New from the Institute for Free Speech
Assumptions Gone Awry: New Book Casts Further Doubt on “Appearance of Corruption” Legal Standard
By Alec Greven
In their insightful new book, The Appearance of Corruption: Testing the Supreme Court’s Assumptions about Campaign Finance Reform, political scientists Daron R. Shaw, Brian E. Roberts, and Mijeong Baek examine the assumptions of Buckley v. Valeo and apply cutting-edge research to put them to the test in the modern campaign finance landscape. The researchers characterize three core assumptions underlying the Court’s use of the “appearance of corruption” standard in Buckley to justify federal campaign finance laws:
- “Campaign finance laws lower perceptions of political corruption;
- Lower perceptions of corruption raise trust in government; and
- Greater trust in government raises political participation” (p. 133).
ICYMI
Washington Examiner: Supreme Court restores privacy in smackdown of California
By Luke Wachob
When you join with others in support of a cause, state officials don’t have a right to track you. That’s the upshot of last week’s Supreme Court ruling affirming the right to support nonprofit groups without being monitored by the state.
In an opinion likely to be recognized as a landmark case, the court struck down a California requirement that charities turn over a list of their major supporters before soliciting donations. The state failed to prove it needed the lists to enforce its tax laws or anything else.
California claimed it would keep the supporter names confidential. But a trial in the lower court revealed that the state carelessly exposed thousands of charity donor lists on a public website, a mistake that can’t be undone. Once a person’s identity and membership in a group is publicly exposed online, they are forever vulnerable to harassment and retaliation for their beliefs. Today’s unforgiving cancel culture heightens those threats.
Supreme Court
Washington Post: A Supreme Court ruling protecting speech astonishes Schumer
By George F. Will
[Sen. Chuck Schumer] called “jaw-dropping” the court’s recent 6-to-3 ruling striking down California’s law requiring charities operating there to report to the state’s attorney general the identities of major donors. California, which is supposed to keep these identities confidential, claims to have rectified the causes of its failures to do so.
Writing for the majority, Chief Justice John G. Roberts Jr. said this law could have a “deterrent” effect, discouraging individuals from exercising the associational rights protected by the First Amendment. He should have said that deterrence of speech is an announced purpose of many disclosure requirements.
In 2010, the senator who introduced the DISCLOSE Act promised that compelling the disclosure of the identities of anonymous contributors to political advocacy groups would have a “deterrent effect,” discouraging such contributions…
Four years later, this senator was candid about aiming to chill political speech: “When somebody is trying to influence government for their purposes, directly with ads and everything else, it’s good to have a deterrent effect.” The senator who was unhappy about people trying to influence their government — the senator eager to reduce the amount of political speech, which all political contributions fund, directly or indirectly — was Schumer…
Schumer will not be deterred from his assault on privacy. He has given the honorific designation S.1 to a bill with 800-plus pages of regulations of political activities, including disclosure provisions that are not directly affected by the court’s overturning of California’s attack on the privacy of donors to charities. But the ruling against California’s law pertaining to charities indicates the constitutional vulnerability of S.1’s anti-privacy provisions in this court.
National Review: Four Takeaways from the Supreme Court’s Nonprofit-Donor Disclosure Case
By Dan McLaughlin
Here are four big takeaways from the [Americans for Prosperity Foundation v. Bonta] decision:
One: A big loss for the creepy authoritarianism of Vice President Kamala Harris and Secretary of Health and Human Services Xavier Becerra…
Two: The Court knows what century this is. The First Amendment right to privacy in supporting nonprofit groups traces to the 1958 case of NAACP v. Alabama…
Three: “Exacting scrutiny” is still a thing, for now…
Four: The IRS is safe, for now, but H.R. 1 (the “For the People Act”) has problems…
The “DISCLOSE Act,” currently embedded not only in H.R. 1 but also in Joe Manchin’s proposed alternative, would force 501(c)(4)s to publicly disclose their donors’ names, on the theory of being “dark money.” Even if the Court is inclined to protect the power of the IRS to require confidential disclosures, it is hard to see the DISCLOSE Act surviving a First Amendment challenge after AFPF v. Bonta.
The Courts
New York Times: Trump sues tech firms for blocking him, and fund-raises off it.
By Shane Goldmacher
Former President Donald J. Trump on Wednesday sued three tech giants — Facebook, Twitter and Google — and the firms’ chief executives after the platforms took various steps to ban him or block him from posting.
Mr. Trump, speaking from his Bedminster, N.J., golf club, announced that he would serve as the lead plaintiff in the class-action lawsuit, arguing that he has been censored wrongfully by the tech companies. Speaking about “freedom of speech” and the First Amendment — which applies to the government, not to private-sector companies — Mr. Trump called his lawsuit, which was filed on Wednesday in the United States District Court for the Southern District of Florida, a “very beautiful development.” …
At the event and in court documents, Mr. Trump’s legal team argued that the tech firms amounted to state actors and thus the First Amendment applied to them.
Legal experts said similar arguments had repeatedly failed in the courts before…
Before Mr. Trump was done speaking, both the National Republican Congressional Committee and the National Republican Senatorial Committee had sent text messages about the lawsuit and asked for contributions. Mr. Trump’s political action committee sent its own solicitation shortly after the event ended. “Donate NOW,” it said.
Congress
CNBC: House Republicans lay out their antitrust agenda for tech giants
By Lauren Feiner
House Judiciary Committee Republicans, led by ranking member Jim Jordan, R-Ohio, laid out their framework for regulating Big Tech companies on Wednesday.
The agenda is broken into three parts: speed, accountability and transparency…
[T]he proposals laid out under accountability and transparency may be a tougher sell to Democrats. Under those categories, Republicans included reforming tech’s legal liability shield, Section 230, which is under the jurisdiction of a different committee. Although there is bipartisan desire for reforming that law, Democrats and Republicans have remained deeply divided over how to do so since they view the issues with the law quite differently.
Republicans suggest giving individuals the ability to “directly challenge Big Tech in court for its censorship and silencing of conservatives,” according to the agenda. They also propose requiring Big Tech companies engaged in content moderation to publicly disclose their decisions to remove posts online.
DOJ
Guardian: US urged to investigate deceptive Facebook ads tied to rightwing group
By Julia Carrie Wong
A campaign finance watchdog group has requested that the justice department open a criminal investigation into the figures behind a series of deceptive Facebook ads that promoted Green party candidates in the 2018 midterm elections.
A Guardian investigation recently revealed that the ads were placed by a major conservative marketing firm, contradicting an inquiry by the Federal Election Commission (FEC), which accepted the statement of Evan Muhlstein that he was responsible for the ads and had failed to comply with FEC reporting requirements due to “inexperience”.
The ads were placed by a Facebook Page called America Progress Now (APN) in the days ahead of the 2018 election. APN was not registered with the FEC at the time, in violation of federal laws requiring disclosures by so-called independent expenditures.
The Campaign Legal Center, the non-partisan watchdog group requesting the investigation, filed a complaint with the FEC about the group in 2019, but the FEC declined to investigate after Muhlstein came forward to take responsibility for the ads.
Online Speech Platforms
Reason (Volokh Conspiracy): Facebook Will Now Ban Criticism of “Concepts, Institutions, Ideas, Practices, or Beliefs” When They Risk “Harm, Intimidation, or Discrimination” Against Religious, National, or Other Groups
By Eugene Volokh
Facebook is adding the following to its “hate speech policy”:
“Do not post:
Content attacking concepts, institutions, ideas, practices, or beliefs associated with protected characteristics, which are likely to contribute to imminent physical harm, intimidation or discrimination against the people associated with that protected characteristic. Facebook looks at a range of signs to determine whether there is a threat of harm in the content. These include but are not limited to: content that could incite imminent violence or intimidation; whether there is a period of heightened tension such as an election or ongoing conflict; and whether there is a recent history of violence against the targeted protected group. In some cases, we may also consider whether the speaker is a public figure or occupies a position of authority.”
Reason: The Campaign Against ‘Extremism’ Looks Like an Attack on Speech
By J.D. Tuccille
Some Facebook users have recently received warnings about “extremism” and offers of help for those with acquaintances attracted to “extremist” ideas. It’s part of an international push to discourage and restrict communications considered radical and hateful. While often couched in concern about the potential for violence, this effort looks increasingly like a scheme to narrow the boundaries of acceptable discussion and muzzle speech that makes the powers-that-be uncomfortable.
The States
The Detroit News: Michigan GOP, Weiser agree to pay $200,000 to resolve campaign finance probe
By Craig Mauger
The Michigan Republican Party has agreed to pay $200,000 to resolve a campaign finance complaint that claimed Chairman Ron Weiser used party funds to lure a secretary of state candidate out of a race in 2018.
The allegations came to light in February when then-Chairwoman Laura Cox publicly accused Weiser of orchestrating a “secret deal” with Stan Grot of Macomb County to get Grot to drop out of the party’s nomination race for secretary of state. The deal involved $200,000 in payments from the party’s undisclosed administrative account to Grot, said Cox, who lost to Weiser in her reelection bid days after she made the claims against him.
Weiser, a businessman, GOP donor and University of Michigan regent, has denied any wrongdoing, labeling Cox’s assertions “baseless.” However, the former chairwoman sent a letter to the Michigan Bureau of Elections on behalf of the state party, self-reporting a “possible campaign finance violation” before she left her position, setting off an investigation by Democratic Secretary of State Jocelyn Benson’s office.
