New from the Institute for Free Speech
Comment to the North Dakota Ethics Commission on the Draft Conflict of Interest Rules
By David Keating
We have several specific concerns about the Draft Rules.
First, the Draft Rules could be read to require a conflict-of-interest and/or recusal determination for certain public officials if an official receives a campaign contribution from a person who has a stake in the outcome of a given decision. Such a reading would create a substantial number of practical problems and chill the exercise of constitutionally protected rights.
Second, the Draft Rules are too vague and not sufficiently narrowly tailored as to Quasi-Judicial proceedings.
That a person has made a campaign contribution to a candidate who later becomes a public official should not require either recusal or even automatic referral to a neutral decisionmaker for a conflict-of-interest determination. Given North Dakota’s existing campaign finance laws, which impose no limits on campaign contributions, North Dakotans are presumptively aware of both the existence and amounts of campaign contributions and nevertheless elect candidates to public office. Presumably, voters would not want that public official to recuse, or someone else’s judgment to be substituted, based on a decision by someone whom voters did not necessarily elect.
Privacy
Reason (Volokh Conspiracy): The United States of Anonymous
By Jeff Kosseff
Thanks to Eugene for inviting me to guest-blog about my new book, The United States of Anonymous: How the First Amendment Shaped Online Speech.
For more than a half century, U.S. courts have held that the First Amendment provides a right to speak and associate anonymously. Courts have applied this right to the Internet and found a robust—though not absolute—ability for people to control the identifying information they reveal online.
Anonymity is deeply rooted in the constitutional values and social norms of the United States. Anonymity has allowed speakers to communicate unpopular political viewpoints, whistleblowers to expose their employers’ illegal schemes or ineptitude, and citizen journalists to document corruption and fraud…
The longstanding U.S. tradition of anonymous speech has enabled Americans to often separate their identities from the words that they communicate. In my book, I examine how the First Amendment protections, combined with technology that prevents identities from being associated with online activities, have created a culture of anonymity empowerment.
The Courts
Reason (Volokh Conspiracy): University Adjunct Prof Fired for Labeling Flyers About “Microaggressions” as “Garbage”
By Eugene Volokh
From Hiers v. Board of Regents, released today by Judge Sean Jordan (N.D. Tex.):
Writing for himself and Justice Brandeis nearly a century ago, Justice Oliver Wendell Holmes extolled what he viewed as a foundational tenet of freedom of expression in our country: “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” Since that time, the Supreme Court has consistently recognized that the Founders “believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”
This case implicates these bedrock constitutional principles protecting freedom of thought and expression. The setting is a public university, the University of North Texas (“UNT”), and the speaker is [an untenured] mathematics [adjunct] professor at that university, and a public employee, Nathaniel Hiers. Amidst a slew of constitutional claims asserted by Hiers following his departure from UNT, a single question is paramount: What can a public employee say, and what can he choose not to say, without fear of reprisal from his employer?
Internet Speech Regulation
Daily Beast: The Problem With Banning Russian Disinformation
By Jacob Mchangama
In a thoughtful new book, Cheap Speech: How Disinformation Poisons Our Politics—and How to Cure It, eminent University of California-Irvine law professor Richard L. Hasen proposes to counter the threat posed by “fake news” and “cheap speech” by tweaking First Amendment protections and permitting narrow, targeted restrictions of speech.
Yet there remains a compelling case for why the U.S. approach to regulating speech is preferable to even a modest and well-intentioned pivot (such as the European model) when it comes to concerted disinformation and anti-democratic propaganda…
In fact, an increasing amount of evidence shows that propaganda is mostly inefficient. Several empirical studies have seriously challenged the claim that “fake news” decided the 2016 presidential election, and that Russian propaganda played a decisive part. Those most liable to stumble down the rabbit-hole of online disinformation are partisans already on board with the message (i.e. the MAGA diehards who stormed the Capitol).
FEC
AP News: Trump accused of breaking campaign laws by teasing 2024 run
By Meg Kinnard
As former President Donald Trump continues to tease a future White House bid, a pro-Democratic super PAC has accused him of violating federal campaign laws by raising and spending money for a run without officially filing his candidacy.
In its complaint filed Monday with the Federal Election Commission, American Bridge accused Trump of “illegally using his multicandidate leadership PAC to raise and spend funds in excess of Commission limits for the purpose of advancing a 2024 presidential campaign.”
Free Expression
Washington Post: How America became a nation of the woke and the wary, walking on eggshells
By George F. Will
For the sensitivity industry, the concepts of microaggressions and zero tolerance have become gifts that can never stop giving. Mostly invisible, the aggressions can be identified only by the sensitivity industry’s experts. Everyone else cannot be too careful.
It has become legally fraught for employees to say “the most qualified person should get the job,” or “America is the land of opportunity,” or “America is a melting pot,” or “All lives matter.” America has become the land of wary people walking on eggshells. Vague, shifting definitions of “harassment” inhibit the exercise of First Amendment speech rights.
In 1986, the Supreme Court held that the EEOC had correctly decided that employees have a right (herewith the court’s language) “to work in an environment free from discriminatory intimidation, ridicule, and insult.” Heriot correctly calls this “a somewhat unusual statement” because “no one has a general ‘right’ to be free from ridicule or insult, and the federal government cannot, consistently with the First Amendment, create such a right” for “the context of employment.”
The States
KTOO: Alaska House debates bringing back limits to campaign donations
By Andrew Kitchenman
The Alaska House of Representatives is debating a bill that would bring limits to campaign contributions back to the state.
House Bill 234 would limit individual contributions to candidates to $2,000 over two years. There are no limits on individual donors currently.
Anchorage Democratic Rep. Andy Josephson supports reinstituting limits. On Monday, he proposed amending the bill to lower the individual limit to $1,500. Adjusting for inflation, that would be similar to a limit approved by 73% of Alaska voters in 2006…
Homer Republican Rep. Sarah Vance opposed the amendment, as well as broader limits on contributions to candidates. She noted that courts have found that contributions are a form of speech.
“This amendment is further limiting that freedom of speech,” she said…
In July, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit struck down Alaska’s previous individual limit of $500 per candidate each year. The court also invalidated a $500 limit to political groups and a $3,000 limit on the total amount candidates can raise from out-of-state donors. The court left a $5,000 limit on annual contributions to political parties in place.
Sludge: Oakland Community Groups Launch Campaign to Fight Big Money in Elections
By David Moore
A coalition of community groups in Oakland launched a campaign last week to bring an innovative public campaign financing program to city elections.
In a virtual kickoff event on March 2, the Fair Elections Oakland coalition began education and local outreach efforts ahead of a planned ballot initiative for “Democracy Dollars,” a program that seeks to boost small donations and incentivize candidates to appeal to wider swaths of city residents, as well as enable less-affluent candidates to run competitively for office against those with wealthy donor networks…
The Fair Elections coalition includes Oakland Rising, a social justice collaborative that is one of three grassroots groups in the Bay Rising alliance of community organizations led by working-class people and people of color. Also in coalition are the democracy reform group California Common Cause, the League of Women Voters Oakland, the American Civil Liberties Union of Northern California, Asian Americans Advancing Justice – Asian Law Caucus, and the civic technology nonprofit MapLight.
