In the News

Daily Caller: President Trump And The Issue Of Free Speech

By Thomas Wheatley

Donald Trump is hardly the first public official to want to get back at his critics using libel laws. If he sues the publisher of “Fire and Fury,” the book on his presidency, he’ll likely fail. It’s worth revisiting why…

In an opinion by Justice William Brennan, the court struck down Alabama’s law and instituted a new legal requirement of “actual malice” for defamation of public officials, a standard now familiar to all First Amendment lawyers…

Sure, the Times’ advertisement was not factually precise, but imagine if it had to be. Every Tweet or Facebook comment containing a single falsehood about a public official could be subject to ruinous liability. Citizens and groups would dare not speak and the discourse essential to our republic’s survival would grind to a halt…

Citizens United v. Federal Election Commission reinforced the vast speech protections enshrined into federal law by decisions like New York Times v. Sullivan. Although Sullivan dealt with libel law where Citizens United concerned an outright ban on speech, the relationship between the two is clear: Had the Court in 1964 decided the Times, a corporation, did not have the same free speech rights as an individual, defeating Jim Crow would have proven that much harder.

Public Policy Legal Institute: Do As I Say, Not As I Do – The Latest 4th Circuit Travel Ban Opinion Has the Same Problem It Condemned In the Travel Ban It Enjoined

By Barnaby Zall

We should be happy that the U.S. Court of Appeals for the Fourth Circuit took our advice in its latest decision enjoining the Trump Administration’s “travel ban” Executive Orders. After all, as the Public Policy Legal Institute and the Institute for Free Speech (formerly called the Center for Competitive Politics) requested last year, the Supreme Court instructed the Fourth Circuit not to restrain candidates’ campaign-trail speech, and the Fourth Circuit said in its February 15 decision: “we need not and thus do not rely on pre-election statements in assessing the constitutionality of the Proclamation.” Slip op., 46.

Except … despite that declaration, they did.

They didn’t themselves cite the candidate’s statements, except in a footnote. But the District Court below used campaign-trail quotes as the basis for its holding against the travel ban, and then the Fourth Circuit cited that holding without qualification or correction…

[L]et’s let the dissenting Fourth Circuit judges explain the problem: …

“[T]he new rule would by itself chill political speech directed at voters seeking to make their election decision. It is hard to imagine a greater or more direct burden on campaign speech than the knowledge that any statement made might be used later to support the inference of some nefarious intent when official actions are inevitably subjected to legal challenges.” Slip Op., 264-66.

New from the Institute for Free Speech

Letter in Support of H.R. 4916 (“Preventing IRS Abuse and Protecting Free Speech Act”)

By David Keating

The measure, sponsored by Representative Peter Roskam (R-IL), would repeal the Internal Revenue Service’s (IRS) Form 990, Schedule B requirement. Eliminating this mandate is a sensible and much-needed policy that would end the statutory requirement that the IRS collect sensitive information on nonprofit tax returns, detailing the names and addresses of significant donors to every charity in the country. Repealing Schedule B would also prohibit the agency from collecting similar data from all nonprofit groups, save for narrowly-tailored exceptions…

[R]epealing the Form 990, Schedule B would eliminate an outdated and ineffective portion of the tax code that serves no legitimate function as a regulatory tool for the agency, puts the privacy of American citizens at risk, and heightens the odds of politically motivated abuse by government officials. Based on IRS data, we estimate providing this donor information on tax returns costs charities and other nonprofit groups $63 million per year – money that could be better spent on program activities by such groups…

When the IRS has received information from the Schedule B, the agency has shown an inability to keep donor information private, and, in so doing, has violated the speech and association rights of Americans and the nonprofits to which they contribute. As the IRS itself has acknowledged, the benefits of this Form do not outweigh the costs. 

PDF

SCOTUS Brief in Brief: Minnesota Voters Alliance v. Mansky

By Alex Cordell

On February 28, the Supreme Court will hear oral argument in the case of Minnesota Voters Alliance v. Mansky.
In 2010, Minnesota prohibited a voter from wearing a T-shirt that depicted the Gadsden flag while voting, restricting his First Amendment right to express his political beliefs. Can Minnesota enforce a voter dress code? Or will the Supreme Court right this wrong? Learn everything you need to know about the case here.

The Courts

Cato: New York Attorney General Schneiderman Goes After Citizens United’s Donors

By Trevor Burrus and Reilly Stephens

While Citizens United has solicited donations in New York for decades without any problem, Schneiderman now demands that they name names, telling him who has chosen to support the group. Citizens United challenged this demand in court…

The Supreme Court has long recognized the dangers inherent in applying the power of the state against the right of private association. The cornerstone here is 1958’s NAACP v Alabama…

But the Second Circuit Court of Appeals has decided it knows better than the Supremes. On Thursday, it ruled that Citizen United’s challenge should be thrown out without even an opportunity to prove their case. In the process, it effectively turned NAACP into a “Jim Crow” exception to a general rule of unlimited government prerogative to panoptic intrusion into citizen’s political associations. While there can be no doubt that the struggle for civil rights presented a unique danger for its supporters, this should not mean that only such perils warrant First Amendment protection…

Although an appeal has not yet been filed, the Supreme Court should take the case and reverse the Second Circuit, making it clear that a compelling government interest is required before the government can force the disclosure of people’s political affiliations.  

Internet Speech Regulation

Reason: Don’t Feed the Russian Troll Hysteria

By Jacob Sullum

According to a federal indictment unveiled on Friday, Russians who pretended to be Americans while participating in online political discourse during the last few years committed a bunch of felonies. Whether they accomplished anything else of significance is by no means clear, notwithstanding all the scary talk about “information warfare” that supposedly undermined our democratic institutions and interfered with the electoral process…

The New York Times, which last year breathlessly claimed that “Russia Harvested American Rage to Reshape U.S. Politics,” reports that Donald Trump’s “admirers and detractors” both agree with him that “the Russians intended to sow chaos” and “have succeeded beyond their wildest dreams.” A Times editorial assures skeptics that “the Russian subversion effort” was “sophisticated” and “breathtaking” in scope.

That analysis is at odds with the paper’s own reporting, which describes Russian trolls as “sloppy” and “amateurish” bumblers who sounded suspiciously like foreigners while posing as Americans, left a trail that made it easy to catch them, and produced crude propaganda that amounted to a drop in the raging river of online political speech. The only thing breathtaking about this influence campaign is the hyperventilation of the alarmists who talk as if we are just a few angry tweets from the abyss.

Slate: How the Internet Companies That Sold Ads to Russian Trolls Can Fix the Problem

By Ian Vandewalker and Lawrence Norden

First, block foreign buyers from purchasing ads that mention candidates before elections, even if they don’t tell people how to vote…

To make this work, companies will have to beef up procedures to verify that political ad buyers are American and catch identity thieves. Ad sellers can use the credit card industry’s address verification system to block some foreign purchases. They could verify buyers’ addresses by requesting documents or using an information-reporting agency.

Internet companies should also make sure that all political ads, including any message that mentions a candidate, have a “paid for by” disclaimer on the face of the ad, and the disclaimer stays on the ad even if it’s shared or retweeted by another user.

Most importantly, online ad sellers should create a public database of political ads that reveals the content of the ads, who paid for them, their cost, how the audience was targeted, and when they ran. The database should cover any ad that discusses the election, candidates, or national political or legislative issues. This last piece is important because the Russian trolls used divisive political issues like gun control, immigration, and LGBTQ rights to try to manipulate the electorate.

Even more helpful would be a global database of political ad purchases.

FEC

Wall Street Journal: Group Files Complaints Over Payments to Playboy Playmate Who Alleged Affair With Trump

By Joe Palazzolo and Michael Rothfeld

A government-watchdog group filed complaints Tuesday with the Federal Election Commission and the Justice Department asking the agencies to investigate a $150,000 payment to a former Playboy centerfold model who sold her story of an alleged affair with President Donald Trump to the publisher of the National Enquirer.

American Media Inc. agreed in August 2016 to pay Karen McDougal for the rights to her story of the alleged 2006 affair, which it then didn’t publish…

Common Cause, based in Washington, D.C., said in its complaints filed Tuesday that the AMI payment to Ms. McDougal was intended to influence the election by keeping her story under wraps. The complaints, which name Mr. Trump, the Trump campaign and AMI, said the payment amounted to an illegal in-kind contribution and violated federal reporting requirements…

An AMI spokesman said the complaints were groundless.

“We are surprised and disappointed by the unprecedented attack on a media company by an organization that purports to value free speech. Fortunately, the First Amendment does not play politics, and we look forward to the opportunity to respond to these meritless claims,” he said.

The States

Salem News: Complaint seeks to force MassFiscal donor disclosure

By Michael P. Norton, State House News Service

State lawmakers who say they’ve been targeted recently in their districts by the Massachusetts Fiscal Alliance plan to call on state regulators Tuesday to force the nonprofit to register as a political committee and disclose its donors.

A complaint, obtained by the State House News Service and signed by Sen. Jamie Eldridge, D-Acton, and Rep. Natalie Higgins, D-Leominster, cites an alliance mailer sent to Leominster voters that was critical of Higgins. Letters were also sent to selectmen and city councilors in Eldridge’s district knocking his support for the Safe Communities Act and urging local officials to take positions against the bill, which is an immigration law enforcement bill pending on Beacon Hill.

The Massachusetts Democratic Party joined the lawmakers in filing the complaint with the Office of Campaign and Political Finance, which asks the independent agency to conduct an investigation and also to fine MassFiscal for failing to disclose the top five donors behind the flier campaign…

MassFiscal last week testified against proposed OCPF rules governing when the names and addresses of donors to 501(c)(4) and other tax-exempt entities must be publicly disclosed, alleging the agency was proposing to “give itself broad discretion to require donor disclosure.”