In the News
Salt Lake Tribune: A federal judge tosses the final case against John Swallow, ending years of court disputes against the former Utah attorney general
By Stephen Hunt and Tiffany Caldwell
Benson wrote in his ruling that the case against Swallow “only charges him with secondary liability and that Congress clearly did not include a ban against secondary actors in the [Federal Election Campaign] Act.”
The judge said the FEC “went too far” when it imposed liability under the Federal Election Campaign Act on secondary actors – “exceeding its authority to write regulations and improperly intruding into the realm of law-making that is the exclusive province of Congress.” …
Benson “deserves a lot of credit for having the courage to strike down what he viewed as an unconstitutional regulation,” Swallow said. “That’s very rare, when judges do that.”
Allen Dickerson, one of Swallow’s attorneys and the legal director of the Institute for Free Speech, said in a Friday email: “The Federal Election Commission’s brazen attempt to supplant Congress was rightly rejected by the court. Unelected commissioners cannot act outside of the law to punish conduct they deem inappropriate.
“Today’s ruling is a victory for separation of powers and secures the rights of all Americans to discuss and participate in campaign fundraising.”
U.S. News & World Report: Lawsuit Dismissal Ends Prosecution of Former Utah AG Swallow
By Ken Ritter and Lindsay Whitehurst, Associated Press
“This marks the last action by the government against me and we have won at every turn,” Swallow said in an email hailing U.S. District Judge Dee Benson’s 10-page decision…
Benson ruled that Congress makes election laws, and that the election commission “went too far” in adopting rules imposing liability on “secondary actors” making campaign contributions.
The judge compared the allegations to a basketball player earning an “assist” for passing to another player who makes a basket, although “the player who made the assist cannot fairly be considered to be the person who made the basket.” …
Commission attorney Sana Chaudhry argued last month that the campaign limit rule was part of the FEC’s broad authority to regulate elections.
Allen Dickerson, legal director of the Virginia-based Institute for Free Speech, said Friday, that, “unelected commissioners” can’t supplant Congress to punish conduct they deem inappropriate…
The FEC action could have left Swallow facing thousands of dollars in fines.
Deseret News: Judge dismisses FEC complaint against ex-Utah A.G. John Swallow
By Dennis Romboy
Attorney Allen Dickerson contended the law is silent on secondary liability – the practice of holding one party legally responsible for helping another – for the type of campaign finance violation Swallow allegedly committed.
U.S. District Judge Dee Benson agreed…
It is illegal under federal law for a person to donate funds to a federal candidate through another person or allow their name be used to contribute to a candidate. It also is against the law for a candidate to accept a contribution made in the name of another person.
The law applies to only three types of people, and Swallow was not one them, Dickerson argued.
“The FEC’s authority exists no further than the boundaries of the law it was created to enforce,” Benson wrote in a 10-page decision…
Benson struck the rule from the code of federal regulations and barred the FEC from enforcing it.
Dickerson said Benson rightly rejected the FEC’s “brazen” attempt to supplant federal law.
“Unelected commissioners cannot act outside of the law to punish conduct they deem inappropriate,” he said, adding the ruling secures the rights of all Americans to discuss and participate in campaign fundraising.
Fox 13 Salt Lake City: Judge tosses lawsuit against ex-Utah AG John Swallow over campaign donations
By Ben Winslow
Judge Benson ruled the FEC exceeded its authority to go after “secondary actors” and struck down the lawsuit.
“The FEC’s authority exists no further than the boundaries of the law it was created to enforce,” he wrote.
In a statement to FOX 13, Swallow said, “It’s finally, really Over, for sure, we think.”
“It’s a great day for the rule of law, the First Amendment, and the checks and balances established by our Constitution,” Swallow said in the prepared statement. “It’s not only a win, but an emphatic exposure and rejection of government tactics to expand power by deceit.”
New from the Institute for Free Speech
Federal Judge Strikes Down FEC Regulation
U.S. District Court Judge Dee Benson ruled that the FEC “exceed[ed] its authority to write regulations and improperly intrud[ed] into the realm of law making that is the exclusive province of Congress.” The ruling also effectively ends the FEC’s litigation against former Utah Attorney General John Swallow.
“The Federal Election Commission’s brazen attempt to supplant Congress was rightly rejected by the court. Unelected commissioners cannot act outside of the law to punish conduct they deem inappropriate. Today’s ruling is a victory for separation of powers and secures the rights of all Americans to discuss and participate in campaign fundraising,” said Institute for Free Speech Legal Director Allen Dickerson.
The FEC alleged that Swallow aided Utah businessman Jeremy Johnson, another defendant in the case, to make illegal contributions through straw donors. But there was no evidence that Swallow made illegal contributions or provided funds for straw contributions by others.
The FEC claimed that a 1989 regulation created liability under the Federal Election Campaign Act (FECA) for secondary actors like Swallow. Represented by the Institute for Free Speech and former FEC Chairman Scott E. Thomas, Swallow countered that FECA did not authorize the FEC to create such a regulation. U.S. District Court Judge Dee Benson agreed, calling the FEC’s arguments “illogical” and “without precedent.”
Memorandum Decision and Order in FEC v. Jeremy Johnson and John Swallow
The United States was founded on the rule of law. Article I Section 1 of the Constitution vests all legislative power in “a Congress of the United States,” which alone is authorized to make laws; all others, including independent government agencies, are not. The FEC’s authority exists no further than the boundaries of the law it was created to enforce. When it promulgated 11 C.F.R. §110.4(b)(1)(iii), which imposed liability under FECA on secondary actors, it went too far, exceeding its authority to write regulations and improperly intruding into the realm of lawmaking that is the exclusive province of Congress. Accordingly, Defendant Swallow’s motion to dismiss is GRANTED and the FEC’s cross motion for judgment on the pleadings is DENIED. 11 C.F.R. §110.4(b)(1)(iii) is ordered stricken from the Code of Federal Regulations and the FEC is forthwith ENJOINED from enforcing regulation 11 C.F.R. §110.4(b)(1)(iii).
Amicus Brief of Institute for Free Speech in Mark French v. Blair Jones
In Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1662 (2015), this Court upheld a restriction on judicial candidates’ soliciting money in person. This Court stressed that the restriction affected only “a narrow slice of speech,” id. at 1670. And this Court’s opinion did not purport to deviate from the decision in Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002), which struck down a rule barring judicial candidates from announcing their views on disputed legal or political issues. Indeed, the restriction in White was struck down because it limited speech on political issues, 536 U.S. at 776, while the restriction in Williams-Yulee was upheld because it “le[ft] judicial candidates free to discuss any issue with any person at any time,” 135 S. Ct. at 1670…
This Court should grant certiorari to clarify the effect of Williams-Yulee, reaffirm the narrowness of that decision, protect judicial campaign speech, and prevent the erosion of the longstanding strict scrutiny framework, which is critical to protecting free speech more broadly.
Internet Speech Regulation
Reuters: Facebook backs political ad bill, sets limits on ‘issue ads’
By David Ingram and Dustin Volz
Facebook Inc backed for the first time on Friday proposed legislation requiring social media sites to disclose the identities of buyers of online political campaign ads and introduced a new verification process for people buying “issue” ads, which have been used to sow discord online.
The change in stance, announced in a Facebook post by Chief Executive Mark Zuckerberg, comes a few days before he is scheduled to answer questions in congressional hearings about how the company handles its users’ data.
The steps are designed to deter the kind of election meddling and online information warfare that U.S. authorities have accused Russia of pursuing, Zuckerberg said. Moscow has denied the allegations.
“Election interference is a problem that’s bigger than any one platform, and that’s why we support the Honest Ads Act,” Zuckerberg wrote in his post…
Zuckerberg said that he also wanted to shed more light on “issue ads,” or ads that discuss a political subject such as gun laws or racism but do not directly relate to an election or a candidacy, and would require every such advertiser to confirm their identity and location…
Zuckerberg is scheduled to appear on Tuesday before a joint hearing of two U.S. Senate committees, and on Wednesday before a U.S. House committee.
Wired: Facebook Imposes New Restrictions on Ads and Popular Pages
By Issie Lapowsky
Determining what exactly constitutes an issue-based ad is complex, and it’s still unclear what issues will fall under that scope…
Facebook will now require operators of large Pages to be authenticated as well, and will give their followers information on the content that Page shares and any name changes it may have made in the past. The company did not, however, define what constitutes a large Page, provide details on what the authentication process will entail, or clarify what specific information followers will be able to see…
In a statement Friday, Democratic senator Mark Warner, one of the sponsors of the Honest Ads Act, lauded the move. “Most of the paid ads the Internet Research Agency ran on Facebook prior to the 2016 election didn’t mention Hillary Clinton or Donald Trump-but they did mention divisive political issues like guns, LGBT rights, immigration, and racial issues. That’s why today’s announcement by Facebook is so important, and I would encourage all of the platform companies to follow suit as we work toward making the Honest Ads Act the law of the land, ensuring that political ads sold online abide by the same disclosure rules as TV and radio ads.” …
Facebook will no doubt make more mistakes as it maps the fuzzy boundaries of what does and doesn’t constitute an ad worth vetting … Now, at least, Facebook is showing it’s finally willing to compromise on its doctrine of openness in order to protect its users.
Politico: Facebook to create independent election commission to study social media’s impact on democracy
By Steven Overly
Facebook will establish an independent election research commission that partners with academics and researchers to study the effects of social media on democracy and political elections, the company announced Monday.
“The goal is both to get the ideas of leading academics on how to address these issues as well as to hold us accountable for making sure we protect the integrity of these elections on Facebook,” CEO Mark Zuckerberg wrote in a Facebook post…
Zuckerberg wrote that the company will tap foundations to create a board of academic experts who select relevant research topics and scholars to conduct studies. It will be funded by the John and Laura Arnold Foundation, the Democracy Fund, the William and Flora Hewlett Foundation, the John S. and James L. Knight Foundation, the Charles Koch Foundation, the Omidyar Network and the Alfred P. Sloan Foundation, Facebook said in a blog post.
Free Speech
Los Angeles Times: Prodding private companies into censorship by proxy is a dangerous government tradition
By Jesse Walker
When YouTube, Facebook or Twitter cracks down on some form of expression – conspiracy theories, radical rants, terrorist propaganda – some of the targets inevitably complain that their freedom of speech is under attack. (This feeling of victimhood may be what sent Nasim Aghdam to YouTube headquarters, gun in hand.) There is a strong retort to this: These are private platforms with a right to decide what they publish. It is no more a violation of the 1st Amendment for YouTube to muzzle a channel it finds offensive than it is for this newspaper to refuse to run a column calling for Minnesota to invade Wisconsin.
But what if a private platform suppresses speech because it’s afraid the government might otherwise step in?
Just as one effective end-run around the 4th Amendment is to ask private companies for data they slurped up on their own, the 1st Amendment can be sidestepped when officials pressure the private sector into self-censorship. The end result can be rules more restrictive than the companies would impose on their own – and more intrusive than the government could get away with if it tried to impose them directly.
It’s happened before.
The Media
Washington Post: How the FBI uses the Freedom of Information Act to track down whistleblowers
By Zack Kopplin
Late last month, the FBI arrested Terry James Albury, a longtime agent in its Minneapolis field office, for allegedly providing classified documents to the Intercept.
Albury’s arrest shows the need for the FBI to reevaluate its policy of myopic secrecy and the tools it uses in counterintelligence investigations. While tracking him down, the bureau crossed a red line that will sour relationships with journalists and whistleblowers, with negative consequences for everyone.
The classified documents in question, on their own, should concern anyone who cares about civil liberties. A set of policies and procedures, the documents outline how the FBI can access journalists’ phone records without search warrants or subpoenas approved by a judge. This is despite a 2013 promise by then-Attorney General Eric Holder to reform rules about spying on reporters after the Department of Justice secretly obtained phone records from over 100 Associated Press journalists. Holder’s reforms only applied to subpoenas in criminal investigations.
The documents also identify loopholes in FBI rules allowing undercover agents and informants to infiltrate and spy on members of churches, political organizations and universities – something, the Intercept said, that even the FBI acknowledged was a “risk to civil liberties.” Additionally, they reveal the FBI was targeting surveillance based on race and religion.
Congress
Reuters: Republican senator says Facebook scandals may be ‘too big’ for company to fix alone
By Dustin Volz
A Republican U.S. senator warned on Sunday that Facebook Inc may need to be regulated to address concerns about the company’s privacy and foreign propaganda scandals, saying they may be “too big” for the social media company to solve alone.
“My biggest worry with all this is that the privacy issue and what I call the propagandist issue are both too big for Facebook to fix, and that’s the frightening part,” Senator John Kennedy said on CBS’s Face the Nation.
Asked if lawmakers need to seek regulations on Facebook, Kennedy replied: “It may be the case.”
The States
Baltimore Sun: Maryland legislature passes plan to regulate political ads on Facebook, billed as nation’s first such policy
By Erin Cox
A bill approved by the General Assembly late Thursday would require social media platforms to track all political ads, keep copies of them and record which users are being targeted – data that state elections officials could use to track bad actors or detect foreign interference.
Facebook officials said they hoped Maryland’s legislation could be a national model for social media to disclose who is paying for political advertising.
The legislation would also require social media platforms and newspapers to quickly post public information about who bought the advertisements, whom they benefit and how much was spent – similar to existing transparency requirements for television stations.
Gov. Larry Hogan – whose Facebook page has 210,000 followers – has not said whether he intends to sign the measure…
An association of media outlets including The Baltimore Sun has objected to a part of the Maryland bill that would require all sites to publish a table of political ad purchases. They argue that compelling media organizations to publish anything violates the First Amendment.
“We believe in free and fair elections, and we support transparency,” said Rebecca Snyder, executive director of the Maryland-Delaware-D.C. Press Association. “We think this bill is flawed because we don’t believe that we should be compelled to publish this report.”
