New from the Institute for Free Speech
New Report Surveys Speech-Chilling Statutes Across the Country
The Institute for Free Speech today published a first-of-its-kind survey of campaign speech regulations and grassroots lobbying laws that implicate First Amendment freedoms.
The survey looks at state laws in twelve distinct policy areas, ranging from electioneering communications statutes to disclaimer rules to false statement laws. These statutes all have the potential effect of chilling speech and association.
“States regulate speech about government through a labyrinth of laws that often make it nearly impossible for average citizens to participate,” said Institute for Free Speech Senior Fellow and survey author Eric Wang. “This document is the first of its kind to attempt to pierce that veil. Would-be speakers will now at least be aware of the pitfalls they face.”
By illuminating the many ways states regulate activity related to speech and association, the Institute for Free Speech hopes to give policymakers a guide to the obstacles facing First Amendment-friendly policies.
“We hope this survey will be a useful resource for public policy advocates, litigators, and legislators,” said IFS Research Director Scott Blackburn. “When defending your First Amendment rights, the first step is knowing the current state of the law.”
To read the introduction to the survey, click here. To receive the full survey, please fill out the brief form at the bottom of the page.
By Eric Wang
The laws in the United States regulating speech about government are enormously complex, especially for such a niche area of the law. As the Supreme Court has noted, the federal law regulating campaign speech (so-called “campaign finance” law) alone consists of “568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975.” This does not even include the nearly 100 pages of statute, and the separate body of law regulating speech about legislative and administrative matters (so-called “lobbying” law). Add to this the reality that each state and many municipalities have their own laws regulating speech pertaining to state and local candidates and government, and the complexity of this body of law explodes more than 50-fold.
The Institute for Free Speech (“IFS”) has reviewed the laws in all 50 states, the District of Columbia, New York City, and Seattle regulating speech about government to determine how much of a regulatory burden each jurisdiction imposes on this core First Amendment activity. The following analysis examines each state’s laws according to 12 major issues (several of which are comprised of multiple sub-issues) that are regulated under this area…
IFS hopes this document will help inform members of the public and state policymakers about complex and onerous laws burdening political speech. By revealing comparative information on not only how the states compare with each other, but also on how a given state regulates various issues pertaining to speech about government, this document may provide a useful guide to public interest organizations and policymakers on how to focus their legislative and litigation efforts to implement true reform in our political speech laws.
Supreme Court
Washington Post: US Supreme Court denies hearing Ron Paul 2012 aides’ appeal
By Associated Press
The U.S. Supreme Court has declined to hear an appeal of the felony convictions of three top staffers on Ron Paul’s 2012 presidential campaign.
Campaign chairman Jesse Benton, campaign manager John Tate and deputy campaign manager Dimitri Kesari were convicted in 2016 of causing false records and campaign expenditure reports to be filed to the Federal Election Commission.
Prosecutors say the trio tried to hide $73,000 in payments to former Iowa Sen. Kent Sorenson for his endorsement of Paul.
They argue that they broke no laws when they concealed the payments through a third-party campaign vendor.
They have served their sentences but sought to clear their names of felony convictions.
The 8th U.S. Circuit Court of Appeals in St. Louis upheld the convictions in May 2018.
The Supreme Court on Monday denied their request to hear the case with no comment.
Free Speech
National Review: There’s a Fake Outrage Machine on the Right, Also
By David French
Last week I was dragged relentlessly on Twitter for suggesting that Tucker Carlson was subject to a “fake outrage” campaign when Media Matters dredged up his years-old, terrible comments to radio shock-jock “Bubba the Love Sponge.” I stand by my assertion. A group like Media Matters isn’t responding to public pain, it’s trying to create public pain by highlighting comments that no one cared about then and no one remembers now…
If there’s a right-wing analog to the Media Matters machine, it often comes in the ongoing effort to “nutpick” radical professors, highlight their most ridiculous (and often years-old) comments, and try to drive them out of their jobs. Coincidentally, one of those efforts is underway now at the University of California Davis. English professor Joshua Clover hates police officers, and the student newspaper printed an article exposing his years-old tweets calling for cops to die…
Criticizing or condemning Clover and Carlson is proper and justifiable. As I tweeted when the Carlson story broke, if the trending hashtag was #CriticizeTucker, then I was all-in, but since it was #FireTucker, I was all-out. Similarly, attempts to fire Clover (absent concrete evidence of on-the-job misconduct) are not just improper, they’re almost certainly unlawful.
As I recently wrote in response to the calls to fire a Fresno State professor who celebrated Barbara Bush’s death:
Under relevant law, a public employee enjoys First Amendment protection when she can show her speech “addressed ‘matters of public concern.'” Then, if her speech passes that test, her interest “in commenting upon matters of public concern” must outweigh “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
Online Speech Platforms
The Hill: Conservatives face a tough fight as Big Tech’s censorship expands
By Donald Trump Jr.
Even as Big Tech companies work to exclude us from the town square of the 21st century, they’ve been able to rely on misguided conservatives to carry water for them with irrelevant pedantry about whether the First Amendment applies in cases of social media censorship.
Sen. Josh Hawley (R-Mo.) has been making a name for himself as a Republican prepared to stand up to Big Tech malfeasance since his time as Missouri’s attorney general. He delivered a tour de force interview with The Wall Street Journal’s Kimberly Strassel in front of the CPAC crowd…
Hawley demolished the absurd notion that “conservative principles” preclude taking action to ensure free debate online simply because Big Tech firms – the most powerful corporations in the world – are private companies.
Hawley pointed out that Big Tech companies already enjoy “sweetheart deals” under current regulations that make their malfeasance a matter of public concern. Section 230 of the Communications Decency Act, for instance, allows them to avoid liability for the content that users post to their platforms. To address this problem, Hawley proposed adding a viewpoint neutrality requirement for platforms that benefit from Section 230’s protections, which were originally enacted to protect the internet as “a forum for a true diversity of political discourse.” …
It’s high time other conservative politicians started heeding Hawley’s warnings, because the logical endpoint of Big Tech’s free rein is far more troubling than conservative meme warriors losing their Twitter accounts. As we’re already starting to see, what starts with social media censorship can quickly lead to banishment from such fundamental services as transportation, online payments and banking.
The Media
Reason: Trump Keeps Wondering Why People Are Allowed to Make Fun of Him on TV
By Jacob Sullum
While there is no law against mocking the president, there is an “equal time” rule, and it is indeed enforced by the Federal Communications Commission, as Trump suggested yesterday. But it does not mean what the president seems to think it means.
The rule says that when a broadcast station sells or provides air time to a candidate for public office, it has to give his opponent(s) similar access. But the FCC has said the equal time rule applies only to content that is authorized by a candidate or sponsored by his campaign, and the commission makes a broad exception for news coverage, ranging from The Howard Stern Show to the airing of presidential debates. So even if Trump were in the middle of a presidential campaign, SNL sketches that skewer him would not trigger the equal time rule.
Sometimes Trump seems to have in mind not the equal time requirement but the “fairness doctrine,” which required broadcast stations to air contrasting views on controversial subjects. The FCC rescinded the fairness doctrine more than three decades ago because “it was an affront to the First Amendment to have the government micromanaging how much time a particular broadcast outlet decided to devote to a particular topic,” as FCC Chairman Ajit Pai put it during a 2017 forum at George Mason University.
Pai made it clear he will resist the president’s periodic suggestions that the FCC should investigate or punish broadcasters who offend him, promising that “the FCC under my leadership will stand for the First Amendment.” The same clearly cannot be said of Trump, who cares about freedom of speech only when he is speaking.
Candidates and Campaigns
Bloomberg: Ocasio-Cortez’s Campaign Finance Has Critics Crying Hypocrisy
By Bill Allison
Democratic firebrand Alexandria Ocasio-Cortez rode into office railing against the influence of big money and hidden donors in U.S. elections. Yet the political operation that helped elect her to Congress was itself less than transparent — exposing her to attacks from conservative foes.
The New York congresswoman raised a hefty $2 million for her 2018 election while refusing to take money from business-related political action committees. Of that, 61 percent came from individuals giving less than $200 — the highest rate of small-dollar funding among current U.S. House members.
At the same time, Ocasio-Cortez’s campaign committee and two PACs paid almost $900,000 to a consulting company for campaign services, providing few details on what the money was for or who ultimately received it.
The unorthodox arrangement — she sat on the board of one of the PACs, both of which were co-founded by the person who is now her chief-of-staff, who also ran the consulting company — appears to have taken advantage of gaps in the law, including the low level of detail that campaigns and PACs are required to provide about their spending.
The intricate ties and the lack of transparency have opened her to charges of hypocrisy and prompted complaints to the Federal Election Commission by conservative groups, though the allegations may amount to little more than paperwork violations.
The States
Bend Bulletin: Editorial: Taxpayers should not have to fund candidates they don’t like
By Editorial Board
Somebody – or somebodies – in the Legislature has proposed a new solution to the old issue of money in Oregon politics. And they are using two of the oldest tricks in the book to do it.
The first trick: Senate Bill 1014 is a committee bill. No legislator has attached his or her name to it. It’s proposed instead by the committee on campaign finance.
The Legislature should not permit any bill to be introduced without a legislator taking direct responsibility for it. It’s the only way Oregonians can hold their elected officials accountable for legislation. The bill should be rejected on that basis alone.
The second trick: SB 1014 would “solve” a problem by spending your money. It would take tax dollars from Oregonians and use them to help people get elected. If you are a Republican, your tax dollars could go to support Democrats. If you are a Democrat, your tax dollars could go to support Republicans. You get the idea. The state government would be using your tax dollars to help get people elected who you may be completely against. That’s a solution?
East Oregonian: Legislature weighs campaign finance reform bills
By Mark Miller, Oregon Capital Bureau
A trio of Democratic state representatives has proposed a constitutional amendment that would allow state and local governments to regulate campaign spending by limiting contributions to political campaigns and mandating that advertisements and campaign materials name who paid for them…
In the Senate, Beaverton Democrat Mark Hass and Bend Republican Tim Knopp have proposed Senate Joint Resolution 18, a similar constitutional amendment to what Rayfield and Reps. Alissa Keny-Guyer, D-Portland, and Pam Marsh, D-Ashland, have put forward in the House…
Rayfield and Keny-Guyer have proposed other bills as well, including House Bill 2716 and House Bill 2983, which were also heard last week.
HB 2716 would require any ad or campaign literature to identify who paid for it. An amendment offered by Sen. Jeff Golden, D-Ashland, would require that if literature is financed by an independent committee separate from the candidate, they include a disclaimer stating they are “produced and paid for without the knowledge, consent or cooperation” of any candidate for that office.
HB 2983 would require tax-exempt nonprofit groups that spend $50,000 or more on a legislative race to disclose the name of any donor who contributes at least $50,000, while nonprofits that spend $250,000 or more on a statewide race would have to disclose the name of any donor who gives them at least $250,000.
