In the News
Arizona Republic: You don’t want your info published. Neither do nonprofit donors
By Alex Cordell
Efforts to force civic groups to disclose their donors constitute a real threat by exposing Arizonans to potential harassment for their beliefs.
Many are fighting back against this encroachment on First Amendment rights. Others are making fun of it.
State Rep. Vince Leach recently introduced House Bill 2153 to protect non-profit donor privacy at all levels of local and state government.
Arizona Republic columnist Laurie Roberts would have you believe HB 2153 is more nefarious. According to Roberts, the bill prevents “cities from requiring dark money campaigns to disclose the source of their funding,” so they can “sway our elections from the cozy cover of anonymity.”
Sounds scary, right?
Not really. On “planet reality,” this bill simply upholds the strong donor privacy protections passed by the Legislature in 2016, and extends this coverage to the city level. Importantly, it doesn’t change compliance standards for non-profits. By creating a uniform set of rules and precluding cities from forcing additional disclosures, Arizona’s non-profits can continue doing what they do best.
New from the Institute for Free Speech
Understanding the Differences Between Political and Issue Advocacy
You can tell the difference between issue advocacy and political advocacy based on the focus of the speech. Issue advocacy focuses on public policy. It can urge elected officials and candidates to support or oppose various policies. For example, an environmental group promoting a clean water bill might ask citizens to call on their senators to vote for the legislation. Or, a nonprofit promoting charter schools might ask people to urge the governor to support school choice. Groups may even criticize lawmakers for failing to support the policies they are promoting.
Over time, some policymakers grew concerned that advocacy groups were gaming the Court’s distinction. Allegedly, they were avoiding regulation by using hard-hitting issue ads to help elect candidates. Some ads pushed the line between issue and express advocacy very far. For example, many thought that “Johnson preaches family values, but took a swing at his wife” was not much different from “Reject Johnson.”
In an attempt to regulate so-called “sham issue” advocacy ads, Congress passed the Bipartisan Campaign Reform Act of 2002 (the “McCain-Feingold” law). This created the original basis for the current federal electioneering communications regime.
Supreme Court
SCOTUSblog: Argument analysis: Justices weigh threats to free speech against constraints on local policing
By Heidi Kitrosser
About midway through Tuesday’s oral argument in Lozman v. City of Riviera Beach, Justice Elena Kagan provoked audience laughter with a remark to Shay Dvorertzky, the attorney for the city. She observed that Pamela Karlan, who represents plaintiff Fane Lozman, had had “some difficulty with hypotheticals” during her argument. “But you,” she told Dvoretzky,” might have some difficulty with the facts of your case.”
More than just a laugh line, Kagan’s comment encapsulated two points around which several of the justices appeared to coalesce. First, it would be very troubling if jurisdictions could evade trial for colorable claims of retaliatory arrest for First-Amendment-protected-activity by doing what Riviera Beach did in this case: pointing to some probable cause for arrest years after the fact, after proffering and withdrawing several other possible bases for arrest. In other words, several of the justices appeared to agree that Lozman’s case marked a troubling application of the “probable-cause bar” – the rule, embraced by the U.S. Court of Appeals for the 11th Circuit and several other jurisdictions, that the presence of probable cause necessarily defeats a claim of retaliatory arrest for First-Amendment-protected expression. Second, several justices also evinced the view that the Supreme Court should strive to craft a holding that would prevent such strained uses of the probable-cause bar, while leaving law-enforcement officers with ample leeway to make arrests without undue fear of frivolous lawsuits.
SCOTUSblog: Argument analysis: Justices debate decorum, line-drawing and “political” apparel at the polls
By Amy Howe
Several common and related concerns emerged among the justices who seemed inclined to strike down the law. The first was whether there is actually any need for the law – or, put another way, whether allowing “political” apparel will really be disruptive at the polls. Justice Samuel Alito, perhaps the challengers’ strongest supporter, asked attorney David Breemer, who represents Cilek and the MVA, to describe what has happened in the approximately 40 states that do not have similar laws. Are there brawls in polling places, Alito queried? …
Justice Stephen Breyer appeared more convinced that the state has a compelling reason for the law. Breyer told Breemer that the state is simply trying to carve out somewhere for voters to have a moment for thought and reflection before they cast a ballot…
But Justice Elena Kagan was skeptical. There are clearly some places, she told Rogan, where we don’t want anyone wearing buttons with political messages – for example, a courtroom. But why is a polling place, which she described as the culmination of a “rowdy political process,” such a place?
Roberts seemed more sympathetic to the challengers on another point – the possibility that the Minnesota law goes too far, banning apparel that will not have any tangible effect on decorum (or voters) at the polls. Do you really think, he asked Rogan, that a very small pin bearing a campaign logo is going to affect the atmosphere in the polling place?
FEC
Bloomberg Government: Sanders Campaign Got Foreign Help From Australians: FEC
By Ken Doyle
The presidential campaign of Sen. Bernie Sanders (I-Vt.) illegally accepted foreign campaign contributions by getting help from a group of Australian campaign volunteers who were paid by the Australian Labor Party, the Federal Election Commission concluded.
A settlement between the FEC and the Sanders campaign will require the campaign to pay a fine of $14,500.
The Australians were paid a total $24,422 for airfare and stipends received while they worked for the Sanders campaign during the New Hampshire presidential primary, according to the FEC. Those payments counted as a foreign contribution prohibited by U.S. law.
The case could provide a legal precedent to establish that a presidential campaign can be held accountable for receiving foreign help.
The Sanders campaign contended it didn’t believe it violated the law because of an exemption for volunteer services provided by foreigners. The campaign settled the case “in order to avoid the expense of litigation, without admitting liability,” according to a conciliation agreement between the campaign and the FEC.
Internet Speech
Axios: Exclusive: Public wants Big Tech regulated
By Kim Hart
A majority of Americans are now concerned that the government won’t do enough to regulate how U.S. technology companies operate, according to an Axios-SurveyMonkey poll. Across the board, concern about government inaction is up significantly – 15 percentage points – in the past three months…
In a previous Axios-SurveyMonkey poll in November, just after Facebook, Google and Twitter testified before Congress, only about four in 10 Americans were concerned that the government wouldn’t do enough to regulate the tech companies.
Now that number has jumped to 55%. Notably, 45% of Republicans – who are usually skeptical about government regulation – share the concern that government won’t do enough. Independents showed the biggest shift with an increase of 20 percentage points.
More than eight in 10 – including big majorities across party lines – blame the technology companies for not doing more to safeguard their platforms against election interference.
When asked whether social media does more to help promote democracy and free speech or does more to hurt democracy and free speech, most Americans (55%) now say social media does more to hurt democracy and free speech than it helps.
BuzzFeed: Stop Blaming Russian Bots For Everything
By Miriam Elder and Charlie Warzel
“I’m not convinced on this bot thing,” said Watts, the cofounder of a project that is widely cited as the main, if not only, source of information on Russian bots. He also called the narrative “overdone.” …
One of the hardest things to do – either with the accounts “linked to Russian influence efforts online,” whatever that means, or with the Internet Research Agency trolls who spent many months boosting Donald Trump and denigrating Hillary Clinton – is to measure how effective they really were. Did Russian troll efforts influence any votes? How do we even qualify or quantify that? Did tweets from “influencers” actually affect the gun debate in the United States, already so toxic and partisan before “bot” was a household word?
Even Watts thinks the “blame the bots” shtick has gotten out of control. “It’s somewhat frustrating because sometimes we have people make claims about it or whatever – we’re like, that’s not what it says, go back and look at it,” Watts said. “There are certain times when it does give you great insights, but it’s not a one-time, I look at it for five seconds and write a newspaper article and then that’s it. That doesn’t give you any context about it.”
Forbes: Should Silicon Valley Take A Stand Against Governments To Protect Our Digital Rights?
By Kalev Leetaru
The Silicon Valley that once infamously told Congress that it would not ban terrorists from its walled gardens for fear of infringing their right to free speech now strips any trace of “free expression … not censorship” from its terms of use … The companies that previously proudly stood up against US Government demands for encryption workarounds now move swiftly to restrict access to encryption tools and build new data centers that grant much easier governmental access to surveillance states…
Silicon Valley is remembered as the place that once staked its future on inalienable digital rights of free speech, freedom from government censorship and surveillance, encryption, empowerment of the powerless and all the other ideals that embodied the early Internet. Today those same companies quietly rewrite their terms of service to strike those ideals from their corporate visions, while their take-no-prisoners fight against government censorship and surveillance has been replaced with an almost eagerness to over comply rather than risk any possible harm to their bottom lines. In short, Silicon Valley has grown up from the collection of idealist visionaries and scrappy startups that saw the Internet as the ultimate expression of freedom and empowerment to become today just a bunch of middle aged members of corporate America, no longer idealists fighting to change the world, but now capitalists afraid to offend the governments that control access to the users who form their product.
The Hill: Publishing platform Medium suspends far-right figures
By Ali Breland
“We have all seen an increase and evolution of online hate, abuse, harassment, and disinformation, along with ever-evolving campaigns of fraud and spam,” Medium’s rules update reads. “We have strengthened our policies around this type of behavior.”
“We do not allow calls for intolerance, exclusion, or segregation based on protected characteristics, nor do we allow the glorification of groups which do any of the above,” the new rules specify.
The platform’s new rules include banning misinformation campaigns and lets the company consider “off-platform action,” in its decision to ban users.
In its previous set of rules, the company had billed itself as a “free and open platform for anyone to write their views and opinions,” and said it believes “free expression deserves a lot of leeway, so we generally think the best response to bad ideas is good ideas, not censorship.”
This language has been scrubbed from the current version of its platform rules.
Corporate Speech
Washington Examiner: Elizabeth Warren loves corporate America putting its thumb on the political scales
By Washington Examiner
Warren invoked what she said was BlackRock’s “duty to positively contribute to society” and instructed the executive that this means leaning on gunmakers and pushing more restrictions on gun use and ownership…
Democrats used to say they were worried that big money, particularly big finance, had too much power in politics. That’s how the party tried to justify its proposal to regulate free speech with “campaign finance reform.” After the Supreme Court ruled in Citizens United that Congress may not stop groups from criticizing politicians close to the election, Democrats decried the phenomenon of corporations using their “powerful position” to put their thumb on the scale of political issues…
Warren wants business to put their thumb on the political scales. Just so long as they put it on her side…
Why would Warren urge businesses to use their power for political purposes, yet favor federal legislation to restrict corporate free speech? Squaring that circle isn’t difficult. Warren’s positions are not dictated by principle but by considerations of power. In both restricting free speech and in seeking BlackRock’s help in manipulating gun makers, what Warren wants is more control over other people.
The States
KTVH Montana: Montana’s ‘dark money’ enforcement, laws still in court
By Mike Dennison
While the new documentary film “Dark Money” highlights Montana’s efforts to shine a light on unreported campaign spending, the state is still fighting a lawsuit that seeks to void its primary enforcement laws.
State campaign regulators also are pursuing another related court case of their own, to penalize conservative groups accused of making illegal donations and not properly reporting their spending in Montana elections in 2010 and 2012…
The latter case, brought against a dozen groups active in the 2010 and 2012 campaigns in Montana, has not been scheduled for trial yet in state District Court in Helena…
Similar claims against Montana’s campaign-finance laws have been made in a lawsuit in federal court, brought by Montanans for Community Development, a free-market group that says it won’t comply with Montana campaign-reporting requirements.
South Dakota Public Broadcasting: House Bill Goes After Unanswered Question In Money As Free Speech
By Lee Strubinger
State lawmakers will consider a bill that places a cap on out-of-state money going to ballot question committees.
Under current state law, ballot question committees can receive unlimited donations from parties, persons, and interest groups.
This bill, which came up last year, caps contributions at $100,000 per person or group.
Critics of the bill say it’s unconstitutional and restricts free speech. Supporters say it protects the initiative and referendum process in South Dakota.
