In the News
Sioux Falls Argus Leader: Federal judge strikes down IM 24 as unconstitutional
By Lisa Kaczke
A federal judge has struck down a ban on out-of-state contributions to South Dakota ballot question committees.
U.S. District Judge Charles Kornmann issued an order on Thursday declaring Initiated Measure 24 as unconstitutional because it violates “the First Amendment rights to engage in political speech and to associate with others to fund political speech.” IM 24 is also unconstitutional because it interferes with the “free flow of money” between people and entities from another state, Kornmann wrote in his judgment.
“IM 24 bans political speech by certain speakers through its ban on certain contributions to ballot question committees,” Kornmann wrote. “The ban violates the First Amendment because it is not narrowly tailored to a compelling government interest.” …
Kornmann’s ruling was due to two lawsuits filed earlier this year challenging IM 24. The first was filed by ballot question committee SD Voice and Aberdeen resident Cory Heidelberger, who runs the liberal website DakotaFreePress.com. The second lawsuit was filed by South Dakota’s Newspaper Association, Retailers Association, Broadcasters Association, Chamber Ballot Action Committee, Americans for Prosperity and former South Dakota resident Thomas Barnett Jr.
[Ed. Note: Learn more here.]
KSFY-TV Sioux Falls: Initiated Measure 24 ruled unconstitutional
By Patrick Callahan, South Dakota Broadcasters Association
Judge Kornmann ordered that the plaintiff’s attorney fees and cost will be awarded, with those cast to be determined by the court at a later time…
The state must now determine if it will appeal the decision to the U.S. Eighth circuit court of appeals.
The South Dakota Attorney General’s office released a written statement saying “We respect the decision of the Court. We are reading the decision and are examining the avenues available to our office that best coincide with protecting the best interests of the people and the State of South Dakota.”
IM 24 was passed in November 2018. The law bans contributions to ballot question committees from out of state organizations, individuals, and new South Dakota businesses.
Countable: Would You Support a Constitutional Amendment to Overturn Citizens United?
Rep. Adam Schiff (D-CA) has introduced a constitutional amendment that would overturn the Supreme Court’s Citizens United ruling…
“The Supreme Court’s decision in Citizens United overturned decades of legal precedent and has enabled billions in dark money to pour into our elections,” Schiff said in a statement…
David Keating, president of the Institute for Free Speech, a conservative nonprofit, said in May 2018 that voters weren’t sufficiently educated in what a repeal would do. He was referring specifically to a poll which found that that 75% of respondents – including 66% of Republicans and 85% of Democrats – backed a constitutional amendment outlawing Citizens United.
“If Americans knew that repealing Citizens United would allow Congress to censor critics and make it more difficult to defeat corrupt incumbents then they’d be less likely to support it going away,” Keating said. “It’s typical for academics to tout biased polls with questions that try to undermine support for free speech.”
The Courts
Center for Responsive Politics: Court says it can’t rescue FEC from partisan deadlock … again
By Anna Massoglia and Karl Evers-Hillstrom
In June 2018, the D.C. appeals court, which then included now-Supreme Court Justice Brett Kavanaugh, ruled 2-1 that the FEC’s decision to dismiss the case with “prosecutorial discretion” could not be reviewed by the court. The court on Tuesday doubled down on its decision, declining to rehear the case.
In March 2019, a U.S. District Court judge in a different case brought against yet another dark money group whose spending has been under question for more than a decade concluded that precedent set in the CHGO case barred it from reviewing the FEC’s dismissal.
The most recent court order is yet another blow to FEC Chair Ellen Weintraub…
“With this decision, FEC has utterly lost its ability to enforce the law as foreign [governments] attack our elections, dark-money groups operate from the shadows and super PACs run rampant,” Weintraub tweeted Tuesday…
Republican Commissioner Caroline Hunter told the Washington Post the decision “deals a blow to the so-called reformers’ efforts to use the [FEC] as a partisan rubber stamp for their own agenda.”
The new court order leaves many questions unanswered, in CHGO’s case and regarding how the law will apply in other circumstances…
“Given FECA’s silence on deadlocks, it is no surprise that the statute also does not instruct how to differentiate between a deadlock vote that prompts a dismissal and a vote by four or more Commissioners to dismiss the action outright,” D.C. Circuit Judge Wilkins’ concurring opinion laments, chronicling a litany of hypothetical what-ifs.
“While these questions are important, this is not the case to decide them,” the concurring opinion concludes. “It is unlikely that a future case will implicate-or answer-all of these concerns. But I hope that in the right case, with adequate briefing from interested parties, we can better grapple with these questions and the consequences of a potential holding.”
Hollywood Reporter: Literary Group Defends First Amendment Suit Against Donald Trump
By Ashley Cullins
PEN America, an organization that fights to protect free speech on behalf of journalists, writers and literary professionals, in October sued Trump over his alleged censorship of and retaliation against the press.
The DOJ in April filed a motion to dismiss the lawsuit, arguing that PEN lacks standing to sue because none of its members have been injured (except for CNN’s Jim Acosta whose pass was reinstated after being revoked), that it failed to state a plausible claim and that the court lacks the power to control the official, discretionary actions of a sitting president.
The timing of the press pass protocol change could prove fortuitous for PEN when it comes to the standing argument.
“As this brief was being finalized, it came to light that PEN America member Dana Milbank of the Washington Post had his White House press credentials revoked under a new policy that has affected dozens of other journalists,” states a Friday filing…
Further, the group argues that it doesn’t even need to show one of its members was deterred from exercising free speech rights to establish standing, only that the conduct “is likely to deter a person of ordinary firmness” from doing so…
In defending the plausibility of its claims, PEN argues it has sufficiently alleged both general threats to retaliate against the media and specific instances of censorship. “Defendant’s threats and regulatory actions amount to an ongoing censorship-and-retaliation scheme that targets journalists and news organizations perceived as critical of Defendant and his Administration,” states the filing…
When it comes to addressing the court’s power in this situation, PEN turns to U.S. District Judge Naomi Reice Buchwald’s decision last year to issue a declaratory judgment that Trump violated the First Amendment by blocking Twitter users based on their political views.
Independent Groups
Washington Post: Trump slammed opponents for being in ‘cahoots’ with super PACs. Now, he’s endorsed a group supporting him.
By Michelle Ye Hee Lee
In October 2015, then-candidate Donald Trump railed against his opponents and the political committees raising huge sums to try and boot him out of the primaries.
“They’re in total cahoots with their [super] PACs, which they’re not allowed to be,” Trump told The Washington Post at the time. “They’re all in total cahoots. They put their friends in there. One good thing about me: I’m not.”
But on Tuesday, President Trump made a sharp about-face: He publicly endorsed America First Action, a super PAC run by his allies…
“There is one approved outside non-campaign group, America First Action, which is run by allies of the President and is a trusted supporter of President Trump’s policies and agendas,” the campaign said in a statement Tuesday…
It attracted attention from advocates for greater campaign finance restrictions, who pointed to it as the latest sign of the erosion of the independence that super PACs are supposed to maintain from the candidates they support…
Trump’s campaign said it is simply stating a fact: that America First Action – the main pro-Trump super PAC – is a supporter of Trump’s agenda and policies. The statement is not a solicitation for donations, the campaign said…
Campaign Legal Center, which supports greater campaign finance restrictions, plans to file a complaint in the coming days with the Federal Election Commission claiming the statement is indeed a solicitation and that the campaign should have added solicitation qualifiers as required by the law.
Online Speech Platforms
Vox: The Facebook free speech battle, explained
By Jane Coaston
In a floor speech given last year, Sen. Ron Wyden (D-OR), who helped write Section 230, explained that the point of the section was so that websites could moderate content. “I wanted to make sure that internet companies could moderate their websites without getting clobbered by lawsuits. I think everybody can agree that’s a better scenario than the alternative, which means websites hiding their heads in the sand out of fear of being weighed down with liability.”
The idea of the law is to give Facebook editorial control over its content: the ability to monitor, edit, and even delete content (and users) it considers offensive or unwelcome according to its terms of service. These rights theoretically existed before Section 230 (thanks to the First Amendment), but Section 230 clarified it…
While questioning Zuckerberg in a hearing, [Cruz] argued the opposite of what the courts have so far decided: “The predicate for Section 230 immunity under the CDA is that you’re a neutral public forum. Do you consider yourself a neutral public forum, or are you engaged in political speech, which is your right under the First Amendment?”
David Greene, a senior staff attorney and civil liberties director for the Electronic Freedom Foundation and a critic of Cruz’s view, says he hears this argument a lot. “I don’t know who started it, but we hear it constantly. Not just from Cruz but from tons of people who should know better.” ..
Conservative media is making the case, too.
“The dominant social media companies must choose: if they are neutral platforms, they should have immunity from litigation,” wrote lawyers Adam Candeub and Mark Epstein for the conservative City Journal last year. “If they are publishers making editorial choices, then they should relinquish this valuable exemption.”
Following the Facebook bans of Paul Joseph Watson and others, the right-leaning magazine Human Events made a similar argument about neutrality…
Trump Administration
Washington Post: White House will not sign on to Christchurch call to stamp out online extremism amid free speech concerns
By Tony Romm and Drew Harwell
The White House will not sign an international call to combat online extremism brokered between French and New Zealand officials and top social media companies, amid U.S. concerns that it clashes with constitutional protections for free speech.
The decision comes as world leaders prepare to announce the so-called “Christchurch call to action” on Wednesday, an effort named after the New Zealand city where a shooter attacked two mosques in an attack inspired by online hate and broadcast on social-media sites. The document calls on governments and tech giants to improve their efforts to study and stop the spread of harmful content.
U.S. officials said they stand “with the international community in condemning terrorist and violent extremist content online,” and support the goals of the Christchurch document. But the White House said in a statement it is “not currently in a position to join the endorsement,” which leaders from countries such as Australia, Canada and the United Kingdom are expected to sign. The decision puts the United States at odds with U.S. tech companies including Facebook and Google, which are expected to support the effort.
A day earlier, White House officials raised concerns that the document might run afoul of the First Amendment.
“We continue to be proactive in our efforts to counter terrorist content online while also continuing to respect freedom of expression and freedom of the press,” the White House said. “Further, we maintain that the best tool to defeat terrorist speech is productive speech, and thus we emphasize the importance of promoting credible, alternative narratives as the primary means by which we can defeat terrorist messaging.”
The Media
Reason: Police Raid on Journalist’s Home Has Grave First Amendment Implications
By Billy Binion
When San Francisco police arrived at journalist Bryan Carmody’s apartment last week, they smashed the building’s gate with a sledgehammer, placed him in handcuffs, and raided his home with guns drawn.
They left with his notebooks, computers, phones, and various other electronic devices, as well as a police report on the death of Jeff Adachi, the city’s public defender.
“I knew what they wanted,” said Carmody in an interview with the Los Angeles Times. “They wanted the name.”
That is, they wanted the name of the person who leaked the police report to Carmody, who then sold it to three local news outlets. His company, North Bay News, tracks stories overnight and sells the resulting footage and information to television stations for their round-the-clock coverage.
Agents had attempted to identify his source several weeks prior; Carmody says he “politely” declined to provide it. The department then sought warrants for the raid, raising serious First Amendment concerns around Carmody’s protections as a journalist…
The raid may have broken California state law, which shields journalists from being held in contempt for declining to name a source. It also excludes protected items from being subject to search warrants.
But those warrants-one for his home and the other for the office of North Bay News-were issued in spite of Carmody’s professional background. “It’s possible that the courts decided that because Carmody is a freelancer, he is not subject to the shield law,” Aaron Field, an attorney with the Northern California chapter of the Society of Professional Journalists, said in an interview with the San Francisco Examiner. “That is not correct.”
Harassment
Washington Post: I own the Red Hen restaurant that asked Sarah Sanders to leave. Resistance isn’t futile.
By Stephanie Wilkinson
The blowback was swift and aggressive. Within 24 hours, the restaurant’s phone line was hacked, my staff and I were doxxed, and threats to our lives, families and property were pouring in through every available channel. Protesters colonized the streets around the restaurant. Thousands of fake Yelp reviews torpedoed our ratings, and dozens of people attempted to lock up our tables with reservations they had no intention of honoring. Pundits lamented the prospect of “red restaurants” and “blue restaurants.” In less than three days, President Trump had mocked us on Twitter…
In more than 4,000 painstakingly typed letters, hastily scrawled postcards and feces-smeared notebook pages, I was branded a racist, a bigot and a hypocrite. A victim of “Trump Derangement Syndrome.” I was an idiot, or worse, and a lousy manager. Sure, I’d eighty-sixed Sanders, but it was my business that was going down the drain.
Yet, as I kept opening the letters, I saw a pattern. For every hateful message, there was one of gratitude. For every angry accusation that our actions were driven by the inability to accept Hillary Clinton’s 2016 loss, there was a note of thanks from someone lamenting Trump’s rollback of protections for marginalized people. What’s more, for every wish that our business die a painful death, there was a dollar bill or a generous check or an order for a gift certificate…
After nearly a year, I’m happy to say that business is still good. Better than good, actually. And besides the boost to our area charities, our town’s hospitality and sales revenue have gone up, too…
And to everyone who might be fearful about taking a stand, I say don’t be. Resistance is not futile, for you or your business.
Wall Street Journal: Swatting Attacks Increase Security Concerns Across Silicon Valley
By Robert McMillan and Jeff Horwitz
One January night this year an emergency dispatch operator in Palo Alto, Calif., fielded a call from a man who said he had shot his wife and then tied up his children inside his house, where he had several pipe bombs. After a tense period in which police officers surrounded the house, out came the owner, a senior Facebook Inc. executive who said there was no shooting and that he had no idea what was going on.
The call was a hoax, but not an isolated incident.
Just over two weeks later, an Instagram executive at his home in San Francisco was also the target of a swatting attack…
The incidents show why safety concerns are rising across Silicon Valley, prompting tech companies to allocate more dollars to executive security.
Tech companies have become targets in part because they have become more active in removing hate speech and disinformation from their platforms-moves that have triggered accusations of bias from those affected by their policies. The industry also is increasingly blamed on a range of issues, from privacy abuses to exacerbating income inequality.
The swatting attacks early this year came weeks after someone posted to an online message board personal details-including home addresses and names of family members-of some of the biggest figures in Silicon Valley. The list, which was viewed by The Wall Street Journal, also included information on journalists, celebrities and government officials. At least one of the celebrities included in the list was subsequently swatted…
Swatting is hardly the only security problem facing technology executives. Last month, political activist Laura Loomer staked out Twitter Inc. CEO Jack Dorsey’s house in San Francisco to protest the suspension of conservative Twitter accounts, including her own.
The States
New York Times: At the N.R.A., a Cash Machine Sputtering
By Danny Hakim
The role of the foundation is among the issues being examined in a new investigation into the N.R.A.’s tax-exempt status by the New York attorney general, Letitia James…
At issue for investigators, tax experts say, would be whether that money was being used for charitable purposes, as required by law, and not to help finance the N.R.A.’s political activities…
Originally, the N.R.A. promised to provide free office space and staff when it set up the foundation in 1991, but it now charges more than $6 million a year for that. Outright transfers from the foundation listed for charitable purposes have also risen fivefold since 2001, and exceed $100 million since 2012…
Ms. James’s office … is examining “transactions between the N.R.A. and its board members, unauthorized political activity, and potentially false or misleading disclosures in regulatory filings,” according to a copy of a letter sent to the N.R.A. and reviewed by The Times. (The attorney general of New York has jurisdiction because the N.R.A. was established there.)
Federal rules restrict transactions that confer economic benefits on high-ranking employees of tax-exempt organizations. A number of such transactions have already drawn scrutiny, and others are emerging…
Marcus Owens, a partner at Loeb & Loeb who served for a decade as director of the exempt organizations division of the Internal Revenue Service, said the sums moving to the N.R.A. from the foundation were “substantial related-party transactions,” and that “in normal times, they would attract regulatory attention from the I.R.S. and a state attorney general.”
