New from the Institute for Free Speech
Issue Analysis No. 11: Do Out-of-State Donations Lead to Electoral Success?
By Nathan Maxwell
Proponents of further restrictions on political spending often argue that money effectively buys elections. To ensure a fairer election process, they maintain it is necessary to limit the inflows of campaign cash so better resourced candidates can’t claim an unfair advantage. Increasingly, political cash does not stop at the state border, and in 2020, donors contributed significantly to federal races outside their home state, sometimes to the opposing candidates’ chagrin. Georgia Republican David Perdue, who lost to Democrat Jon Ossoff in a 2020 runoff election for a U.S. Senate seat, was not fond of the out-of-state contributions received by his opponent, saying “we don’t want people from outside of state trying to come down here and dictate what we’re going to do.” This sentiment, of course, is driven by the belief that money spent on an election unilaterally determines votes received, but further, that this axiom must be the case irrespective of donor geography.
But do out-of-state contributions actually lead to electoral success? This analysis examines that assumption. The results suggest that concern about out-of-state dollars deciding election outcomes is unfounded. This study looks at competitive U.S. Senate races in the 2020 election cycle and finds that most of the candidates who received a greater percentage of their campaign contributions from out-of-state donors than their opponent lost the election.
ICYMI
School Board Candidate Wins Injunction Against Florida Censorship Scheme
By Luke Wachob
Holding that our client has a substantial likelihood of succeeding on the merits, a federal district court last week issued a preliminary injunction in Hetherington v. Madden (formerly Hetherington v. Lee). The court’s order prevents the state of Florida from punishing our client, Kells Hetherington, under the law he is challenging until the trial on the merits occurs. As a result, Hetherington is now free to speak to voters about his membership in the Republican Party as he campaigns for a seat on the Escambia County School Board in 2022.
You might expect that to have always been the case, given the First Amendment’s protection of free speech. Yet during his last campaign for school board, Hetherington was fined $200 by the Florida Elections Commission for stating that he is “a lifelong Republican” in an online voter guide. The Commission ruled that Hetherington broke a Florida law prohibiting candidates in nonpartisan elections from campaigning based on party affiliation.
Hetherington paid the fine and then sought help from the Institute for Free Speech to challenge the law as an unconstitutional restriction on his First Amendment rights. Such cases can take years to resolve, so we requested a preliminary injunction protecting Hetherington’s right to speak freely to voters in the campaign, which has already begun.
The Courts
Iowa Capital Dispatch: Iowa group that backed Ernst fights to block donor disclosure
By Clark Kauffman
A group that supported U.S. Sen. Joni Ernst’s 2020 re-election bid is asking a federal judge to dismiss a lawsuit it says would give “the wolf the keys to the henhouse” and allow others to “rifle through” records pertaining to its donors.
The Clive-based group Iowa Values allegedly spent close to $1.5 million supporting the Iowa Republican senator’s successful re-election campaign, and is now being sued in federal court by the Campaign Legal Center, a national, non-partisan advocacy group.
The lawsuit marks the first known use of an obscure provision in federal campaign law that allows a private individual or group to take a claim of campaign finance violations directly to federal court. It was triggered by the Federal Election Commission’s inaction on a complaint the CLC filed against Iowa Values in 2019.
Fox 32: Judicial Watch files lawsuit for Illinois teacher fired after criticizing Chicago looting
By Michael Ruiz
Judicial Watch has filed a First Amendment lawsuit on behalf of an Illinois teacher who was fired after criticizing the rioting, looting and other violence that broke out in Chicago after the death of George Floyd last May.
Jeanne Hedgepeth made the posts on her personal Facebook account while on summer break following the end of the school year, the conservative legal group said in a statement. She did not exchange posts with any current students or colleagues, and the profile made no mention of her employer…
Two weeks later, a Facebook group called D211 Community for Justice, a reference to District 211, where Hedgepeth worked, urged residents to email school board members and condemn her. Ultimately, the board voted 5-2 to let her go.
“This is a free country – there’s this thing called the First Amendment,” said attorney Christine Svenson, who is assisting Judicial Watch with the case. “A person has the right to speak about matters of public concern on their personal Facebook post, and that has absolutely nothing to do with his or her job.”
She told Fox News Tuesday that cases like this should give Americans reason to be fearful about the state of cancel culture and censorship.
News 10: Email to Ben Shapiro used as evidence in termination of Grants Pass educators
By Christina Giardinelli
Political campaign or personal views? The question was brought into consideration during an independent investigation into two former Grants Pass School District educators who have taken a public stance against proposed LGBTQ rights legislation.
The district released the full investigation and supporting exhibits to the public today. The documents revealed that an email to the well-known conservative talk show host, Ben Shapiro, was used as evidence that the pair had violated the district’s policy by using school facilities to work on a political campaign…
Ray Hacke, an attorney with the Pacific Justice Institute, a non-profit legal organization that advocates for religious freedom, parental rights, and civil liberties is representing the former educators in a lawsuit against the district.
He claims their ‘I resolve platform’ represents personal views and does not fit the definition of a political campaign per Oregon Statute 260.432. The statute prohibits public employees from using work hours to “support or oppose measures, candidates, recalls, political committees or petitions.”
“That statute also says that public employees are free to express their opinions and that is really all my clients did,” Hacke said.
Wall Street Journal: Does Section 230 Have Limits?
By Allysia Finley
Big Tech platforms claim that U.S. law gives them almost unlimited power to ban content and users they deem objectionable. But a case pending before the Second U.S. Circuit Court of Appeals calls that assumption into question.
It started when the video-hosting platform Vimeo deleted the account of Newport Beach, Calif.-based Church United after its founder, James Domen, posted five videos discussing what Vimeo calls “sexual orientation change efforts,” the promotion of which the site forbids. Mr. Domen, who describes himself as a former homosexual, claims the banishment constituted discrimination based on both religion and sexual orientation, in violation of state and federal civil-rights laws. He also argues that Vimeo’s censorship violates the California Constitution, which state courts have interpreted to protect individuals’ rights to speak and assemble in privately owned spaces such as shopping centers.
A federal magistrate judge in New York, where Vimeo is headquartered, dismissed Mr. Domen’s complaint, noting that Section 230 of the Communications Decency Act shields [Vimeo.]…
A three-judge Second Circuit panel upheld the dismissal in March, again citing Section 230…
Vimeo, however, didn’t stop at restricting access to the videos, or even at deleting them. It wiped out the church’s entire account. That would seem to strengthen Mr. Domen’s claim of discrimination, since he and Church United, not merely some of their content, were unwelcome…
Last Friday the Second Circuit panel granted Mr. Domen’s petition for rehearing…[A]ccepting such a petition is an unusual step, so this is a case worth watching.
Congress
American Independent: GOP senator wants to punish Ben & Jerry’s for not agreeing with him on Israel
By Josh Israel
Republican Sen. James Lankford demanded on Wednesday that his home state of Oklahoma ban Ben & Jerry’s. His reason: he disagrees with their decision to stop selling ice cream in the West Bank and East Jerusalem at the end of next year.
“#Benandjerrys has now decided they know more about Jerusalem than the Israelis. If Ben & Jerry’s wants to have a meltdown & boycott Israel, OK is ready to respond. Oklahoma has an anti-boycott of Israel law in place,” Lankford tweeted.
“We should immediately block the sale of all #Benandjerrys in the state and in any state-operated facility to align with our law,” he urged…
Oklahoma is one of 35 states that have passed laws in support of the government in Israel and in opposition to the anti-Israel Boycott, Divestment, and Sanctions movement. Its state law, enacted last May, bars the state from contracting with businesses unless they certify in writing that they are not boycotting Israeli products and services…
But as KOKH in Oklahoma City noted on Wednesday, the law does not ban private companies from operating in Oklahoma, as Lankford is suggesting.
Biden Administration
Washington Post: Biden is venturing into dangerous territory by pushing Facebook to censor anti-vaccination speech
By Henry Olsen
The First Amendment is designed to prevent government from establishing an intellectual orthodoxy. Governments throughout history have attempted to do this, creating official established religions that could not be criticized or banning the profession of certain ideas. James Madison, author of the First Amendment, stood athwart the tide of history and yelled stop. The new democratic republic would, from its onset, be the first government in history to dedicate itself to individual intellectual freedom.
There is no exception to that rule for speech that the government believes is untrue. In the United States, people can say the most ridiculous things in full confidence that the government will not try to silence them.
Biden’s ham-fisted attempts to get the social media giant to remove anti-vaccine speech suggests he simply doesn’t grasp this elemental truth. He is correct that people who believe the falsehoods are harming themselves, perhaps even leading to their deaths. He’s free to promote the opposite viewpoint far and wide, combating false speech with more speech. What he’s not permitted to do is try to shut speech down.
