New from the Institute for Free Speech
By Owen Yeates
In 2013, a group of Democrats and Republicans calling themselves Count My Vote were unhappy with the nominees chosen by the Utah Republican Party (“URP”). The URP primarily used a system of caucuses and conventions to choose its nominees, rather than primary elections…
The URP refused to change the procedures and bylaws its members had chosen and long sustained. So Count My Vote urged the state to “giv[e] all Utah voters a voice in choosing candidates,” that is, in who would represent the URP. And the State Legislature agreed, passing Senate Bill 54, which required that any party wishing to appear on the ballot accept a new primary election process…
On April 25, 2018, the Institute for Free Speech filed an amicus brief on behalf of the Utah Republican Party, asking the Tenth Circuit to reconsider its decision. First, IFS argued that the Tenth Circuit was wrong when it said that the law did not burden “the associational rights of the party.” According to the court, all the law did was turn the nomination process over to the true party, to all the registered Republicans voting in the primary.
But this means that the government can control an association any way it wants – it need only convince a court that some subgroup is the true association and that the subgroup would vote the government’s way. In case after case, courts would allow the government to broadly intrude into an association’s governing processes. And the strict scrutiny of laws heavily burdening freedom of association would disappear, because no law would ever heavily burden an association.
The Courts
Washington Post: Here’s why ACLU conference ads won’t appear at Metro stations or on buses
By Ann E. Marimow
Advertisements promoting the American Civil Liberties Union’s upcoming national conference will not appear at Metro stations or on buses, after a federal judge refused Wednesday to force the transit agency to accept the ads.
The decision from U.S. District Judge Tanya S. Chutkan upholds Metro’s rejection of the ACLU’s planned ads, which the agency said violated its ban on issue advocacy.
Metro “reasonably concluded” the ACLU’s proposed ads “violated its prohibition on advertisements intended to influence public policy,” Chutkan wrote in a nine-page order…
At a hearing Tuesday, Chutkan had expressed concern that Metro’s rules are applied inconsistently and called the agency’s approach to accepting and rejecting proposed ads “very random.”
In her ruling, Chutkan said there “appears to be room for improvement in the transparency and consistency of WMATA’s decision-making process. Nevertheless, the court cannot conclude that the guidelines were applied arbitrarily or inconsistently in this case.” …
ACLU attorney Arthur Spitzer called the decision disappointing, but said the organization would not appeal because of time constraints. The conference begins June 10.
Bloomberg: U.S. Courts Agency Sued for Violating Free Speech
By Erik Larson
Everyone expects a judge to be impartial. In fact, it’s generally required that judges avoid even the perception of impropriety, so as not to taint the public’s trust in the justice system. But the American Civil Liberties Union thinks the agency that helps run the U.S. court system has gone a little too far in extending those restrictions to its administrative employees.
New rules barring hundreds of support staff from expressing political opinions on social media or donating to political parties is a violation of their First Amendment rights, the ACLU said in a lawsuit filed Thursday in Washington federal court.
The measures at the Administrative Office of the U.S. Courts, part of the judicial branch of the U.S. government, are stricter than those governing political activity by employees of executive branch agencies such as the Federal Bureau of Investigation, the Central Intelligence Agency and the Department of Justice, the ACLU argued in its complaint. The rules, implemented in March, also bar court employees from displaying political lawn signs at home or wearing political buttons when not at work, the ACLU said…
In July 2017, the court agency’s director, James Duff, said in a memorandum that the new restrictions convey a “unity of purpose” between the administrative office and the courts by applying the same restrictions on support staff that apply to federal judges, the ACLU said. Such “vague rationales” don’t justify restrictions on free speech, the organization said.
National Review: Twitter and the First Amendment – Part I
By Greg Dolin
Last week, a federal judge held that the First Amendment prevents the President from blocking political opponents on Twitter. This is not the first such decision from a District Court (though not all of them have resulted in a victory for the plaintiffs), but the first one where the President is the defendant. I remain deeply skeptical of the arguments underpinning these decisions.
The thrust of the plaintiffs’ case is that blocking them on Twitter is discrimination based on their point of view, something that the First Amendment rarely, if ever tolerates. In this blog post, I will address why, in my view the argument does not hold.
There are three other potential arguments in support of the proposition that politicians cannot block Twitter users. First, it can be argued, blocking someone it makes it harder for that individual to get his viewpoint across directly to the politician thus arguably negating his right to petition for redress of grievances. Second, the block may impinge on the blocked individual’s ability to receive information – an interest long held to be protected by the First Amendment. Finally, blocking someone might infringe on that person’s freedom of association with like-minded individuals. I will discuss these three arguments in a follow-up post. Ultimately, though, I am yet to be convinced that blocking someone on social media constitutes a violation of the First Amendment under any of these theories.
IRS
Washington Examiner: The IRS should stop requiring tax-exempt groups to surrender private information
By David Barnes
[Sen. Steve Daines, R-Mont.] asked whether the IRS really needed the detailed personal information that political and social welfare committees disclose to the IRS on Schedule B, which includes the names and amounts given by major donors.
“We don’t need that information to administer the tax laws in a fair and equitable way,” [Acting IRS Commissioner David] Kautter told the panel. The previous IRS Commissioner and the IRS exempt organizations director have said the same thing…
The bottom line is this: Politicians and government bureaucrats have no business knowing the personal information of those who may be working to oppose them. As the Supreme Court put it in McIntyre v. Ohio Elections Commission in 1995: “Anonymity is a shield from the tyranny of the majority.” In the age of social media and instant access to information, that ideal is more important than ever.
Rep. Peter Roskam, R-Ill., has introduced legislation that would prohibit the Treasury Department and IRS from requiring that the identity of contributors to 501(c) organizations be included in tax returns.
A statutory fix is preferable because it wouldn’t be subject to the whim of changes in the executive branch.
While we wait on Congress to act, the IRS can on its own end the unnecessary collection of this personal information – the requirement is a creature of the IRS, not Congress. The IRS created this monster and it can destroy it.
Internet Speech Regulation
The Verge: Facebook’s new political ad policy is already sweeping up non-campaign posts
By Russell Brandom
As you might expect from the broadly drawn policy, users are already triggering the new requirement by accident. Independent journalist Jenn Elizabeth says she triggered the political ad requirement when trying to promote a report on the Flint water crisis, which may have fallen into the “environment” category. Another journalist ran into trouble promoting a post about a pro-law enforcement license plate, although the accompanying message indicates the ad may have violated Facebook’s profanity policies rather than its political one.
Facebook hasn’t blocked any of the posts or even blocked paid promotion. It’s simply asking for a more elaborate authorization, which typically requires users to send in a driver’s license or passport number and mailing address and then wait for an authorization code to be sent by mail. But by setting a higher bar for promotion on certain topics, the system inevitably puts those topics at a disadvantage.
In Guillory’s case, the authorization process was enough to scare him off entirely. Wary of giving Facebook his passport number, he decided not to put any money behind the new podcast episode.
Disclosure
Bloomberg: ‘Dark Money’ in Congressional Campaigns
Supporters of full transparency of the donations that pay for campaign messages use the term “dark money” to describe cash collected by nonprofits that buy political ads but aren’t required to reveal their donors to the Federal Election Commission. Groups that take and spend that kind of political money object to the term “dark money,” arguing that it’s legal for contributors to be anonymous. Bloomberg Government’s Ken Doyle explores the topic with Nancy Lyons in the Bloomberg 99.1 Washington newsroom.
Trump Administration
Wall Street Journal: Trump Pardons Dinesh D’Souza, Mulls Commutation for Rod Blagojevich
By Louise Radnofsky and Sadie Gurman
President Donald Trump moved Thursday to put his own stamp on the presidential-clemency process, pardoning conservative commentator Dinesh D’Souza for campaign-finance violations and saying he might commute the corruption sentence of former Illinois Gov. Rod Blagojevich…
Mr. D’Souza was convicted after pleading guilty to a felony in 2014 case over the funneling of illegal campaign contributions to a Republican Senate candidate in New York. He was sentenced to five years of probation.
“I’ve always felt he was very unfairly treated,” Mr. Trump said to reporters…
Mr. Blagojevich, a Democrat who was Illinois governor from 2003 to 2009, was sentenced in 2011 to 14 years on charges that included trying to sell Mr. Obama’s old U.S. Senate seat and is now in federal prison.
Mr. Trump said Thursday that he believed the length of Mr. Blagojevich’s sentence was excessive.
“I am seriously thinking of a curtailment of Blagojevich,” Mr. Trump said. “He shouldn’t have been put in jail,” Mr. Trump said.
Independent Groups
Center for Public Integrity: She wants to overturn ‘Citizens United,’ the decision that gave rise to super PACs. She’s also supported by one
By Ashley Balcerzak
A one-of-its-kind bipartisan super PAC, bankrolled by tribes and a prominent abortion rights group, is attempting to boost Native American candidates at a time when a record-breaking number of indigenous hopefuls are campaigning for office…
“There’s a lot of folks who have been making traditional contributions to campaigns, but have never had a PAC in Indian country that has been able to leverage those dollars,” said Mellor Willie, 7Gen Leaders’ co-founder and the former executive director of the nonprofit Native American Indian Housing Council. “It’s been done in other communities, like the black community, so why not the Native American community?” …
The Washington, D.C.-based group’s first beneficiary is Deb Haaland, a Democrat and Laguna Pueblo tribe member who’s running to represent New Mexico’s 1st Congressional District…
Scott Forrester, Haaland’s campaign manager, said Haaland’s campaign and the 7Gen Leaders super PAC have in no way coordinated efforts with one another, which would be illegal.
“We didn’t invite 7Gen to come in and fight for us,” Forrester said. “But when we’re being outspent by $1 million against conservative donors, there has to be a super PAC” that levels the playing field.
The States
Kansas City Star: House says Greitens’ nonprofit must comply with judge’s order and turn over records
By Jason Hancock
In a statement to The Star on Thursday afternoon, a spokesman for the Missouri House said A New Missouri must still turn over the required documents by Friday, as ordered by Cole County Circuit Judge Jon Beetem.
“The (investigative) committee expects production in accordance with the court’s order,” the statement said…
The judge’s order ultimately allowed for A New Missouri to redact information from the documents that pertain to identities of those who contributed, but the fear among the donors remained.
GOP leaders had been getting pressure to continue the probe despite Greitens’ resignation, including from their own members.
House Budget Chairman Scott Fitzpatrick, R-Shell Knob, released a statement responding to Greitens’ decision to quit that called for the House to investigate “the potentially illegal fund-raising practices and activity of the A New Missouri organization …”
That call was joined Thursday by state Auditor Nicole Galloway, a Democrat, who said in a letter to House and Senate leaders that Greitens’ resignation shouldn’t deprive Missourians “of the right to know how dark money and special interests are secretly influencing their government. This is too important to the future of our state and to the integrity of public service to be swept under the rug.”
Los Angeles Times: How a right-wing group’s proposed ‘free speech’ law aims to undermine free speech on campus
By Michael Hiltzik
You’ve heard the mantra: Free speech is running for its life on America’s university campuses. Restricted “free speech zones,” speakers “disinvited” because their ideas might disturb students, idea-free “safe spaces” and “trigger warnings”-all work to narrow the range of thought our students are exposed to in precisely the places where the marketplace of ideas should be wide open.
Never mind that the evidence for this conclusion is inch-deep at best, based on a handful of high-profile incidents. That’s enough to fuel a campaign by a far-right organization to promote state laws that would limit the authority of university administrators and faculty members to make judgments about what gets taught on their campuses and their classrooms, and punish students for raising their voices at protest rallies.
Forbes: To Punish Disrupters, Or Not? New Recommendations To Restore Free Speech On Campus
By Tom Lindsay
Just how bad is the state of free speech and debate on America’s campuses? In March 2018, Gallup/Knight looked to answer this question through conducting a survey of more than 3,000 college students. The results are frightening: The survey reveals that 61 percent of American college students find that their school prevents some students and faculty from openly declaring their views because others might deem them “offensive.”
Perhaps worse, the new poll shows that a majority of today’s college students have become comfortable with their intellectual chains: Another survey question asked them to decide whether free speech or “inclusion” matter more. A majority (53 percent) opted for inclusion, whereas 46 percent tapped free speech as the more important of the two.
What can be done? In an attempt to find answers, the nonpartisan American Council of Trustees and Alumni (ACTA) commissioned historian and constitutional law scholar, Joyce Malcolm, to report on the crisis and offer recommendations. Her report is well worth reading, and her recommendations are thoughtful.
