In the News

Facing South: Will Congress close the loophole that enabled Facebook’s Russian ad scandal?

By Sue Strugis

The first peer-reviewed research into ads bought on Facebook to influence the 2016 U.S. elections has been published, and its findings shed light on an increasingly important but largely unregulated corner of politics…

Election watchdogs are pointing to the study’s findings to build the case for the Honest Ads Act…

[W]hen Congress held hearings last year on online political ads following the bill’s introduction, the Institute for Free Speech (IFS, formerly known as the Center for Competitive Politics) testified against the legislation. The Alexandria, Virginia-based nonprofit generally opposes campaign finance transparency on First Amendment grounds. For example, IFS represented the plaintiffs in SpeechNow.org v. FEC, the 2010 U.S. Supreme Court decision that gave rise to super PACS – spending committees that can take unlimited donations from corporations, unions, associations, and individuals.

IFS was founded by former Republican FEC commissioner Bradley Smith. Sen. Mitch McConnell of Kentucky, now the majority leader, recommended Smith for the FEC post, and he was nominated by President Clinton and eventually approved by the Senate despite his controversial deregulatory views. Meanwhile, McConnell has expressed skepticism about the Honest Ads Act, which he said “would mostly penalize American citizens trying to use the internet and to advertise.”

New from the Institute for Free Speech

First National Bank of Boston v. Bellotti: Protecting the Right to Hear Others

By Luke Wachob

Can the government silence speech about an election simply because the speaker is a corporation? Can it deny voters the opportunity to hear a corporation’s views on issues? Forty years ago, the Supreme Court answered no in First National Bank of Boston v. Bellotti.

Bellotti struck down a Massachusetts law banning corporations from contributing to ballot initiative campaigns. More significantly, the ruling reaffirmed that the First Amendment protects the right to hear others as well as the right to speak. Later, the Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission cited Bellotti as a key precedent…

Justice Lewis Powell’s majority opinion explained that speech is worthy of protection independent of the identity of its source. That’s because speech furthers broader societal interests, such as the free flow of information. “The First Amendment, in particular, serves significant societal interests. The proper question therefore is not whether corporations ‘have’ First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether [the law] abridges expression that the First Amendment was meant to protect. We hold that it does.” …

Critics often say Citizens United “invented” or “created” political speech rights for corporations. Yet Bellotti shows the Court recognized these rights decades before 2010.

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Supreme Court

Courthouse News Service: ‘Travel Ban’ Brings Trump’s Muslim Rhetoric to High Court

By Tim Ryan

Though President Donald Trump did issue a call on the campaign trail for a ban on Muslims entering the United States, Francisco said such comments should not be considered because Trump was a private citizen when he made them, and because the order is the result of lengthy consultation among a group of government officials who have sworn to uphold the Constitution…

Justice Anthony Kennedy seemed surprised by Francisco’s claim that statements made by a candidate during the campaign should be “out of bounds,” wondering if that would require the courts to turn a blind eye to every problematic statement a candidate makes.

“Suppose you have a local mayor, and, as a candidate, he makes hateful statements,” Kennedy said. “He’s elected, and on Day 2 he takes acts that are consistent with those hateful statements. Whatever he said in the campaign is irrelevant?”

Justice Elena Kagan had previously posed a similar hypothetical, wondering what would happen if a virulently anti-Semitic president banned all entry into the United States from Israel.

Others, including Chief Justice John Roberts, probed whether Trump’s comments during the campaign mean he is never allowed to take actions that have a disproportionate effect on foreign Muslims, no matter the justification.

“My question was whether or not the inhibition on the ability to enter one of the proclamations applies forever,” Roberts asked Katyal.

The Courts

Newsweek: Will This Case Bring ‘Dark Money’ Into the Light?

By Josh Keefe

Independent watchdog group Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit on Monday in an attempt to force the American Action Network (AAN), a conservative non-profit, to reveal its donors. Campaign finance experts say the lawsuit is unprecedented: It represents the first time an independent group has gone around the Federal Election Commission (FEC) to sue over violations of campaign finance law, and opens a new avenue for activists to try and expose secret spending in American elections…

Former Democratic FEC Commissioner Ann Ravel, who publicly blasted the Republicans on the commission for failing to enforce campaign finance law when she resigned last year, said although the complaint against AAN represents “an extreme case,” the court’s ruling could provide a new avenue for watchdog groups to fight dark money…

“That will be a precedent for the courts to indicate there is another way to go when the FEC is unwilling to act,” Ravel told Newsweek. “I think for that reason it is quite groundbreaking.” …

[Richard] Hasen saw recent developments as a “recognition that the only way people are going to get relief in most cases of campaign finance violations is to bypass the FEC entirely and try to bring matters into court.”

Other watchdog groups who have filed FEC complaints told Newsweek they are interested in following CREW’s example, but that the AAN case also illustrates how difficult it is to move to the lawsuit stage.

Washington Post: Nevada student sues over dress code banning pro-gun shirts

By Scott Sonner, AP

An eighth-grade student has filed a federal lawsuit accusing his northern Nevada school district of violating his First Amendment rights after he says he was told his pro-gun T-shirt violates the district’s dress code.

The suit filed Tuesday in U.S. District Court in Reno alleges the Washoe County School District policy prohibiting depictions of “anything that promotes weapons” is unconstitutional.

It says the discriminatory nature of the policy is underscored by the fact the school district allowed students to participate in recent protests in support of gun control…

“The shirt did not promote or advocate any illegal activity; it contained no violent or offensive imagery; nothing on it was obscene… It was pure political speech,” the suit states.

Free Speech

Washington Post: Facebook finally explains why it bans some content, in 27 pages

By Elizabeth Dwoskin and Tracy Jan

Among the most challenging issues for Facebook is its role as the policeman for the free expression of its 2 billion users.

Now the social network is opening up about its decision-making over which posts it decides to take down – and why. On Tuesday the company for the first time published the 27-page guidelines, called Community Standards, that it gives to its workforce of thousands of human censors. The set of guidelines encompasses dozens of topics including hate speech, violent imagery, misrepresentation, terrorist propaganda and disinformation. Facebook said it would offer users the opportunity to appeal Facebook’s decisions.

The move adds a new degree of transparency to a process that users, the public and advocates have criticized as arbitrary and opaque. The newly released guidelines offer suggestions on topics including how to determine the difference between humor, sarcasm and hate speech.

Washington Examiner: Macron speaks to the transatlantic battle over free speech

By Tom Rogan

Aggressively attacking fake news and terrorist propaganda, President Emmanuel Macron received widespread applause from across Congress.

Yet in practice, there is little consistency between U.S. and European regulations targeting online speech. That’s because the Europeans, Britain very much included, want a grand deal in which U.S. social media companies such as Facebook and Twitter are forced to withdraw content that they deem to be hateful or inspirational to extremists. To that end, the Europeans have been pressuring the U.S. government to enforce their legal orders and have U.S.-based companies remove content that they seek to have brought offline.

The issue here is that the First Amendment (rightly in my view) protects much of this speech as beyond the reach of government censorship. Correspondingly, it will be almost impossible to find consensus between the European and U.S. perspectives.

What does that mean?

Well, put simply, that U.S. social media companies will face an increasingly challenging regulatory environment in Europe. At some point, these companies may decide to simply shut up shop.

Lobbying

Roll Call: Mulvaney Backlash May Drive Political Money Changes

By Kate Ackley

Advocates for tougher campaign finance regulations say comments from Mick Mulvaney seeming to describe a pay-to-play style of politics on Capitol Hill will boost their long-term effort to overhaul the rules and could benefit like-minded candidates in the midterm elections…

Ohio Sen. Sherrod Brown, the top Democrat on the Banking Committee, called for Mulvaney to resign, as have such watchdog groups as Public Citizen, End Citizens United and Every Voice.

More broadly, they are seizing on the dustup to advance both long-shot legislative changes as well as voluntary ones, such as lawmakers refusing donations from political action committees or registered lobbyists…

Mulvaney was stressing the importance of grass-roots and constituent advocacy in his remarks, “sharing how those people are more important than lobbyists or even financial contributors,” his aide John Czwartacki said in an email.

“People coming from back home, to tell people in Congress what issues are important to them, is one of the fundamental underpinnings of our representative democracy, and you have to continue to do it,” Mulvaney told the bankers, according to the speech transcript.

Congress

NJ Today: Senator Elizabeth Warren condemns dark money in politics

In a speech delivered today on the Senate floor, United States Senator Elizabeth Warren (D-Mass.) spoke out against the power of dark money in our political system…

In her remarks, Warren outlined how dark money donors such as the Koch Brothers set up seemingly apolitical, unbiased “think tanks” in order to push legislation that only benefits the rich and powerful while leaving everyone else behind.

Warren’s speech was one of a series of speeches given this week by Senate Democrats to shine a light on the dark web of billionaires and special interests who have their hands tightly gripped on our democracy…

The full text of Warren’s remarks is below…

Political Parties

The Intercept: The Democratic Party Is Paying Millions for Hillary Clinton’s Email List, FEC Documents Show

By Walker Bragman and Michael Sainato

[T]he party has spent more than $2 million worth of campaign resources on payments to Hillary Clinton’s new group, Onward Together, according to Federal Election Commission filings and interviews with people familiar with the payments.

The Democratic National Committee is paying $1.65 million for access to the email list, voter data, and software produced by Hillary for America during the 2016 presidential campaign, Xochitl Hinojosa, a spokesperson for the DNC, told The Intercept. The Democratic Congressional Campaign Committee has paid more than $700,000 to rent the same email list…

The DNC agreement with the Clinton campaign calls on the debt-ridden organization to fork the money over to an entity of Clinton’s choosing, which wound up being Onward Together, the operation she formed after her campaign ceased to exist…

Onward Together, a dark money group dedicated to “advancing the vision that earned nearly 66 million votes in the last election,” officially launched in May 2017. On March 3, 2017, HFA turned over its materials to the DNC, and the transfer was registered in FEC files as an in-kind contribution. But just under a year later, on January 8, the money began to flow to Onward Together…

Corey Ciorciari, a former Clinton aide, tweeted on Saturday that the sale of lists is “routine,” and noted that Clinton does not take a salary from Onward Together.

The States

Arizona Republic: 5 ways Tempe voters could win clash over secretive election, ‘dark money’ spending

By Jerod MacDonald-Evoy

In March, Tempe voters overwhelmingly approved a ballot measure that requires political nonprofits to disclose financial backers if spending exceeds $1,000 in municipal elections. This type of spending, referred to as “dark money,” often goes toward political ads, robocalls and other efforts to sway elections without any requirements to disclose donors.

But House Bill 2153, which Gov. Doug Ducey signed in early April, outlawed cities from enforcing such campaign-finance reforms…

“The governor’s view is that individuals have the First Amendment right to free speech without the fear of intimidation,” Daniel Scarpinato, Ducey’s spokesman, said.

The newly signed state law is not in effect yet, and advocates of the Tempe measure say it’s not over.

Tempe has options to fight for the voter-approved measure, according to Joel Edman, executive director at Arizona Advocacy Network.

“We’ve been trying to figure out what the most likely (option) is,” Edman said.

The options range from taking it to court to appealing to voters statewide.