New from the Institute for Free Speech
Sixth Circuit Rules Tennessee Sign Owner Can Keep “Patriotic” Billboard
The Sixth Circuit Court of Appeals ruled unanimously today that the Tennessee Billboard Act is unconstitutional and said the state may not tear down a sign belonging to William Thomas. The state had ordered the removal of a sign Thomas used to cheer on the 2012 U.S. Summer Olympic Team. Thomas is represented by attorneys from the Institute for Free Speech.
“Today’s ruling is a major victory for free speech. The court completely rejected Tennessee’s arbitrary and subjective excuses for banning our client’s sign. This should serve as a warning to other states and localities that have failed to bring their sign codes into compliance with the First Amendment,” said Institute for Free Speech Legal Director Allen Dickerson.
The Tennessee Billboard Act prohibits any billboard within 660 feet of a public roadway unless expressly permitted by the Tennessee Department of Transportation (TDOT). However, the law provides an exception allowing signs that advertise on-premises activity to be erected without a permit. As a result, the state looks to a sign’s message to determine how it is regulated under the Act.
“The Billboard Act’s on-premises exception scheme is a content-based regulation of (restriction on) free speech. Although we discuss this at length, this is neither a close call nor a difficult question. If not for Tennessee’s proffered disputes, we would label this ‘indisputable,'” wrote Judge Alice M. Batchelder…
The Tennessee Billboard Act was enacted to comply with the Federal Highway Beautification Act, which conditions ten percent of a state’s federal highway funding on maintaining control over billboards within 660 feet of a roadway. Following the Sixth Circuit’s ruling, the state will have to amend its statute to avoid privileging speech that advertises on-premises activity.
To read the Sixth Circuit’s decision, click here. To read more about the case, Thomas v. Bright, click here.
In the News
Washington Post: Letters to the Editor
In his Sept. 8 op-ed, “The newest political arm of the GOP,” Sen. Sheldon Whitehouse (D-R.I.) argued that the Supreme Court is beset by a conservative effort to file “anonymously funded amicus briefs, signaling how the judges should vote.” He took Janus v. AFSCME as his example but told only half the story. The majority of the briefs in Janus supported the union – 39 to the challenger’s 26 – and several were filed by progressive organizations that do not fully disclose their donors, such as the American Civil Liberties Union and Public Citizen. Were these briefs also nefarious “dark money” efforts? Or is the senator troubled only by advocacy with which he disagrees?
Allen Dickerson, Alexandria
The writer is legal director of the Institute for Free Speech.
Buckeye Institute: U.S. Sixth Circuit Cites The Buckeye Institute’s Brief in Upholding First Amendment
Citing The Buckeye Institute’s amicus brief in Thomas v. Bright, the United States Court of Appeals for the Sixth Circuit upheld the First Amendment and struck down Tennessee’s billboard law as a violation of free speech on Wednesday.
“Tennessee attempted to justify its sign restrictions as a public safety measure, but we are pleased that The Buckeye Institute’s brief was able to help the court see through Tennessee’s deceptive pretext for violating free speech,” said Robert Alt, president and chief executive officer of The Buckeye Institute. “The court’s opinion cited The Buckeye Institute’s legal brief as offering ‘persuasive evidence’ that Tennessee was in fact ‘motivated almost exclusively by aesthetic, not public safety, concerns.'” …
Thomas v. Bright was filed by the Institute for Free Speech.
Supreme Court
USA Today: Liberal Supreme Court justices vote in lockstep, not the conservative justices
By Ilya Shapiro
There were 67 decisions after argument in the term that ended in June. In those cases, the four justices appointed by Democratic presidents voted the same way 51 times, while the five Republican appointees held tight 37 times. And of the 20 cases where the court split 5-4, only seven had the “expected” ideological divide of conservatives over liberals. By the end of the term, each conservative justice had joined the liberals as the deciding vote at least once.
That dynamic isn’t something that sprang up in the Trump era or with the court’s newest personnel. In the 2014-15 term, with Kennedy at the height of his “swing vote” power . . . the four liberals stuck together in 55 of 66 cases, while the four conservatives (not counting Kennedy) voted as a unit in 39.
Even in 2013-14, when liberals and conservatives voted with their respective coalitions equally (54 times in 67 cases), 42 of those decisions were unanimous and there were only ten 5-4 rulings. In other words, when conservative justices vote together at the same rate as their liberal counterparts, it’s because the entire court is united…
Justice Neil Gorsuch has joined the liberals five times in 5-4 decisions, four of them this past term alone – with Gorsuch typically writing for the majority or concurring separately without adopting the liberal reasoning…
Kavanaugh actually aligned himself as much with Justices Stephen Breyer and Elena Kagan as with Gorsuch. The Trump appointees voted the same less often in their first term together than any other two justices appointed by the same president, going back at least to President John F. Kennedy. Meanwhile, Obama appointees Kagan and Sonia Sotomayor were together in all the 5-4 cases this term.
The Courts
Bloomberg: ACLU Sues New Jersey Over Law Requiring Disclosure of Big Donors
By Erik Larson
The American Civil Liberties Union sued the state of New Jersey over a new law requiring tax-exempt organizations to publicly disclose the names, addresses and employers of people who donate more than $10,000.
The law violates the Constitution by placing a burden on speech and so-called associational conduct protected by the First Amendment, according to a complaint filed Tuesday in federal court in Trenton. Such lists have been sought by both liberals and conservatives in efforts to expose “dark money” seen to be influencing elections ahead of the 2020 presidential vote.
Governor Phil Murphy, a Democrat, signed the bill into law in June after expressing concern about its constitutionality, according to the complaint. He vetoed an identical bill just a few months earlier, the ACLU said.
The ACLU also claims the law wrongfully forces it to disclose donors for activities that aren’t related to elections, such as efforts to reform the criminal justice system or legalize marijuana. And the law is too vague, the group claims, because it doesn’t specify a time frame for the $10,000 threshold.
Courthouse News Service: Challenge to Tennessee Voter Registration Law Survives Dismissal Motion
By Daniel Jackson
SB 0971 imposes regulations on voting drives that sign-up more than 100 voters and compensate some of the collectors of the registration applications…
The Andrew Goodman Foundation quickly joined a suit challenging the law, arguing that part of it amounts to government-compelled speech, because voter registration drives would have to include a disclaimer in their communications that their statements are made by a political organization and not the Tennessee Secretary of State.
That provision would hobble the foundation’s efforts to use texting – which its managing director, Maxim Thorne, says is the most effective way of turning out the youth vote to the polls.
“We should not have to make statements on behalf of the Tennessee State Department,” Thorne said. “This is clearly an effort to cripple our ability, or everyone’s ability, to use texting as a mode of getting people out to vote.”…
U.S. District Judge Aleta Tauger said in her 34-page ruling that, at this point in the lawsuit, the organizations “have pleaded a plausible claim” that Tennessee did not give a compelling reason to direct them to issue disclaimers while engaging in political speech.
“By making it riskier and more difficult to engage in voter registration activities and communications, the Act has, the plaintiffs allege, imposed meaningful limitations on the plaintiff organizations’ rights to engage in political speech and association related to elections. With regard to the plaintiffs’ alleged First Amendment harms, moreover, it is particularly unnecessary to wait and see how the Act will be enforced,” Tauger wrote…
Among the law’s provisions, voting drives need to register with Coordinator of Elections, collectors must undergo training on election law and the submission of incomplete voting registration applications could land a group with fines up to $10,000.
FEC
Center for Public Integrity: At The Bedraggled FEC, A Clean Slate Of Leaders? The First African-American Commissioner?
By Dave Levinthal
Senate Democrats have recommended Shana Broussard, an attorney and executive assistant to longtime Commissioner Steven Walther, to Trump for nomination, three sources familiar with the FEC nominating process confirmed to the Center for Public Integrity. (Broussard and Walther did not respond to requests for comment.)
Broussard, if nominated by Trump and confirmed by the Senate, would become the first African American to serve on the six-member FEC…
Meanwhile, the Republican-controlled Senate could at any moment consider Trump’s lone FEC nominee to date, Texas attorney Trey Trainor…
Senate Republicans want to clean house and appoint six new commissioners…
The office of Senate Majority Leader Mitch McConnell, R-Ky., declined to answer emailed questions about the FEC situation.
But, “there is an ongoing effort to fill all six FEC commissioner seats,” said a Republican Senate staffer familiar with the FEC nomination process, who declined to be named in order to speak candidly. “To do that though, Sen. [Chuck] Schumer and Senate Democrats must replace the two longtime Democratic holdovers. A clean slate of members will go a long way toward fixing some of the perceived dysfunction at the commission.”
Some key congressional Democrats, meanwhile, are pushing for what would likely be a speedier, if less sweeping solution.
“I hope the Senate will consider a bipartisan pair of nominees, as it has in the past, to restore a quorum,” Rep. Zoe Lofgren, D-Calif., chairwoman of the Committee on House Administration, which oversees the FEC, told Public Integrity. She plans to conduct an FEC oversight hearing – the first since 2011 – later this year.
Schumer’s office declined to answer specific questions. It released a one-sentence statement: “Congress should address this issue quickly because we need a fully functioning FEC.”
Disclosure
Daily Caller: In Trump Era, Hollywood Elite Have Newfound Fondness For Blacklists
By Jennifer Tiedemann and Matt Miller
McCormack and Messing may think they’re just making an innocent appeal to transparency – after all, what are these Trump backers trying to hide? But in reality, their tweets are a reminder that donor information, though it is in many circumstances a matter of public record, can be used as a weapon to damage people’s lives and livelihoods.
Our country’s campaign finance laws require the disclosure of the personal information of anyone who donates more than $200 to a presidential campaign. Thanks to public databases, that information is easily findable and easily searchable.
That’s how U.S. Rep. Joaquin Castro was able to create the list of 44 San Antonians who gave the maximum to Trump’s reelection campaign in this election cycle and tweet it out to his followers last month. Providing that information via a tweet made it easier for Trump opponents to target these donors – indeed, several of them were harassed in the days following the tweet.
But wreaking havoc on the way someone earns their living is also a valid and real concern. McCormack’s tweet made it perfectly clear: He wants the list of Trump fundraiser attendees to be made public so “we” can make it clear who “we” don’t want to work with. In other words, having that list in hand would make it easier to know who shouldn’t be hired for a film or a television show. That’s blacklisting – plain and simple…
While much donor information is publicly accessible, social media has made it easier than ever to weaponize that information, exposing those who choose to donate to a campaign to possible harassment. Just like Castro’s tweet, McCormack and Messing’s requests to share the list of Trump supporters in Beverly Hills aren’t meant to inform: They’re meant to scare people away from participating in the political process.
Free Speech
National Review: The Divine Right of the Democratic Party
By Kevin D. Williamson
Eliminating the Republican party would not relieve the country of the “polarization” – meaning opposition – that annoys the Goldberg-Greenberg camp.
The only way to achieve that would be through the political suppression of those with dissenting political views.
Which, of course, is the Left’s current agenda, from deputizing Corporate America to act as its political enforcer by making employment contingent upon the acceptance of progressive political orthodoxies to attempting to gut the First Amendment in the name of “campaign finance” regulation – it is the Democratic party, not the moral scolds of the Christian Coalition, that proposes to lock up Americans for showing movies with unauthorized political content – to grievously abusing legislative and prosecutorial powers to harass and persecute those with nonconforming political views (“Arrest Climate-Change Deniers”) and declaring political rivals “domestic terrorists,” as California Democrats have with the National Rifle Association.
Which is to say: It is not only the Republican party as a political grouping they dream of eliminating: It is Republicans as such and those who hold roughly Republican ideas about everything from climate change to gun rights, groups that Democrats in agencies ranging from state prosecutors’ offices to the IRS already – right now, not at some point in some imaginary dystopian future – are targeting through both legal and extralegal means.
The Democrats who are doing this believe themselves to be acting morally, even patriotically, and sometimes heroically. Why? Because they believe that opposition is fundamentally illegitimate.
Independent Groups
Real Clear Politics: ‘Dark Money’-Fueled Ads Heat Up Maine Senate Battle
By Susan Crabtree
“I have never had so much money on negative ads spent against me so early,” Collins told Maine public radio on Friday…
“When the former Democratic aides who are running those ads are asked, ‘Who’s paying your salary?’ They have refused to say,” Collins said in the public radio interview. “I think the people of Maine have a right to know. … Just as I have to disclose all of my contributions to the [Federal Election Commission], I think they should have to disclose the source of where their money is coming from, whether they are for me or against me. But [the ads] have all been against me so far.”…
“Sara Gideon is trying to have it both ways,” Collins campaign spokesman Kevin Kelley told RCP. “She says she’s against accepting campaign donations from PACs, yet she built her career on donations from pharmaceutical companies, an oil pipeline company, and many other large, out-of-state corporations.
“She says she wants to take on the ‘rigged system’ in Washington, yet she seems eager to accept help from at least one dark money group who refuses to reveal who is funding them, and is operated by someone who used to work for her,”…
Gideon’s team, meanwhile, has slammed Collins for voting against the Disclose Act, which required many advocacy groups that speak out about politicians’ records to release the names and identities of their donors. The bill was opposed by several free-speech groups, including the usually liberal-leaning American Civil Liberties Union, which argued the bill “inequitably suppresses only the speech of smaller organizations” while allowing “a few large organizations to preserve the privacy of their donors.”
During her Maine public radio interview, Collins clarified that she supports a “level playing field” and legislation that requires all politically active groups to disclose their donors, “whether you’re on the right or the left or the center.”
“Where’s their money coming from?” she asked. “They obviously have a lot of it.”
Daily Signal: Here Are 4 Ways the Left Is Grabbing Power in America
By Jarrett Stepman
Former Rep. Jason Chaffetz, R.-Utah, who served on and chaired the House Committee on Oversight and Government Reform and is now a Fox News contributor, made the case that the left is using a variety of underhanded strategies to fundamentally change American elections and tilt them in their favor.
Chaffetz lays out his argument in a new book, “Power Grab: The Liberal Scheme to Undermine Trump, the GOP, and Our Republic.” He argues that the left is using underhanded strategies to fundamentally alter the nature of U.S. elections, making them less stable and subject to rigging.
Chaffetz explained his argument in a talk at the Heritage Foundation on Tuesday…
[T]he left has been effective at manipulating loopholes to weaponize nonprofit groups, Chaffetz said.
Nonprofit groups often hire for-profit groups to do fundraising using what’s called a 990 form, and one of the most prominent fundraisers for liberal groups is Grassroots Campaigns Inc.
“They will put on t-shirts-ACLU, Southern Poverty Law Center, Planned Parenthood-and then they’ll start knocking on doors,” Chaffetz said.
“Planned Parenthood will say ‘Hey, we’re raising money, 50 bucks, you know, for Planned Parenthood. You with us or against us?”
The person then might reply: “Oh, I love Planned Parenthood. Yeah I’ll give you $100.’ What does that tell you about that voter? … You think they are going to vote for a Democrat or do you think they are going to vote for the Republican?”
This process allows Grassroots Campaigns Inc. to collect data on voters that can help predict voting behavior. The problem, Chaffetz said, is that people working for these groups can then carry the collected voter data when they go to work for campaigns or a political party, like the Democratic National Committee, “bypassing all of the campaign finance rules.”
The States
Anchorage Daily News: Supporters of election-reform ballot measure appeal rejection to courts
By James Brooks
A ballot measure group is challenging Lt. Gov. Kevin Meyer’s decision to prohibit their initiative from moving closer to a statewide vote.
On Thursday, Alaskans for Better Elections filed suit in Alaska Superior Court, asking a judge to overturn Meyer’s action and allow the group to begin gathering signatures for a 2020 vote…
Backed by several Outside groups, Alaskans for Better Elections is seeking to implement ranked-choice voting in Alaska…
Other sections of the 25-page initiative would put new restrictions on “dark money” political contributions. The measure defines those as political donations “whose source or sources … is not disclosed to the public.”
In a legal analysis dated Aug. 29, Attorney General Kevin Clarkson recommended that the lieutenant governor reject the initiative because in the view of the Alaska Department of Law, it violates a constitutional clause requiring ballot measures to be restricted to one subject…
According to campaign finance reports filed with the Alaska Public Offices Commission, Alaskans for Better Elections has been predominantly funded by a handful of nonpartisan Outside political groups that have collectively contributed more than $43,000 in staff time or cash to the ballot initiative group.
Represent.Us, a Massachusetts-based group, is the largest, having offered $15,000 in support. The Voters’ Right to Know project, which supports transparency in political contributions, has given $11,000. FairVote, a Maryland-based group backing ranked-choice voting nationwide, has contributed $10,000. American Promise, another Massachusetts-based group, has given $7,500. Alaska contributions are less than $1,000.
Gotham Gazette: Calls to Keep Fusion Voting, Create Robust Public Matching System at First Hearing of State Campaign Finance Commission
By Samar Khurshid
There were few areas of disagreement, at least among those who testified before the commission. The advocates generally agreed that a state system should be modelled after New York City’s program, which matches small dollar donations with public funds at a 6-to-1 or 8-to-1 ratio and includes fundraising and donor thresholds that candidates must meet to show grassroots support before accessing public funds. It also has low individual contribution limits, which the experts and advocates for good government said must be decreased across the board to encourage participation and reduce the appearance and reality of pay-to-play politics, particularly considering current state limits are among the highest in the nation.
They said the program must encourage viable candidates, avoid paying public funds to those running in noncompetitive races, and be timely and efficient to make it attractive to potential candidates. And they concurred that any campaign finance program should be administered and overseen by a new independent, nonpartisan agency separate from the state Board of Elections, which has a lacklustre history of enforcing campaign finance laws…
But commission members seemed skeptical of many of the recommendations made before them. Some raised concerns about the potential costs of an expansive statewide program, whether it would encourage a glut of candidates seeking third party lines, whether a separate agency to oversee it was appropriate, whether New York City’s program is as effective as advocates say, and even whether it should be uniformly applied across the state.
