In the News
Stateline (Pew Charitable Trusts): Political Candidates Don’t Always Tell the Truth (And You Can’t Make Them)
By Matt Vasilogambros
Since 2011, Montana courts have struck down three similar attempts to require truth in political advertising, saying the laws were “unconstitutionally vague” and therefore infringed on the free speech rights of Montanans.
“Unfortunately, the wording used was too broad and wasn’t enforceable,” said Democratic state Rep. Kimberly Dudik, who authored an unsuccessful fix…
David Keating, the president of the Institute for Free Speech, a Virginia-based organization that opposes campaign finance limits, said the latest legislative attempt in Montana is just “another example of legislatures trying to commandeer other people’s speech for their purposes.”
“I find it objectionable – period – that they would seek to regulate the content of speech,” he said. “The courts have clearly said that the government is not the speech police.”
The current system for political advertising, under which campaigns and groups conform to different broadcasters’ standards, works well, he said.
Instead of regulating speech, the best way to counter negative ads about a candidate is by producing an ad in favor of that candidate, providing enough information for voters to seek the truth, he said.
If legislation were to pass in Montana, said state Commissioner of Political Practices Jeff Mangan, the chief campaign finance enforcement official, he “fully expects” the law to be challenged right out of the gate…
Even so, that will not stop Dudik, the Montana Democrat who is now running for state attorney general, from trying once again to regulate political advertisements in her state.
This week, she introduced a new bill. Instead of requiring specific information on the actual attack ads, she said, the legislation would require candidates and groups to file supporting evidence for attack ads with the commission of political practices, which would then make the information available online for residents.
Dallas News: AT&T peels off layer of political spending secrecy – thanks to pushy investors and the Michael Cohen fiasco
By David Saleh Rauf
AT&T is bowing to activist shareholders calling for more transparency about the company’s political spending, agreeing to disclose millions of dollars in previously untraceable contributions after last year’s embarrassment over payments to President Donald Trump’s former lawyer Michael Cohen.
For the first time, AT&T is divulging some contributions to outside groups…
But even with the additional information, the public still would not have known about AT&T’s relationship with Cohen…
Brad Smith, chairman of the Institute for Free Speech, a conservative nonprofit that supports deregulation of campaign finance laws, said investors use the proposals to harass corporations.
“Maybe AT&T should or shouldn’t have paid Michael Cohen, but it has nothing to do with industry associations or think tanks arguing in favor of positions,” said Smith, a former chairman of the Federal Election Commission. “What’s really going on here is a broader effort to prevent corporate voices from being heard in discussions of public affairs.”
ICYMI
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.
Event
Brooklyn Law School: Symposium: Incitement At 100-And 50-And Today: Free Speech and Violence in the Modern World
This year marks the centennial of the first Supreme Court cases to give serious consideration to free speech, decided in response to convictions of dissenters who opposed American participation in World War I and allegedly incited interference with the war effort. By coincidence, 2019 also marks the 50th anniversary of Brandenburg v. Ohio, the 1969 case that established the modern rule for when political speech can be suppressed for inciting lawless action and, conversely, when it is constitutionally protected.
This Brooklyn Law Review symposium brings together noted free speech scholars and practitioners to consider the history of the incitement cases, their relevance today in a world of social media and terrorism anxiety, and their enduring importance. The panels in this day-long event will span the time horizon from 1919 to 2019 and beyond: looking back to those foundational cases, examining the constitutional status of dissenting political speech today, and speculating about the future of free speech as the nation moves into its second century of serious protection for dissenting political speech.
Participants:
Floyd Abrams, William D. Araiza, Jonathan Askin, Christopher Beauchamp, Ronald Collins, Leslie Gielow Jacobs, Joel M. Gora, David S. Han, Thomas Healy, Leslie Kendrick, Heidi Kitrosser, Genevieve Lakier, Louis Michael Seidman, Nadine Strossen, Emerson J. Sykes, Rachel E. VanLandingham, Christina E. Wells
Date: Friday, April 12
Online Speech Platforms
Reason (Volokh Conspiracy): No, a Web Platform’s Decision to Restrict Speech Doesn’t Strip It of 47 U.S.C. § 230 Immunity
By Eugene Volokh
Lots of people have argued that, even if online platforms should often be immune from liability for speech by their users, they should lose that immunity if they decide to restrict some users’ speech. Here’s a sample of this argument:
In contrast [to platforms that allow people to whatever they want], here [Twitter] has virtually created an editorial staff … who … spend time censoring [user posts]. Indeed, it could be said that [Twitter’s] current system of [editing] may have a chilling effect on freedom of communication in cyberspace, and it appears that this chilling effect is exactly what [Twitter] wants, but for the legal liability that [should attach] to such censorship…. [Twitter’s] conscious choice, to gain the benefits of editorial control, [should open] it up to a greater liability than … other computer networks that make no such choice.
Now you might think that’s a good argument, or a bad argument. But it is precisely the argument that Congress rejected in passing 47 U.S.C. § 230. That quote is from a 1995 case called Stratton Oakmont v. Prodigy, which held that Prodigy could be sued for its users’ libelous posts because Prodigy edited submissions; the references to Twitter in the block quote above are to Prodigy in the original. Congress enacted § 230 to (among other things) overturn Stratton Oakmont.
And in addition to providing immunity to platforms that edit (alongside those that don’t), Congress expressly protected their right to edit, notwithstanding any state laws that might aim to restrict that right (not that state laws generally do that):
No provider or user of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected ….
Trump Administration
Chronicle of Higher Education: Here’s What Trump’s Executive Order on Free Speech Says
By Andy Thomason
President Trump will sign an executive order on Thursday that he has said will mandate that colleges uphold free speech or risk jeopardizing federal research funds. The text of the order, obtained by The Chronicle, indicates it will have little impact on colleges, at least immediately.
The order will direct federal agencies to “take appropriate steps” to ensure that colleges receiving federal research funds “promote free inquiry.” But public colleges are already legally bound to do so by the First Amendment. And private colleges will be required only to “comply with their stated institutional policies regarding free inquiry,” according to Politico, which cited an unnamed senior official in the Trump administration.
[Likely text of the order available at the link above]
Independent Groups
NBC News: Democratic super PAC launches $50 million effort to weaken Trump with core supporters
By Alex Seitz-Wald
One of the largest Democratic super PACs, American Bridge, is embarking on a $50 million effort designed to soften President Donald Trump’s support among the group that cost Democrats the White House in 2016 – white working-class voters in the Upper Midwest…
Officials with the super PAC and its affiliated non-profit, founded by longtime operative David Brock, are on a nationwide fundraising tour to expand the group’s budget nearly three-fold, from less than $30 million per two-year election cycle to $80 million for the 2020 campaign.
That $50 million expansion will go toward a massive paid advertising campaign on TV, digital, and radio, officials said, as well as other efforts to persuade rural and exurban voters in Wisconsin, Michigan and Pennsylvania – with the possible addition of Florida – that Trump has been harmful for their economic interests…
[Andrew] Gillum is joining the board of American Bridge’s 501(c)4 non-profit arm, which is chaired by former Michigan Gov. Jennifer Granholm. New additions also include former DNC Chair Ed Rendell and operative Jessica Mackler, who ran the independent expenditure arm of the Democratic Congressional Campaign Committee in last year’s midterm elections…
American Bridge regularly shares what it finds with other independent Democratic groups and, in the past, has let others take the lead on running ads. For instance, Priorities USA, the largest Democratic super PAC, this week launched the first in what it says will be $100 million worth of ads targeting Trump in a similar set of states.
The States
Complete Colorado: Campaign finance efforts upend free speech, invade privacy
By Amy Oliver Cooke
Two principles on which we should agree: First, transparency is for government. Privacy is for individuals, businesses and nonprofits. And second, we have a First Amendment right to free speech…
In Colorado, it seems that some Democrats want to flip the free speech and privacy paradigms. They want to expose individuals and limit speech when it has to do with politics and viewpoints with which they may disagree.
Case in point: Newly-elected Colorado Secretary of State Jena Griswold thinks transparency is for individuals. While campaigning, Griswold decried “dark money” in politics, promising to oversee reforms that drive this purportedly evil form of political speech out of the process once and for all.
Translation: Griswold wants her government to know which individuals exercise their First Amendment rights through contributions to organizations with specific viewpoints, which is designed to have a chilling effect on speech.
Which brings me to our second principle: Even when they have disclosure, they still want to limit speech.
Newly-elected progressive House Representative Emily Sirota, D-Denver, along with colleague state Sen. Rachel Zenzinger, D-Arvada, want to limit individual political speech with House Bill 19-1007, a revision of the state’s Fair Campaign Practices Act, which would impose a cap on campaign contributions for county level elected offices.
This is the epitome of urban, progressive-left arrogance. Two Denver-area Democratic state legislators want to tell rural Coloradans how much they can give to support their choice for county elected positions.
Oregonian: Oregon lawmakers say they want campaign donation limits — just not the ones voters already approved
By Rob Davis
With support from Gov. Kate Brown, Oregon lawmakers are preparing to ask voters in November 2020 whether to change the state constitution to limit money in politics.
There’s a catch: The lawmakers plan to have the measure preempt campaign contribution limits Oregon voters already enacted in 2006.
The 2006 restrictions are on the books but unenforceable. The Oregon Supreme Court has ruled that the state constitution protects campaign contributions as free speech…
State Sen. Jeff Golden, D-Ashland, ran on reforming the state’s campaign finance laws and is chairman of the Senate’s newly created Campaign Finance Committee.
Golden said a measure that would allow past restrictions to take effect would not have enough support. When the 2006 measure was on the ballot, liberal groups including the American Civil Liberties Union of Oregon, Planned Parenthood and the state’s powerful teachers union led the opposition…
The measure that lawmakers are preparing to send to voters, Senate Joint Resolution 18, would change the constitution to state explicitly that campaign finance limits are allowed. An amendment posted Wednesday says the measure would only apply to limits created after January 1, 2016…
An earlier version of the proposal would have set the cutoff date at December 3, 2020. That would have preempted measures passed by sweeping majorities in Portland and Multnomah County in the past three years…
The Senate Campaign Finance Committee held a hearing on the measure Wednesday but took no action.
WSKG Binghamton NPR: Public Campaign Finance Measure Struggles To Gain Ground In Albany
By Karen DeWitt
A push to enact a statewide system of public campaign finance for political races appears to be floundering in New York…
Cuomo has pulled back a bit from his support of the measure. He said earlier this month that while he still wants the provision in the final spending plan, due April 1, he would accept a partial plan. He said details, like how to fund the program could be worked out later. He said he doesn’t believe the public wants taxpayers to pay for the programs…
Assembly Speaker Carl Heastie said he has some second thoughts about whether the public system would work as promised.
“It’s not necessarily cold feet,” Heastie said, in an interview with public radio and television. “I voted for it in 2009, but that was before Citizens United.”
The 2010 Supreme Court case Citizens United v. the FEC led to a decision that said corporations, not for profits, and unions, can spend an unlimited amount on federal campaigns, as long as they are separate from a candidate’s reelection effort.
Heastie said if a candidate’s fund raising is restricted under the public campaign finance rules, then an independent expenditure group, spending unlimited money, could swing an election.
“You don’t want to open the door to having IE’s pretty much picking your legislature,” Heastie said…
[Jessica] Wisneski, with Citizen Action, remains skeptical of Speaker Heastie’s arguments. She said her group has identified at least 50 Assemblymembers who would vote yes on public financing. And she said they are spending the coming days trying to bring that number up to the 76 votes needed for passage in that house.
Las Vegas Review-Journal: New campaign finance laws coming to Nevada in wake of abuses
By Colton Lochhead
New laws to tighten Nevada’s notoriously loose campaign finance statutes could be coming, in the wake of revelations that elected officials used campaign accounts to fund personal expenses, businesses or trips out of the country…
Senate Bill 333, introduced Monday, would require anyone who gives $1,000 or more to any candidates or political action committees to report their donations to the Nevada secretary of state’s office if the check is cashed. Currently, only the candidates and PACs have to report the donations, and sponsors of the bill say that makes it too easy for candidates to pocket donations for personal gain.
“Right now it’s up to a candidate to report all contributions that they receive. But there’s no database on the other side as a check on the system to ensure that entities and individuals who provide contributions record those contributions,” said state Sen. Heidi Gansert, R-Reno, one of the of the bill’s other sponsors, which includes all eight Republican state senators…
The bill was referred to the Senate Committee on Legislative Operations and Elections for further discussion.
KPAX-TV Montana: Missoula lawmaker pushing campaign finance reform bill
By MTN News
A new proposal to ban Montana campaign spending by foreign nationals that was introduced in the Legislature on Wednesday has strong support from Gov. Steve Bullock.
Sen. Nate McConnell (D-Missoula) is sponsoring the bill, which says foreign nationals cannot contribute to independent expenditures for candidates or PACs — making the action illegal.
Gov. Bullock says the US Supreme Court ruling in the Citizens United case created a loophole that enables foreign governments or agents to spend on elections in America.
He adds that they have formed shell corporations and send money through those corporations. Gov. Bullock says Senate Bill 326 closes this loophole.
“Montana elections ought to be decided by Montanans, not foreign governments or foreign corporations,” Gov. Bullock said.
“Now’s the time to stand up to work across the aisle to continue to fight for a system where government works for Montanans and not anybody else. The foreign money ban does exactly that,” the Democrat added.
