New from the Institute for Free Speech
Amicus Brief: Supreme Court Should Strike Down Ban on Political Calls
The Institute for Free Speech today urged the U.S. Supreme Court to strike down a federal law banning automated political calls. The group’s amicus brief notes that the same law allows government to use automated calls to collect debts and provides for many other exceptions. The Court is scheduled to hear arguments in the case, Barr v. American Association of Political Consultants, on April 22.
“The First Amendment doesn’t allow the government to ban an entire mode of speech, and then exempt favored groups,” said Institute for Free Speech Senior Attorney Parker Douglas. “The Supreme Court should recognize that the government is regulating speech based on its content, in violation of longstanding precedent.”
The federal Telephone Consumer Protection Act (TCPA) generally prohibits the use of any automatic telephone dialing system or artificial or prerecorded messages in calling cell phone numbers. But the TCPA exempts certain calls from the blanket prohibition based on their content, such as those made to collect a federal debt, those made for emergencies, and other categories the Federal Communications Commission has deemed worthy of exemption, such as calls from a medical provider reminding recipients of appointments…
To read the Institute’s brief, click here.
Bloomberg (Again) and DNC Show Why Contribution Limits Should be Eliminated
By Alex Baiocco
In early March, the failed presidential campaign of billionaire Michael Bloomberg added to the reams of evidence that money can’t buy electoral success. The self-funded, high-spending campaign also highlighted the many flaws and negative consequences of current limits on what Americans may contribute to campaigns.
In late March, Bloomberg highlighted why limits on individual giving to political parties should also be eliminated.
The Democratic National Committee recently accepted an $18 million transfer from Michael Bloomberg’s presidential campaign committee. All that money came directly from Bloomberg’s personal fortune. His campaign heavily promoted the fact that it was entirely self-funded, implying that candidates who accept contributions from Americans who support their message are beholden to “special interests.”
Bloomberg’s $18 million gift to the DNC is within the law. Candidate committees can legally transfer unlimited amounts to political parties.
Presumably, the Democratic Party does not now consider itself beholden to or corrupted by Michael Bloomberg. The party will use the money to support its nominee for president, activity at the heart of the First Amendment’s protections. In other words, the money will enable the party to reach voters with more speech and more information about its candidate. This should be welcome news for those who value an informed and engaged electorate. As Bloomberg and others have already shown, the money will not allow the party to buy the election.
If billionaires who run for president and fail can effectively donate unlimited sums of their money to political parties, why shouldn’t other Americans be able to do so as well?
The Courts
Courthouse News: News Outlets Must Face Libel Claims From Former Mining Exec
By Brad Kutner
A federal judge refused to dismiss defamation claims against more than a dozen news outlets that called a former coal CEO and Republican Senate candidate a felon, even though he was convicted of a lesser charge…
The former mining executive [Don Blankenship] said he was on his way to challenging incumbent U.S. Senator Joe Manchin, a Democrat, despite his criminal record. But after a solid showing at a 2018 GOP primary debate, according to Blankenship, the establishment turned against him. Before long, journalists across the cable news spectrum began attacking the candidate and…used the term “felon” to describe his misdemeanor conviction…
Blankenship filed a lawsuit in West Virginia federal court against news outlets, political organizations and individual journalists…
“The U.S. Senate and Fox News and national media can sabotage a U.S. election much easier than the Russians can,” he said Wednesday morning.
Richmond Times-Dispatch: Suit filed by former Henrico firefighter who was fired after being charged with rioting during Trump’s inauguration can proceed
By Frank Green
A federal judge has ruled that a lawsuit filed against Henrico County officials by a former firefighter who was fired after she was arrested and charged with rioting at President Donald Trump’s inauguration can proceed.
Rosa Dianne Roncales, who lost her job in April 2017, filed suit last year alleging her First Amendment free speech rights were violated…
In a 36-page memorandum Tuesday, U.S. District Judge M. Hannah Lauck…ruled that Roncales’ suit could proceed against four of her former supervisors in the Henrico Fire Department on the First Amendment claim…
Roncales’ suit says she attended the Jan. 20, 2017, inauguration protest on her own time and wore no clothing or other markings that would identify her as an employee or member of the Henrico Fire Department.
“Although Ms. Roncales engaged in no criminal activity, she was swept up in a large-scale arrest of several hundred people by the D.C. Metropolitan Police Department and, subsequently, charged with several offenses. The charges were later dismissed,” says the complaint…
She alleges she was terminated for purported “discrepancies” in information she provided them – during an administrative investigation of her arrest – and the information likely provided them by police in Washington, D.C.
She said when questioned by fire officials, she was asked why she went to the protest and whether she agreed with the political view of the protesters. “She said that yes, she did agree with the political view of the protesters…
The defendants allegedly asked Roncales why she attempted to “disguise herself” during the protest. [S]he denied disguising herself and said she wore simple, nondescript black clothing because she feared being “doxxed” by the “Alt-right.”
Online Speech Platforms
Protocol: Democrats say Google’s COVID-19 ad ban is a gift to Donald Trump
By Emily Birnbaum
As coronavirus spread around the world in February, Google decided to ban most nongovernmental advertising about the outbreak in an effort to defeat misinformation, fraud and scams. But Democrats say the Google ban does something else: It allows the Trump administration to run ads promoting its response to the crisis while denying Democrats the chance to run ads criticizing it.
[S]taffers of several Democratic nonprofits and digital ad firms realized this week that they would not be able to use Google’s dominant ad tools to spread true information about President Trump’s handling of the outbreak on YouTube and other Google platforms. The company only allows PSA-style ads from government agencies like the Centers for Disease Control and trusted health bodies like the World Health Organization. Multiple Democratic and progressive strategists were rebuked when they tried to place Google ads criticizing the Trump administration’s response to coronavirus, officials within the firms told Protocol…
“To not allow political candidates to mention or discuss COVID-19 is something that has the potential to dramatically bolster Trump’s and Republicans’ chances of reelection,” [Mark Jablonowski, the chief technology officer and managing partner of DSPolitical] said.
“For Google to basically say that the Trump administration is the only entity that is allowed to talk about the most important issue in politics really puts their thumb on the scale of the incumbent president and against anyone who is really looking to challenge him,” said Eli Kaplan, a founding partner of Rising Tide Interactive, a digital marketing firm for Democratic political organizations and progressive nonprofits.
Cato: Combating COVID-19 Misinformation with Disassociation
By Matthew Feeney
The Internet has prompted a revolution unlike anything seen since the invention of the moveable type printing press. Billions of people are able to not only express themselves but form communities of like-minded people across national boundaries. Fortunately, the widespread availability of venues for online speech has not been accompanied by obligations on the part of Internet companies to host speech they find repellent or dangerous. The online site Medium, for example, removed a controversial essay by Aaron Ginn apparently because they did not wish to be associated with it. In the U.S., Internet companies are shielded from liability for actions associated with removing content.
The freedom of private companies to disassociate from speech that they consider harmful is especially important during the current crisis.
Candidates and Campaigns
Washington Post: Trump’s reelection team is trying to prevent ads that use his speech against him
By Editorial Board
President Trump’s reelection team is trying to carve out a new form of prohibited speech: using the commander in chief’s own words against him.
The campaign sent a cease-and-desist letter last week threatening to sue broadcasters for running a “patently false, misleading and deceptive” advertisement paid for by the progressive political action committee Priorities USA. The complaint focuses on a bit of editing trickery…
Whether the ad’s portrayal is a dangerous distortion of reality or simply a streamlined version is a matter for interpretation… In any event, more important than whether the ad tells the truth is whether the president has any business dictating the political content broadcasters can and can’t carry.
Legally, the answer is probably no. It’s doubtful a defamation suit would pass First Amendment muster. The second cudgel the campaign is waving at broadcasters, a revocation of stations’ licenses by the Federal Communications Commission, also wouldn’t land with much force…
But even if the Trump campaign can’t win in court, it may achieve its goal by scaring broadcasters into avoiding any risk. Smaller outlets with limited legal resources are especially vulnerable to intimidation, and intimidation is particularly potent when it comes from the agents of the man who appoints the commissioners who control the licenses.
The Hill: Trump campaign taunts Twitter with manipulated audio of Biden calling virus a ‘hoax’
By Jonathan Easley
President Trump’s reelection campaign tweeted out manipulated audio to make it sound like former Vice President Joe Biden called the coronavirus a “hoax” in an effort to draw attention to what it views as Twitter’s double standard in policing political speech.
The new Trump campaign video is styled after an ad released by the Democratic super PAC Priorities USA, which featured misleading audio of Trump describing the coronavirus as a “hoax.”
The president’s campaign has flagged multiple Democratic videos for Twitter in which he is heard calling the coronavirus a “hoax,” arguing that the content runs afoul of the social media giant’s manipulated media guidelines. Twitter has declined to sanction the Democratic ads.
In the Trump campaign ad released Thursday, Biden can be heard saying: “The coronavirus is a hoax.”Biden never called the coronavirus a hoax. The audio is deceptively spliced together from two different times that Biden spoke.
The Trump campaign is making the case that Democrats also deceptively edited audio to make it sound like Trump called the coronavirus a hoax.
The campaign released the new Biden audio to see if Twitter would enforce its manipulated media standards on both sides, or only on the Trump campaign.
“Twitter has so far effectively instituted a ‘Biden protection rule,’ refusing to apply their manipulated media label to video and audio of President Trump that every independent fact checker says is false,” a Trump campaign official said. “This tweet forces the issue and makes Twitter decide. It can enforce its arbitrary rules fairly and equally, or it can have its policy exposed as totally ineffective or a partisan sham. It’s their move.”
The States
Gotham Gazette: Previously Struck Down in Court, New State Campaign Finance System and Political Party Ballot Thresholds Passed in Budget
By Samar Khurshid
A new state campaign finance system, with public matching money for candidates who choose to participate and lower individual contribution limits, will be enshrined in law through inclusion in the new state budget…
The campaign finance system had already been approved last year based on the recommendations of a state-created commission but was struck down in mid-March by a supreme court judge who ruled that such a commission could not be tasked with writing laws…
The budget bill approved on Wednesday addressed that mistake, and passed the same recommendations the commission had made. The law allows candidates for statewide office and the Legislature to opt in to a system of public financing that incentivizes small dollar donations by matching them with public funds. It’s similar to the system that has been used in New York City for over three decades.
The law drastically lowers contribution limits across the board, though government reform advocates say the limits remain too high nonetheless. Candidates for statewide office can now raise a maximum of $18,000 in a four-year election cycle from an individual contributor, down from about $70,000; state Senate candidates can raise $10,000, down from $19,300; and state Assembly candidates can raise $6,000, down from $9,400.
St. Louis Post-Dispatch: Law banning public worker picketing violates free speech, Missouri Supreme Court says
By Tynan Stewart
The Missouri Supreme Court has dealt a blow to a controversial 2018 labor law restricting public employees’ right to picket.
In a unanimous decision issued Tuesday, the high court upheld a lower court ruling that struck down the picketing restriction. The statute in question requires labor agreements between unions and public bodies to prohibit any kind of picketing.
But this prohibition is “unconstitutionally broad” and would violate public employees’ freedom of speech, Judge Zel Fischer wrote in his opinion.
Previous court rulings have recognized that public employees’ speech “on matters of public concern” can only be restricted if it would interfere with the efficient delivery of public services, Fischer wrote.
“A perfect example of this unobtrusive speech is before this Court today,” he wrote.
