their donors,” Hansen said. “Laws could be passed regulating amounts donated and the length of time prior to an election that donations could be collected.”
