First Amendment
Reason (Volokh Conspiracy): Court Allows Lawsuit Against Ideological Group for Discriminatory Rejection of Noncommercial Ad in Its Publication
By Eugene Volokh
In Bibliotechnical Athenaeum v. National Lawyers Guild, Inc., 2018 WL 1172597 (N.Y.Sup. Mar. 6, 2018), the National Lawyers Guild — a “progressive bar association” — held an awards banquet. For the banquet, the Guild printed a program, the Dinner Journal…
The Dinner Journal is a publication that is just as protected by the First Amendment as a newspaper. (The Supreme Court has long recognized that the freedom from compelled speech applies to all speakers, whether or not they are members of the institutional media.) The National Lawyers Guild has an absolute right to choose what not to publish in the Dinner Journal’s pages; and whatever antidiscrimination law might say about clubs’ decisions about whom to admit (see Roberts v. U.S. Jaycees(1983)), it can’t limit speakers’ decisions about what to include in their publications…
Legally unfounded speech restrictions and compulsions such as this one should indeed be dismissed early in the process, such as on a motion to dismiss, rather than waiting for future development of legally irrelevant facts. As readers might gather, I agree with the National Lawyers Guild on very little, and I don’t agree as a policy matter with its boycott of Israelis. But its First Amendment argument here was quite right, and should have prevailed.
Supreme Court
SCOTUSblog: Argument analysis: Justices skeptical of abortion speech law
By Amy Howe
The question before the justices today was whether a California law that directs “crisis pregnancy centers” to provide their patients with specific kinds of information – including, for some, the availability of low-cost or free abortions – violates the First Amendment’s free speech clause. After roughly an hour of oral argument, the law appeared to be in some jeopardy, not only among the court’s more conservative justices but also perhaps at least with Justice Elena Kagan…
Perhaps more crucially for the state, Kagan seemed to share some of Alito’s concern that, as she put it, California might have “gerrymandered” the law – that is, drawn it to target crisis pregnancy centers. If so, she declared, “that’s a serious issue.” …
Justice Anthony Kennedy also expressed doubts about the law. In one question that may prove to be pivotal in the case, he asked Farris what would happen if an unlicensed clinic wanted to put up a billboard that said only, in large letters, “Choose Life.” Would that message trigger the law’s notice requirement?
Farris responded that the billboard would indeed have to disclose that the nonprofit does not provide medical services – a point with which Klein seemed to agree.
Farris’ answer drew a sharp response from Kennedy. Requiring the inclusion of a 29-word notice on a billboard displaying a two-word message, Kennedy suggested, seems to impose an “undue burden” on the nonprofit’s speech “that should suffice to invalidate the statute.”
The Courts
Washington Post: Federal election officials failed to enforce campaign finance requirements on outside group in 2010, judge rules
By Michelle Ye Hee Lee
CREW alleged in its complaints, dating to 2012, that certain ads paid for by the American Action Network should be considered “electioneering” activity intended to influence elections, and therefore subject to federal disclosure requirements of who paid for the ads.
The FEC deadlocked on both complaints along party lines and dismissed both complaints filed by CREW.
The FEC must now reconsider its previous dismissals within 30 days, per the ruling…
In Tuesday’s ruling, Judge Christopher R. Cooper of the U.S. District Court for the District of Columbia pointedly criticized the FEC’s dismissals of CREW’s complaints in his 30-page ruling…
Cooper found the ads had “election-related purpose,” based on their timing and content, and met the federal definition of “electioneering communication.”
Cooper said the FEC’s dismissals of the complaints ran “contrary to law” and were based on erroneous and narrow interpretations of federal statutes governing the panel’s enforcement powers.
Free Speech
USA Today: Deniers of the war on free speech on college campuses are dead wrong
By Cathy Young
The data cited as grounds for optimism (among others, by Vox pundit Matthew Yglesias) come from the General Social Survey, which has found rising support over nearly half a century for allowing a public speech by a controversial speaker, such as a communist or a militant atheist. Yet, as Yglesias admits, there is one major exception: declining support for free speech rights for an avowed racist, especially among those under 35.
And two other recent surveys related to campus speech show disturbingly high approval for speech suppression, even by the state. In a 2017 survey by the Cato Institute and the YouGov polling firm, about half of current college students – compared to 40% of all Americans – favored government prohibition of hate speech…
Meanwhile, a just-released Gallup/Knight Foundation poll of current college students finds that nearly 30% – up from 22% in 2016 – prefer a “positive” campus environment with speech prohibitions to an “open” one where offensive speech is allowed. While openness still wins, the trend is alarming. What’s more, over half of students say that inclusiveness and diversity should take priority over free speech rights. And more than a third, including half of the self-identified Democrats, believe it is at least sometimes acceptable to shout down campus speakers.
Congress
Roll Call: Controversy Swirls as Lawmakers Eye Campaign Finance Changes
By Kate Ackley
The two most contentious matters deal with loosening the spending limits on coordination between political parties and their candidates as well as a possible rollback of the longstanding Johnson Amendment, which prohibits churches and charities from endorsing political candidates…
Lawmakers are also debating whether to keep existing policy riders that prohibit the Securities and Exchange Commission and the IRS from working on new disclosure rules for corporate expenditures to trade associations and other groups that engage in politics. Congressional Democrats want to eliminate these bans, while many Republicans want even stronger language in place to block the rule-making process.
Senate Majority Leader Mitch McConnell of Kentucky has long sought to relax the limits on party-candidate coordination as a way for political parties to compete with super PACs and other independent political organizations. House Democrats, led by Rep. John Sarbanes of Maryland, last week organized a push against the provisions.
Nevada Independent: Amodei defends his office’s response to a ‘vulgar’ phone call from a student
By Jackie Valley and Humberto Sanchez
Congressman Mark Amodei won’t apologize to a Washoe County high school student who was suspended after delivering profanity-laced remarks to the lawmaker’s office during the national walkout last week.
The ACLU of Nevada sent Amodei a letter on Monday, urging him to issue the student – 17-year-old Noah Christiansen who attends Robert McQueen High School – an apology because a complaint from the congressman’s staffer led to a two-day suspension…
The school also isn’t letting the student assume his elected role as the class secretary-treasurer because of the incident, ACLU officials said.
Christiansen told The Nevada Independent that, in retrospect, his wording wasn’t ideal. But the student said he’s disappointed a staff member in Amodei’s office breached his “political privacy” by calling the school…
The ACLU’s letter accuses the congressman’s office of retaliating against the student and restricting his right to free speech. The organization is advocating on the student’s behalf and trying to get his school record cleared, officials said…
But Amodei defended his staffer and said no apology is necessary. The congressman said the situation was not a matter of shutting down the student’s First Amendment rights.
Salon: GOP wants to flood politics with dark money using hidden “policy riders”
By Arn Pearson
Congressional Republicans are expected to hide five “policy riders” in the fiscal year 2018 omnibus appropriations bill due for a vote this month that would let churches and charities pour their coffers into partisan pockets, allow parties to spend unlimited funds on ads coordinated with candidates, and make sure the rest of us can’t see what’s going on.
These back-door attempts to eliminate longstanding limits on political spending and prevent any meaningful public disclosure are just the latest signs that Republican politicians have lost their moral compass. Today’s GOP has come to worship at the altar of big money, no matter what the cost to American democracy.
Internet Speech
Cato: Facebook and the Future of Free Speech
By John Samples
Perhaps British officials successfully bullied Facebook into taking down the Britain First page. If so, we are getting a glimpse at an ugly future in which government cracks down on speech through private intermediaries thereby (in the United States) bypassing the protections offered by the First Amendment. This danger is the thorn in the rose of Internet speech.
In this case, I am skeptical that Facebook has given in to government threats. As noted, the takedown came three months after the official criticism. By waiting this long to act, Facebook appears to have withstood criticism from both the British government and private citizens.
Facebook’s actions suggest how to keep government out of political speech. Set and publicize clear standards for your platform and then enforce them fairly. When they are applied, state your reasoning publicly, so high profile cases can illustrate the precise contours of more general standards. To that I might add: engage your most persuasive critics thereafter and seek precedential coherence for your common law of content moderation.
Of course, none of this will matter unless the leadership of Facebook (and other tech companies) are willing to stand up to government bullies who seek a way around the First Amendment. Nothing is going to be more important in the days to come than making sure the governance of online speech is truly private.
Trump Administration
ACLU: No, the President Can’t Legally Gag White House Staffers
By Esha Bhandari
The Washington Post has reported that senior White House staff members were pressured to sign nondisclosure agreements prohibiting them from revealing any non-public information they learn of at work. The draft NDA supposedly requires them to stay silent, not just while they are employed at the White House, but even after they leave – and to pay damages into the federal treasury if they speak out. In other words, it aims to muzzle them forever.
Such a broad agreement is unenforceable because the First Amendment protects federal employees’ right to speak in a private capacity about matters of public concern – and certainly the functioning of a presidential administration raises many issues that are of public concern…
To be sure, the government can restrict its employees from sharing certain information, such as properly classified material. But even then, laws restricting the sharing of classified information should allow room for whistleblowers to reveal evidence of government illegality or misconduct…
The White House NDA, as reported, is far too broad to pass First Amendment muster. It purports to bar the discussion of basic details about the inner workings of the White House, even if the government has no legitimate interest in keeping that information secret.
Political Advertising
NBC News: Cambridge Analytica’s effectiveness called into question despite alleged Facebook data harvesting
By Jonathan Allen and Jason Abbruzzese
“What they’re doing is bullshit, basically,” said Antonio García Martínez, a former Facebook employee who helped build the social network’s ad-targeting operation. “This has been tried before. There’s no reason to think it’s particularly powerful.” …
Republican and Democratic operatives familiar with data science and the type of information reaped by Cambridge Analytica say there’s scant evidence that the firm was effective – or that it provided information more valuable than the basic voter-file data the Trump campaign could have gotten elsewhere…
“Any data is only useful in so far as it can help me build a more predictive model,” said a leading GOP data scientist who spoke on the condition of anonymity because of the sensitivity of the topic. “Whether or not someone likes Taylor Swift or did a keg stand in college is far less useful to me than whether or not they voted in the Republican or Democratic primary in previous years.” …
The Trump campaign and Cambridge Analytica actually had an underwhelming digital operation, said Jessica Baldwin-Philippi, an assistant professor at Fordham University who has studied the digital efforts of political campaigns…
“Time and again, studies have shown us that the most persuasive targeting metrics are not crazy-specific microtargeting data but public-record voting history data and geography,” she said.
National Review: The Social-Media Panic
By Michael Brendan Dougherty
Instead of using a personality quiz, the Obama campaign merely got a portion of its core supporters to use their Facebook profiles to log into a campaign site. Then they used well-tested techniques of gaining consent from that user to harvest all their friends’ data. Sasha Issenberg gushed about how the Obama campaign used the same permissions structure of Facebook to extract the data of scores of millions of Facebook users who were unaware of what was happening to them. Combining Facebook data with other sources such as voter-registration rolls, Issenberg wrote, generated “a new political currency that predicted the behavior of individual humans. The campaign didn’t just know who you were; it knew exactly how it could turn you into the type of person it wanted you to be.” …
How did Facebook react to the much larger data harvesting of the Obama campaign? The New York Times reported it out, in a feature hailing Obama’s digital masterminds:
The campaign’s exhaustive use of Facebook triggered the site’s internal safeguards. “It was more like we blew through an alarm that their engineers hadn’t planned for or knew about,” said [Will] St. Clair, who had been working at a small firm in Chicago and joined the campaign at the suggestion of a friend. “They’d sigh and say, ‘You can do this as long as you stop doing it on Nov. 7.’ “
The States
West Fargo Pioneer: Petition wording approved for anti-corruption ballot measure in ND
By Forum News Service
North Dakota Secretary of State Al Jaeger has approved a petition format to gather signatures for an anti-corruption ballot measure, his office said Tuesday, March 20.
Petition backers have until the end of the day July 9 to gather 26,904 signatures to place the constitutional amendment on the ballot.
The proposal includes a five-member ethics commission that could investigate violations of transparency, corruption, elections and lobbying rules. The proposal also prohibits public officials from accepting gifts from lobbyists, although its definition of “gift” does not include campaign contributions.
