First Amendment 

Popehat: Make No Law: Popehat’s First Amendment Podcast on the Legal Talk Network

Hosted by Ken White

In the podcast, we explore the background, personalities, and social and historical context of some of America’s most important First Amendment cases. What made Walter Chaplinsky so angry that he uttered his famous “fighting words” in New Hampshire, and why was a crowd so angry at him? Why did Mary Beth Tinker decide to wear a black armband to school? What made Richard Ceballos’ supervisors retaliate against him for raising concerns about police misconduct, and how did he fight back? Who gets to decide whether a trademark like “The Slants” is offensive to a group – members of the group, or the government?

Through interviews of some of the participants, historians, and experts, primary documents read by voice actors, and commentary, Ken White will explain both what these cases mean for your rights today, and what they meant to the real people who fought for their rights to produce these decisions. Every episode will be accompanied by a post here at Popehat with links to supporting materials: cases, oral argument recordings, historical materials, and so on. As the series progresses, we hope that you will send in your First Amendment questions and your suggestions for cases to cover.

Free Speech

The Week: Is America having second thoughts about free speech?

By Damon Linker

For much of the left, the president’s (so far merely rhetorical) attacks on the freedom of the press is a sign of incipient fascism, and the complaints of the religious right are at once signs of paranoia and a form of special pleading for bigots. For the right, the agitation for free speech restrictions on campus is evidence of burgeoning anti-intellectualism in a place that should be open to all ideas and arguments, while the possibility of conservative religious believers facing punishment for their faith is both profoundly illiberal and a threat to free government in the United States…

[T]he more communitarian branch of the liberal tradition presumes a metaphor of illness and empowers those in positions of authority to contain pernicious ideas through a kind of public health measure of the mind…

The problem with such a shift is that the communitarian approach to speech regulation empowers certain people to make the determination of which ideas are permissible and which are worthy of restriction. That is and always will be a political decision. By placing that decision in the hands of certain people (those holding positions of power) and taking it away from others (everyone else), the sphere of politics gets constricted.

Congress

CNN: Joe Manchin wants senators to sign a pledge: Don’t campaign against each other

By Ashley Killough

Democratic Sen. Joe Manchin, who’s facing a tough re-election bid in West Virginia, will take to the Senate floor Tuesday and urge his colleagues to sign a pledge vowing not to campaign against other sitting senators…

Anyone who signs it would be promising (1) not to campaign against sitting colleagues; (2) not to directly fundraise against them; (3) not to distribute any direct mail against them; (4) not to appear in or endorse any ads directed at them and (5) not to use or endorse social media campaigns that attack them.

The fundraising aspect, Manchin said, also applies to raising money for Senate campaign groups, like the National Republican Senate Committee and the Democratic Senatorial Campaign Committee, which work to defend and pick up seats for their respective parties, even if that means ousting incumbents…

Ultimately, Manchin said he’d like to see the Senate make it an ethics violation to campaign or raise money for the ousting of incumbents. Asked if he had concerns that such a penalty could violate free speech rights, Manchin said, “We work under our own rules and regulations here in the Senate.”

“It’s not violating the Constitution,” he added. “If you’re going to be a senator, that would be the ethics you agree to.”

Independent Groups

Washington Times: Pro-Trump group airs billboard in Times Square blasting ‘fake news’

By Dave Boyer

A pro-Trump super PAC unveiled an e-billboard in Times Square in New York City on Monday that slams “FAKE NEWS” for failing to report on a complaint that the group filed against Hillary Clinton’s campaign for alleged fundraising abuses.

The electronic ad, which will air for a week, is funded by the Committee to Defend the President, formerly the STOP HILLARY PAC.

The billboard calls out “fake news” outlets CNN, MSNBC, The New York Times, NBC News and Time, saying they “spent more ink on President Trump’s second scoop of ice cream than the ongoing FEC investigation of Hillary’s $84M Campaign Finance money laundering scheme.” …

For the “real story,” the billboard directs viewers to a link to the group’s complaint that it filed with the Federal Election Commission in December. The FEC acknowledged receipt of the complaint and said the group will be notified when the agency takes final action on it.

The complaint accuses Mrs. Clinton’s campaign and the Democratic National Committee of using state Democratic Party committees to funnel millions of dollars back to her campaign to skirt campaign donation limits.

Candidates and Campaigns

USA Today: Will Democrats have the money to win Congress? The Kochs are making me nervous.

By Jesse Ferguson

Surf’s up for the Democrats. Everything’s set for us to ride this wave to victory. Right?

I’m not so sure. I stay up almost every night worrying not just that the wave won’t be there, but that we won’t be able to ride it even if it is.

When I started in politics, people obsessed that money was everything – the difference between winning and losing. It was the “mother’s milk” of politics. Now, the zeitgeist has flipped. Everyone either says money doesn’t matter or believes it will magically be there in the end. I’ve had countless Democratic strategists and candidates tell me not to worry.

Guess what? They’re wrong.

Money won’t determine the fundamentals of the cycle. It won’t transform an overwhelming loss into an overwhelming win. You can’t buy a wave.

But it can make a difference – a big one. In a cycle like this, I believe it’s the difference that could either end Republican control of the House on a close night, or limit our gains if the wind is really at our backs.

Tampa Bay Times: Zombie Campaigns

By Christopher O’Donnell, Eli Murray, Connie Humburg, Noah Pransky

In their political afterlife, former politicians and their staffers are hoarding unspent campaign donations for years and using them to finance their lifestyles, advance new careers and pay family members, an investigation by the Tampa Bay Times, 10News WTSP and TEGNA-owned TV stations found…

Times/WTSP reporters analyzed more than 1 million records detailing the spending of former U.S. lawmakers and federal candidates. They found roughly 100 of these zombie campaigns, still spending even though their candidate’s political career had been laid to rest.

The States

Reuters: Seattle says Facebook is violating city campaign finance law

By David Ingram

Facebook must disclose details about spending in last year’s Seattle city elections or face penalties, Wayne Barnett, executive director of the Seattle Ethics and Elections Commission, said in a statement.

The penalties could be up to $5,000 per advertising buy, Barnett said…

“Facebook is a strong supporter of transparency in political advertising. In response to a request from the Seattle Ethics and Elections Commission we were able to provide relevant information,” said Will Castleberry, a Facebook vice president.

Barnett said Facebook’s response “doesn’t come close to meeting their public obligation.” The company provided partial spending numbers, but not copies of ads or data about whom they targeted…

At the center of the Seattle dispute is a 1977 law that requires companies that sell election advertising, such as radio stations, to maintain public books showing the names of who bought ads, the payments and the “exact nature and extent of the advertising services rendered.”

The law went unenforced against tech companies until a local newspaper, The Stranger, published a story in December in the wake of the Russia allegations asking why.

U.S. News & World Report: Lawmakers Get Subpoenas for Campaign Finance Records

By Kim Chandler, AP

Some Alabama legislators have received subpoenas for campaign finance records in what appears to be an attorney general’s review of campaign spending…

While the direction of the review is unclear, it appears to be focused on whether lawmakers followed state law in how they spent campaign funds, including if purchases made with campaign-paid credit cards were all related to the campaign and properly reported…

Secretary of State John Merrill, whose office receives campaign finance reports filed by candidates, said he had conversations beginning in the summer with the attorney general’s office about entries on some politicians’ reports. Merrill said they sought information about expenditures that “raised questions in their minds.”…

Some lawmakers expressed frustration.

State Rep. Patricia Todd, D-Birmingham, wrote on Facebook that her decision not to seek re-election was based on her inability to find a job that also allowed her to serve in the Legislature. The “subpoena was the just the tipping point for me.”