New from the Institute for Free Speech

Statement on Nomination of Judge Brett Kavanaugh for Supreme Court

The Institute for Free Speech, America’s largest nonprofit defending First Amendment political speech rights, applauds President Trump’s selection of Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit as a nominee for the Supreme Court.

“Justice Kennedy was a great friend to free speech in the political arena – the core of the First Amendment. We believe that Judge Kavanaugh will continue that tradition,” said IFS Chairman and Founder Bradley A. Smith. “Judge Kavanaugh has frequently demonstrated a healthy skepticism when the state asserts a need to infringe on First Amendment rights, and we look forward to seeing that healthy skepticism at the High Court.”

To read the Institute’s analysis of Judge Kavanaugh’s record on free speech rights, click here. Prior to yesterday’s announcement, the Institute analyzed the free speech records of every judge on President Trump’s shortlist for the nomination.

Another Upstart Challenger Defeats a Drastically Better-Funded Opponent

By Scott Blackburn

On June 26, Alexandria Ocasio-Cortez, a challenger for New York’s 14th Congressional District, defeated incumbent Rep. Joe Crowley.

Crowley spent over $3.4 million. Ocasio-Cortez spent just $207,000. Crowley spent $16 for every $1 spent by Ocasio-Cortez.

As writers on the left and right have pointed out, this is the latest election to once again demonstrate that money doesn’t buy elections. Crowley, pegged by many to be the successor to House Minority Leader Nancy Pelosi, had some of the deepest pockets of any incumbent House member. And yet that campaign money simply did not translate to votes in a district that was clearly looking for a new voice.

Ocasio-Cortez’s victory is also evidence that campaigns do need seed money to get their message out. The campaign staff, the photographers, the slick video ads, and the stylish Ocasio-Cortez posters all cost money – and the campaign could not have won had it not been, in the words of Ocasio-Cortez, “100% people-funded.”

To be sure, Ocasio-Cortez is not a zealot for campaign finance deregulation. A self-identified Democratic Socialist, Ocasio-Cortez ascribes to the Bernie Sanders school of thought where Citizens United is (wrongly) declared the bogeyman for any perceived ills within our political system.

But ironically, her campaign managed to succeed wildly in this supposedly terrible post-CU world. Wealthy interests and corporations may have preferred her opponent, but voters clearly preferred her message. Despite being ignored by the media, she had enough financial support to get that message out. Her money “spoke” more loudly.

The Free Speech Record of Judge Brett Kavanaugh (ICYMI)

The Free Speech Record of Judge Brett Kavanaugh, Part I

By IFS Staff

Judge Kavanaugh has seen his fair share of campaign finance and political speech cases. That’s for good reason. The United States Court of Appeals for the District of Columbia Circuit, where he has served since 2006, has jurisdiction over most challenges to federal campaign finance laws and regulations. We analyze the following such cases in this post.

– Emily’s List v. Federal Election Comm’n, 581 F.3d 1 (D.C. Cir. 2009)

– SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 686 (D.C. Cir. 2010) (en banc)

– Independence Institute v. Fed. Election Comm’n, 816 F.3d 113 (D.C. Cir. 2016)

– Pursuing America’s Greatness v. Fed. Election Comm’n, 831 F.3d 500 (D.C. Cir. 2016)

-Wagner v. Fed. Election Comm’n, 793 F.3d 1 (D.C. Cir. 2015) (en banc)

Judge Kavanaugh ruled in favor of free speech in four of these cases. The exception was Wagner, where he joined an 11-0 opinion siding with the Federal Election Commission. His opinion in Emily’s List is particularly impressive. Foreshadowing later rulings in Citizens United and SpeechNow, Judge Kavanaugh clearly articulated a First Amendment right for associations to spend money in support of candidates. The opinion demonstrates an ability to anticipate trends in First Amendment jurisprudence before they fully take hold.

In the other three cases, Judge Kavanauagh applied careful scrutiny to government regulations that impeded free political speech. He authored the opinion in Independence Institute, which ordered that a special three-judge district court review the Institute’s challenge to McCain-Feingold’s donor disclosure requirements, and joined rulings striking down FEC regulations in SpeechNow and Pursuing America’s Greatness.

Part II: More on Judge Brett Kavanaugh’s Campaign Finance Opinions

By IFS Staff

This post explores three First Amendment opinions written or joined by Judge Kavanaugh. In these decisions, he sided with the government and declined to approve First Amendment challenges, although his opinions nevertheless showed some concern for the First Amendment rights raised, albeit in dicta. Whether he would translate those words into action on the Supreme Court is an open question.

In the first of these cases, Holmes v. Federal Election Commission, Judge Kavanaugh joined a unanimous, en banc D.C. Circuit when it missed the opportunity to require that individual provisions of a law meet heightened scrutiny when they burden an individual’s rights, even when the law as a whole has previously survived a facial challenge.

In the second case, Republican National Committee v. Federal Election Commission, the plaintiffs presented a more straightforward challenge to prior precedent, McConnell v. Federal Election Commission, in light of recent limits the Supreme Court had placed on the Bipartisan Campaign Reform Act in Citizens United v. Federal Election Commission. Writing for a special three-judge district court, Judge Kavanaugh upheld BCRA’s contribution limits, holding that it was up to the Supreme Court to clarify or refine the McConnell decision.

Finally, in Bluman v. Federal Election Commission, again writing for a special three-judge district court, Judge Kavanaugh upheld BCRA’s prohibition on political contributions by foreign nationals. The court held that foreign nationals do not have a constitutional right to spend any money advocating for or against candidates in American elections, and that the government has a compelling interest in preventing foreign influence over the political process. Treading in an area of fundamental liberties, however, Judge Kavanaugh warned the government that the court’s analysis did not address the rights of lawful permanent residents or the ability of foreign nationals to speak about American politics. Importantly, he also interpreted the law narrowly so as to apply only to express advocacy and electioneering communications.

Part III: Judge Brett Kavanaugh Joins Pro-Speech Opinion Upholding Rights of Protesters

By IFS Staff

This post explores two opinions Judge Kavanaugh wrote or joined addressing the rights of protesters under the First Amendment. In these decisions, Judge Kavanaugh demonstrated a solicitude for First Amendment speech freedoms, but one limited to activities that are peaceful and non-destructive.

Boardley v. U.S. Dep’t of the Interior, 615 F.3d 508 (D.C. Cir. 2010)

In Boardley, Judge Kavanaugh joined an opinion holding that National Park Service rules requiring permits, in addition to existing restrictions limiting speech to free speech areas, were overbroad and unconstitutional…

Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011)

Here, the D.C. Circuit held that a law against the defacement of public property did not violate the First Amendment rights of anti-abortion protestors who wished to chalk the street in front of the White House.

Judge Kavanaugh wrote a short concurring opinion to emphasize that “[n]o one has a First Amendment right to deface government property.” Id. at 1122. The law here, according to Judge Kavanaugh, was “a reasonable time, place, and manner restriction for purposes of First Amendment doctrine” because it was content and viewpoint neutral. Id.

Part IV: Judge Brett Kavanaugh Authors Pro-Speech Dissents in Two Communications Act Cases

By IFS Staff

Previous posts have focused on cases squarely raising claims related to political free speech and press rights. But Judge Kavanaugh has shown a willingness to protect speech rights in other contexts, including while interpreting the expansive Communications Act of 1934.

In contrast to campaign finance law, which sharply limits the Federal Election Commission’s discretion, the Communications Act and its amendments give the Federal Communications Commission (“FCC”) wide power to regulate wire and radio systems to promote equality and efficiency in communications. One hotly contested issue is whether the FCC may regulate Internet companies as “common carrier” utilities (like landline telephones) under the Communications Act-a debate commonly referred to as “Net Neutrality.”

In a pair of dissents, Judge Kavanaugh staked out the importance of protecting the freedom of speech, even for corporations…

The Institute agrees that the First Amendment is designed to keep the hands of the government out of the editorial decisions of speakers. That includes those who speak on the Internet. Though he wrote in dissent, Judge Kavanaugh’s view of the First Amendment as a shield from bureaucratic meddling is important to consider. The Internet’s success comes from the freedom it enjoyed in allowing those with modest means a voice to reach many.

Judge Kavanaugh appears to see the importance of the freedom of speech both in what one says and what one chooses not to say. Likewise for freedom of association. Both views-the right to speak and the right to not be compelled to speak-are at the heart of the First Amendment.

In the News

St. Augustine Record: Limit campaign donations: Do you agree or not?

By Editorial Board

Sunday, The Record published a front page story titled “Big money flows to County Commission race.” …

Judging from limited reader comments following the story, the general consensus here is that big contributions taint the electoral process… 

But there are those who’d disagree. The institute for Free Speech recently assembled what it calls a “Free Speech Index.” It is predicated on the assumption that constrictions on campaign spending are a bad thing for the country for two reasons: Finance restrictions muzzle free speech, and they tend to protect incumbents, “while hobbling newcomers.”

It looked at 19 factors aligned under five categories: the ability of individuals to give political candidates, parties and political action committees; the ability of political parties to support their candidates; the ability of PACs to give to candidates and parties; the ability of unions and corporations to donate to candidates; and indexing contribution limits to inflation.

The five “best” states for unfettered campaign finance are Alabama, Nebraska, Oregon, Utah and Virginia. All received a grade of “A” because they have zero limitations on campaign giving or spending.

Eleven states received an “F” grade; Kentucky and West Virginia were at the bottom of the barrel.

Florida received a “C.” It was consistent in that, within the five categories, it was ranked no higher than 24th or no lower than 28th.

Supreme Court

New York Times: A Liberal’s Case for Brett Kavanaugh

By Akhil Reed Amar

The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that.

In 2016, I strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland. But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh. He sits on the United States Court of Appeals for the District of Columbia Circuit (the most influential circuit court) and commands wide and deep respect among scholars, lawyers and jurists.

Judge Kavanaugh, who is 53, has already helped decide hundreds of cases concerning a broad range of difficult issues. Good appellate judges faithfully follow the Supreme Court; great ones influence and help steer it. Several of Judge Kavanaugh’s most important ideas and arguments – such as his powerful defense of presidential authority to oversee federal bureaucrats and his skepticism about newfangled attacks on the property rights of criminal defendants – have found their way into Supreme Court opinions.

Except for Judge Garland, no one has sent more of his law clerks to clerk for the justices of the Supreme Court than Judge Kavanaugh has. And his clerks have clerked for justices across the ideological spectrum.

Forbes: Judge Kavanaugh’s Principled Record On Free Speech

By Brian Miller

[T]wo cases from Judge Kavanaugh’s record show that he will consistently protect speech on both sides of controversial debates.

First, in 2009, Kavanaugh authored the majority opinion for the court in Emily’s List v. FEC. At issue were new FEC regulations that restricted the ability of nonprofits to raise money and use it to advocate for their chosen causes. Emily’s List, a pro-choice nonprofit that supports women running for office, challenged the new regulations. Kavanaugh’s opinion recognized the organization as one that’s “mission is to promote and safeguard abortion rights and to support the election of pro-choice Democratic women to federal, state, and local offices nationwide.”

And for Kavenaugh, such an organization is one that has “the right to spend unlimited money to support their preferred candidates” and “receive full First Amendment protection.”

For speech that offers the opposing view, Kavanaugh’s 2015 dissent in Priests for Life v. HHS argues that organizations opposed to contraception and abortifacients should be exempted from any implication in providing it under the HHS’s contraception mandate. A majority of the D.C. Circuit sided with the government and ruled that facilitating access to contraceptives didn’t violate the organization’s religious rights. Kavanaugh, however, thought the court was “judicially second-guessing the correctness or reasonableness” of the religious belief at issue. As he said, “The essential principle is crystal clear: When the Government forces someone to take an action contrary to his or her sincere religious belief… or else suffer a financial penalty (which here is huge), the Government has substantially burdened the individual’s exercise of religion.”

Reason: Brett Kavanaugh’s Discouraging Record on the First Amendment and ‘Commercial Speech’

By Damon Root

In American Meat Institute, a group of livestock producers, feedlot operators, and meat packers challenged the “country of origin” regulation on First Amendment grounds, arguing that it failed under Zauderer because it amounted to compelled speech that did not advance a permissible regulatory goal.

The federal government ultimately prevailed, with a divided en banc panel of the U.S. Court of Appeals for the District of Columbia Circuit rejecting that First Amendment challenge. D.C. Circuit Judge Brett Kavanaugh concurred…

“[T]he Government cannot advance a traditional anti-deception, health, or safety interest in this case because a country-of-origin disclosure requirement obviously does not serve those interests.” … “Country-of-origin labeling is justified,” he asserted, “by the Government’s historically rooted interest in supporting American manufacturers, farmers, and ranchers as they compete with foreign manufacturers, farmers, and ranchers.” Kavanaugh saw economic protectionism as the way to shield the law from the First Amendment.

For a different perspective on these issues, contrast Kavanaugh’s permissive concurrence with the sharp dissent filed by Judge Janice Rogers Brown. “If, as Jeremy Bentham once quipped, a fanciful argument may be dismissed as ‘nonsense upon stilts,'” she wrote, “the court’s analysis in this case can best be described as delirium on a pogo stick.”

In Brown’s view, American Meat Institute was a case of judicial abdication. “When we are dealing with fundamental First Amendment protections, as we are here, the burden is on the government, and it is the government that must assert substantial interests,” Brown wrote. Yet “not only has [the Department of Agriculture] failed to raise or support any protectionist motive, it has, in fact, consistently denied one.”

Wired: Kavanaugh on the Supreme Court Could Spell Trouble for Tech

By Issie Lapowsky

In May of 2017, Kavanaugh argued that net neutrality violates internet service providers’ First Amendment rights in a dissent to a DC Circuit Court decision regarding the Federal Communication Commission’s 2015 order, upholding net neutrality. The dissent hinges on a case from the 1990s called Turner Broadcasting v. FCC, which established that cable companies were protected by the First Amendment, just as newspaper publishers and pamphleteers were. “Just like cable operators, Internet service providers deliver content to consumers. Internet service providers may not necessarily generate much content of their own, but they may decide what content they will transmit, just as cable operators decide what content they will transmit,” Kavanaugh wrote. “Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes.”

Kavanaugh argued that just because internet service providers don’t currently make editorial decisions about what does and doesn’t flow over their pipes doesn’t mean they don’t have the right to. “That would be akin to arguing that people lose the right to vote if they sit out a few elections,” he wrote. “Or citizens lose the right to protest if they have not protested before.” …

In September of 2010, he dissented from the DC court’s decision not to revisit a ruling that found that police violated a suspect’s Fourth Amendment rights by using a GPS device to track his car without a warrant…

Kavanaugh also later defended the National Security Agency’s bulk collection of phone records in a concurring opinion in November of 2015, writing that “the Government’s metadata collection program is entirely consistent with the Fourth Amendment.”

The Courts

Electronic Frontier Foundation: New Lawsuit Challenges FOSTA – The Federal Law Sparking Website Shutdowns

Two human rights organizations, a digital library, an activist for sex workers, and a certified massage therapist have filed a lawsuit asking a federal court to block enforcement of FOSTA, the new federal law that silences online speech by forcing speakers to self-censor and requiring platforms to censor their users. The plaintiffs are represented by the Electronic Frontier Foundation (EFF), Davis, Wright Tremaine LLP, Walters Law Group, and Daphne Keller.

In Woodhull Freedom Foundation et al. v. United States, the plaintiffs argue that FOSTA is unconstitutional, muzzling online speech that protects and advocates for sex workers and forces well-established, general interest community forums offline for fear of criminal charges and heavy civil liability for things their users might share.

FOSTA, or the Allow States and Victims to Fight Online Sex Trafficking Act, was passed by Congress in March. But instead of focusing on the perpetrators of sex trafficking, FOSTA goes after online speakers, imposing harsh penalties for any website that might “facilitate” prostitution or “contribute to sex trafficking.” The vague language and multiple layers of ambiguity are driving constitutionally protected speech off the Internet at a rapid pace…

FOSTA calls into serious question the legality of online speech that advocates for the decriminalization of sex work, or provides health and safety information to sex workers. 

Wall Street Journal: The Unjust Prosecution of a Black Militia Kook

By Kevin D. Williamson

The FBI had Mr. Daniels under surveillance for at least two years, not for his gun-loving ways, but for his politics. He is in the habit of publishing hateful things on social media, like saying that the five Dallas police officers murdered in 2016 “deserve what they got” and hailing another man charged in the murder of a police officer as a “hero.” The FBI has a special category for radicals such as Mr. Daniels: “black-identity extremists,” a group that federal authorities lump in with white supremacists, environmental wackos, antiabortion radicals and a few others as persistent threats of domestic terrorism.

But the FBI didn’t come for Mr. Daniels on a terrorism charge. By its own account, he hadn’t engaged in violence, plotted violence or threatened anybody. So instead the feds hung on him what they thought was a slam-dunk gun charge, one they’d kept in the hopper for years. It was going to be a twofer: The case would put away a friend of cop-killers, and Mr. Sessions would get another gun prosecution for his file.

But Mr. Daniels walked.

In early May, Judge Sidney A. Fitzwater of the Northern District of Texas threw out the case, holding that Mr. Daniels was not in fact barred from owning a gun…

The most worrisome part of this story is that Mr. Daniels was targeted for his political views. He was under surveillance for his activism, including his attendance at a 2015 antipolice rally during which some detestable things were chanted-activity that is protected by the First Amendment. The order keeping Mr. Daniels imprisoned before his trial specifically cited his political views…

It may be that Mr. Daniels was simply the victim of overzealous federal prosecutors hoping to give the boss a win. Or it may be that he spent five months incarcerated for having unpopular political views. 

A Journal of Musical Things: “Dancing Baby” lawsuit over; baby is now 12

By Amber Healy

Universal Music Group says it now has a smarter and more “fair” process for when it will issue a takedown notice, demanding someone to remove a YouTube video that might infringe on a copyright the music company owns.

“UMPG takes great pride in protecting the rights of our songwriters,” said David Kokakis, UMPG’s chief counsel, after the agreement was signed. “Inherent in that objective is our desire to take a thoughtful approach to enforcement matters. The Lenz case helped us to develop a fair and tempered process for evaluation of potential takedowns.”

Lenz refers to Stephanie Lenz, the mom who got way more than she bargained for when her kiddo, now 12, did something cute and she instinctively grabbed a camera.

“If UMPG’s current process had been in place 11 years ago when I posted my video of my young son dancing, I probably wouldn’t have had to contact the Electronic Frontier Foundation,” she said, an internet and freedom of speech organization that tried to take her case to the U.S. Supreme Court.

Both of these comments come from a joint statement published June 27. Oddly, there’s no detail in the statement about what UMPG’s current process is, how it’s changed, what’s different and what new steps will be utilized to determine whether there’s justification for issuing a takedown notice.

What we do know is that the Ninth Circuit Court of Appeals, in California, agreed that the video should fall under fair use because she wasn’t trying to present the song as a new creation or something brand new at all, it was just her kid dancing around while a Prince song happened to play in the background. The court told Universal at the time that the copyright holder “must consider the existence of fair use before sending a notice.”

Independent Groups 

Wall Street Journal: Outside Groups Plan Costly Campaigns for-or Against-Supreme Court Nominee Brett Kavanaugh

By Julie Bykowicz

Liberal groups largely sat out the Gorsuch confirmation process. Groups opposed to his nomination aired about 10% of the Supreme Court-related TV ads, according to Kantar Media/CMAG, an advertising tracker.

This time, they promise to spend big. A group called Demand Justice, led by Brian Fallon, a former aide to Hillary Clinton and Senate Minority Leader Chuck Schumer (D., N.Y.), said it wants to raise $10 million. As a nonprofit, it isn’t required to disclose its donors.

The American Civil Liberties Union last week began an ad campaign in Alaska and Maine, home to Ms. Murkowski and Ms. Collins, respectively…

The campaign will be equally fierce from the other side, as conservatives see a once-in-a-generation opportunity to shift the court to the right. To push Trump-state Democratic senators such as Mr. Donnelly and Ms. Heitkamp, conservative activists plan to spend millions on biographical ads for the nominee, as well as to criticize any senators who object not on the merits but because of their opposition to Mr. Trump.

The Media 

Wired: YouTube Debuts Plan to Promote and Fund ‘Authoritative’ News

By Issie Lapowsky

[T]he company announced on Monday a slew of new features it hopes will make news on the platform more reliable and less susceptible to manipulation. The company is also investing $25 million in grants to news organizations looking to expand their video operations, as part of a larger, $300 million program sponsored by YouTube’s sister company, Google.

According to YouTube executives, the goal is to identify authoritative news sources, bring those videos to the top of users’ feeds, and support quality journalism with tools and funding that will help news organizations more effectively reach their audiences. The challenge is deciding what constitutes authority when the public seems more divided than ever on which news sources to trust-or whether to trust the traditional news industry at all…

In the coming weeks, YouTube will start to display an information panel above videos about developing stories, which will include a link to an article that Google News deems to be most relevant and authoritative on the subject…

YouTube is also beginning to implement its previously announced partnerships with Wikipedia and Encyclopedia Brittanica, which it will use to fact-check more evergreen conspiracy theories…

Identifying which news outlets are authoritative is hard enough in the United States, where people can subsist on completely different media diets according to their politics. Among the news organizations that YouTube highlighted in the announcement as authoritative were CNN and Fox News; the former is routinely rejected by President Trump as “fake news,” the latter is among the least trusted news sources among Democratic voters. This bifurcation of the media poses a challenge for all tech platforms, not just YouTube, that resist taking a stand on what constitutes truth.

The States 

Baltimore Sun: Baltimore City Council passes public financing charter amendment

By Talia Richman

The City Council unanimously passed a charter amendment Monday that supporters say is designed to limit big money’s influence in Baltimore politics by offering candidates a way to leverage the money they raise in smaller amounts from citizens. The bill’s approval means the council has cleared a major hurdle in creating a “Fair Elections Fund” and a commission to control it.

The legislation still needs the mayor’s support before it can be placed on the ballot in November’s general election. All amendments to the City Charter must be approved by voters.

Mayor Catherine E. Pugh hasn’t taken a public stance on the legislation, and a spokesman didn’t respond to a request for comment Monday night. But the bill’s lead sponsor, Councilman Kristerfer Burnett, said Pugh’s office has been involved with crafting the bill’s final language…

The bill doesn’t specify where the money would come from. Burnett said the fair election fund commission, once created, would be tasked with recommending revenue sources. The public financing of campaigns likely wouldn’t begin until 2024.

Verde Independent: Petitions filed to outlaw ‘dark money’ politics in Arizona

By Howard Fischer, Capitol Media Services

Backers of a constitutional amendment to mandate disclosure of donors submitted more than 285,000 signatures to put the issue to voters. That’s only about 25,000 more than need to be found valid to have the constitutional amendment on the Nov. 6 ballot.

But campaign organizer and former Attorney General Terry Goddard said he’s convinced that the error rate will be low enough to meet the goal…

The initiative, if it makes the ballot and is approved, would insert a “right-to-know” provision in the Arizona Constitution, requiring any group seeking to influence a political race or ballot measure to reveal the identity of anyone who contributed more than $10,000. As a constitutional amendment, it could not be overridden by lawmakers without asking for voter approval.

Goddard said it is structured to also guard against “chain donations,” where one group gives to a second and that one funnels money to a third and so on. He said the law requires the organization that ultimately spends the money in Arizona to trace those dollars back and disclose the original source…

He acknowledged that courts have long ruled that the constitutional right to free speech also includes the right to anonymous speech. But he said what the initiative seeks to regulate is different…

“A message is a message,” said [Rep. J.D.] Mesnard, now the House speaker. “If it’s important to you to know who’s behind the message and you don’t know who’s behind the message, then disregard it.”

And Mesnard said during the debate that sometimes too much disclosure can be a bad thing.

“The end result is a registry of every person and who they donated to,” he said. “I think that is entirely dangerous.”