In the News
Election Law Blog: IFS Files Amicus Briefs Attacking FEC Democratic Commissioners’ Refusal to Close Case Files or Vote to Defend FEC in Court for Inaction
By Rick Hasen
For background, read this NYT article.
ICYMI
FEC Scheme to Hide Decisions Is Illegal and Violates Due Process
The Institute for Free Speech announced today that it has urged two federal judges to put a stop to unethical legal gamesmanship by members of the Federal Election Commission. In a pair of amicus briefs, the Institute informed the judges that a faction of commissioners “seeks to delegate enforcement of federal campaign finance laws” to private groups by refusing to close case files or allow the prevailing commissioners to defend their actions in court after the Commission has voted not to investigate a complaint…
“The FEC’s Democrats are misleading the courts and abandoning the duties of their office in an unprecedented way. The FEC has resolved these cases, but it’s hiding them from the court, the public, and even the targets of the complaint,” said Institute for Free Speech Chairman and former Federal Election Commission Chair Bradley A. Smith.
“Every FEC Commissioner wins some votes and loses others. They must be able to accept that. Americans deserve fair treatment from the government, not manipulation of the judicial process to put them in jeopardy after the Commission has already cleared them,” said Smith…
The Institute filed the virtually identical briefs in two cases with the same plaintiff suing the FEC for separate claims, Campaign Legal Center v. Federal Election Commission, bearing case numbers 20-CV-0809 and 21-CV-0406, respectively. To read the briefs, click here and here.
Welcoming Our Newest First Amendment Fellow, Glynis Gilio
The Institute for Free Speech is pleased to announce that Glynis Gilio has joined the organization for a one-year term as a First Amendment Fellow. In this role, she will work alongside the Institute’s attorneys to tackle all aspects of trial and appellate practice in cases challenging restrictions on Americans’ rights to freely speak, publish, assemble, and petition.
Glynis explains, “The First Amendment is the cornerstone of my education. I’m overjoyed to be working at IFS, not only because I’m able to work in an area of law to which I’m deeply devoted, but because I know I that, as a member of the IFS team, my work will contribute to the most fundamental pursuit of our republic – the preservation of liberty.”…
We are excited to benefit from Glynis’ contributions to our litigation efforts during her fellowship. Please join us in extending a warm welcome to Glynis as the newest member of our growing legal team.
The Courts
The Seattle Times: Court overturns deceptive practices ruling against Value Village
By Katherine Anne Long
A Washington state appeals court has overturned a 2019 ruling that found Bellevue-headquartered thrift chain TVI Inc., which operates Value Village and Savers, had misled customers by deceptively marketing itself as a charity.
Washington Attorney General Bob Ferguson, whose office sued TVI in 2017 over alleged violations of the state’s Consumer Protection Act, will appeal the decision, spokesperson Brionna Aho said in an email…
[Value Village pays charities] a monthly fee in exchange for using their names and logos to solicit donations of used [merchandise] from community members… Value Village also purchases items that people have donated to charities, then sells those items to consumers at a higher cost.
Value Village doesn’t donate directly to charities, and its charity partners don’t receive any of its sales revenue.
The state argued that Value Village’s promotional material, though, could leave shoppers with the mistaken impression that a portion of sales at the thrift chain was flowing to charities…
A King County Superior Court judge sided with the state in 2019, noting that Value Village “knew or should have known” that its marketing could deceive consumers.
Monday’s appeals court decision reversed that earlier ruling, finding that it “unconstitutionally chills protected speech — charitable solicitation,” wrote Judge Bill Bowman for the unanimous three-judge panel.
Online Speech Platforms
New York Times (“Sway”): How Jason Miller Is Trying to Get Trump Back on the Internet
Hosted by Kara Swisher
Social media has felt quieter without the constant ALL CAPS fury of Donald Trump, but Jason Miller is trying to change that.
Miller, who was the former president’s longtime aide and spokesman, recently took a new gig running a social media platform called Gettr, which claims to be a haven from censorship and cancel culture. It may sound a little like Parler 2.0, but the game-changer for Gettr — which has a little under two million users — would be if Miller can get Trump to create an account and get back online.
In this conversation, Kara Swisher asks Miller how he intends to get Trump to log on. She challenges him on his claims that Twitter and Facebook are out to censor conservatives and presses him about how content moderation works on his platform.
Reason: Facebook’s Taliban Policy Could Delete a Lot More Than Just Pro-Taliban Content
By Elizabeth Nolan Brown
[Facebook’s] content moderators will continue to block not only content from Taliban-associated accounts but all pro-Taliban content, regardless of who is sharing it…
Both YouTube and Twitter indicated that they would block Taliban content if it violates other platform policies (such as prohibitions on certain sorts of violent content) but will not unilaterally ban pro-Taliban content.
This seems to be the right approach, from both a first-principles free speech standpoint and a desire not to inadvertently block content that could be educational, newsworthy, or shared by ordinary Afghan users trying to get the word out about what’s happening in their country…
Rasmus Nielsen of the University of Oxford further outlined the danger of unintended consequences from policies like Facebook’s, telling CNBC that “every time someone is banned there is a risk they were only using the platform for legitimate purposes. Given the disagreement over terms like ‘terrorism’ and who gets to designate individuals and groups as such, civil society groups and activists will want clarity about the nature and extent of collaboration with governments in making these decisions. And many users will seek reassurances that any technologies used for enforcement preserves their privacy.”
The States
The Pantagraph: Illinois police banned from making some background checks on speakers at public meetings
By Jeremy Gorner, Chicago Tribune
Gov. J.B. Pritzker on Friday signed into law a measure that makes it illegal for police to use at least one commonly searched law enforcement database to conduct criminal background checks on citizens who sign up to speak at public meetings statewide.
The law was inspired by a 2019 Tribune story that disclosed how the Chicago Police Department ran secret background checks for over a decade on several hundred citizens who signed up to speak at public meetings before the Chicago Police Board…
The new law, which goes into effect immediately, bars police agencies throughout Illinois from conducting background checks on citizens “for the sole reason” of that person speaking “at an open meeting of a public body, including police disciplinary boards.”
The measure — known as the Empowering Public Participation Act — was approved in May on a 73-44 final vote in the House and a 38-17 vote in the Senate.
Pasadena Star-News: Pasadena considers lifting state’s cap on local campaign contributions
By Brennon Dixson
Pasadena is expected to deviate from a new state law limiting local campaign contributions to $4,900.
Instead, the City Council will likely opt for no cap, though it will consider a ceiling for labor unions, developers and other interest groups that contract with the city.
The decision comes on the heels of a new state law known as Assembly Bill 571, which was enacted in January 2020 and requires cities and counties to adhere to the limits set by state legislators unless local agencies establish their own law first…
“There’s no way I could have been an option as a candidate, a viable candidate, without the ability to ask residents to contribute dollars, and they did,” [Mayor Victor] Gordo said, noting jurisdictions with lower limits often put candidates who are not incumbents at a significant disadvantage.
Richmond Times-Dispatch: Citizens who want money out of Va. politics release new report urging changes
By Patrick Wilson
After listening to legislators and studying other states, a citizens group that wants money out of Virginia politics issued a report Wednesday they say can be a blueprint for the General Assembly to improve the state’s lavish campaign finance structure…
Among the recommendations by MoneyOutVA are enhanced finance disclosures, regular auditing of campaign funding, and creating guidelines for complaints. The report endorses public financing of elections.
The report says Virginia Department of Elections’ data available to the public is raw and not easy to search, access or analyze, providing “neither true accountability nor full transparency.”
Nancy Morgan, coordinator of the group’s Virginia chapter, said she’s heard state lawmakers for years say they need to know about best practices around the country before they enact campaign finance reform. Now they’ve got more information, she said.
