New from the Institute for Free Speech
Statement on Dismissal of Markley and Sampson v. SEEC
The Institute for Free Speech released the following statement in response to a Connecticut court’s decision to dismiss as untimely our clients’ appeal of an administrative ruling that effectively censored candidate campaign ads.
“Today’s ruling lets the government off the hook for stringing along our clients with sham proceedings as it ran out the clock on their appeal. The State Elections Enforcement Commission (SEEC) repeatedly put our clients’ petition on its schedule and notified them that a decision was forthcoming. That decision was made on March 23rd, and our clients filed an appeal within the provided 45-day window. Now the SEEC claims, and the court has unfortunately agreed, that the March 23 hearing was a farce, and that the petition was already dead by virtue of the Commission’s inaction,” said Allen Dickerson, Legal Director of the Institute for Free Speech.
“While we are disappointed by this ruling, we are pleased the court recognized that this case raises ‘significant issues concerning the intersection between the free speech rights of political candidates and the regulation of campaign financing.’ We will continue our efforts to ensure those issues are addressed and that our clients have their day in court,” said Dickerson…
“I’m convinced this decision is wrong, but I’m even more certain that the underlying issue of free speech in a campaign is too important to be dismissed on a technicality,” [said Connecticut State Senator Joe Markley.] …
“Sen. Markley and I are not going away on this, because this simply cannot stand. Political candidates, regardless of party, must be able to rely on the First Amendment. It’s a foundational principle of our country. Shockingly, the SEEC doesn’t seem to understand that,” [said Connecticut State Representative Rob Sampson.]
Media or Not, the First Amendment Protects Your Right to Unlimited Speech
By Alex Baiocco
Hip-hop artist Chance the Rapper recently announced that he purchased the Chicago local news site Chicagoist…
The announcement from Chance, a Chicago native, came via the release of a new song, titled “I Might Need Security.” The lyrics offer some insight into his motivations for purchasing the publication. The song is also an example of the type of speech for which First Amendment protections are often most necessary. It’s profane, impassioned, and aimed directly at those in power.
In the song, Chance calls for the resignation of Chicago Mayor Rahm Emanuel and “an open investigation” concerning a 2017 Emmanuel proposal that Chance publicly criticized at the time.
The song also goes after Crain’s Chicago Business, the Chicago Sun-Times, and Illinois Governor Bruce Rauner…
[I]t’s clear that maintaining a platform for political speech in opposition to politicians that Chance disfavors, and in competition with publications he disfavors, was a primary motivation in his purchase of the news site…
Most media companies don’t just publish news. They publish opinion pieces and editorials. And their editorial boards often endorse candidates running for office. They also sometimes tell readers why they should not vote for a particular candidate.
This, of course, means that a for-profit company is spending money on speech expressly advocating for the election or defeat of candidates. The First Amendment protects the right of these companies to take in and spend as much money as they’d like doing so.
It also protects the right of every other American citizen to do the same thing. Which is why the First Amendment requires that super PACs be legal.
In the News
SCOTUSblog: Thursday round-up
By Edith Roberts
At the Brennan Center, Daniel Weiner evaluates Kavanaugh’s campaign-finance record, warning that “[i]n his 12 years as a federal appeals court judge, Kavanaugh has cast doubt on the constitutionality of fundraising limits; suggested a way to get around disclosure laws; and even gone out of his way to limit the reach of the foreign spending ban.” At National Review, Bradley Smith asserts that “[o]f all the attacks on … Kavanaugh, perhaps the silliest is that he would open the door to foreign money in U.S. elections,” because “[t]he basis for this claim is an opinion that Judge Kavanaugh wrote upholding a law that prohibits non-resident aliens from making political contributions or expenditures.”
At Reason’s Hit & Run blog, Damon Root maintains that Kentucky Republican Sen. Rand Paul’s willingness to support Kavanaugh after voicing concerns about the judge’s approach to Fourth Amendment digital privacy issues “suggests that in his private meeting with Kavanaugh, the SCOTUS nominee signaled his willingness to take a new view of the Fourth Amendment in light of [the Supreme Court’s recent decision in] Carpenter [v. United States],” and he urges Kavanaugh to “say so publicly during his Senate confirmation hearings.”
CT Post: Joe Markley election violation case appeal dismissed
By Emilie Munson
A Superior Court judge on Friday dismissed the case of two Republican lawmakers who are fighting thousands in fines for campaign finance violations dating back to 2014.
Judge Joseph M. Shortall in New Britain ruled that state Sen. Joe Markley and state Rep. Rob Sampson did not file their appeal of the State Elections Enforcement Commission’s denial of their petition within 45 days, as required by state statute…
Markley said the pair plan to continue fighting the case and have not yet paid the fines.
“I don’t agree with the judge’s decision,” Markley said. “We’ve got many alternative avenues.”
Markley disagreed with the judge as to when the clock started ticking in the petition process and, according to Markley’s assessment of the timeline, their appeal was filed on time.
The SEEC decided their 2014 campaign mailers – which the Republican duo split the cost of -were an effort to help Republican Tom Foley’s challenge to Gov. Dannel P. Malloy in 2014. The SEEC ruled in February that the mailers, which criticized Malloy, were illegal expenditures on behalf of Foley, who would have had to share the cost of the mailers…
“We simply don’t believe we were wrong,” Markley said Friday. “And we want to establish the principle that the policies of the sitting governor are a fair topic of campaign conversation.” …
Markley and Sampson were represented by Allen Dickerson of the Alexandria, Va-based Institute for Free Speech and Michael Cronin, a legal advisor for Senate Republicans.
Supreme Court
Washington Post: Archives: Kavanaugh documents not ready until end of October
By Lisa Mascaro, AP
The National Archives and Records Administration said Thursday it won’t be able to finish reviewing nearly 1 million documents regarding Supreme Court nominee Brett Kavanaugh’s time in the George W. Bush White House until the end of October, a potential roadblock in GOP hopes for confirmation before the November election.
Republican leaders in the Senate appeared unfazed by the updated timetable, determined to push forward with confirmation hearings on President Donald Trump’s nominee next month, even if the documents are not fully available…
A spokesman for Republican Sen. Chuck Grassley of Iowa said the Judiciary Committee will still be able to undertake its review along the same timeline set previously, which puts Kavanaugh on track for confirmation in early October. The chairman “intends to hold a hearing sometime in September,” Taylor Foy said.
The Courts
The Appeal: Meet ‘Bob Smith,’ The Fake Facebook Profile Memphis Police Allegedly Used To Spy On Black Activists.
By George Joseph
The police department was confronted with the “Bob Smith” account in an April 2018 deposition for the ACLU of Tennessee’s lawsuit over the surveillance. During the deposition of a police officer who had engaged in surveillance operations, the city’s lawyer claimed answering questions about the “Bob Smith” account might disrupt past, present, or future police investigations.
When an ACLU attorney asked point blank if it was a police account, the officer’s lawyer declared that they would not allow any testimony “on the details as to how the Bob Smith account is employed by the Memphis Police Department.” …
The account appears to have tracked activists for years. Facebook messages obtained by The Appeal, show that Bob Smith was friending activists as early as August 2015. One activist, who wished to remain anonymous citing fears of further police scrutiny, said that they received a friend request from Smith as late as February 2017, around the time of protests over President Trump’s travel ban.
In one June 2016 Facebook Messenger conversation with another activist, reviewed by The Appeal, the account claimed to be “Tim Ryan” from “Fayette County.” . . . In a phone call, the activist, who requested anonymity citing personal safety concerns, confirmed that he eventually accepted the friend request. Two months after the conversation in which “Bob Smith” said he was “Tim Ryan,” this activist was arrested at a Black Lives Matter protest for “criminal trespass.” …
According to emails released by the city over the course of the ACLU’s litigation, social media surveillance helped police track activists in real time. A September 2016 email, for example, showed how police at Memphis’s Real Time Crime Center were updating each other on activists’ meeting locations.
Fundraising
USA Today: Exclusive: Fired-up liberals raise $1 billion on website for candidates, causes ahead of midterms
By Fredreka Schouten
The online fundraising platform ActBlue this week surged past the $1 billion mark in contributions to Democratic candidates and causes in this election cycle…
The group predicts donations will top $1.5 billion by year’s end, double the amount the fundraising clearinghouse processed in the 2016 election cycle. By comparison, it took ActBlue nearly 12 years – from its founding in June 2004 until March 2016 – to raise its first $1 billion.
The average donation this cycle: $34.
About 13,000 candidates and groups raise money through the platform, up from about 5,400 in the 2016 election cycle. They range from liberal icon and Massachusetts Democratic Sen. Elizabeth Warren to groups helping aid migrant families separated at the U.S.-Mexico border…
Helping fuel the growth: Women donors, who now account for 61 percent of ActBlue’s 3.7 million contributors this cycle. That’s up from 54 percent in 2016 and 52 percent in 2014.
The rise of donations from liberal female donors comes as the number of women running for office soars.
For instance, a record 476 women have filed to run for the U.S. House of Representatives this year, topping the previous record of 298 set six years ago, according to the Center for American Women and Politics at Rutgers University.
Bloomberg: A Record Number of Democratic Challengers Are Outraising GOP Opponents
By Joshua Green
Democrats are hoping a blue wave of support will carry them to victory in this fall’s elections. In the meantime, they’ve caught a green wave of cash-the torrent of money pouring into Democratic campaign coffers helped 73 House candidates outraise Republican incumbents and opponents in races for open seats in the second quarter…
The surge of Democrats who raised more money than their GOP opponents last quarter is testimony not only to widespread antipathy to Trump among liberals and many independents, but also to the fundraising acumen of the party committee and many of the new grass-roots groups that sprang up in the wake of Trump’s victory…
[M]oney has flowed to dozens of competitive districts-an approach more analogous to index investing than stockpicking, as donors spread their bets across a broad range of candidates, instead of backing a popular few and counting on a perfect performance from them.
This approach has been facilitated by several new grass-roots groups that have been sophisticated about how they encourage their supporters to give. Swing Left, a group founded just after the election, is focused on battleground districts, rather than candidates…
More recently, Swing Left and other groups have directed donors to cash-strapped nominees newly emerged from competitive House primaries in an effort to fill their war chests for November. “What we’re seeing in 2018 is the emergence of the amateur political strategist,” says [David] Wasserman. “People who are Democratic activists, who want to plug holes on the fundraising map and leave nothing to chance.”
Candidates and Campaigns
By Bob Bauer
The ban on foreign national involvement in federal elections is exceptionally broad. It applies to any spending to affect an election: The prohibition applies to “contributions,” “expenditures,” “donations,” and “disbursements.” A “contribution” for this purpose includes any “thing of value.” The rules reach “promises” of such spending whether express or “implied,” and to campaign spending provided either directly or “indirectly.”
This basic prohibition extends even to foreign national “participation” in the decisions that a U.S. national makes about election-related spending…
Federal election law pairs these prohibitions on foreign national electoral activity with restrictions on the behavior of the would-be U.S. beneficiaries. U.S. nationals, including campaigns, cannot “substantially assist” a foreign national in any of these activities, and Americans cannot solicit, accept or receive any such illegal foreign-national support. Viewed together, these prohibited activities- assistance, solicitation, acceptance, or receipt-certainly capture the essence of what some might understand by references to “collusion.” …
Foreign nationals have no constitutional rights to influence U.S. elections, and so the U.S. national supporting an illegal Russian national scheme would have limited First Amendment rights to claim in its own defense. To take one example, it would not help the American manager of a PAC to appeal to “freedom of speech” in defending a conversation with a foreign national colleague about the choice of candidates for PAC support. It is highly unlikely that a lawyer would conclude that, after all this effort over the years, Congress had designed a statute somehow reasonably interpreted to prevent an individual foreign national from giving a $25 contribution to a campaign but failing, despite all these detailed legal restrictions, prohibit a relationship like the one that the Trump campaign seems to have fashioned with the Putin regime.
Trump Administration
New York Times: Russian Threat ‘Is Real,’ Trump Officials Say, Vowing to Protect U.S. Elections
By Michael D. Shear and Michael Wines
Top national security officials vowed Thursday to defend American elections against what they called real threats from Russia…
They also sought to reassure voters that federal, state and local governments were taking steps to guard against what Christopher A. Wray, the F.B.I. director, described as a “24-7 365-days-a-year” effort by Russia to sow division as Americans head to the polls in the fall.
“Russia attempted to interfere with the last election,” Mr. Wray told reporters in the White House briefing room, “and continues to engage in malign influence operations to this day. This is a threat we need to take extremely seriously and to tackle and respond to with fierce determination and focus.”
Dan Coats, the director of national intelligence, echoed that assessment, saying that “Russians are looking for every opportunity, regardless of party, regardless of whether or not it applies to the election, to continue their pervasive efforts to undermine our fundamental values.”
Mr. Wray and Mr. Coats were joined at the briefing by Kirstjen Nielsen, the secretary of homeland security, John R. Bolton, the president’s national security adviser, and Gen. Paul M. Nakasone, the head of the National Security Agency.
Officials at the briefing did not describe specific threats to the coming elections, and they were vague about how the government was responding to what they called Russia’s interference campaign. But they said Mr. Trump had directed them in a National Security Council meeting last week to aggressively confront the threats.
“Our democracy itself is in the cross hairs,” Ms. Nielsen told reporters.
Online Speech Platforms
NPR: Spotify Pulls Some Alex Jones Podcast Episodes
By Anastasia Tsioulcas
The popular streaming service Spotify has pulled some content posted by the prominent conspiracy theorist Alex Jones, founder of the website Infowars…
Last week, Facebook and YouTube each pulled down four videos posted by Infowars, the site founded by Jones. In addition, Facebook suspended Jones from its platform for 30 days, and YouTube has banned Infowars from live streaming for 90 days.
Since the videos’ removal from Facebook and YouTube, Jones has spread the message on his social media that his content is still available on Spotify and other audio platforms.
A Spotify spokesperson told NPR, “We take reports of hate content seriously and review any podcast episode or song that is flagged by our community. Spotify can confirm it has removed specific episodes of ‘The Alex Jones Show’ podcast for violating our hate content policy.” …
Twice this week, Jones has appeared at the Travis County Courthouse in Austin, Texas, in an attempt to dismiss two out of five defamation suits that he is currently facing. He has been accused of knowingly spreading false information about the Marjory Stoneman Douglas High School shooting this year, the violence in Charlottesville, Va., in 2017 and the Sandy Hook Elementary School shooting in 2012.
Political Parties
Politico: RNC warns donors to steer clear of Kochs
By Alex Isenstadt
The move follows a weekend retreat in Colorado at which Koch network officials criticized the Trump administration, hinted they would work with Democrats, and announced they would not help a Republican candidate in a key 2018 Senate race.
“Some groups who claim to support conservatives forgo their commitment when they decide their business interests are more important than those of the country or Party,” RNC Chairwoman Ronna Romney McDaniel wrote in a memo to party contributors on Thursday afternoon. “This is unacceptable.” …
“From the beginning, the RNC had concerns about any outside entity building a data operation to compete with ours because we knew they could potentially weaponize that data against Republicans if their business interests conflicted with electing Republicans,” McDaniel writes. “Sadly, our concerns were recently proven true.” …
James Davis, a Koch spokesman, did not respond directly to the RNC’s move. But he suggested the network stood by its pledge to work across party lines.
“We have a long-term commitment to unite around issues that will help people improve their lives. Just as we have in the past, we will work together with the President, elected officials and others where we agree. And, where we disagree, we will do so in a civil way,” he said. “This is what it will take to make progress on the issues and ultimately create a society of mutual benefit – where people succeed by helping others.” …
As part of its offensive, a senior party official said, the RNC would be reaching out to donors to make the case “that if you give to Koch you could be supporting a Democrat and risking GOP majorities.”
The States
New Hampshire Union Leader: Stop whining: Politicians can be criticized
By Editorial Board
A handful of New Hampshire lawmakers who complained to the state about people criticizing them have been shot down.
The New Hampshire branch of Americans for Prosperity sent out mailers criticizing several Republicans who opposed right-to-work legislation in the House. Seven of the targeted politicians wrote to the attorney general and secretary of state complaining that AFP had not registered as a political action committee (PAC).
Responding this week, Assistant Attorney General Matthew Broadhead reaffirmed a 2015 determination that criticizing elected officials is not the same as advocating for their defeat on Election Day.
In fact, some of the targeted reps. aren’t even running for re-election.AFP-NH’s self-styled “accountability campaign” is the very definition of issue advocacy. Right to work is a priority for the group, and it would have passed had Republicans held together on the issue. The group is well within its rights to complain publicly about elected officials without having to register as a PAC.
Had AFP-NH told voters to oppose the reelection of these representatives, or to vote for someone else, that would have been electioneering, and triggered campaign finance disclosures.
These distinctions may sometimes seem silly, but that underscores the absurdity of our campaign finance system, which often seems geared first and foremost at shielding incumbents from political consequences.
St. Louis Post-Dispatch: Voters will decide medical pot, ethics and minimum wage questions on Missouri’s November ballot
By Kurt Erickson
[A] group called CLEAN Missouri got its initiative on the ballot. It asks whether voters want to tighten campaign contribution limits, ban lobbyist gifts, institute a two-year “cooling off” period for lawmakers-turned-lobbyists, start a new redistricting system in 2020 and require lawmakers to adhere to the Sunshine Law.
Bangor Daily News: Maine judge rules that LePage can’t block public campaign funds
By Michael Shepherd
Backers of Maine’s public campaign system won a battle with Gov. Paul LePage on Thursday after a judge ruled that roughly $1 million in taxpayer funds must be paid to gubernatorial and legislative candidates after the governor tried to block them.
It could be only the beginning of a court fight around the embattled Maine Clean Election program, which was created by Maine voters in 1996 and beefed up by referendum in 2015. For now, a legal drafting error that the Legislature hasn’t fixed is keeping other funds from being paid to candidates.
The lawsuit came in June after LePage, a Republican, refused to sign financial orders that would have allowed the Maine Ethics Commission – which administers the program – to increase the amount of money that it could give to qualifying candidates before the end of the last fiscal year on June 30…
Maine Superior Court Justice William Stokes ruled Thursday that a financial order wasn’t required because of the “unique and specific nature” of the Clean Election fund, ordering the state to make the money available to candidates within three days.
The lawsuit was led by Maine Citizens for Clean Elections, a group that advocates for the program, on behalf of seven legislative candidates and four Clean Election donors. They argued that LePage violated a section of the Constitution saying laws must be “faithfully executed.”
Austin-American Statesman: Appeals court revives lawsuit targeting Texas Ethics Commission’s power
By Chuck Lindell
A state appeals court on Friday reinstated a lawsuit by Empower Texans, a prominent conservative advocacy group, that seeks to strip the Texas Ethics Commission of its power to regulate campaigns and political donations…
The case involves 2012 complaints filed at the ethics commission by two state lawmakers who are no longer in office – Vicki Truitt and James Keffer – alleging that Sullivan failed to register as a lobbyist as required by state law and that Empower Texans violated campaign finance law by failing to register as a political action committee.
The agency eventually fined Sullivan $10,000, saying he lobbied state lawmakers without registering as a lobbyist, prompting a round of appeals that is currently before the Texas Supreme Court.
In a separate action on the failure to register as a political action committee complaint, the ethics commission filed a lawsuit in Travis County district court seeking to enforce subpoenas against Empower Texans and Sullivan, who filed a counterclaim that argued, among other things, that the agency lacked the authority to issue fines or enforce state election laws.
The commission dropped that investigation, however, and argued that Empower Texans’ counterclaim was therefore moot. Yelenosky agreed and dismissed the counterclaim – prompting the appeal that led to Friday’s ruling by the 3rd Court of Appeals.
Reason (Volokh Conspiracy): N.J. Court Orders Google to Vanish Plaintiff’s Photo — Published at the Chicago Tribune — From Search Results
By Eugene Volokh
There is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate.
I think that any injunction entered before a full hearing on the merits at which speech is found to be constitutionally unprotected is an unconstitutional prior restraint. Even courts that allow permanent injunctions against unprotected speech (and, again, note that the speech in this case is almost certainly substantively protected) have allowed this “only after the trial court’s final determination by a preponderance of the evidence that the speech at issue is, in fact” constitutionally unprotected (e.g., Hill v. Petrotech Resources Corp. (Ky. 2010)). But an ex parte restraining order, entered without any adversary hearing at all, much less a full hearing on the merits, clearly violates the First Amendment…
[The lawsuits] seem to be part of a broader campaign to hide a considerable amount of commentary and political activism from the publicly available record. And I think this helps reinforce the wisdom of existing American law, which generally does not let people use coercive government power to order search engines and publishers to hide such information.
Except, apparently, in a courtroom in New Jersey.
