In the News
U.S. House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet: Testimony of Ilya Shapiro at Hearing on “Maintaining Judicial Independence and the Rule of Law: Examining the Causes and Consequences of Court Capture”
[F]ormer Federal Election Commission chairman Bradley Smith recently explained that so-called dark-money groups-nonprofit public policy organizations, not political committees-are much less significant than they’re made out to be. Since Citizens United allowed nonprofits, labor unions, and corporations to spend on electioneering in 2010, those groups labeled as “dark money” have usually accounted for 3-5% of total campaign spending. So far in the current cycle, however, from January 2019 through July 2020, that number is under 1%. FEC data shows that of the more than $6.2 billion spent on federal campaigns during that period, “dark money” only totaled about $20.8 million, which is 0.3% of the total.
Setting aside that issue of efficacy, as well as the unequal treatment and viewpoint-based discrimination-which the First Amendment doesn’t allow-the Judicial Ads Act threatens to complicate our already unworkable campaign-finance regime by adding special rules for independent speakers who happen to speak about judicial nominations. Election lawyers must already be rubbing their hands with glee at the prospect of counseling clients how to avoid saying certain “magic words” or defending litigation over whether this or that ad actually concerns judges. Would an ad saying that Donald Trump or Joe Biden would make “the right decisions” (nudge nudge, wink wink) about abortion or gun control qualify as a judicial-nominations ad? How about an ad imploring a senator to vote for “the talented people President Trump has chosen to implement his policies”? Senator Whitehouse is essentially inviting the courts to police what can be said about their future colleagues and who can say it.
Because make no mistake: the Judicial Ads Act is not about voter information or political transparency, but instead is intended to chill speech.
New from the Institute for Free Speech
As news reports indicate, Judge Amy Coney Barrett of the Seventh Circuit is on the short list to be nominated to the U.S. Supreme Court to fill the vacancy created by the passing of Justice Ruth Bader Ginsburg. Barrett has been in this position before. When we originally examined her record in July 2018, prior to the nomination of Brett Kavanaugh to the Supreme Court, there was little to say. At that time, Barrett had been a judge for less than a year, and unsurprisingly, she had ruled on a relatively small number of appeals. None of those cases touched on the core questions of political speech and association that the Institute evaluates when reviewing potential Supreme Court justices.
In 2018, we also conducted a review of Judge Barrett’s extensive academic record. Those articles, which were the subject of controversy during her confirmation as a federal appeals court judge, did not directly address issues of free political speech and association.
Since that time, Judge Barrett has written or joined an opinion in at least three free speech-related cases worthy of commentary. We continue to review other cases in which Judge Barrett participated and may release further analyses.
- Adams v. Bd. of Educ. of Harvey Sch. Dist., 152, 968 F.3d 713 (7th Cir. 2020) (Easterbrook, J.) (3-0 decision)
- Lett v. City of Chicago, 946 F.3d 398 (7th Cir. 2020) (3-0 decision)
- Smadi v. True, 783 F. App’x 633 (7th Cir. 2019) (per curiam)
Barrett authored the opinion in only one of those cases. Reading them together, however, Judge Barrett may be willing to expand free speech protections in limited but nevertheless important contexts.
Industry-Based Contribution Bans: Should Your Line of Work Determine Your First Amendment Rights?
By Heather McGuire
In the ensuing decades since the amendments to FECA and the Court’s ruling in Buckley v. Valeo, a new and creative way to restrict speech has arrived in the form of industry-based contribution bans. These bans typically target an industry and prohibit players in that industry – and sometimes their employees – from contributing to candidates. This means that, by virtue of their profession or who they work for, some individuals are banned from contributing any amount to candidates, and sometimes even political action committees and party committees. The Supreme Court has not yet weighed in on the constitutionality of this type of limit.
Selectively restricting some Americans’ ability to engage in political debate is a ploy one might expect from a corrupt, totalitarian regime, not a free democracy. State and federal laws prohibiting political contributions from certain individuals in certain regulated industries pose both constitutional and policy concerns that should not be overlooked. This paper surveys those issues.
Supreme Court
FIRE: First Amendment News 272: Justice Ruth Bader Ginsburg (1933-2020) – Her free speech jurisprudence
By Ronald K.L. Collins
This issue of First Amendment News is dedicated to the memory of Justice Ginsburg. To that end, I have compiled a list of her First Amendment freedom of expression opinions. I have also listed some of the dissents she signed onto in several important free speech cases.
The Courts
Courthouse News: Just Joking!
A Louisiana man says he was joking when he posted to Facebook that the Rapides Sheriff’s Department would shoot people infected with the novel coronavirus, and shouldn’t have been arrested his post.
DOJ
Wall Street Journal: DOJ to Seek Congressional Curbs on Immunity for Internet Companies
By Ryan Tracy and Brent Kendall
The Justice Department submitted a proposal to Congress on Wednesday to curb longstanding legal protections for internet companies such as Facebook Inc., Alphabet Inc.’s Google and Twitter Inc. and force them to shoulder more responsibility for managing content on their sites.
The proposal advances two main goals the Trump administration and the department outlined in June: encouraging online platforms to actively address illicit conduct and manage content on their sites in fair and consistent ways…
Sen. Ron Wyden (D., Ore.), who helped write Section 230, called the proposal “a warmed-over mishmash of existing Republican proposals to force private companies to host lies, misinformation, hate speech and other slime online.”
Congress
Washington Post: Democratic House chairs: Here’s how we can protect democracy from a lawless president
By Adam Schiff, Jerrold Nadler, Carolyn Maloney, John Yarmuth, Zoe Lofgren, Eliot Engel and Richard E. Neal
[W]e seek to protect our elections from foreign interference and influence. We must require that all campaigns report offers of help from foreign governments and foreign political parties to law enforcement. We must also provide unequivocal language in statute that campaigns cannot accept foreign help or information for political advantage, including opposition research.
Politico: Judges propose making disclosure of their personal details a crime
By Josh Gerstein
It could become illegal for media outlets or anyone else to publish [personal details about judges] on the internet under a proposal federal judges sent to Congress earlier this month. Under the suggested legislation, lawmakers would grant judges extraordinary latitude to decide what personal information to exclude from the public eye.
Critics say the effort – framed as an attempt to protect the physical safety of judges and their families – is on a collision course with the First Amendment…
The letter sent to House and Senate Judiciary Committee leaders did not contain specific legislative language, but did offer a non-exclusive laundry list of information judges want authority to suppress. It includes judges’ home addresses, dates of birth, Social Security numbers, driver’s license numbers, bank account details, home and mobile phone numbers and vehicle registrations.
However, the list also covers details on judges’ “investment property,” any “family member’s employer,” and “religious, organization, club, or association memberships.”
The proposal urges Congress to create a legally mandatory takedown mechanism that would give anyone 48-72 hours to remove such details “from the public record” if a judge requests their deletion. The Judicial Conference asked lawmakers to give judges and the government the right to sue to force compliance. The proposal also called for “limited criminal enforcement authority.”
Free Speech
The Short Life and Curious Death of Free Speech in America (Book excerpt)
By Ellis Cose
Free speech always had limits. But because of our new technological reality, because of the unexpected weaponization of speech, we are having to consider those limits in a new light. We live in a world where it is far from clear that the answer to bad speech is more speech; and where a foreign power, thanks to our freedom of expression, may well be responsible for the election of a U.S. president. We live in a time when a frightened white minority within the larger white majority fights to maintain control of our country; and when large corporations and cynical functionaries – eager to exploit fear – have a bigger megaphone (including their own television news networks) than anyone speaking for the powerless and dispossessed…
All of this raises a host of difficult questions: If the Brandeisian view of speech is fatally flawed, what is a better, or at least a more realistic, view? Is it possible to reverse these trends that are destroying our democracy? How do we balance an array of important societal values that compete with the value of free speech? How, in short, do we enable a relatively enlightened majority to rescue our country from an embittered, backward-looking minority? And what happens to speech – which has never been totally free – in the process?
Online Speech Platforms
Washington Post: Trump eyes ‘concrete legal steps’ against social media sites for alleged bias against conservatives
By Tony Romm
President Trump on Wednesday said the government is eyeing “concrete legal steps” against social media sites that he alleges are censoring conservatives online, issuing a renewed threat against Silicon Valley as he nudged Republicans across the country to open their own investigations into the matter.
Speaking at an event at the White House, Trump blasted the tech industry for incubating a “small group of powerful technology platforms” that now have “tightened their grip over commerce and communications in America.” In doing so, he said tech giants have bent “at the urging of the radical left” to limit the reach of conservative users, including himself, even though he retains a vast audience online.
Politico: Facebook to reject election ads that prematurely declare a winner
By Steven Overly
Facebook has vowed to reject political ads that claim victory for a candidate in the 2020 election before the results are finalized, a scenario that election watchers fear is likely as an increased number of people vote by mail due to the coronavirus pandemic.
“Facebook will be rejecting political ads that claim victory before the results of the 2020 election have been declared,” company spokesperson Andy Stone tweeted Wednesday.
The Atlantic: The Supply of Disinformation Will Soon Be Infinite
By Renée DiResta
The ideal scenario for the modern propagandist, of course, is to have convincing personas produce original content. Generative text is the next frontier. Released in a beta version in June by the artificial-intelligence research lab OpenAI, a tool called GPT-3 generates long-form articles as effortlessly as it composes tweets, and its output is often difficult to distinguish from the work of human beings. In fact, it wrote parts of this article. Tools like this won’t just supercharge global propaganda operations; they will force internet platforms and average users alike to find new ways of deciding what and whom to trust…
The rise of generative text will deepen those suspicions and change the information environment in other ways…
[But,] the idea that a verified identity should be a precondition for contributing to public discourse is dystopian in its own way. Since the dawn of the nation, Americans have valued anonymous and pseudonymous speech: Alexander Hamilton, James Madison, and John Jay used the pen name Publius when they wrote the Federalist Papers, which laid out founding principles of American government. Whistleblowers and other insiders have published anonymous statements in the interest of informing the public. Figures as varied as the statistics guru Nate Silver (“Poblano”) and Senator Mitt Romney (“Pierre Delecto”) have used pseudonyms while discussing political matters on the internet. The goal shouldn’t be to end anonymity online, but merely to reserve the public square for people who exist-not for artificially intelligent propaganda generators.
The Verge: Mark in the Middle
By Casey Newton
Between May and August, The Verge obtained 16 audio recordings and dozens of internal posts and screenshots from meetings and groups at Facebook from employees. The recordings include the company’s weekly Q&As, “FYI Live” sessions in which top executives discussed a civil rights audit and preview the summer’s congressional antitrust hearing, and talks by top executives highlighting the work their teams are doing…
From Zuckerberg’s weekly addresses to Sheryl Sandberg’s annual Q&A session with interns, the recordings capture a company trying to wrap its mind around itself. Shaken by internal criticism, challenged by the largest advertiser boycott in company history, and threatened by elected officials around the world, Facebook left the summer with its image bruised, a fact Zuckerberg acknowledged in a July 31st Q&A.
The States
Reason (Volokh Conspiracy): Pouring Water on Speaker’s Head During Press Conference Doesn’t “Constitute[] Protected Speech”
By Eugene Volokh
The Texas Citizens Participation Act-Texas’s anti-SLAPP statute-provides a special procedure for dealing with certain lawsuits: Defendants can move for prompt dismissal (and get their attorney fees paid if they win),
- if a lawsuit “is based on or is in response to a party’s exercise of the right of free speech, right to petition, or right of association or arises from any act of that party in furtherance of the party’s communication,”
- though the case can still go forward if the plaintiff “establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.”
How does this play out if plaintiff accuses defendant of assaulting him during the defendant’s public protest? Sanchez v. Striever, decided today by the Texas Fourteenth Court of Appeals, deals with that. First, the facts:
Steve Striever poured water on [Orlando] Sanchez’s head while Sanchez [then Harris County Treasurer] addressed the media and others during a press conference.
Buzzfeed News: This Teacher Is Fighting Back After Her School Board Banned Pride Flags In The Classroom
By Lauren Strapagiel
A teacher in Reno, Nevada, is quietly protesting a ruling from her school board that says she can’t engage in political speech in the classroom – including the display of a pride flag.
Tampa Bay Times: Florida attorney general asks for investigation into Mike Bloomberg plan to help Florida felons vote
By Ana Ceballos, Kirby Wilson, and Lawrence Mower
Florida Attorney General Ashley Moody on Wednesday asked state and federal law enforcement officials to investigate “potential violations of election law” over billionaire Michael Bloomberg’s decision to help pay Florida felons’ fines, fees and restitution to be eligible to vote.
