In the News
IHeartRadio: Rod Arquette Show
David Keating, President of the Institute for Free Speech, joins Rod to discuss why he says H.R. 1 would turbocharge the cancel culture in America.
[Interview begins at 37:00.]
New from the Institute for Free Speech
Feds: Want A Tax Deduction? Give Up Your First Amendment Rights.
By Barnaby Zall
Want a tax deduction or tax exemption? The Solicitor General of the United States, the federal government’s top litigator at the Supreme Court, says the price of that “governmental subsidy” or “voluntary tax-benefit program” is giving up your First Amendment rights. A “bargain” or “waiver” of your rights. But the claim is a hidden trap, removing an important free speech limit on government power.
The federal government has been pushing that argument for sixty years; sometimes it won (Regan v. Taxation With Representation (1983), limit on charities’ lobbying did not violate the First Amendment). But in recent years, the Supreme Court usually rejects the argument, as it did in 2013 (Agency for International Development v. Alliance for Open Society Int’l) (AOSI I), in 2017 (Matal v. Tam), and in 2020 (AID v. AOSI II). As Justice Alito pointed out in Matal v. Tam, a case asking if the First Amendment protects “offensive” trademarks, the Department of Justice has been trying to expand their theory into an all-encompassing governmental power to limit the First Amendment rights of anyone who gets a governmental benefit or participates in a governmental program: “a new doctrine that would apply to ‘government-program’ cases…
Yet this long, existential battle has mostly flown under the radar. They’re trying again in the “Schedule B” cases consolidated for Supreme Court oral argument on April 26: Americans for Prosperity Foundation v. Becerra, No. 19-251, and Thomas More Legal Center v. Becerra, No. 19-255.
Congress
Washington Times: Say no to the ‘Corrupt Politicians Act’
By Jenny Beth Martin
First, [S. 1] spends taxpayer dollars to fund politicians’ campaigns, with a six-to-one match on contributions up to $200, so a $200 contribution becomes a $1,400 contribution. Oh, it has a fancy-schmancy dedicated financing stream based on surcharges on fees paid by corporate wrongdoers so that its sponsors can say, “There is no taxpayer funding!” but we all know money is fungible. If it weren’t for the need to fund political campaigns, the money from this dedicated stream would go to fund other taxpayer obligations, so let’s just drop the pretense, shall we?
Say it with me — if this bill were to become law, taxpayers would be financing politicians’ campaigns.
That means we as taxpayers would lose control over what political speech we support, and what political speech we oppose. Under our system as it currently stands, I can choose to support some political speech I like by making a contribution to the candidate or organization doing the speaking, and I can choose not to support speech I oppose by choosing not to make a similar contribution. If this law were to be enacted, and taxpayer funds were used to fund the political campaigns even of politicians whose politics I oppose, I would, of necessity, lose the decision-making power over which speech I support with my money.
That’s a violation of my First Amendment rights to freedom of association, because that right of freedom to associate with whomever I please includes a right not to associate with those I don’t like. That’s wrong.
Penn Live: Congress passed an incumbent bailout bill
By Rick Santorum
Perhaps most damaging of all, HR 1 would force all organizations to disclose the private information of members and donors to a government database. Many of the Democratic co-sponsors see it as a way to hold groups that run ads about an issue while also mentioning a federal candidate accountable. They claim this provision would crack down on “dark money” in politics. Let me help you with the Democrats’ definition of “dark money.” It’s money contributed anonymously to help Republicans compete in elections.
As we are seeing with frightening regularity, doxing Republican donors would unleash the progressive cancel culture, which would thereby rally progressive media, academia and businesses to bully and shame donors into ceasing support for “unwoke” causes and candidates.
To be clear, the concern over HR 1 has farther-reaching consequences than damaging Republican chances at the ballot box. Much to the Democrats’ chagrin, it’s pushback from groups like the American Civil Liberties Union, which recently stated that the legislation “contains significant flaws that are detrimental to the health of our democracy and would likely have unintended consequences on the political rights of noncitizen immigrants as well as many nonprofits, including civil rights organizations and other civil liberties movement builders,” that’s fueling the opposition to this bill.
The Courts
Cato: The Government Needs to Learn to Take a Joke
By Ilya Shapiro, Trevor Burrus, and Thomas A. Berry
Ben Domenech, publisher of the online politics and culture website The Federalist, jokingly tweeted from his personal Twitter account: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” Another Twitter user with no connection to The Federalist filed a charge with the National Labor Relations Board (NLRB), claiming the tweet amounted to an unfair labor practice by parent company FDRLST Media: threatening reprisal against those wishing to form a union.
The NLRB administrative law judge agreed, as did the Board, ordering Domenech to delete the tweet, among other relief. That order has now been appealed to the U.S. Court of Appeals for the Third Circuit.
Cato has filed a brief supporting FDRLST Media, joined by a broad coalition of free speech advocates including satirist P.J. O’Rourke, former ACLU president Nadine Strossen, and magicians and authors Penn & Teller. The brief explains that the NLRB was wrong for a simple reason: Domenech’s tweet was a joke, not a threat.
Free Speech
The Hill: 64 percent view ‘cancel culture’ as threat to freedom: poll
By Julia Manchester
A majority of Americans say they view “cancel culture” as a threat to their freedom, according to a new Harvard CAPS-Harris Poll survey released exclusively to The Hill on Monday.
Sixty-four percent of respondents said that there is “a growing cancel culture” that is a threat to their freedom, while 36 percent said they did not view it as a threat to their freedom.
Additionally, the poll found that 36 percent of Americans said cancel culture is a “big problem,” while 32 percent called it a “moderate problem.” Another 20 percent said it was a “small problem” and 13 percent said it is “not a problem.” …
“It is a chilling finding that most people in the country now are afraid they would be fired if they expressed their real views on social media,” said Mark Penn, the director of the Harvard CAPS-Harris Poll survey.
“The public generally gives negative ratings to social media companies and sees the movement as more about censorship rather than trying to correct wrongs. It is growing as a national issue,” he added.
The Dispatch: The First Amendment: Rarely Popular, Always Necessary
By Chris Stirewalt
Many Americans claim to revere the First Amendment and its hard line against government limitations on the beliefs of our citizens and the expression of those beliefs. Yet very often the same souls who rhapsodize over free speech are eager to limit it.
Here’s a powerful, influential progressive senator who wants to make sure a company can’t “heckle” her in a “snotty” way. Or how about a new member of the executive branch who wonders whether the First Amendment is “obsolete” and thinks the federal government should try to engineer a news media marketplace to its liking? Try an esteemed conservative federal judge who wants to make it easier for powerful people to sue reporters and news outlets because he doesn’t like the bias he perceives against his viewpoints.
At the state and federal level, we’re witnessing a full-spectrum attack on free expression (not to mention property rights). Progressives and nationalists aren’t mounting this assault at risk to their own careers. Indeed, many are finding lots of political advantage in trying to suppress speech they and their constituents do not like.
DOJ
Insider: FBI warns of the rise of ‘deepfakes’ in coming months and explains how to spot them easily
By Óscar F. Civieta and Jeevan Ravindran
The FBI has issued a stark warning saying “malicious actors almost certainly will leverage synthetic content for cyber and foreign influence operations in the next 12-18 months.”
“Synthetic content” refers to any manipulated or generated content across video, photo, text, and audio.
It also includes deepfakes, which use artificial intelligence to replace the likeness of one person with another.
In the statement issued March 10, the FBI said “Russian, Chinese, and Chinese-language actors are using synthetic profile images derived from GANs [generative adversarial networks].”
They also pointed to an increase in the number of fake journalists and articles circulating online. While these journalists had a “robust online presence,” their fraudulence can be uncovered by “basic fact-checks.”
The States
Politico: Florida Playbook- Republicans to crack down on donations?
By Gary Fineout
This week GOP leaders in the [Florida] House and Senate are moving ahead with a measure that would put in place a cap on donations to political committees that are pushing proposed state constitutional amendments. The initial proposal called for a $1,000 cap, but the plan is to set it at $3,000 — the same limit in place for statewide candidates, such as governor.
When asked about it on Sunday, state Sen. Ray Rodrigues, who sponsored the bill, said that “the goal is for citizen initiatives to show demonstration of widespread support rather than one out-of-state billionaire writing a check.” For the record, both the House and Senate proposals apply the donation cap to anyone regardless of whether they live in Florida or not. And the cap is only in place while organizers are trying to get the amendment on the ballot…
This latest effort appears likely to run into smack into a court challenge, including the plethora of federal rulings that have been praised by Republicans such as Sen. Marco Rubio and denounced by Obama. “The courts have said money is speech, and that type of legislation is going to have a problem,” said Mark Herron, a Tallahassee-based attorney who deals with campaign laws and routinely works with state Democrats.
There’s also an additional hurdle. The Citizens United case dealt with money spent attacking a candidate for office. The bills up in the Legislature are aimed at groups advocating issues, which makes it harder to argue that unlimited contributions have a corrupting influence, Herron noted.
WBUR: Sen. Ryan Fattman: State Official Wrongly Accused Him Of Campaign Finance Violations
By Todd Wallack
Massachusetts Sen. Ryan Fattman, a Webster Republican, revealed new details Friday about his mysterious court battle with state regulators.
Fattman, who sued the state’s top campaign finance official in Suffolk Superior Court last week, said in a lengthy statement that regulators have mistakenly accused him of violating state campaign finance rules barring campaign committees from giving more than $100 to other candidates’ committees…
But Fattman argued campaign committees like his are permitted to make unlimited donations to political parties. He estimated candidate committees have made more than 2,400 donations totaling more than $7 million to parties in the state since 2014.
“Both parties do it all the time,” he said. “This is a common practice to help candidates get elected or re-elected.” …
The lawsuit was filed on March 17 by Fattman; his wife Stephanie Fattman; the Worcester County Register of Probate; their campaign committees; the Sutton Republican Town Committee; and individuals involved in the committees, including two other Fattman relatives. The case was filed against Sullivan, the longtime OCPF director who announced his retirement in December.
Seattle Times: Mysterious Seattle-area mailer slams lawmakers for trying to change Washington state’s estate tax. Who sent it?
By Joseph O’Sullivan
The mystery mailer hitting Seattle-area mailboxes has all the elements of a tawdry campaign piece…
But unlike standard campaign election mail, these fliers don’t identify the group or person who funded them…
But here’s the thing: It may be perfectly legal.
The mailer could be sent as part of the state’s “grassroots lobbying” law, which focuses on the debate over state legislation. Unlike election mail, Washington statute doesn’t require a sponsor to be listed on such mailers, said PDC spokesperson Kim Bradford.
That person or group is still required to report the expenditure to the PDC in the coming weeks, she said…
The mystery mailer highlights that lack of transparency for lobbying activities, said Pollet, a Democrat from Seattle.
“The first thing I see is the huge loophole in state law that allows someone to spend probably tens of thousands of dollars on a grassroots lobbying campaign without identifying themselves,” he said.
Press-Enterprise: The Political Reform Act stifles political participation
By Susan Shelley
California’s campaign finance laws have become a tool of abuse against citizens participating in their government.
That’s the only conclusion that can be drawn from the latest ruling in a long-running case in Redondo Beach involving a developer’s effort to build a huge project on the waterfront.
While the First Amendment guarantees the right of citizens to distribute flyers, seek signatures on petitions and buy advertising to support a candidacy or cause, in California these constitutionally protected activities could put you at risk of massive fines and financially devastating lawsuits…
The much-amended Political Reform Act is wildly complex. The case in Redondo Beach involved the regulations governing the different types of campaign committees and which ones apply to which types of political participation.
