In the News
State Policy Network: Institute for Free Speech victorious in challenge to South Dakota’s out-of-state donor ban
By Matt Nese
When South Dakota tried to ban Americans from other states from contributing to its ballot measure committees, the Institute for Free Speech helped six clients challenge the law. A federal judge soon ruled the ban unconstitutional under both the First Amendment and the Commerce Clause of the US Constitution…
Judge Charles B. Kornmann held a trial and concluded, “the evidence presented in this case demonstrates how important out-of-state contributions are for the ballot question committees to pursue political speech. The State cannot enact restrictions that so completely prevent those pursuing unpopular laws from amassing the resources necessary for effective advocacy.”
The Institute for Free Speech joined forces with former South Dakota Attorney General Marty Jackley in the case. Jackley served as local counsel for the plaintiffs, which included the South Dakota Newspaper Association, South Dakota Broadcasters Association, South Dakota Retailers Association, South Dakota Chamber Ballot Action Committee, Americans for Prosperity, and former South Dakota resident Thomas Barnett, Jr.
In addition to arguing that the ban on out-of-state contributions violates the First Amendment, the Institute’s lawyers also argued that it violates the Constitution’s Commerce Clause, which gives Congress exclusive power “to regulate Commerce … among the States.” Judge Kornmann agreed.
“One question is whether campaign contributions constitute commerce,” he wrote. “They do…. [The law] is per se invalid because it was intended to discriminate against out-of-state interests. [It] without question violates the Commerce Clause and is unconstitutional.”
New from the Institute for Free Speech
South Dakota Law Punishes Protesters
By Mark D’Ostilio
South Dakota has become a hostile environment for those who enjoy exercising their right to free speech. Over the past few months, the right to assemble and speak freely has also come under attack in the state as lawmakers rushed to pass Senate Bills 189 and 190. The bills were created to discourage violent protests of the Keystone XL Pipeline; however, the short amount of time the lawmakers spent debating the bills left the final language vague and overly broad.
While proponents argue the new regulations are necessary to prevent violence, the unclear language of the law puts protesters’ freedoms in jeopardy and favors TransCanada’s pipeline over the constitutional rights of those who wish to protest the pipeline’s construction. Senate Bills 189 and 190 combine to make the act of “riot boosting” a crime, subject to monetary fines, civil action, and criminal penalties. The law is written so broadly that even non-participants in a protest who “direct(), advise(), encourage(), or solicit() other persons participating in the riot to acts of force or violence” can be prosecuted as a “riot booster.” According to the American Civil Liberties Union, “even a tweet encouraging activists to ‘Join a protest to stop the pipeline and give it all you’ve got!’ could be interpreted as ‘riot-boosting’ should a fight break out at the protest.”
This new regulation will deter Americans from joining in protests and exercising their First Amendment rights for fear of legal repercussions that could be brought under the new law…
Unfortunately, South Dakota is not the only place where the government has sought to chill protest activity. At the federal level, the National Park Service (NPS) took steps in August 2018 to crack down on protests in Washington, D.C. In particular, NPS proposed rules to abolish its practice of not charging protesters for cost recovery after using the National Mall as a forum to petition elected officials. IFS commented in November that this proposal would chill speech.
Campaign Finance Law Has No Answer for Trump’s Celebrity
By Luke Wachob
In a series of weekend tweets that went largely unremarked upon, President Trump tipped his hand regarding one of his strategies for the 2020 election: exploit free media for all it’s worth.
President Trump tweeted, “I enjoyed my interview with @GStephanopoulos on @ABC…. Think I will do many more Network Interviews, as I did in 2016, in order to get the word out that no President has done what I have in the first 2 1/2 years of his Presidency, including the fact that we have one of the best Economies in the history of our Country. It is called Earned Media. In any event, enjoy the show!” …
These days, everyone from academics to politicians to pundits seems to have a plan to insulate voters from levers of influence they consider illegitimate, from “money in politics,” to social media, to foreign propaganda. Yet hardly anyone talks about the enormous amount of “free” media that can be generated by celebrity candidates and incumbent presidents. The regulatory agenda focuses almost exclusively on restricting the comparatively much smaller amounts raised and spent by candidates, or on restricting the freedom of independent groups to speak without limit, or crushing regulatory burdens.
This approach exacerbates the advantages held by celebrity candidates…
While government has no role to play in dictating how media outlets cover elections, the unique advantages of celebrity candidates make a case for raising or eliminating contribution limits. They also demonstrate the value of super PACs…
Advocates of “leveling the playing field” have no answer to the advantages of celebrity candidates, so they mostly ignore them. That blind spot is one reason our campaign finance laws so often reinforce the power structures they were intended to disrupt. The freedom to speak and associate is what truly aids outsider political movements.
The Courts
Arkansas Times: Judge Moody stays injunction against state campaign finance law
By Max Brantley
Without explanation, federal Judge James Moody Wednesday granted a request by the state attorney general’s office to stay his preliminary injunction against the state law that prohibits campaign fund-raising more than two years before an election.
Peggy Jones, a Republican activist, filed the suit. Republicans want to raise money perpetually. Lt. Gov. Tim Griffin, who’s been planning a race for governor in 2022, has been particularly vocal about getting the law struck down. Jones said she hoped to give money now to Sen. Mark Johnson, who’ll run for re-election in 2022, and unspecified others.
Moody, in a brief order Monday, said Jones was likely to prevail in her lawsuit and issued the injunction. But the state asked him to put the injunction on hold while it appeals to the 8th U.S. Circuit Court of Appeals. Moody granted that motion without comment yesterday.
This drew a motion for reconsideration from Jones’ attorney Chad Pekron. He said the state has shown no likelihood of success in the appeal. He also argued:
“Defendants have failed to prove that the balance of the equities is in their favor. The only interest that Defendants have put forward is an interest in enforcing a law that they have admitted does nothing to combat corruption and that this Court has already determined is likely unconstitutional. On the other hand, Plaintiff’s First Amendment right to make political contributions to candidates of her choosing is clearly being restricted every day the injunction is not in place. The public interest, moreover, is on the side of permitting Plaintiff to exercise her constitutional rights. When in doubt, speech should be permitted, not restricted, particularly when the restriction at issue is likely unconstitutional.”
Memphis Commercial Appeal: Judge: MLGW technician fired for offensive racial statements must get his job back
By Daniel Connolly
A federal judge has ruled that Memphis Light, Gas and Water Division must rehire Mike Goza, the technician who was fired after a public backlash over offensive Facebook statements he made about African Americans and violence in Charlottesville, Virginia.
“Some of Goza’s statements may have been insensitive, offensive, and even bigoted, but they were protected by the Constitution nonetheless,” U.S. District Judge Jon McCalla wrote in the ruling, dated Friday. “MLGW thus violated Goza’s First Amendment rights when it demoted and fired him.” …
One of the novel issues in the Goza case is the role of social media in broadcasting Goza’s offensive views, and in enabling other people to complain about him.
“The rise of social media presents these issues in an unfamiliar context,” the judge wrote in his ruling. “The Court understands that government officials may soon have to weigh the free-speech interests of their employees against a tsunami of public uproar.”
But the judge wrote that MLGW was wrong. “The fear of ‘going viral’ by itself, does not appear to be a reasonable justification for a restriction on an employee’s speech. To hold otherwise would permit the government to censor certain viewpoints based on the whims of the public – or worse, based on a government official’s speculation as to the public’s eventual reaction.”
The judge wrote that his ruling wasn’t meant to protect all free speech for all public employees. He noted that some city employees, like police officers and firefighters, hold direct responsibility for life-and-death decisions. “The Memphis Police Department, for example, would likely be acting constitutionally if it disciplined an officer who used a racial slur on the job.”
Congress
National Review: Josh Hawley’s Internet Censorship Bill Is an Unwise, Unconstitutional Mess
By David French
Now we have the Republican version of a deceptively named bill, Missouri senator Josh Hawley’s Ending Support for Internet Censorship Act.
In reality, it’s a bill that would inject the federal government directly into the private social-media business and grant it enormous power over social-media content. It would enable public censorship in the name of limiting private control…
In many ways, Section 230 – far from creating a “special break” for computer services – codifies common sense. My Facebook comment is fundamentally my speech.
Hawley wants to replace common sense with a legal fiction, making Facebook responsible for user comments unless it can satisfy an extraordinary condition – it has to prove to the Federal Trade Commission by clear and convincing evidence that it doesn’t moderate content in a manner “designed to negatively affect a political party, political candidate, or political viewpoint” and that its moderation doesn’t “disproportionately restrict or promote access to, or the availability of, information from a political party, political candidate, or political viewpoint.”
Hawley’s standard is most assuredly not the viewpoint-neutrality standard seen in First Amendment case law. It’s a carnival funhouse version that would invite an enormous amount of bureaucratic meddling…
Defending social-media companies from government overreach is not the same thing as defending the merits of their moderation choices. Social-media companies have created vague standards, applied them in sometimes-biased fashion, and have struggled time and again to maintain any real consistency. There is need for reconsideration and reform, but not every reform has to come from Washington.
Reason: Almost No One Digs Josh Hawley’s Internet Censorship Proposal, Thank Goodness
By Elizabeth Nolan Brown
“This legislation is a sweetheart deal for Big Government,” said Rep. Justin Amash (R-Mich.) in a Twitter response. “It empowers the one entity that should have no say over our speech to regulate and influence what we say online.”
Joshua Wright, a former commissioner with the FTC and current law professor at George Washington University, deconstructs specific sections of the Hawley legislation in this thread. Overall, “a ‘Fairness Doctrine’ for the internet is a bad idea,” tweeted Wright. “And the bill quite literally injects a board of bureaucrats into millions of decisions about internet content. This is central planning. Full stop.”
Wright notes that “the bill asks the FTC to determine when social media platform moderation decisions are ‘designed to or intend’ to negatively impact a political party. Or when they have a ‘disproportionate impact’ on a party.” But “no FTC Commissioner is expert in assessing the design or intent of algorithmic decisions over content. Much less their disproportionate impact-compared to what? The impact of some hypothetically neutral moderation?”
Hawley’s bill “is wacky in a dozen little ways and in one huge way: It assumes there is such a thing as ‘political neutrality’ and that the FTC can define and enforce what that is,” tweeted Daphne Keller, director of Stanford’s Center for Internet and Society.
Sen. Ron Wyden (D-Ore.)-original author of Section 230, the federal law Hawley (and authoritarians on both sides) are determined to kill-also offers a good thread critiquing the bill: [thread]
The Verge: Both parties are mad about a proposal for federal anti-bias certification
By Colin Lecher
The social media platform Gab, which has styled itself as a radically laissez-faire alternative to platforms like Facebook and Twitter – and has earned a following from racists in the process – asked Hawley on Twitter whether the plan would “cement Big Tech monopoly status.” After Hawley responded that smaller companies would be exempted, Gab said it supported the idea. “These are very fair benchmarks and won’t hinder competing startups like Gab,” the company wrote. “You have our support Senator, would love to chat more about how we can help.” …
The nonprofit Open Technology Institute, part of the left-leaning think tank New America, said there are reasonable concerns about tech industry moderation practices, but that Hawley’s bill wasn’t the way to handle them. The group said “the concept of a ‘politically neutral’ platform is a broad, undefined one that creates an artificial, unmeasurable standard for platforms to meet.” …
NetChoice, an e-commerce association that also includes major tech companies like Facebook, Google, and Amazon, said the bill would turn the internet into “a hub of extremism,” and “embolden extreme political movements, such as the KKK.” The Computer & Communications Industry Association called the plan “ludicrous,” comparing it to 1984…
The libertarian group TechFreedom said “the bill would give politicians a gigantic regulatory hammer to use against Big Tech,” and giving the FTC certification power “would set up a partisan bloodmatch every other year.” …
Americans for Prosperity was also critical of the plan…
The Media Research Center, a conservative group set up to combat a perceived liberal bias in the media, was one of the few right-leaning organizations that threw support behind the plan, saying it was “the first major step toward holding tech giants like Facebook, Google and Twitter accountable.”
Online Speech Platforms
Slate: Breaking Up Facebook Would Be a Big Mistake
By Tyler Cowen
Facebook is under the most intense scrutiny for a host of well-known reasons: Russian use of the social network to interfere in our elections, repeated violations of Facebook users’ privacy, and recurring controversies over where the company should draw the line around what constitutes permissible speech on its platform. What all of these issues have in common, curiously, is that they have nothing to do with violating antitrust law by being an unlawful monopoly…
It is commonly alleged that Facebook has a monopoly on social networking, yet unlike traditional villainous monopolists, Facebook has not raised prices-the service is free-or restricted output. And people do not use Facebook because the company has emptied their lives of alternatives…
American antitrust law doesn’t penalize bigness or social influence per se. There may well be features of the major tech companies you don’t like, such as their privacy implications or how they have shifted the balance of power in politics, but that is not a sound legal basis for dismantling them…
Another claim you hear is that the big tech companies must be taken down a notch because otherwise they will control our government. But the evidence does not support that assumption… The tech companies are spending more and more on lobbying as time passes, but for them and their revenue models the D.C. scene remains a sideshow.
The tech companies also have been losing plenty of political battles. In general, they did not favor the election of Donald Trump, nor have they pushed for an immigration crackdown-quite the contrary-or the current spate of trade wars.
To see the limits of Amazon’s influence, even at the level of local government, consider the company’s withdrawal from its planned Long Island City location in Queens, New York. If the company really is pulling all of the strings, why did it find the hostile political environment so troubling? Why didn’t it just stick around and bulldoze the opposition into submission?
Candidates and Campaigns
Politico: Michael Bennet pushes sweeping plan to remake political system
By Elena Schneider
Bennet is calling for a constitutional amendment to overturn Citizens United, a lifetime ban on members of Congress becoming lobbyists, a prohibition on political gerrymandering and a push for ranked choice voting. Bennet is also supporting a laundry list of long-desired Democratic reforms, including automatic voter registration, D.C. statehood and greater transparency around super PAC fundraising and spending.
Many of his proposals are already popular with other Democratic presidential candidates. But Bennet says he’s setting himself apart by putting these plans at the center of his campaign, arguing that reforming the American government is essential because “so much of what we want to get done, from climate to health care to changing the tax code, is going to require us to reform the way this democracy works,” Bennet said in an interview with Politico.
“There’s not an alternative mechanism for us to resolve our disputes and move the country ahead,” Bennet said. “If we need to clean it up the way Teddy Roosevelt cleaned it up when he became president, before we can do a lot of this work, that’s something we need to do.” …
One part of Bennet’s proposal, a lifetime ban on members of Congress becoming lobbyists, puts him on the same side as an old foil: Cruz. The Texas Republican and Rep. Alexandria Ocasio-Cortez (D-N.Y.) recently agreed over Twitter to work together on a lobbying ban, which Bennet said he was “really happy to see” they both came out in favor of it.
“For a long time, I couldn’t get anyone on that bill,” Bennet said. He has introduced a bill that would ban that practice in several legislative sessions, even running on it in his first campaign ad in 2010.
“I don’t know if they’ve got their own plan, but I hope they look at my plan,” he added.
The States
Oregonian: Oregon lawmakers wavering on campaign finance reform
By Rob Davis
An effort to ask Oregon voters whether they want to make campaign donation limits constitutional is scheduled for a vote by the state Senate on Friday.
But House Speaker Tina Kotek, D-Portland, has not committed to holding a vote on the Senate measure…
“I think it’s important to pair a constitutional referral with an explicit plan for capping contributions that preserves the ability of Oregonians to participate fairly and transparently in the political process,” Kotek told The Oregonian/OregonLive in a statement. “We may get to that this session or in next year’s session. I support getting that done.”
Legislation that would have set specific dollar limits on contributions, House Bill 2714, has faltered in the Senate…
Like Kotek, Senate Majority Leader Ginny Burdick, D-Portland, wanted the Legislature to adopt specific limits before asking voters to amend Oregon’s Constitution to make limits legal. But Burdick moved the constitutional referral, Senate Joint Resolution 18, out of the Senate Rules Committee on Monday, saying limits could wait until the short session in 2020…
Burdick made clear in a Monday hearing that she wanted the Legislature to set limits that were not too restrictive.
“The concern has always been if we set the limits too low, the candidate will lose control of their campaign and it will all be done as independent expenditures,” she said…
One pending bill would add requirements for campaigns to disclose their funders in their advertising. Another would require for nonprofits that spend money campaigning for or against candidates to report their largest donors.
Colorado Public Radio: Colorado Dems Have A Plan To Shine A Light On Dark Money. Could It Work?
By Sam Brasch
The Clean Campaign Act forces nonprofits or labor unions to disclose any donors who give more than $10,000 for a political purpose…
By focusing on earmarked donations, Sec. Griswold said the law helps get around the “Russian doll problem.”…
Paul Seamus Ryan, vice president for policy and litigation for Common Cause, a national good-government group, said a similar requirement already exists at the federal level. To get around it, donors simply don’t earmark their donations.
“They don’t write anything on the memo line of the check. They don’t send an email. They simply refrain from designating or earmarking the money in any way,” he said. “Under the new Colorado law, or at least my reading of it, those donors don’t have to be disclosed.”
Catherine Hinckley Kelley, director of policy and state programs at the Campaign Legal Center, said the Colorado law is a big step in the right direction. According to her analysis, only three other jurisdictions have “some sort of mechanism to get back to the original donor.” Those include Rhode Island, California and the city of Austin, Texas.
But Hinckley Kelley also thinks savvy contributors will be able to get around the requirement. Even if they don’t earmark a donation, the law allows them to ask to remain anonymous if they face a reasonable threat of harm or harassment…
Scott Gessler, a former Republican Secretary of State and an election lawyer, said Colorado already has some of the most restrictive campaign finance laws in the country. His worry is that any additional requirement will only hurt small groups that can’t afford expensive election lawyers.
“And what happens is only the most sophisticated groups can be effective,” he said.
Salt Lake Tribune: Midvale passes new rules to block a Confederate group from marching again in its annual parade
By Taylor Stevens
The Midvale City Council has voted to allow groups and individuals to walk in its annual Harvest Days Parade by invitation only – a move that follows the appearance of a Confederate group at the event last year.
The policy, approved unanimously by the five-member council Tuesday, is meant to establish the parade as government speech rather than an open public open forum and notes that the city will now bar messages the council views as “inappropriate” for residents and visitors or ones that are “divisive, degrading, or obscene.”
Councilman Dustin Gettel, who told The Salt Lake Tribune in August that he was interested in finding a way to stop the Sons of Confederate Veterans from marching again, said the new policy will better reflect the event’s purpose as a celebration of the city’s community and heritage…
In a briefing on the parade policy before the vote on Tuesday, City Attorney Lisa Garner noted that the U.S. Supreme Court ruled in Pleasant Grove City v. Summum that governments can control their own messages – but that doesn’t mean there couldn’t be “potential problems,” including the possibility of a court challenge…
Councilman Paul Hunt, who voted for the policy Tuesday, had expressed some trepidation over the rules in a recent meeting, noting that the council “took an oath of office to uphold the Constitution” and First Amendment rights of free speech…
Gettel, though, told The Tribune that the case law is clear, and he doesn’t believe the new rules will trample anyone’s right to free speech.
“We’re not saying they don’t have the right to exist,” he said of the Confederate group. “They have the right to protest. If they want to show up at the parade as some sort of peaceful protest, they have every constitutional right to do so. What I’ve argued the whole time is there’s no constitutional right to participate in a city’s parade. Otherwise, parades would just be free-for-alls.”
