In the News
Americans for Tax Reform: Trump Admin Finalizes Schedule B Regulatory Relief Rule
By Alex Hendrie
Earlier this week, the Trump administration finalized a rule protecting free speech and donor privacy. Under the rule, many nonprofits including 501(c)(4)s, 501(c)(5)s, and 501(c)(6)s would no longer be required to submit a Schedule B form to the IRS…
Ending the collection of Schedule B forms will significantly streamline tax compliance. The Institute for Free Speech estimates that nonprofits would save about $63 million per year compliance costs if Schedule B were fully repealed.
Opponents of the rule have falsely stated that it allows a flood of “foreign dark money” into the political system. This is not true. As Secretary Mnuchin has noted in the past, this proposal does not limit transparency as the same information will be available to the public as before.
There are already measures in place to track foreign donations, and it is highly unlikely that anyone will admit to funneling illegal money on the form. Even if the IRS did suspect laws were being broken, it has no authority to share the information it collects with the FCC and the DOJ, the two agencies with the ability to enforce campaign finance laws.
Ending the collection of Schedule B forms will instead remove a tool of the left to chill political speech.
New from the Institute for Free Speech
Amicus writes to apprise this Court of reasons why Plaintiff Campaign Legal Center’s motion for a default judgment should not be granted at this time. While the Federal Election Commission (“FEC” or “Commission”) has failed to respond to this Court’s show cause order of May 14, 2020, that is only because it is blocked from participating in this litigation by an act of Congress and inaction by the political branches. None of these causes was within the FEC’s control. However, with the confirmation of a new commissioner, the FEC’s quorum has been restored and its legal paralysis resolved. The Commission should be given a reasonable amount of time to get its affairs in order and respond to the Plaintiff’s suit. That is especially true where the underlying lawsuit poses a distinct threat to the statutory role Congress envisioned for the Commission, the underlying merits of the lawsuit implicate the First Amendment rights of third parties, and there are reasons to doubt Plaintiff’s Article III standing.
Trump Administration
New York Times: Trump, Lacking Clear Authority, Says U.S. Will Declare Antifa a Terrorist Group
By Maggie Haberman and Charlie Savage
President Trump said on Twitter on Sunday that the United States would designate a group of far-left anti-fascism activists as a terrorist organization, a declaration that lacked any clear legal authority, as his administration sought to blame the group for violent protests across the nation over the weekend…
First, antifa is not an organization. It does not have a leader, membership roles or any defined, centralized structure. Rather, it is a vaguely defined movement of people who share common protest tactics and targets…
More important, even if antifa were a real organization, the laws that permit the federal government to deem entities terrorists and impose sanctions on them are limited to foreign groups…
“There is no authority under law to do that – and if such a statute were passed, it would face serious First Amendment challenges,” said Mary B. McCord, a former head of the Justice Department’s National Security Division…
[T]he American Civil Liberties Union condemned Mr. Trump’s vow in a statement from Hina Shamsi, its national security project director.
“As this tweet demonstrates, terrorism is an inherently political label, easily abused and misused,” Ms. Shamsi said. “There is no legal authority for designating a domestic group. Any such designation would raise significant due process and First Amendment concerns.”
Supreme Court
Federalist Society: Citizens United v. Federal Election Commission [SCOTUSbrief]
By Michael R. Dimino
When a non-profit organization called Citizens United attempted to air and advertise a political documentary called “Hillary: The Movie” (funded in part by corporate contributors), the Federal Election Commission said that this would be a violation of the 2002 Bipartisan Campaign Reform Act, which proscribed corporations from engaging in “electioneering communication” within 30 days of a primary or 60 days of a general election.
Do corporations have a right to engage in political speech? Can corporations donate directly to political campaigns? Prof. Michael R. Dimino of Widener University’s Commonwealth Law School examines campaign finance and corporate contributions in Citizens United v. Federal Election Commission.
The Courts
By Matt Miller
A Pennsylvania law that bars people with state gaming licenses from making contributions to political campaigns is unconstitutional because it violates free speech rights, a federal appeals court has concluded.
That is so even though the prohibition included in the Race Horse Development and Gaming Act adopted in 2004 is aimed at preventing corruption in state politics, Judge Richard L. Nygaard wrote in the opinion by the U.S. Court of Appeals for the 3rd Circuit…
State officials appealed to Nygaard’s court after U.S. Middle District Judge Sylvia H. Rambo barred the state from enforcing the act’s ban on political contributions by anyone affiliated with an entity holding a state gaming license.
The dispute hit the courts when Pasquale T. Deon Sr. and Maggie Hardy Magerko, who both have interests on gaming businesses, sued the state gaming board and attorney general’s office over the political contributions ban…
“It is axiomatic that a democratic government must make every effort to fight corruption, and the perception of it, to protect the integrity of its electoral, legislative, and regulatory processes,” [Nygaard] wrote. “But when it acts it must be mindful of the fundamental speech and associational rights guaranteed by the First Amendment of the United States Constitution at stake.” …
Pennsylvania officials have not proven that their total ban is justified when those other states impose lesser restrictions that don’t severely infringe free speech rights, Nygaard concluded.
The Verge: Reddit and Twitter join the fight against US demands for visa applicants’ online handles
By James Vincent
Reddit and Twitter have filed supporting evidence in a lawsuit against the US government, which challenges the requirement that nearly all visa applicants submit their social media handles for scrutiny.
The companies argue that this requirement will “unquestionably chill a vast quantity of speech” and that it “violates the First Amendment rights to speak anonymously and associate privately.”
“Those guarantees are deeply rooted in this nation’s history, which has long cherished anonymity’s role in guaranteeing a robust marketplace of ideas – one where speakers can choose to keep their identity and their associations private as ‘a shield from the tyranny of the majority,'” say the two firms. Their evidence is supported by the Internet Association, a trade association that represents US tech companies including Facebook and Google.
The requirement for visa applicants to detail their social media accounts was introduced in 2019…
Previously, only applicants subjected to additional vetting had to supply this information. Certain diplomatic and official visa applicants are exempt…
The lawsuit against these changes was brought last year, with the Knight First Amendment Institute at Columbia University, the Brennan Center for Justice, and lawyers from Simpson Thacher & Bartlett LLP suing the State Department on behalf of two US-based documentary film organizations, the Doc Society and International Documentary Association.
Congress
Office of Congressman Matt Gaetz: Congressman Matt Gaetz Hits Twitter with FEC Complaint, Accuses Platform of “Domestic Election Interference”
U.S. Congressman Matt Gaetz (FL-01) today filed a complaint against the social network company Twitter, accusing the tech giant of interference in federal elections “by affixing a dubious “fact-check” link to certain statements of President Donald J. Trump,” and thus “making an in-kind contribution to his political opponents.”
On Tuesday, Twitter labeled two of President Donald Trump’s tweets with “fact checks,” directing users who click on their labels to a Twitter “story” which called the President’s claims “unsubstantiated.” In doing so, Twitter overstepped boundaries and set aside its privileged role as a mere “interactive computer service,” and instead began acting as a “shadow contributor” to the Democratic National Committee, according to Congressman Gaetz’s complaint.
Congressman Gaetz announced his complaint last night on “Tucker Carlson Tonight,” and asserted that by adding this so-called “fact check” feature to the President’s tweets, Twitter was engaging in “domestic election interference.”
“If someone is going to assert that they are a nonbiased neutral platform, we should not just take that as an article of faith. The Federal Election Commission needs to get off their duff. Twitter is interfering with an election. If we just wait around, big tech will steal this election from Donald Trump and the American people,” said Congressman Gaetz…
A copy of the complaint sent to the Federal Election Commission may be found HERE.
Axios: Exclusive: Cruz calls for criminal investigation of Twitter
By Margaret Harding McGill
Sen. Ted Cruz (R-Texas), in a letter Friday to the Justice and Treasury departments, is calling for a criminal investigation of Twitter over allegations the company is violating U.S. sanctions against Iran…
Twitter allows Iranian leaders to maintain accounts on its service, and Cruz is asking Attorney General Bill Barr and Treasury Secretary Steven Mnuchin to probe whether that violates U.S. sanctions prohibiting American companies from providing goods or services to the country’s top officials…
Twitter has said it’s in the public interest to have political figures’ speech on its platform, even if some find that speech objectionable.
The company on Friday labeled a tweet from Trump about the unrest in Minneapolis as breaking its rules on “glorifying violence.”
The White House and Federal Communications Commission Chairman Ajit Pai, among other prominent conservatives, questioned why Twitter hasn’t applied similar labels to tweets from Iran’s Supreme Leader Ayatollah Ali Khamenei.
Right to Protest
PEN America: Arresting Dissent: Legislative Restrictions On The Right To Protest
By Nora Benavidez and James Tager
PEN America has documented an explosion of 116 state bills introduced since 2015-110 of which were introduced between 2017 and 2019 alone-that create new penalties or harsher sentences for protesters. In many cases, these bills appear to be direct responses to particular protests, or designed to constrain particular protest movements. These include “critical infrastructure” bills introduced in states that have seen significant pipeline protests, and anti-highway obstruction bills following on the heels of protests that have used road obstruction as a tactic…
Of the 116 bills introduced since 2015 that would limit protest rights, 23 bills in 15 states have become law, and only two of those have been challenged in court. Already in the 2020 session, PEN America notes 16 similar bills working their way through state capitols. These new laws place a heavy burden on individuals in states where these bills have passed, forcing them to weigh their civic interest in exercising their First Amendment rights against the very real potential of being arrested or facing other reprisals.
Media
Washington Post: ‘The norms have broken down’: Shock as journalists are arrested, injured by police while trying to cover the story
By Paul Farhi and Elahe Izadi
[MSNBC anchor Ali] Velshi, who suffered minor bruises, was one of at least a dozen journalists injured in cities across America this weekend – including a photographer who was blinded in one eye – as police fired rubber bullets, pepper spray and tear gas to quell unrest. Not since the 1960s, when the nation was racked by civil rights demonstrations, antiwar protests and urban riots, has the press been embroiled in so much violence on American shores.
In several cases, reporters appear to have been swept up in indiscriminate efforts by authorities to disperse crowds. But in a number of incidents, journalists were injured, harassed or arrested even after identifying themselves as reporters – a blatant violation of constitutional protections and long-standing ground rules that guide interactions between media and law enforcement officials…
Whether these assaults are happening by accident or on purpose, they have the effect of impeding the news – hampering the public’s ability to see and judge the behavior of officials who are accountable to them.
Wall Street Journal: News Outlets Are Liable for Others’ Facebook Comments, Australian Court Rules
By Mike Cherney
Newspapers and television stations that post their own articles on Facebook Inc.’s platform are liable for other Facebook users’ defamatory comments on those posts, an Australian court ruled Monday, presenting a fresh dilemma for traditional publishers in the social-media age.
Media companies encourage and facilitate comments that can be seen by other Facebook users, said the highest court in the Australian state of New South Wales, which includes Sydney. That means, it ruled, that the companies should be considered publishers of the comments, responsible for their content.
The media companies that were defendants in the original lawsuit, which include News Corp Australia as well as the publisher of the Sydney Morning Herald, said they are considering a further appeal to the country’s highest court.
“Today’s decision means the media cannot share any story via Facebook without fear of being sued for comments which they did not publish and have no control over,” they said. “It also creates the extraordinary situation where every public Facebook page-whether it be held by politicians, businesses or courts-is now liable for third-party comments on those pages.” …
The decision could also threaten social-media platforms like Facebook, which count on news articles for traffic and ad revenue…
Australia has also moved to hold social-media companies themselves responsible for what users post. After a live stream of a shooting spree at New Zealand mosques last year was posted on Facebook, Australia passed legislation that allows social-media platforms to be fined if they don’t remove violent content quickly.
Candidates and Campaigns
New York Times: Campaign Funds for Judges Warp Criminal Justice, Study Finds
By Adam Liptak
Elected judges, a new study found, tend to appoint lawyers who contribute to their campaigns.
“Campaign finance is perverting the criminal justice system,” said Neel U. Sukhatme, a professor at Georgetown Law and an author of the study.
Drawing on six sets of data, the study examined Harris County in Texas, which is home to Houston and is the third most populous county in the nation, with more than four million residents. There is reason to think the problem identified by the study is widespread, as the same basic incentives exist in many jurisdictions.
“‘Pay to play’ might affect millions of Americans in other states, such as California, Georgia, Maryland, Missouri, North Carolina and Ohio, among others, which also permit attorneys to contribute to judges who control indigent defense appointments,” the study said.
Professor Sukhatme conducted the study, which will be published in The Duke Law Journal, with Jay Jenkins, a lawyer with the Texas Criminal Justice Coalition, a research and advocacy group. It considered more than 290,000 felony cases in Harris County between 2005 and 2018, analyzing data on elections, assignments, campaign contributions, lawyers’ fees and bar records.
“What we find is shocking,” the study said. “While donor and nondonor attorneys appear similar in terms of their education and experience, on average, judges assign their donors more than double the number of cases they assign to nondonors.”
American University Law Review: Anti-SLAPP Coverage and the First Amendment: Hurdles to Defamation Suits in Political Campaigns
By David L. Hudson, Jr.
Defamation cases often arise out of intemperate or offensive statements made in political campaigns. These comments may refer to a candidate’s criminal history, familial conduct, or other matters. Whatever the subject, emotions undoubtedly run high during hotly contested campaigns. However, First Amendment protection is at its zenith when speakers engage in political speech, and speech about political candidates is inherently political speech. Thus, defamation suits arising out of political campaigns face significant hurdles, including (1) anti-SLAPP statutes and a greater public awareness of SLAPP suits; (2) a history and tradition of mudslinging and enhanced protection of political speech during political campaigns; and (3) the first-amendment-inspired doctrine of rhetorical hyperbole. This Article addresses these three obstacles.
Online Speech Platforms
Wall Street Journal: Inside Twitter’s Decision to Take Action on Trump’s Tweets
By Georgia Wells
[Recently, Twitter] has taken several actions on messages from Mr. Trump as well as a post from the official White House account, marking some as breaking the company’s rules and adding a fact-check label to two about mail-in ballots…
“The internal decision-making wasn’t quite a domino effect, but it started slowly trickling,” an employee familiar with Twitter’s decisions said.
For years, employees across the company have met privately on an unofficial basis to discuss how the company could apply its rules to Mr. Trump’s postings, according to people familiar with the meetings. This past week’s decisions were unexpected, one of the people said…
[Mr. Dorsey] has repeatedly told employees that people should be aware of the unfiltered views of public figures, current and former executives have said…
Twitter has long said that maintaining a healthy public discourse on its platform is its priority. “Serving the public conversation includes providing the ability for anyone to talk about what matters to them,” the company has said previously in a statement. “This can be especially important when engaging with government officials and political figures.” …
Still, many users and even some internally have felt the company’s enforcement of its rules has been inconsistent.
The fact-checking tool that Twitter unveiled in early May created a way for the company to flag the accounts of people in power without removing their content entirely. The company described the tool as a way to address conspiracy theories and other misinformation about the Covid-19 pandemic, but internally, employees noted that it could be used more broadly, the employee familiar with the company’s decisions said.
Reason: Donald Trump vs. Joe Biden vs. Twitter vs. Facebook
By Nick Gillespie
Trump and his allies, such as Sen. Josh Hawley (R-Mo.), aren’t the only ones attacking Section 230. Presumptive Democratic presidential nominee Joe Biden has pronounced that “Section 230 should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms….It should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false.” Biden is joined in such condemnations by Sen. Elizabeth Warren (D-Mass.), who has consistently called for ending existing Section 230 protections and recently railed against Facebook as “a hate-for-profit machine that gives a megaphone to racists and conspiracy theorists-to talk about how social media platforms should essentially allow politicians to lie without consequences. This is eroding our democracy.”
She’s wrong about that: Creating a space where citizens and politicians can more easily exchange views, no matter how bilious or wrong, is enacting democracy, not eroding it.
The good news is that Trump’s executive order is essentially worthless as policy…
The bad news is that the president and other politicians are constantly attacking freedom of expression. The Trumps and Bidens and Hawleys and Warrens of the world may come at the platforms from different angles and for ostensibly different reasons, but the threat is effectively the same: Protect and promote the sort of speech I like or else.
Wall Street Journal: Even Janus Is Bigger in Texas
By The Editorial Board
The Attorney General of Texas, Ken Paxton, plans to release an advisory opinion soon that could help free public employees who are fed up with their union. In 2018 in Janus v. Afscme, the Supreme Court said that union fees couldn’t be deducted from the paycheck of a government worker who didn’t “affirmatively consent.”
The question is what flows from this logic. Last fall Alaska Governor Michael Dunleavy, citing Janus, signed an order to let state workers quit the union anytime, instead of only during 10 enchanted days once each year. Union members also would have to refresh their consent forms periodically. Those changes are on hold pending a legal challenge.
Mr. Paxton’s advisory opinion takes a similar tack. In Texas, it explains, public unions “serve as a middleman” by circulating and then submitting the dues authorizations for state workers: “State agencies appear to have no independent method of confirming that an employee knowingly and voluntarily consented to the payroll deduction without any coercion or improper inducement.”
One solution, the opinion says, would be for the state to take fee authorizations directly from each employee. Mr. Paxton evaluates some suggested waiver verbiage, under which a public worker would certify: “I recognize that I have a First Amendment right to associate, including the right not to associate. . . . I am not compelled to pay a labor organization any money as a condition of employment, and I do not have to sign this consent form.”
Wiley’s Election Law News: Under Cover of Darkness and Crisis, Apparent Attempt to Revive Unconstitutional New York 501(c)(3) and 501(c)(4) Reporting Laws
By Carol A. Laham and Eric Wang
Amidst the throes of the COVID-19 pandemic, a little-noticed and opaque provision was slipped at the last minute into New York State’s recently passed massive omnibus budget bill. The legislation, which was signed into law at the beginning of April, may breathe new life into onerous and complex reporting requirements for certain Section 501(c)(3) and 501(c)(4) entities operating in the state. Late last year, a federal court had struck down broader requirements as being unconstitutional.
As Election Law News has previously reported, at issue are two reporting requirements that were first enacted in the wee hours of the morning in June 2016. First, Section 501(c)(4) entities that spend more than $10,000 in a calendar year on certain issue advocacy “covered communications” were subject to new reporting requirements. The reports were required to publicly identify any donors who gave $1,000 or more to the entity.
Second, if a Section 501(c)(4) entity triggers a requirement to identify its donors on New York State lobbying reports (which are separate from the “covered communication” reports), then Section 501(c)(3) entities that provide certain “in-kind” support to the Section 501(c)(4) entity were required to file new reports of their own. Such reports were required to publicly identify the Section 501(c)(3)’s own donors.
