In the News
Capital Research Center: InfluenceWatch Podcast Episode #33: The IRS Protects Free Speech?
In this episode: Today we’re joined by Luke Wachob of the Institute for Free Speech to discuss the battle to protect anonymous political speech. This week the Treasury Department announced a victory that helps protect anonymity in IRS reporting, in an example of how small regulation changes can hugely protect freedom.
NPR: Trump Administration Weakens Political Nonprofit Disclosures
By Peter Overby
The Trump administration has weakened a donor disclosure rule for tax-exempt groups, possibly letting more foreign cash into U.S. politics – and complicating the confirmation of a new IRS commissioner.
(Featuring Institute for Free Speech President David Keating)
FEC: Public hearing on internet disclaimers
A few witnesses on panels on the first day of the hearing testified against additional regulations to address disclaimers on internet ads, including the first witness, Allen Dickerson, Legal Director of the Institute for Free Speech. Mr. Dickerson stated that the rulemaking was outside of the FEC’s authority. He noted that although the Supreme Court affirmed the disclosure and disclaimer regulations in Citizens United v. FEC, that case did not address video ads on the internet. He also testified that disclaimers hinder a speaker’s message and may result in a ban on speech. Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute also focused his argument on First Amendment arguments against requiring disclaimers. According to Mr. Shapiro, disclosure requirements cause anxiety for speakers, and provide little value to voters. Using an analogy of medical disclaimers on television ads, he testified that more extensive disclaimers make them less likely to be read.
Dan Backer, Counsel for the Coolidge-Reagan Foundation, also emphasized that individuals will be burdened and speech hindered by additional disclaimers. He testified that the proposed regulations would exacerbate the divide between rich (who can hire lawyers to defend their First Amendment rights) and poor speakers. Mr. Backer proposed an expenditure threshold for disclaimers on certain internet communications. Victor E. Bernson, Jr., Vice President and General Counsel of Americans for Prosperity, said the Commission’s proposals would burden a speaker’s First Amendment rights. He asserted that the additional disclaimer requirements would primarily affect activists. Mr. Bernson testified that he favors a “less is more” approach and recommended a hybrid of the Commission’s proposals.
Heartland Institute: San Antonio Increases Campaign Finance Reporting Requirements
By Madeline Fry
The San Antonio, Texas City Council approved an ordinance that will require political campaigns to collect and disclose the names, employers, and occupations of individuals donating $100 or more to candidates running for city office…
Bradley A. Smith, a professor of law at Capital University Law School and a policy advisor for The Heartland Institute, which publishes Budget & Tax News, says San Antonio’s new campaign-finance rules will facilitate political vigilantism and silence less-powerful people.
“In various states, people have been hounded from their jobs, and by that, I mean their employers have been boycotted or picketed until finally the employer has to fire the person or the person quits,” Smith said. “We live in an era of Twitter mobs, where all kinds of information can be found out almost instantaneously, so I think it’s probably as important as it’s ever been for the ability of people to support unpopular causes and to voice different opinions that are out of the ordinary, without fear of people retaliating against them.” …
Smith says blanket campaign-finance laws such as San Antonio’s unnecessarily intimidate people who have little political power.
“How many people say, ‘When I make a political contribution, I’m speaking for my employer’?” Smith said. “If we’re talking about the CEO of a big corporation who’s giving $5,000 or $10,000 or something like that, that can be easily found out. If you have somebody who’s an assistant manager at a bank and he writes a check for $100 to a City Council candidate, is this going to help us fight corruption or learn the candidate could be beholden to the banking industry?”
Spectrum News: NAACP vs. Alabama (Video)
It’s been 60 years since the historic NAACP vs. Alabama Supreme Court decision. Here is why it still matters today.
(Ed. Note: Institute for Free Speech Chairman and Founder Bradley A. Smith discusses the importance of the decision with Eva McKend of Spectrum News)
New from the Institute for Free Speech
Setting the Record Straight: A Response to CLC’s Attacks on Judge Kavanaugh
By Brad Smith
When Justice Kennedy announced his retirement from the Supreme Court last month, the Institute for Free Speech conducted a thorough review of the First Amendment records of each of the potential nominees…
We noted a number of decisions in which we disagree with Judge Kavanaugh. These included Holmes v. Federal Election Commission, a case in which we represented the plaintiffs, but Judge Kavanaugh joined an opinion by Obama appointee Sri Srinivasan upholding an FEC regulation that had the practical effect of giving many incumbents higher contribution limits than their challengers; and Wagner v. Federal Election Commission, in which Judge Kavanaugh joined a majority in voting to uphold a ban on political contributions by individuals who held government contracts, and where we filed an amicus brief on the losing side.
Nevertheless, we concluded – as did most others specifically looking at Judge Kavanaugh’s record in First Amendment cases, that he generally gave the First Amendment a robust interpretation protective of individual rights, and we offered praise for his nomination…[I]t is not surprising that if the Institute for Free Speech and other First Amendment advocates like the Kavanaugh nomination, CLC does not.
What is unfortunate is that CLC has chosen to make the case for its opposition to Kavanaugh through a report that alternately misleads, misrepresents, cherry-picks data, and resorts to alarmism in place of serious analysis. Titled “Kavanaugh Has an Unsettling Record on Democracy,” and released as a joint effort with the left-wing group Demos, the report does no credit to CLC, and perhaps indicates the general lack of any serious basis for attacking the Kavanaugh nomination. In this review, I will go through the CLC charges as they are presented in the report.
The Courts
Pacific Legal Foundation: Victory in the Starry Night mural case!
By Jeremy Talcott
[T]he Mount Dora City Council voted unanimously to approve a settlement agreement that lets homeowners Nancy Nemhauser and Lubomir Jastrzebski keep the mural on their house and a surrounding wall.
The agreement also dropped all of the previously imposed fines and will grandfather the mural into any future Mount Dora ordinances. The City will also revise its sign code, with help from a special advisory committee that will include Nancy…At a code enforcement hearing last fall, the city fined the family $100 a day for having an “unpermitted sign.” The city argued that anything that “attracted attention to itself” was a sign under the Mount Dora code. But its hard to imagine what wouldn’t qualify. Pacific Legal Foundation stepped in and agreed to represent Nancy and Lubek for free.
When laws are vague and overbroad, it’s hard for individuals to know what behavior is prohibited. It also encourages government officials to interpret the laws based on personal preferences. That risk is especially prevalent when it involves speech. That’s exactly what happened in Mount Dora; the broad definition of “sign” would have allowed the city to prohibit almost anything-and they used that law to try and destroy a unique mural simply because some officials didn’t care for it.
In February, a federal judge granted a temporary restraining order against the city, stopping the fines and preventing any further enforcement against the property. The judge also noted in his order that we were likely to succeed on the merits.
Greeley Tribune: Independence Institute plans First-Amendment lawsuit against City of Greeley, Greeley police
By Tommy Wood
The Independence Institute, a Denver-based libertarian think-thank, plans to file a First-Amendment lawsuit against the City of Greeley and the Greeley Police Department for allegedly preventing petitioners from gathering signatures at the Greeley Stampede for a proposed ballot measure.
This clarifies earlier comments from the institute, which originally said it would sue the Greeley Stampede on First-Amendment grounds. The First Amendment prohibits only the government from violating citizens’ right to free speech. The Stampede, as a private entity, is not subject to it.
But the City of Greeley and its police department are. They are who David Lane, the attorney retained by the Independence Institute, said violated the free-speech rights of petitioners attempting to collect signatures for Fix Our Damn Roads, a ballot measure that would reallocate existing tax revenue for road repairs.
The Independence Institute has said its petitioners set up on sidewalks near the Stampede’s entrances. Then, it alleged, Stampede security called police to force them to leave. Lane said police then tried to force the petitioners into designated “free-speech zones.” “The government doesn’t have any authority to limit free speech to where they think it’s convenient,” Lane said.
Lane has not yet filed the lawsuit but said he will do so imminently in U.S. District Court.
Congress
Washington Post: Republicans accused Facebook, Google and Twitter of bias. Democrats called the hearing ‘dumb.’
By Tony Romm
Lawmakers had convened the nearly three-hour session before the House Judiciary Committee to explore the “filtering”practices of major social media companies, where a mix of human reviewers and powerful yet secret algorithms review online content – a process meant to stifle offensive speech that even tech giants admit is not perfect.
But GOP lawmakers led by the panel’s chairman, Rep. Bob Goodlatte (R-Va.), ultimately focused much of their efforts on highlighting what they perceive as bias against those on the political right…
The line of questioning enraged committee Democrats, including Rep. Jamie B. Raskin (D-Md.), who rebuked Republicans for pushing an “imaginary narrative” of censorship…
In response, though, tech companies once again sought to stress their neutrality. “Our success as a company depends on making Twitter a safe space for free expression,” said Nick Pickles, a policy aide who testified on behalf of Twitter.
“We have a natural and long-term incentive to make sure our products work for users of all viewpoints,” said Juniper Downs, who handles policy issues for Google-owned YouTube…
Amid the political theatrics and heated exchanges, though, Republicans still threatened the tech industry. They repeatedly raised the possibility they could weaken a portion of federal law that shields online platforms from being held liable for the content posted by their users.
The provision, known as Section 230, was adopted in 1996. “But the Internet of today is almost nothing like the Internet of 1996,” Goodlatte said. “Congress must evaluate our laws to ensure that they are achieving their intended purpose.”
Online Speech Platforms
Recode: Full transcript: Facebook CEO Mark Zuckerberg on Recode Decode
By Kara Swisher
On the latest episode of Recode Decode, hosted by Kara Swisher, Facebook CEO Mark Zuckerberg sat down with Kara to talk about Cambridge Analytica, why Infowars is still on Facebook and the danger of over-regulation, among many other topics.
You can listen to our entire conversation right now in the audio player below…
Below is the full transcript of the conversation. You can read a more condensed, lightly edited version here.
Politico: Zuckerberg defends allowing InfoWars, Holocaust deniers on Facebook
By Cristiano Lima
Facebook CEO Mark Zuckerberg defended the social media platform’s decision not to kick off conspiracy theory-peddling websites like the far-right InfoWars, saying in an interview released Wednesday that doing so would violate Facebook’s commitment to being an open platform…
“Look, as abhorrent as some of this content can be, I do think that it gets down to this principle of giving people a voice,” the Facebook CEO said.
Zuckerberg said that instead of banning websites outright, the company removes individual posts that violate Facebook’s terms of service. Posts promoting violence are particularly likely to be taken down, he added.
Zuckerberg, who is Jewish, said even Holocaust deniers have a place on the platform as long as they genuinely believe the content they share.
“I find that deeply offensive,” he said. “But at the end of the day, I don’t believe that our platform should take that down because I think there are things that different people get wrong. I don’t think that they’re intentionally getting it wrong.”
The Anti-Defamation League, a Jewish non-governmental organization that combats anti-Semitism, took issue with the remarks, calling on Facebook to remove such rhetoric from the platform.
Reason: In Defense of Mark Zuckerberg Letting Holocaust Deniers Use Facebook
By Robby Soave
[T]he CEO of Facebook gets to set whatever policies regarding content-sharing on his platform that he likes. As Zuckerberg made clear in the interview, his policy takes its cues from the First Amendment. Facebook users may not advocate violence or plan criminal activities, but merely expressing incorrect opinions is permissible. If Facebook were a public square on public property, it would be obliged to maintain precisely this same approach. (This is actually a good argument for not turning Facebook into some kind of truly public utility, even if you don’t like its fake news policy. A government-run Facebook would be bound by the First Amendment to maintain speech policies that are at least as permissive as its current ones.)
In our modern political discourse, Facebook plays a role very much akin to the public square: a massive one, involving the entire world. The arguments for letting nearly all voices-even deeply evil ones, provided they do not organize direct violence or harassment-be heard on this platform are the same arguments for not taking the European route on hate speech: Policing hate on a very large scale is quite difficult given the frequently subjective nature of offense; we risk de-platforming legitimate viewpoints that are unpopular but deserve to be heard; and ultimately, silencing hate is not the same thing as squelching it.
New York Times: Facebook to Remove Misinformation That Leads to Violence
By Sheera Frenkel
Facebook, facing growing criticism for posts that have incited violence in some countries, said Wednesday that it would begin removing misinformation that could lead to people being physically harmed.
The policy expands Facebook’s rules about what type of false information it will remove, and is largely a response to episodes in Sri Lanka, Myanmar and India in which rumors that spread on Facebook led to real-world attacks on ethnic minorities.
“We have identified that there is a type of misinformation that is shared in certain countries that can incite underlying tensions and lead to physical harm offline,” said Tessa Lyons, a Facebook product manager. “We have a broader responsibility to not just reduce that type of content but remove it.”
Facebook has been roundly criticized over the way its platform has been used to spread hate speech and false information that prompted violence. The company has struggled to balance its belief in free speech with those concerns, particularly in countries where access to the internet is relatively new and there are limited mainstream news sources to counter social media rumors.
Slate: When Twitter Blows the Whistle
By Will Oremus
In recent months Twitter has been accelerating its long-running battle with fake and suspicious accounts in order to clean up the platform-a place that has been criticized as a hotbed of lies, hoaxes, and abuse for nearly as long as it’s been praised as a place where almost anything goes. The Twitter executive leading these moderation efforts is Vijaya Gadde, the company’s legal, public policy, and trust and safety lead. I recently interviewed Gadde on Slate’s technology podcast, If Then, where we discussed Twitter’s current approach to harassment, hate speech, and misinformation; whether the social network’s very structure encourages these problems; and why conspiracy theorists like Alex Jones are still allowed to have Twitter accounts. Our interview has been edited for concision and clarity.
Corporate Governance
Wall Street Journal: Keep Politics Out of the Boardroom
By Phil Gramm and Mike Solon
Reforms to enhance shareholder rights made it easier for small shareholders to initiate votes, but the new rules mostly have helped interest groups with nominal stock ownership promote their political objectives at the expense of shareholders…
Today investors with a political agenda force major energy companies and banks to evaluate the impact of fossil-fuel bans, though no government has ever instituted such a ban. A Manhattan Institute study estimates that 56% of proxy resolutions in Fortune 250 companies last year dealt with social and environmental issues. Even when such proposals are repeatedly crushed by shareholder votes, the business operations of targeted companies suffer. And corporations sometimes bow to political pressure by granting concessions in return for dropping the resolutions…
All actions of investment managers and proxy advisers should be subject to fiduciary standards, and activists should be held to the same liability standard as every one else for false and misleading statements. The SEC should raise the ownership requirement for offering resolutions not directly related to the firm’s profitability, and set a higher threshold for reoffering resolutions that previously have been rejected.In restoring fiduciary responsibility, the SEC should follow a recent Labor Department bulletin clarifying that “fiduciaries may not increase expenses, sacrifice investment returns, or reduce the security of plan benefits in order to promote collateral goals.” Congress also should codify these changes, starting with Rep. Sean Duffy’s Corporate Governance Reform and Transparency Act, which the House passed in December.
Candidates and Campaigns
Washington Post: The Secret Service protects candidates physically. Why not digitally?
By Robby Mook
The Secret Service provides cyber-protection for the president when he travels, but it doesn’t offer the same treatment for campaigns. When I ran Hillary Clinton’s presidential campaign, the FBI showed up unannounced in our lobby to tell us that Russians were sending spear-phishing emails months after we’d detected them ourselves. They couldn’t do anything to help us; they could only tell us they thought something was happening and ask for evidence.
My goal is not to blame the FBI or the White House. All of us were waking up to this threat in real time. All of us made mistakes. Nor is it necessarily the FBI’s role to provide hands-on help. But it should be someone’s – and today it remains no one’s.
The case for action is overwhelming: Special counsel Robert S. Mueller III’s indictment last week alleged in painstaking detail how Russian agents systematically tracked down and broke into the personal email accounts of staff on campaigns and servers at national party committees. And 2016 wasn’t the first time this happened; presidential campaigns were attacked by Chinese hackers in 2008 and 2012.Given the warning from Director of National Intelligence Daniel Coats that we are “just one click of the keyboard away” from another attack on our elections, Congress should act to protect candidates as it did after Kennedy was killed. It’s time the Secret Service provided digital security to presidential candidates, their families and their campaigns.
The States
KOMO News Seattle: Free speech concerns in Bellevue political sign controversy
By Joel Moreno
Call it a sign of the times when controversy erupted over political messages being held up during a city council meeting on Monday night…
Most of the political signs were size of a sheet of paper and people held them up through most of the meeting. However, when it came down to a controversial final vote, the mayor ordered the signs be put away…
That request seemed unfair to many people in the audience, including Kan Qiu, who actually had a security guard walk over to him after the mayor spoke.
“I wasn’t disrupting the meeting,” Qiu said, “so yes it is real troublesome for elected officials to do such a thing.”
The mayor said one sign was particularly troublesome because it seemed to target the councilmember casting the swing vote on a controversial decision over homeless shelters operating in the city. The sign said “We voted you in we can vote you out.” …
Moving forward, the mayor said political signs will be allowed and he fully supports the First Amendment.
According to legal experts on signs and free speech, the bottom line is that ground rules for public comment must be set ahead of time.
For example, it would be legal to ban all signs from a meeting, but signs can’t be singled out based on the message. That is known as “content discrimination,” which the courts have ruled as unconstitutional.
Newsday: Ethics measures stall in Albany despite corruption convictions
By Yancey Roy
Cuomo and lawmakers have failed to adopt any of a raft of ethics measures called for by watchdog groups, including toughening oversight of state contracts, eliminating a loophole that allows companies to ignore campaign-contribution limits, and appointing an independent monitor for ethics and election laws.
