In the News
Nossaman: Compliance Notes: Volume 1, Issue 11
Political Speech & Campaign Advertisements
New Jersey: Two New Jersey Congressional candidates filed a complaint asking a federal court to declare the state’s restrictions on campaign slogans unconstitutional as violations of candidates’ right to free speech. The candidates contend that the law prohibits slogans that name or refer to a person or entity other than the candidate, unless there is permission granted by the referenced person or entity. The law has fueled a competition in the state to incorporate entities in order to own the rights to their names for ballot slogans and exclude others from using them.
[Ed. note: The Institute for Free Speech represents the plaintiffs in the case, Mazo and McCormick v. Way, et al.]
Supreme Court
Class Defense Blog (Mayer Brown): Supreme Court to decide what constitutes an autodialer under the TCPA
By Archis A. Parasharami and Kevin Ranlett
In a very big deal for TCPA class actions, the Supreme Court granted review today in Facebook, Inc. v. Duguid. The petition (pdf) raises the most significant issue in litigation under the Telephone Consumer Protection Act (TCPA): what kind of equipment constitutes an “automatic telephone dialing system” (ADTS) triggering the TCPA’s restrictions on calls and texts? (The other question presented by the petition-the constitutionality and severability of the exception for government debts-was decided by the Court earlier this week.)
FIRE: First Amendment News 262- Court declines to revisit Hill v. Colorado
By Ronald K. L. Collins
Last week the Court denied review in Price v. City of Chicago, Illinois. The issue in Price according to SCOTUSblog is: “Whether the Court should reconsider Hill v. Colorado in light of its intervening decisions in Reed v. Town of Gilbert and McCullen v. Coakley.”
The case involved pro-life “sidewalk counselors” who sued to enjoin Chicago’s “bubble zone” ordinance, which bars them from approaching within eight feet of a person in the vicinity of an abortion clinic if their purpose is to engage in counseling, education, leafletting, handbilling, or protest.
The district judge dismissed the claim, relying on Hill v. Colorado, which upheld a nearly identical Colorado law against a similar First Amendment challenge and the Seventh Circuit affirmed. In doing so, Judge Diane Sykes declared:
The road the plaintiffs urge is not open to us in our hierarchical system. Chicago’s bubble-zone ordinance is materially identical to – indeed, is narrower than – the law upheld in Hill. While the Supreme Court has deeply unsettled Hill, it has not overruled the decision. So it remains binding on us.
Congress
WMTW Portland: Maine congressman Jared Golden unveils agenda to ‘fix a broken Washington’
By Phil Hirschkorn
Freshman Democratic congressman Jared Golden announced a pair of new reform measures today to curb the influence money in politics that he describes as systemic roadblocks to progress…
His Crack Down on Dark Money Act would require tax-exempt groups that spend on political campaigns to disclose all of their donors who give $5,000 or more. It would also set a cap on political activity at 10% of their annual spending,
“Their purpose is not supposed to be about politics,” Golden said. “These groups are becoming almost like a form of straw donor, where people are bypassing campaign contribution caps and spending caps, but they’re also shielding the identity of their donors.”
The groups are tax-exempt due to their status as nonprofits or social welfare organizations. The collectively spend hundreds of millions of dollars on TV ads every election cycle.
“People want to know who is paying for these ads either pro or con in support of an issue or a candidacy. I think people have a right to know, Golden said. “That’s why I call it a loophole you could drive a Mack truck through. It is making a mockery of campaign finance laws.” …
Golden said greater donor transparency could deter the negative ads by dark money groups.
He said, “Whether it is benefiting you our hurting you, and in most campaigns it’s both, we should put a stop to it. Because it’s the explosion of money. I don’t know anyone in Maine that doesn’t agree the political spending and the advertisements aren’t way out of control.”
Florida Politics: Ross Spano doubles down on rule-breaking Facebook ads
By Peter Schorsch
Last week, U.S. Rep. Ross Spano got called out by Republican primary opponent Scott Franklin for using taxpayer dollars to promote himself on Facebook.
This week, his campaign defended its use of more than $117,000 in public money to buy ads featuring Spano’s face and political messages, not by denying they were political, but by pointing to their technical legality.
Candidates are allowed to use their budgets to communicate with constituents about government issues, though they usually are blocked from doing so within 90 days of an election.
The CARES Act changed that under the pretense that members of Congress should be able to reach out to their constituents during a public health emergency such as the coronavirus pandemic.
“We make no apologies for keeping all FL-15 constituents informed since the pandemic began,” Spano’s communications director, Daniel Bucheli, told the Lakeland Ledger. “Had anyone bothered to do the least bit of research, they would have known that we are currently under a House Administration exception which allows for COVID-19 communications with our constituents.” …
The rules state the blackout exemption applies solely to communications that “serve the bona fide purpose of protecting life and safety.”
On what planet does an ad touting Spano as “pro-business and pro-family” save lives?
The Hill: House Democrats press Twitter, Facebook, Google for reports on coronavirus disinformation
By Maggie Miller
Democrats on the House Energy and Commerce Committee are pressuring Twitter, Facebook and Google to be more transparent about COVID-19 disinformation on their platforms, asking the tech giants to produce monthly reports on the issue.
In letters to the companies sent Wednesday, House Energy and Commerce Committee Chairman Frank Pallone Jr. (D-N.J.) and subcommittee leaders Reps. Diana DeGette (D-Colo.), Mike Doyle (D-Penn.), and Jan Schakowsky (D-Ill.) detailed concerns that the “rise of false or misleading information” around the coronavirus could lead to real-world consequences.
“This disinformation has ranged from false statements about certain groups being immune from contracting the virus to unsubstantiated assertions about masks and vaccines,” the Democrats wrote. “This type of disinformation is dangerous and can affect the health and well-being of people who use this false information to make critical health decisions during this pandemic.”
By Joseph A. Wulfsohn
Ranking member of the House Judiciary Committee Jim Jordan, R-Ohio, is calling on Twitter to release documents pertaining to its recent crackdown on President Trump’s tweets.
In a letter…sent to Twitter CEO Jack Dorsey on Wednesday, Jordan accused the tech giant of increasingly exerting “editorial control” over prominent conservatives, including the president, and how it “has not taken similar actions” with prominent liberals, which the congressman says questioned whether Twitter “is not moderating user content in a viewpoint-neutral manner.” …
“While Twitter has sought to silence conservative voices, including the President of the United States, on its platform, Twitter has allowed violent extremists to use its platform with apparent impunity,” Jordan wrote before citing tweets made by Iranian Supreme Leader Ali Khamenei. “Twitter’s discrimination against conservative voices is extremely alarming. These actions give rise to concerns that the company is systematically engaged in the disparate treatment of political speech and is deceiving users of the platform by not uniformly applying its terms of service.”
Free Speech
Reason: Lefties Hate on Liberal Open Letter on Free Speech
By Matt Welch
In his masterful 1993 book Kindly Inquisitors: The New Attacks on Free Thought, and especially in his 2013 afterward, [Jonathan] Rauch…made the persuasive point that those in society with the least power have the most to gain from a legally and culturally robust arena for speech and debate.
“For politically weak minorities, the best and often only way to effect wholesale change in the world of politics is by effecting change in the world of ideas,” wrote Rauch, citing the long and sometimes hopelessly uphill battle to achieve legal equality for gay Americans. “Our position as beneficiaries of the open society requires us to serve as guardians of it. Playing that role, not seeking government protections or hauling our adversaries before star chambers, is the greater source of our dignity.”
In his terrific Clear and Present Danger podcast, Jacob Mchangama hammers home a similar point: Free speech is a potent and historically rare weapon for the powerless; blasphemy and other hate-speech laws are the crutches of authoritarians…
[T]here is a…generous and thought-provoking reading [on the “culture of free speech” debate], one offered frequently by Popehat, and more extensively in a recent essay by Osita Nwanevu in The New Republic. Which, in a nutshell, is: Freedom of association is crucial, too, man.
Online Speech Platforms
Washington Post: The Facebook boycott is illiberal. Who has the courage to oppose it?
By Joe Lonsdale
The recent corporate boycott of Facebook must be recognized for what it is: a craven capitulation to a mob that, left unopposed, would destroy free speech. More than 700 companies, including Unilever, Coca-Cola and Starbucks, have joined the #StopHateForProfit movement, led by a group of nonprofits that aims to curtail speech on social media platforms, especially Facebook…
Speech is often ugly. But a crown virtue of U.S. society is our commitment to free speech, including what some call hate speech. Social media platforms that aim to encourage speech have a duty to protect it as well…
Intellectual freedom is part of John Milton’s “known rules of ancient liberty,” which form the basic habitat of Western culture. This principle was beloved by Cicero, John Locke and the American founders. Tolerance of others’ expression – no matter how offensive – is a precondition for democracy.
Globally, free speech is in retreat. And censorship – whether by foreign governments or social media platforms – is always political…
John Stuart Mill wrote that “If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.” . . . At a time when authoritarian countries are using technology to corral speech instead of liberate it, our leaders ought to blaze a different path. Do courageous business leaders remain? Who will speak for the American heritage of free and open debate? Our country’s future hangs in the balance.
Politico: Mark Zuckerberg Is Right
By Rich Lowry
Mark Zuckerberg clearly hasn’t gotten the memo.
The founder of Facebook persists in defending free expression, even though free speech has fallen decidedly out of fashion.
His reward for adhering to what once would have been a commonsensical, if not banal, view of the value of the free exchange of ideas is to get vilified for running a hate-speech machine and to get boycotted by major American companies…
[One flashpoint] was Zuckerberg’s insistence that Facebook wouldn’t censor politicians or fact-check political ads, taking an appropriately modest view of the company’s ability to fairly police political content involving wildly divergent worldviews and values.
Who is Facebook to decide, say, whether Donald Trump’s attacks on mail-in voting express a legitimate concern about ballot security, or are malign efforts at voter suppression? This is a deeply political question that people of goodwill can and do disagree about.
The left has been sore at Facebook since 2016 and bought into the cracked idea that Russian actors spending tens of thousands of dollars on Facebook ads somehow swayed a presidential election, when the presidential campaigns themselves spent tens of millions on Facebook ads…
I’ve been harshly critical of Facebook over the years, but on this it is right. The public is served by a robust debate online, where people can decide for themselves the merits of what Donald Trump or Alexandria Ocasio-Cortez says.
Wall Street Journal: Hating Clarence Thomas
By The Editorial Board
Even by Twitter standards, the response to Thursday’s two Supreme Court decisions on President Trump’s tax records was revealing. For much of the day, Clarence Thomas was “trending,” as they say, and not in a nice way…
Many critics limited themselves to expletives, but many featured an ugly focus on his race. “Clarence Thomas believes he’s still a slave, and he’s fine with it,” ran one. Another declared, “Uncle Tom was a real Clarence Thomas.”
Others focused on his interracial marriage. A self-described Ivy Leaguer cited Justice Thomas’s originalist legal principles to imply he’s a hypocrite because “the laws in 1776 did not allow a Black man to get an education, become a lawyer or marry a White woman.” One tweet that now seems to have been deleted along with the account was this: “Clarence Thomas-the one black life that doesn’t matter.”
People have the right to disagree vehemently with the Justice’s opinions, and we understand that Twitter is often a free-speech sewer. But these tweets reveal the sorry fact that many on the political left think racist attacks are fine as long as they’re levied against a black conservative who has the nerve to think for himself.
Don’t wait for CEO Jack Dorsey and his Twitter censors to mark these racist tweets as offensive hate speech.
The States
Philanthropy Magazine: Donor Privacy Wins
By Ashley May
Wins in the states- In two actions supported by The Philanthropy Roundtable, Oklahoma’s House, Senate, and governor approved a new donor privacy law in May. That followed action at the end of March in Utah, where the governor signed a statute that both codified donor privacy and limited the growing proclivity of government agencies to exert control over charities. Here’s the relevant wording: “A public agency may not impose a requirement on the registration or maintenance of a nonprofit entity that is more restrictive or expansive than the requirements authorized by Utah Code or federal law.”
New York Post: NYC Black Lives Matter marches can continue despite large-event ban, de Blasio says
By Vincent Barone
Mayor Bill de Blasio is permitting Black Lives Matter protesters to continue marching through city streets while the city is canceling all large events through September.
Speaking on CNN Thursday night, de Blasio said the demonstrators’ calls for social justice were too important to stop after more than a month of demonstrations have not led to an outbreak of coronavirus cases.
“This is a historic moment of change. We have to respect that but also say to people the kinds of gatherings we’re used to, the parades, the fairs – we just can’t have that while we’re focusing on health right now,” de Blasio told host Wolf Blitzer.
Courthouse News: Texas Republicans Sue Over Cancellation of Houston Convention
By Cameron Langford
The Texas Republican Party sued Houston’s Democratic mayor Thursday, claiming he improperly cited the Covid-19 pandemic as an act of God as grounds to cancel the party’s convention…
According to the lawsuit filed in Harris County District Court, Houston First’s president Brenda Bazan cited the city’s spike in Covid-19 cases starting on Memorial Day weekend as triggering the contract’s force majeure, or “act of God,” clause allowing Houston to cancel the convention.
But the Republicans say Houston Mayor Sylvester Turner simply used the clause as an excuse to cancel the convention.
They claim the decision is political viewpoint discrimination because Turner expressed no concerns about virus transmission when 60,000 people gathered shoulder-to-shoulder, most of them wearing masks, in front of City Hall on June 2 for a protest over Houston native George Floyd’s killing by police.
Besides, the Republicans say, the city waited too long to cancel the convention based on force majeure…
[T]he Texas GOP claims the mayor is treating it differently than other groups.
“Mayor Turner canceled the convention because he wanted to, not due to any ‘act of God’ – only due to his desire to do so and to hold the Republican Party of Texas to a different standard than other entities,” [State Republican Chair James] Dickey said in a statement.
Colorado Sun: Nonprofit cash being spent in Colorado campaigns still impossible to trace despite 2019 law
By Sandra Fish
Outside groups spent nearly $1.7 million on eight highly contested Colorado legislative primary races.
But it isn’t always easy to figure out where the money came from, despite a 2019 law touted as bringing more transparency to a system that includes cash from dark-money funded nonprofits that don’t disclose their donors…
Colorado Secretary of State Jena Griswold acknowledged the loophole in the 2019 law that some committees use to avoid naming nonprofit donors…
“This legislation is really hard because of Citizens United, and because we really had to thread the needle as to what could withstand a constitutional challenge,” Griswold said…
Griswold said in the future she’ll propose changes to the law to avoid such “Russian nesting doll” issues that require people to take numerous steps to follow the money…
Then there are several super PACs funded primarily by nonprofit organizations…
Sen. Jeff Bridges, a Greenwood Village Democrat, sponsored the 2019 Clean Campaign Act that also prohibited donations from foreign individuals or corporations and made other changes.
“The intention of the bill was that any money spent in politics could be traced back to its source,” Bridges said. “If that’s not happening, we need to go back and strengthen that to make sure it does.”
Griswold agreed, [saying:]
“We are never going to be able to get the system to 100% transparency and 100% fighting against the corruptive role of money with Congress not acting or without some constitutional changes.”
