FEC
FEC: FEC to hold hearing on internet disclaimers Wednesday, June 27, and Thursday, June 28, 9:30 a.m.
On June 27, the Commission will convene a two-day public hearing on the Notice of Proposed Rulemaking (NPRM) regarding internet disclaimers and the definition of “public communication.” The NPRM contains proposals to amend Commission regulations concerning disclaimers on public communications on the internet that contain express advocacy, solicit contributions, or are made by political committees. The Commission has received over 165,800 public comments and signatories to others’ comments on the NPRM …
Eighteen individuals are scheduled to testify at the two-day hearing. The witnesses (with links to their or their organizations’ comments) are:
Allen Dickerson, Legal Director, Institute for Free Speech …
The hearing is scheduled to begin at 9:30 a.m. on June 27 and will be held at the Commission’s new headquarters at 1050 First Street, N.E., Washington, D.C. The full agenda is here: https://www.fec.gov/updates/june-27-28-2018-public-hearing/.
Politico: FEC dismisses coordination complaint against 2016 Democrats
By Maggie Severns
The FEC dismissed a complaint against Ohio Democrat Ted Strickland, his party’s 2016 nominee for Senate, deciding not to investigate claims that notes on Strickland’s website that appeared to be instructions for helpful super PAC ads were in violation of campaign law…
The FEC disagreed on whether the notes posted on Strickland’s website, which were echoed soon after in ads from Senate Majority PAC, were secret enough to constitute a violation of the federal ban on communication between campaigns and super PACs.
The FEC’s general counsel concluded that the communication between Strickland and Senate Majority PAC, because it was public, did not meet the commission’s current standard for violating the law. The similarities between Strickland’s messages and the ads “are insufficient standing alone to show that any additional private communications occurred,” the FEC general counsel said in its report…
FACT filed complaints about two candidates, Strickland and Pennsylvania Democrat Katie McGinty, alleging the ads were essentially excess campaign contributions. The commission, which has come under heavy criticism from watchdogs for not establishing more stringent guidelines for coordination between campaigns and super PACs, has now examined and dismissed both complaints.
FEC commissioners deadlocked 2-2 on the complaint against Strickland. Democratic Commissioner Ellen Weintraub and independent Steven Walther both indicated there was reason to believe Strickland had violated campaign law, and that the commission should embark on a full-blown investigation.
Event
Featuring Bradley Smith, Chairman and Founder, Institute for Free Speech and Josiah H. Blackmore II/Shirley M. Nault Professor of Law at Capital University Law School, Capital University; Lawrence Noble, former General Counsel, Federal Election Commission; moderated by John Samples, Vice President, Cato Institute.
Sixty years ago, the United States Supreme Court decided the landmark case of NAACP v. Alabama. In 1956, as part of the civil rights struggle, the state of Alabama sought the membership lists of the NAACP chapter in that state. The Court ruled against the state and discerned a “vital relationship between freedom to associate and privacy in one’s associations.” The decision remains a high point from the civil rights era. However, many now deny the Court’s assertion that a broad right to privacy offers a vital protection for the freedom to associate and to speak.
Since the decision, the Court has placed few limits on government’s power to mandate disclosure of political activities and associations. As the new online era of speech dawns, the principles at stake in NAACP v. Alabama remain at the center of public debates. Is the right to associational privacy recognized in NAACP v. Alabama still good law? Or should the Court reconsider the tie between privacy and association? Please join us for a vigorous debate that takes this important anniversary as a starting point for our common future.
Date: June 28, 2018
Time: 12:00 PM to 1:30 PM EDT
Location: Cato Institute
Supreme Court
Washington Post: Supreme Court says crisis pregnancy centers do not have to provide women abortion information
By Robert Barnes
The court’s conservatives said a California law likely violates the First Amendment. It required what are called crisis pregnancy centers – they promise prenatal care and help when the child is born – to post notices or tell clients about the state’s service.
Justice Clarence Thomas wrote the 5 to 4 decision.
He said that the “government-drafted script” specifically mentions abortion – “the very practice that petitioners are devoted to opposing.”
“By requiring petitioners to inform women how they can obtain state-subsidized abortions, at the same time petitioners try to dissuade women from choosing that option.. . . plainly alters the content of petitioners’speech,” Thomas wrote…
California said its messages take no position on abortion. It makes sense to require the centers to tell patients of the state’s offered services because that it is when women are most in need of them, the state contends.
In their brief to the Supreme Court, the centers said that “forcing a pro-life group to advertise for abortion has to be unconstitutional.”
They said the law violates two “cardinal First Amendment principles: it targets disfavored speakers and compels them to deliver the state’s message. And it does so in the context of speech on a subject where there is profound moral and ideological disagreement.”
CNN: Supreme Court upholds travel ban
By Ariane de Vogue and Veronica Stracqualursi
The ruling sends a strong message … that statements made during a campaign may not be legally determinative of the President’s intent…
[Challengers] used Trump’s statements during the campaign, when he called for a ban on travel from all Muslim-majority countries, but Roberts dismissed those concerns.
“Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition,” Roberts wrote. “But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.”
Free Speech
Concurring Opinions: FAN 194.7 (First Amendment News) The public dialogue continues – More from Nadine Strossen on ACLU free speech controversy
By Ronald K.L. Collins
Statement of Nadine Strossen:
I hasten to add that I agree with the Board’s judgment that these guidelines do not in fact alter the ACLU’s longstanding and proud -although always controversial – policy of defending freedom even for “the thought that we hate,” as Justice Holmes put it. Rather, the guidelines set forth and explain the factors that have always been pertinent to the intake process.
The guidelines lay out more than a dozen such factors. The one that has drawn criticism is the potential harmful impact of the speech at issue. But acknowledging this incontrovertible fact is NOT AT ALL to say that such harm would warrant the ACLU not taking the case. To the contrary, the guidelines expressly reaffirm that the ACLU will nonetheless do so. However, that consideration might well influence HOW the ACLU handles the case. Thus, the guidelines address the importance, when taking such cases, of seeking to mitigate the speech’s potential harm through the following means: retaining the ACLU’s right to speak against the views that it is defending from suppression; engaging in counter protest when appropriate; consulting with its allies to explain why it is taking the case; and devoting any attorneys fees earned to the competing civil liberties interests.
In fact, it has been a longstanding ACLU tradition, while defending freedom for anti-civil liberties views, to encourage its supporters to exercise their free speech rights to engage in “counterspeech,” protesting those views. During my tenure as President, the Board and staff repeatedly discussed such strategic considerations concerning speech with various anti-civil liberties and otherwise noxious messages, while nonetheless defending the right to purvey such messages; for the sake of the ACLU’s effective advocacy and pursuit of its overall mission, it would have been irresponsible not to do so.
Reason (Volokh Conspiracy): ACLU’s David Cole Responds About ACLU and the Freedom of Speech [UPDATED with comments from former ACLU leaders Nadine Strossen and Ira Glasser] [FURTHER UPDATED with link to Kaminer’s reply]
By Eugene Volokh
[FURTHER UPDATE: For Kaminer’s reply, see here.]
First Amendment Watch: Floyd Abrams Responds to Louis Michael Seidman’s “Can Free Speech Be Progressive?”
By Floyd Abrams
One cannot comment fairly about Professor Seidman’s offering without understanding who his intended audience must have been. They seem to be progressive scholars, like himself, who abhor the current state of First Amendment law on the ground, as he puts it, that it has not been sufficiently “weaponized to advance progressive ends.” …
But Professor Seidman does not offer any argument that might persuade any of us who admire the sweeping protections the First Amendment affords to free expression even to begin to reexamine our view that “weaponizing” the First Amendment to achieve progressive ends would be any more constitutional than reconstituting it to achieve conservative ones…
He criticizes, with no accompanying exposition, current Supreme Court First Amendment rulings as being rooted in an “obsession with government restrictions on speech” as if a First Amendment that begins with the words “Congress shall make no law abridging” does not focus on government overreaching…
He treats his own constituency-progressive lawyers, scholars and the like-as “victims” when their side loses cases in the Supreme Court rather than the people for whom they purport to speak or defend. How else can one understand Professor Seidman’s reference (without italics) to “proponents of campaign finance reform” as the supposed victims of the Citizens United case…
Most interestingly, Professor Seidman persuasively maintains that technological changes in the production and presentation of speech raise new issues about freedom of speech. He agrees with Professor Tim Wu that “speech clutter” rather than government suppression of speech is “the modern free speech problem.”
Donor Privacy
People United for Privacy: 60th Anniversary of NAACP v. Alabama (Video)
The landmark U.S. Supreme Court decision to protect the privacy of individuals who supported the NAACP’s efforts to end segregation happened 60 years ago this month. Today, however, the case’s protection of donor privacy is in danger of being undermined. You have the right to make a donation to a private, non-profit cause or group that you support without being targeted for harassment, intimidation, and even violence. Join us to defend your right to privacy.
Harassment
Politico: The left loses its cool
By Marc Caputo and Daniel Lippman
Two senior Trump administration officials were heckled at restaurants. A third was denied service. Florida GOP Attorney General Pam Bondi required a police escort away from a movie about Mister Rogers after activists yelled at her in Tampa – where two other Republican lawmakers say they were also politically harassed last week, one of them with her kids in tow.
In the Donald Trump era, the left is as aggressively confrontational as at any time in recent memory…
“If you see anybody from that Cabinet – in a restaurant, in a department store, at a gasoline station – you get out and you create a crowd. And you push back on them. And you tell them they’re not welcome anymore, anywhere,” implored California Democratic Rep. Maxine Waters at a Saturday rally, prompting an immediate conservative backlash on social media.
The intense, in-your-face approach toward public officials is only expected to intensify, fueled by social media and what appears to be an increasingly polarized and angry electorate…
As Republicans complain about the confrontations, Democrats say it’s a simple reaction to the president’s radical policies. It’s little different, they say, than what conservatives did to Democratic lawmakers during President Barack Obama’s first midterm elections, when town halls became spectacles of shouting about Obamacare…
What’s different now is the scope and scale of Republican officials – elected and otherwise, being confronted in public or semi-private venues.
The States
Baltimore Sun: Baltimore City Council backs public financing of campaigns
By Luke Broadwater
The public financing campaign fund was one of the three charter amendments that the City Council gave preliminary approval to Monday…
If the council votes for the measures one more time in July, they would be approved in time to go before voters in the November general election. Charter amendments must be approved at the ballot box.
But for a measure to get onto the ballot, Mayor Catherine E. Pugh would have to agree. She said Monday she hadn’t decided whether she would sign all three bills…
Under Burnett’s proposal, only candidates who agree to accept individual donations of less than $150 would be eligible for matching funds from the city. Individuals can now contribute up to $6,000 to a local political campaign.
Supporters want donations of up to $25 to be matched seven times – so a $10 donation would draw $70 in public funds.
But many details of the proposal remained unsettled – most notably, how to pay for it. The plan calls for establishing a revenue source for the proposed “Fair Election Fund” through an annual budgeted allocation, dedicating certain fines, fees and surcharges, and grants or donations, but makes no specific recommendations.
Burnett said a committee will iron out those details if voters approve the fund.
CBS Sacramento: California Considers Creating A Fake News Advisory Group
Senate Bill 1424 would require the California Attorney General to create the advisory committee by April 1, 2019. It would need to consist of at least one person from the Department of Justice, representatives from social media providers, civil liberties advocates, and First Amendment scholars.
The advisory group would be required to study how false information is spread online and come up with a plan for social media platforms to fix the problem. The Attorney General would then need to present that plan to the Legislature by December 31, 2019. The group would also need to come up with criteria establishing what is “fake news” versus what is inflammatory or one-sided.
The Electronic Frontier Foundation opposes the bill, calling it “flawed” and “misguided.” The group argues the measure would make the government and advisory group responsible for deciding what is true or false. It also points out the First Amendment prevents content-based restrictions, even if the statements of “admittedly false.” …
A previous bill, AB 155, would have required schools to teach students the difference between “fake news” and “real news.” It died in the Assembly Committee on Appropriations.
St. Louis Post-Dispatch: Greitens committed impeachable offenses, nonprofit was ‘a criminal enterprise from inception,’ letter says
By Jack Suntrup and Kevin McDermott
The chairman of the Missouri House committee that investigated former Gov. Eric Greitens sent out a scathing letter Monday calling Greitens’ dark-money group a “criminal enterprise” and saying that if Greitens had not resigned, the committee would have had the evidence to approve articles of impeachment…
In sending the letter, Barnes essentially announced the end of his committee…
Barnes said he did not believe the House had jurisdiction to investigate a former governor, but he offered three other entities that had the “potential” to further investigate Greitens: Attorney General Josh Hawley’s office, the Missouri Ethics Commission and Cole County Prosecutor Mark Richardson.
Barnes said he was preparing a complaint to the ethics commission alleging campaign violations against Greitens’ campaign and A New Missouri.
“Make no mistake,” Barnes wrote. “Missourians deserve a full accounting of A New Missouri, Inc., which I have come to believe was a criminal enterprise from its inception – designed to illegally skirt donation limits and conceal the identities of major donors to Eric Greitens and ballot initiatives relating to right-to-work that were supported by the former governor.”
