New from the Institute for Free Speech
Comments to SEC on Proposed Climate Change Disclosure
By Ryan Morrison
On behalf of the Institute for Free Speech, I respectfully submit the following comments on climate change disclosures that Acting Chair Allison Herren Lee discussed in her March 15, 2021 public statement. I note at the outset that there is no statutory authority for the SEC to compel climate change disclosure. Even specific statutory authority could not forestall all First Amendment considerations. Compelled climate change disclosure for all public companies, regardless of materiality, would raise serious First Amendment free speech concerns and be unconstitutional.
The Securities and Exchange Commission’s mission is to protect investors’ financial interests and promote efficiency, competition, and capital formation in the nation’s investment markets. Compelling environmental impact disclosures from all publicly traded companies is beyond the SEC’s core mission and is unconstitutional compelled speech. The Commission should forego any rulemaking that compels speech on this topic. Publicly traded companies remain free to voluntarily disclose this information, which as Acting Chair Lee pointed out, many are already doing.
Compelling environmental, social, and corporate governance (ESG) information from companies about how they contribute to and/or how they combat climate change is the type of humanitarian and social benefit regulation that has been struck down as unconstitutional under the First Amendment.
Introducing Summer Fellow Haley Gluhanich
The Institute for Free Speech is honored to welcome Haley Gluhanich as a 2021 Summer Fellow. In this role, Haley will spend her time studying political speech issues and assisting the research needs of the President and the organization’s legal and policy staff.
Haley is originally from Milford, Connecticut. She earned her undergraduate degree at Gettysburg College and now studies at Michigan State University College of Law. During her 2L year, Haley served as the Fundraising Chairman for the Student Bar Association and participated in the Law School’s First Amendment Clinic, where she prepared Freedom of Information Act (FOIA) requests for different school districts and taught high school classes on numerous subjects, including student speech at school and on social media, copyright and fair use, defamation, and privacy. This experience led Haley to work as the Co-Curator and now Co-Director of Content for the McLellan Online Free Speech Library. In this role, she researches and authors Q&As based on student speech submissions, manages the Library’s social media accounts, and writes about current events pertaining to free speech.
“There’s a reason the First Amendment and its robust protections for free speech come first. Without freedom of speech, it would be near impossible to advocate for the other rights given to us, and true self-government would be unattainable,” Haley explained. “Freedom of speech is the foundation of our entire legal system. The Founders exercised their freedom to speak up about the issues they had once experienced and to offer and debate solutions to prevent those concerns from reoccurring. I am excited to work with the Institute to broaden my knowledge and understanding of the First Amendment by delving into a new focus area of this particular liberty.”
The Courts
Reason (Volokh Conspiracy): Eighth Circuit Agrees to Rehear Arkansas Anti-BDS Statute Challenge
By Eugene Volokh
So the court just ordered this afternoon; here is my summaryof the February panel decision:
An Arkansas statute generally bans the government from contracting with companies that are boycotting Israel. It defines such boycotts as
- “engaging in refusals to deal,
- terminating business activities,
- or other actions that are intended to limit commercial relations
with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories, in a discriminatory manner” (bullets added).
District Court Judge Brian S. Miller refused to issue a preliminary injunction against the statute, and granted the state’s motion to dismiss the challenge. The court concluded that “other actions …” should be read as dealing with other commercial behavior, and not, say, speech urging boycotts:
Congress
New York Daily News: Against For the People: Free speech is the most important right and cannot be curbed
By Editorial Board
To stop dark money from infecting elections, [H. R. 1] would dramatically expand regulation of speech, requiring disclosure of the names and addresses of donors who give $10,000 or more to groups engaging in “campaign-related disbursements.” That means that any organization — whether dedicated to environmental protection, abortion rights, racial justice, public education, you name it — would have to list its big donors any time it runs any ad praising or criticizing a candidate or elected official.
As American Civil Liberties Union lawyers have written, “We know from history that people engaged in politically charged issues become political targets and are often subject to threats of harassment or even violence.” The effect would be tying the tongues of advocacy organizations on matters of vital importance.
Meanwhile, the bill would broaden existing prohibitions on paid advocacy on “foreign nationals” that would prohibit many noncitizens from taking part in broader civic life. (While money isn’t the same as speech, without money, speech often fails to influence public debate.) That’s almost surely unconstitutional. It is certainly wrong.
Free Speech
The Dispatch: The Conservative Legal Movement Is On a Collision Course With the New Right
By David French
In a nutshell, here’s what’s happening. The conservative legal movement is currently fighting a series of court battles, at all levels of the American courts, to weaken the ability of state actors to limit the liberty of government employees, government grantees, and participants in government programs.
The new right, by contrast, is vigorously proposing, supporting, and passing bills that contradict decades of conservative thought and violate volumes of hard-fought conservative precedent by seeking to strengthen government control over speech in the context of government employment, funding, and contracting.
Online Speech Platforms
National Review: The Internet Doesn’t Need Heavy-Handed Regulation
By Alden Abbott and Andrew Mercado
[Facebook vice president for global affairs and former U.K. deputy prime minister Nick Clegg’s] call for Congress to regulate speech designed to “mislead people and undermine public trust” and speech involving the use of social media in elections is particularly pernicious. Having the government police speech on the Internet is a recipe for widespread suppression of competing viewpoints and violates the First Amendment’s guarantee of freedom of speech…
Second, Clegg’s call for revising rules around the use of social-media platforms in elections and imposing liability on “malicious” political operations is suppression of speech at best, but it may also be unconstitutional.
Freedom of speech is a fundamental right set out in the Constitution. While it’s not a violation of free speech for platforms to monitor and regulate the speech occurring on their own platforms, free speech is threatened when targeted regulation is introduced to force the supervision of speech on platforms. Clegg claims regulation is the only way to prevent the United States from “becoming a nation that exports incredible technologies but fails to export its values.”
But his call for regulation of political speech on platforms is a paradox. If protection of speech is so fundamental to American values, then any regulation that suppresses political speech goes against those values. Political speech has long been protected by the Supreme Court, and Congress should not threaten that right just because the speech has moved online.
The States
Bangor Daily News: Maine House backs limiting foreign election spending in challenge to CMP corridor
By Jessica Piper and Caitlin Andrews
The Maine House of Representatives advanced a bill Wednesday to bar foreign government-owned companies from spending on state ballot questions after a Canadian energy company dumped millions into the Central Maine Power corridor referendum fight last year.
The bill — co-sponsored by Sen. Rick Bennett, R-Oxford, and Rep. Nicole Grohoski, D-Ellsworth — would outlaw companies with a foreign government ownership stake of greater than 10 percent from making contributions to ballot question committees or carrying out independent expenditures to support or oppose a referendum. It passed the House on Wednesday in a 76-55 vote…
Proponents argued the bill would close a loophole in the state’s election laws, saying it was nonsensical that companies could spend on referendums when they are unable to contribute to candidates.
“We cannot leave this loophole open and take the risk that hostile governments will not exploit it in our future,” Grohoski said.
WMUR: State campaign finance reform bill approved by NH House, sent to governor
By John DiStaso
The New Hampshire House on Thursday concurred with the state Senate’s approved changes to key contribution and reporting thresholds as part of a campaign finance reform bill that also does away with the state’s voluntary campaign spending limits program.
The House action to concur, on a 198-161 roll call vote, sends House Bill 263 to Gov. Chris Sununu without the need for a committee of conference. Sununu has not yet said whether he will sign the bill into law.
The Senate version kept in place the House’s move to end the voluntary campaign spending program that allowed candidates who abided by the limits to receive higher maximum contributions from individuals. But the program has been unused for many years.
The bill would end the current allowance for people considering running for state offices to accept pre-filing contributions that are currently at a maximum of $5,000 per donor. The current system then allows candidates who do not voluntarily limit spending to receive a maximum of $1,000 per donor for the primary election and the same amount for the general election.
Daily Journal: Lt. Gov. Hosemann’s inaugural nonprofit got $368k in unreportable donations, filings show
By Luke Ramseth
A nonprofit created to fund Lt. Gov. Delbert Hosemann’s inauguration raised hundreds of thousands of dollars in secret donations, with some gifts as large as $20,000, recent tax filings show.
The organization, Advance Mississippi 2020, raised the money to pay for inauguration events early last year including a gala and prayer breakfast, according to IRS documents submitted last month. The group was dissolved later in 2020 with the leftover money given to several charities.
The documents are the latest example of how Mississippi politicians can use nonprofits to sidestep the usual restrictions and transparency required by campaign finance laws. Unlike many other states and the federal government, Mississippi has no rules around how politicians raise, spend and disclose cash for their inaugurations…
So in Mississippi, unlimited and anonymous fundraising for inauguration festivities remains allowed. Other types of 501c4 nonprofits that participate in political activities in the state can do the same…
Experts say political nonprofits that don’t disclose their donors leave the public in the dark, with no clues about what interests they may represent and how they may seek to influence the politician while in office. Political campaigns are required to disclose these basic donation and spending details in order to increase accountability and transparency around the process.
