In the News
Center for Individual Freedom: A Win for the First Amendment (audio)
David Keating, President of the Institute for Free Speech, discusses a recent federal court decision regarding a new South Dakota law that banned Americans from other states from contributing to ballot measure campaigns in South Dakota and why the court ruled the law unconstitutional under both the First Amendment and the Commerce Clause of the U.S. Constitution.
New from the Institute for Free Speech
Simple, Bipartisan, and Unconstitutional: Cruz-Ocasio-Cortez Lobbying Ban Violates First Amendment
By Zac Morgan
As the D.C. Circuit noted forty-five years ago, while “[l]obbying is of course a pejorative term…another name for it is petitioning for the redress of grievances. It is under the express protection of the First Amendment.” Congress cannot write away the First Amendment right to petition government of its members now and for posterity. If it could, would Congress also have the power to restrict or ban other protected First Amendment activities that are related to members’ service in Congress, such as becoming a journalist, TV pundit, anchor, radio talk host, or opinion columnist?
Nearly a decade ago, the state of Ohio tried to prohibit members of the state legislature from doing any uncompensated lobbying for a mere year after leaving office. A former legislator filed suit, and in Brinkman v. Budish, a federal judge found the prohibition facially unconstitutional under the First Amendment. Similar reasoning would apply to the lifetime ban being proposed by Ocasio-Cortez and Cruz, even if their ultimate legislation limits itself to the regulation of paid lobbying. After all, while there might be a reasonable government interest in a temporary ban (as exists now), there seems to be no interest in making it a permanent lifetime ban.
The actual text of the legislation may only further compound these constitutional harms. Will the legislation apply the current definition of lobbyist codified at 2 U.S.C. § 1601(10), or will it replace it with a broader definition that would prevent former members from working in any capacity at a trade association or nonprofit advocacy group like the ACLU? Will the $2,500-in-payment registration threshold of 2 U.S.C. § 1602(3) apply, or will any payment – even reimbursement for an Amtrak ticket – be verboten? Will it apply to former members becoming state lobbyists? (In which case, aside from federalism concerns, the law would quickly prevent former members of Congress from ever speaking about policy, even for free, with any officials in Jefferson City, Missouri.)
Supreme Court
Slate: The Supreme Court Just Made It Easier for Police to Arrest You for Filming Them
By Brian Frazelle
The First Amendment makes it unconstitutional for government officials to retaliate against you because they dislike your speech. At the same time, federal law gives you the right to sue state officials for compensation if they violate constitutional rights such as your right to free speech. But on Tuesday, the Supreme Court invented a rule that will often allow police officers to arrest people in retaliation for disfavored speech without liability…
In Nieves v. Bartlett, a divided court ruled that individuals can’t sue police officers for retaliatory arrest if those officers had probable cause to arrest them for any crime, no matter how minor-and that’s true even if the real reason for the arrest was speech the officers didn’t like. In other words, if you are jaywalking in violation of a local ordinance, officers can arrest you without fear of liability even if they’re making the arrest only because you’re participating in a Black Lives Matter demonstration or wearing a “Make America Great Again” cap…
Justice Neil Gorsuch, to his credit, was having none of this, insisting in dissent that there is “no legitimate basis for engrafting a no-probable-cause requirement onto a First Amendment retaliatory arrest claim.” Adopting a central point of [the Constitutional Accountability Center’s] amicus brief, Gorsuch explained that “a First Amendment retaliatory arrest claim serves a different purpose” than claims based on a lack of legal authority to arrest and that “that purpose does not depend on the presence or absence of probable cause.”
The only silver lining in all this is that the court did create an exception to its harsh new rule. Even if police have probable cause to arrest, a plaintiff can still prevail by showing that the police “typically exercise their discretion” not to make arrests in similar circumstances. It’s unclear how this vague exception will be applied by the lower courts and whether it will have enough teeth to prevent cops from feeling free to operate with impunity. Gorsuch expressed optimism that the exception would be read broadly and “commonsensically” in future cases. Let’s hope he’s right.
The Atlantic: John Roberts Strikes a Blow Against Free Speech
By Garrett Epps
The old legal adage claims that “hard cases make bad law.” More and more I think hard cases are good-they require both lawyers and judges to be exact about their facts and their legal theories. It is the easy case that tempts courts to sloppiness. Nieves v. Bartlett is an easy case, and the Court majority has used it to affect a lot of hard ones.
This case is easy because as the Court reviewed the facts alleged, the police officer should win…
Bartlett testified later that once he was cuffed, Nieves taunted him: “Bet you wish you would have talked to me now.”
This is, as Justice Ruth Bader Ginsburg noted in a separate concurrence that is in effect a dissent, a “thin case.” There’s no additional evidence that Nieves made the admission-complete news footage of the confrontation did not survive. As Ginsburg wrote, there is “some evidence of animus … but perhaps not enough to survive summary judgment.” Had the Court majority wished to erect a heightened-evidence standard, it could have done so; instead, it came up with a rule whose nod to the First Amendment is cursory at best…
Roberts’s test comes to our constitutional doctrine more or less out of thin air. The chief justice, a First Amendment tiger when the rights of rich campaign donors are at issue, clearly frets that ordinary people-protesters, let’s say randomly-will bother hardworking police. Remarkably enough, Roberts gathered five votes for his invented rule-his own plus those of Justices Stephen Breyer, Samuel Alito, Elena Kagan, and Brett Kavanaugh.
The Courts
Lexington Herald-Leader: Appellate court upholds state ban of gifts, money to Kentucky lawmakers
By Jack Brammer
Kentucky lawmakers cannot accept gifts from lobbyists and lobbyists cannot make campaign contributions to candidates for the state legislature, a federal appellate court ruled Thursday in a victory for the state’s legislative ethics code.
The ruling by the U.S. Sixth Circuit Court of Appeals reversed a June 2017 ruling by U.S. District Judge William O. Bertelsman of Covington.
The appellate ruling involved a September 2015 case in which state Sen. John Schickel, R-Union, and two Libertarian political candidates sued to overturn state laws limiting campaign contributions to $1,000 and prohibiting gifts to legislators from lobbyists.
Bertelsman declined to rule on the issue of campaign contribution limits, saying the issue was moot because the legislature in 2017 doubled the limit. He did, however, rule that legislators cannot set up caucus campaign committees, which give unlimited contributions to campaigns.
He also said the state’s prohibition on gifts to legislators was too vague.
The Kentucky Legislative Ethics Commission on Thursday issued a news release praising the appellate court’s decision to reverse Bertelsman’s ruling and uphold the constitutionality of the ban on gifts and contributions from lobbyists, which is in the Kentucky Code of Legislative Ethics.
It said the appellate court agreed that these measures, “enacted to prevent corruption and protect its citizens’ trust in their elected officials,” are constitutional.
In its 26-page ruling, the appellate court said “Kentucky’s legislature acted to protect itself and its citizens from the damaging effect of corruption. Because these laws are closely drawn to further Kentucky’s anti-corruption interest, they pass constitutional muster.”
First Amendment
Business Insider: Alexandria Ocasio-Cortez blocked a conservative news outlet on Twitter, and legal experts say that could be unconstitutional
By Eliza Relman
Rep. Alexandria Ocasio-Cortez blocked the right-wing media outlet The Daily Caller from following her on Twitter account last week – a decision some legal experts say may have violated the First Amendment.
The Daily Caller’s account tweeted at Ocasio-Cortez last Thursday disputing a comment she made about her Green New Deal resolution. Ocasio-Cortez responded by blocking The Daily Caller from following or reading her tweets.
Last year, a federal court in New York found that President Donald Trump’s practice of blocking critics on Twitter – and thus preventing them from interacting with his account – was unconstitutional. The court held that when the president and other public officials use online forums like Twitter for government business, they transform them into public forums subject to First Amendment protections…
And the Fourth Circuit Court of Appeals ruled in January that a local elected official in Virginia violated the First Amendment when she blocked a constituent on Facebook for 12 hours.
Katie Fallow, a senior attorney at the Knight First Amendment Institute at Columbia, which brought both cases, said the same rules apply to Ocasio-Cortez’s Twitter…
But other legal experts are unconvinced by these arguments.
Ken White, a First Amendment law and criminal defense attorney at Brown White & Osborn (and also a blogger at the popular legal site, Popehat), said he doesn’t believe Ocasio-Cortez or Trump violated the free speech rights of those they’ve blocked.
“It doesn’t stop anyone from speaking – it’s a choice by one particular person not to interact with this other person,” he told INSIDER. “There’s a right to petition the government, but there’s no right to be heard – there’s no right for them to listen to you.”
Lobbying
The Federalist: In Defense Of Lobbying
By David Harsanyi
Now, I don’t very much care for rent-seeking lobbyists, but I care even less for bipartisan attacks on the First Amendment, which have a long history of being as useless as they are unconstitutional…
Then again, those you do vote into office know well that the average American sees “lobbying” as a catch-all for all the troubles in the world. For progressives, it’s about “corporate interests” or oil companies or Koch brothers. For conservatives, it’s unions and environmentalist groups and George Soros. For everyone, “special interests” is just a euphemism for political advocacy they dislike…
However pernicious you might find these various causes, speech that advocates for issues you dislike isn’t “corruption.” We already have laws prohibiting fraud and bribery. Sometimes lobbyists break those laws and are prosecuted. Most of the time they do not.
As hard as it may be to believe, lobbyist speech can also be beneficial. Sometimes individuals in an industry pool their resources and hire a lobbyist who makes arguments and offers expertise-biased as it surely is-that politicians aren’t aware of. The downside, upside, or cost of legislation, for example. Surely there are ignorant elected officials who harbor puerile ideas about the world that might benefit from hearing more information and debate…
There are lobbyists for construction workers, nurses, casket makers, lawn-care providers, and numerous other industries that most voters probably find morally neutral. Yet, not one of these outfits, not even the ones with the most money or the most politicized agendas, has ever controlled your vote or the vote of your cowardly elected official.
Politicians rely on groups whose views comport with their own agendas. Banning speech won’t change that reality.
Privacy
Fox News: Daily Beast accused of ‘doxxing’ alleged creator of ‘Drunk Pelosi’ video
By Frank Miles
The Daily Beast faced a heavy backlash on social media Sunday after one of its reporters was accused of doxxing a private citizen who allegedly created a manipulated video that falsely portrays House Speaker Nancy Pelosi, D-Calif. as if she were intoxicated and posted it on Facebook.
Daily Beast reporter Kevin Poulsen tweeted Saturday night that he had been “looking for the Russian troll behind the ‘Drunk Pelosi’ viral video hoax. Turns out he’s an itinerant forklift operator from the Bronx who’s been secretly running hard-right ‘news’ outlets across social media for years. Also, not Russian.” The tweet included a link to a story that identified the man by name and detailed his employment history, past relationships and social media footprint…
The Daily Beast report was met with strong criticism from reporters for outlets with varying editorial slants. Huffington Post and New York magazine contributor Yashar Ali tweeted: “[I]t sets a really bad precedent when a private citizen, particularly someone who is working a blue collar job, has their identity publicly revealed simply because they made a video of a politician appearing to be drunk. His identity offers nothing to this story.”
The Wrap media editor Jon Levine described the story as “[a] hit job on a completely private citizen … over a joke video of Pelosi that happened to go viral.” …
Facebook’s refusal to take down the video sparked an outcry among prominent Democrats, with Hillary Clinton describing it as “sexist trash” during a commencement address at Hunter College in New York City last week. Pelosi said in San Francisco that she is no longer giving Facebook the benefit of doubt that it is “unwittingly” spreading false information. She said Facebook is serving an accomplice and enabler of false information and Russian elections interference.
Facebook’s Head of Product Policy and Counterterrorism Monika Bickert said that users are being told that the video is false when they view or share it.
Fundraising
Washington Post: In need of cash, Democratic presidential hopefuls turn to wealthy donors
By Michelle Ye Hee Lee
Last month in Manhattan, Beto O’Rourke held a private reception for supporters who had paid the maximum amount to his campaign or brought in as much as $25,000 by persuading others to do the same.
It was the first such fundraiser of O’Rourke’s presidential bid – and a contrast from the early days of his campaign, when he emphasized that he had “no large-dollar fundraisers planned, and I don’t plan to do them.”
Across the Democratic field, candidates are embracing the big donors they distanced themselves from early on…
Sen. Bernie Sanders (I-Vt.), who famously built his campaign around small donations in 2016, on Saturday held his first fundraiser of the primary this weekend in San Francisco. However, he has priced the lowest-tiered ticket at $27 – the average donation to his campaign in 2016.
Sen. Cory Booker (N.J.), Gillibrand and Klobuchar recently schmoozed with the “Hillblazers,” who raised at least $100,000 for Hillary Clinton’s 2016 presidential campaign…
In Los Angeles, some of the wealthiest Democratic donors have made maximum $2,800 contributions to more than a dozen Democratic presidential candidates, according to someone familiar with the contributions. The person spoke on the condition of anonymity to describe private matters.
In New York, a group of wealthy and prominent Democratic donors recently opened their homes and offices in Manhattan to host O’Rourke, Buttigieg, Klobuchar, Booker and Sen. Michael F. Bennet (Colo.) for private “salons,” according to a person familiar with the gatherings, who spoke on the condition of anonymity to discuss private events.
The States
Las Vegas Review-Journal: Nevada campaign finance reform bill advances
By Rachel Crosby
An eleventh-hour measure that stands to tighten Nevada’s lax campaign finance statutes unanimously passed out of committee Sunday, though two Republican senators argued it didn’t go far enough.
“I think it’s going to be so easy to circumvent the intent of this,” Sen. Keith Pickard, R-Henderson, said before voting to approve Senate Bill 557.
Senate Majority Leader Nicole Cannizzaro, D-Las Vegas, introduced the bill late Saturday. The measure would require any organization that donates more than $10,000 to a candidate during a campaign cycle to disclose the contributions in an annual report to the Nevada secretary of state’s office, detailing each contribution of more than $100.
Pickard said it takes “about 15 minutes” to create entities on the secretary of state’s office, “so it would be very easy to give $9,999 contributions, and they would go completely unreported.”
A more stringent version of a campaign finance bill was introduced last month by Senate Minority Leader James Settelmeyer, R-Minden. It would have required any individual or organization that donates $1,000 or more to candidates or political action committees to report such donations to the secretary of state’s office. But the measure died without a hearing.
Pickard said he wished the threshold for the new measure was closer to $1,000.
“I think that this is a little bit fast to do something so important,” Pickard said. “I’d like to take some time and explore it, even if it’s later today or behind the bar to see if we can obtain agreement on a lower threshold so that this becomes meaningful.”
Sen. Heidi Gansert, R-Reno, agreed.
“We don’t have a lot of time to work on this, and I think we absolutely need to do something to increase transparency and accountability around campaign finance,” Gansert said.
NJ.com: Democrats could deal Murphy a huge blow as they mull a veto override on ‘dark money’ bill
By Matt Arco
New Jersey state lawmakers are “actively discussing” overriding a Gov. Phil Murphy veto, further signaling heightened tensions between the governor and his fellow Democrats who lead the state Legislature, one of the bill’s sponsor said…
The bill still has broad support among lawmakers and discussions of an override are happening as a meeting between lawmakers and the governor’s staff slated for Thursday was abruptly postponed, NJ Advance Media has learned…
“We are actively discussing the possibility of a veto override,” said state Assemblyman Andrew Zwicker, one of the so-called dark money bill’s prime sponsors.
“It is not my preference,” Zwicker, D-Somerset, said. “But I do feel very strongly that this is a good government bill and we need to act now.” …
Making matters worse, Murphy’s comments Wednesday defending his conditional veto further escalated tensions, [state Sen. Troy Singleton, D-Burlington] said.
The governor said the legislation they sent him was “not as good as what we’ve given back” in the form of a conditional veto.
“I think the atmosphere was challenged a little bit by some of the governor’s comments,” he said. “(We) took offense to the idea that what we sent was somehow weaker than what was sent back by the governor’s office … (and) we didn’t want to have the discussion steeped in emotion. We’re trying to take a step back to see if there’s a path forward.”
Lawmakers need two-thirds majority to override a governor’s veto.
The bill passed the state Senate 33-0 and the state Assembly 66-2 in March.
