New from the Institute for Free Speech
Following a federal court ruling, the Institute for Free Speech released its analysis of two South Dakota ballot measures that the group says implicate First Amendment rights. The measures – Constitutional Amendment W and Initiated Measure 24 – will go before voters in November.
The Institute initially concluded it could not publish the analysis without risking prosecution under state campaign finance laws. The group sued, and on Tuesday, a federal judge barred the state from prosecuting the Institute for publishing its analysis.
“We are glad we are able to educate South Dakotans about ballot measures that affect their First Amendment rights. Voters are better off when they have more, not less, information about the choices they face on Election Day,” said Institute for Free Speech President David Keating.
The Institute’s analysis states that Constitutional Amendment W and Initiated Measure 24 suffer from both constitutional and practical defects…
In order to publish its analysis without risk of prosecution, the Institute for Free Speech challenged a South Dakota law regulating any expenditure for any communication “concerning” a ballot measure. That vague standard potentially applies far beyond ads advocating a measure’s defeat or approval, and may include publications such as the Institute’s analysis. The Institute believes that law is not only bad policy – it’s an infringement on the First Amendment right to publish.
The court’s order allowing the Institute to publish its analysis was a significant victory for IFS, but problems in the law remain.
“We are grateful for the court’s ruling, which has allowed us to publish our ballot measure analysis. We look forward to addressing the remaining issues in the law as the case proceeds,” said IFS Legal Director Allen Dickerson.
First Amendment Analysis: South Dakota Ballot Measures
By Owen Yeates and Ryan Morrison
South Dakotans face many decisions this November, including a proposed statute titled Initiated Measure 24 and a ballot measure to amend the state constitution, known as Amendment W. Both implicate important first Amendment rights.
Initiated Measure 24 is an outright ban on speech – if a topic happens to be on the ballot, out-of-state speakers cannot spend money in South Dakota on education efforts, campaigning or other means to support their point of view. Whether the topic is hotly debated, like abortion, or complex, like fracking policy, national groups often help inform voters of the policy implications of state ballot questions. Initiated Measure 24 would both silence these speakers and also prevent South Dakotans from hearing their information and opinions.
Also on the ballot is Amendment W. It would, among other things, lower contribution limits to candidates for state office per election cycle and create a new State Government Accountability Board that will be made up of seven registered South Dakota voters appointed by the state Supreme Court, the Governor, and members of the Board itself. The Board will have the authority to regulate concerning campaign finance, lobbyists, and state government ethics.
The Institute for Free Speech, – America’s foremost experts on the political rights of speech, press, assembly, and petition – lends its expertise to analyze these ballot measures. Both raise grave constitutional concerns. We take each in turn.
The Courts
Courthouse News Service: Kentucky AG Defends Campaign Finance Reform in Sixth Circuit
By Kevin Koeninger
Republican State Senator John Schickel, Libertarian candidate David Watson and former Kentucky Libertarian Party chairman Ken Moellman sued the members of the Kentucky Registry of Election Finance, or KREF, and the members of the Kentucky Legislative Ethics Commission, or KLEC, in 2015…
Kentucky made sweeping changes to its campaign finance laws with the passage of Senate Bill 75 in 2017, which mooted several of the plaintiffs’ claims.
However, U.S. District Judge William Bertelsman sided with the plaintiffs on several issues last year…
Judge Bertelsman ruled the state’s total ban on campaign contributions from lobbyists and legislative agents was overly broad, and would have to be more narrowly tailored to survive the strict scrutiny required of such laws.
“This statute,” he wrote, “is also overly broad because the candidate might not know that the contribution comes from a ‘legislative agent.’ The donor might not even know he or she is considered a ‘legislative agent’ if they are a clerical employee of an organization, such as the Chamber of Commerce or the Kentucky Bar Association.”
Kentucky Attorney General Andy Beshear argued Thursday on behalf of the KLEC…
Beshear criticized the district court for its use of strict scrutiny, and claimed all of the measures were “closely drawn”…
Attorney Christopher Wiest argued on behalf of Senator Schickel…
U.S. Circuit Judge Deborah Cook asked Wiest about the level of scrutiny applied by the lower court.
The attorney responded that strict scrutiny was properly applied because, according to Wiest, “they’re drawing lines based on who the speaker is.”
Electronic Frontier Foundation: Lawsuit Seeking to Unmask Contributors to ‘Shitty Media Men’ List Would Violate Anonymous Speakers’ First Amendment Rights
By Aaron Mackey
A lawsuit filed in New York federal court last week against the creator of the “Shitty Media Men” list and its anonymous contributors exemplifies how individuals often misuse the court system to unmask anonymous speakers and chill their speech. That’s why we’re watching this case closely, and we’re prepared to advocate for the First Amendment rights of the list’s anonymous contributors.
On paper, the lawsuit is a defamation case brought by the writer Stephen Elliott, who was named on the list. The Shitty Media Men list was a Google spreadsheet shared via link and made editable by anyone, making it particularly easy for anonymous speakers to share their experiences with men identified on the list. But a review of the complaint suggests that the lawsuit is focused more broadly on retaliating against the list’s creator, Moira Donegan, and publicly identifying those who contributed to it…
The First Amendment, however, protects anonymous speakers like the contributors to the Shitty Media Men list, who were trying to raise awareness about what they see as a pervasive problem: predatory men in media. As the Supreme Court has ruled, anonymity is a historic and essential way of speaking on matters of public concern-it is a “shield against the tyranny of the majority.”
Anonymity is particularly critical for people who need to communicate honestly and openly without fear of retribution…
Given the potential dangers to anonymous contributors to this list and the thin allegations in the complaint, we hope the court hearing the lawsuit quickly dismisses the case and protects the First Amendment rights of the speakers who provided information to it. We also applaud Google, which has said that it will fight any subpoenas seeking information on its users who contributed to the list.
Courthouse News Service: Journalist Advocates File Brief In AT&T-Time Warner Case
By Eva Fedderly
The U.S. Justice Department has filed an antitrust suit against AT&T, Time Warner, and DirectTV, saying a merger of the media giants would hurt competition. A federal judge in Washington has since denied AT&T’s request for communications records between the department and the White House.
According to the court filing, AT&T’s goal was to determine if President Trump played a role in the Justice Department decision to oppose the merger.
When Trump campaigned for the presidency, one of his promises was to attempt to stop the deal between the telecom and media company…
After a judge dismissed the DOJ’s case, allowing the $85 billion merger to continue, the department filed an appeal in a bid to revive its case.
In its amicus brief, the Reporters Committee argues that the precedent set by denying AT&T access to the documents could make it challenging for future news organizations to obtain documents in discovery in future cases.
“The Reporters Committee has an interest in ensuring that retaliatory motive is not infecting regulatory enforcement decisions that affect the press,” the brief states. “This interest is heightened today in light of the president’s manifest animus toward journalists and news outlets that he perceives as critical.”
While the President’s threats to the media, particularly CNN, vary, “they converge around a single censorial theme,” the brief states. “That is, the president wants to-and will-use the levers of state power to punish news organizations he sees as adversarial to his interests.” …
“Given the negative implications that the district court’s ruling could have on the exercise of First Amendment rights, [the Reporters Committee] is asking the U.S. Court of Appeals for the District of Columbia Circuit to ‘clarify the standard for discovery in selective enforcement cases that implicate the ‘suppress[ion of] protected expression,’” the Reporters Committee states in a press release.
Independent Groups
Wall Street Journal: The Dark Money That Funded ‘Dark Money’
By Scott Walter
Left-wing interests are raving about the documentary “Dark Money.” Airing this month on PBS, “Dark Money” purports to expose the effects of right-wing political spending in the wake of the Supreme Court’s decision in Citizens United v. Federal Election Commission…
There’s one problem: This attack on conservative-funded political advocacy is itself liberal-funded political advocacy. The proof? The end credits listing the film’s funders.
Top billing goes to the Ford Foundation, the third-largest private political-advocacy philanthropy in the U.S. Its sheer size-$12.4 billion in assets-isn’t unique on the left. Even before hedge-fund billionaire George Soros injected $18 billion into his Open Society Foundations, eight of America’s 10 largest private foundations (ranked by giving as of 2013) were aligned with the political left.
Nominally nonpartisan but actually liberal foundations and nonprofits spend three or four times as much as their conservative peers on “education” and advocacy, as the Capital Research Center documents…
The American public often hears stories, including in this film, about nefarious right-wing oligarchs using complex financial products and tax-exempt organizations to get their way. But nonobvious money trails are popular on both ends of the spectrum.
The message of “Dark Money” and similar projects is that conservatives’ post-Citizens United advantage in electoral spending by independent groups is corrupt. Liberals’ far larger advantages in foundation funding, on the other hand, are never mentioned. That’s kept in the dark.
Online Speech Platforms
Wall Street Journal: In Facebook’s Effort to Fight Fake News, Human Fact-Checkers Struggle to Keep Up
By Georgia Wells and Lukas I. Alpert
At Facebook Inc. headquarters in Silicon Valley this week, engineers and researchers huddled around computers in a newly configured “war room” to fight misinformation ahead of the midterms. Almost 3,000 miles away, in Philadelphia, the fact-checkers hired to be on the front lines haven’t received fresh marching orders.
The disconnect highlights how Facebook’s efforts to combat fake news are playing out differently this election cycle than many expected. Although the company has touted its partnerships with organizations including Factcheck.org in Philadelphia that provide human fact-checkers to vet possibly phony posts, those groups are playing a limited role.
The vast majority of Facebook’s efforts against fake news are powered by artificial intelligence, not humans…
Out of Factcheck’s full-time staff of eight people, two focus specifically on Facebook. On average, they debunk less than one Facebook post a day. Some of the other third-party groups reported similar volumes. None of the organizations said they had received special instructions from Facebook ahead of the midterms, or perceived a sense of heightened urgency.
ABC News, which was part of the fact-checking effort when it began early last year, has dropped out. “We did a review, and we couldn’t tell if it was really making any difference; so we decided to reallocate the resources,” said a person familiar with ABC’s decision.
Facebook says fact-checkers were always expected to play a supporting role, and the reality is that humans can’t move quickly enough to identify and act on misinformation before it goes viral on a platform the scale of Facebook’s, with billions of posts produced each day.
Wired: Jack Dorsey on Twitter’s Role in Free Speech and Filter Bubbles
By Nicholas Thompson
Nicholas Thompson: … So I want to start with free speech. Which is one of the issues that would truly divide this room. There are a lot of people who believe that Twitter has abdicated the role that it used to play in defending free speech. You used to be known as the “free-speech wing of the free-speech party,” which I know is a controversial quote, but the idea is that Twitter used to really stand for what may be the most important thing in the US Constitution. And then there are other people who argue that, actually, there are trade-offs between safety, privacy, and free speech. And that Twitter isn’t in the right place on the spectrum. And so I want to just start by asking you for your evolution on this issue, and where you are now on the tradeoffs.
Jack Dorsey: … Our purpose today, we believe, our superpower, is around conversation. And we believe our purpose is to serve the public conversation. And that does take a stance around freedom of expression and defending freedom of expression as a fundamental human right. Not just one within this country.
But it also comes with a realization that freedom of expression may adversely impact other fundamental human rights, such as privacy and physical security. So we believe that we can only serve the public conversation, we can only stand for freedom of expression if people feel safe to express themselves in the first place. We can only do that if they feel that they are not being silenced. So the question we’re starting to ask is: What are the tools we’re building? What is our effect on making it easier to weaponize freedom of expression against someone so that they don’t even feel free to express themselves in the first place or ultimately they’re silenced, which would go against that goal of serving the public conversation?
Candidates and Campaigns
Bloomberg: More Money in Politics Is Great
By Jonathan Bernstein
Earlier this week, I wrote about how political parties are allocating resources in this age of turbocharged fundraising, but I neglected one important point: It’s great to have so much money in politics…
Turnout maven Michael McDonald reports that early voting totals are unusually high.
Of course, I can’t prove that spending is driving interest in the midterm elections. Surely high interest in the elections (from both parties) is what brought in much of that money in the first place. Odds are, however, that well-funded campaigns have sparked extra interest in voters who don’t donate and who normally skip everything but presidential elections…
And when it comes to campaign finance, I’m for floors, not ceilings, as long as there’s meaningful disclosure. I’d love to see public financing that would give candidates even in seemingly hopeless districts the chance to run a real campaign. I’d have no problem with allowing unlimited donations on top of that. It’s true that the political-science literature stresses that most campaign spending is subject to diminishing returns. And money’s importance is limited by other (largely unrestricted) campaign resources, such as volunteer hours and expertise.
But in large part I agree with the Supreme Court doctrine that campaign spending is a form of speech, and therefore shouldn’t be limited under the First Amendment. And because self-government is important to us, I think it’s fine to spend a lot of money on it.
The States
U.S. News & World Report: Arkansas Democrats to Halt Ads After Governor’s Letter
By Michael de Yoanna
Arkansas Democrats say they’re halting radio ads promoting the party’s nominee for governor after Republican Gov. Asa Hutchinson complained it violated campaign finance limits.
A state party spokesman said Wednesday they party is suspending further runs of the ad supporting Democratic nominee Jared Henderson, who’s trying to unseat Hutchinson.
Earlier Wednesday, Hutchinson said in a letter to the party that its roughly $15,000 ad buy exceeds contribution limits and asked that they be pulled down. Hutchinson’s campaign says that since it expressly advocates for Henderson’s election, the ad is subject to a $2,700 limit as a nonmonetary contribution.
The party’s ads tout Henderson’s proposals to deny public pensions to convicted legislators and strengthen the state Ethics Commission.
Milwaukee Journal Sentinel: Republicans cry foul over free ads Los Angeles group cuts for Wisconsin Democrats
By Patrick Marley
A California group filmed political ads for free for nearly two dozen Democrats running for the Legislature in an arrangement that Republicans contend is illegal.
Democrats said they followed all campaign finance laws.
At issue is the value of the ads filmed by Los Angeles-based One Vote at a Time.
Individuals and groups can give candidates for the state Assembly up to $1,000 in cash or services. They can give candidates for state Senate up to $2,000.
The head of the state Republican Party, Mark Morgan, filed a complaint Wednesday with the Wisconsin Ethics Commission contending producing the ads cost far more than that. That means the group could not legally give the candidates the ads, he wrote in his complaint.
His complaint noted campaign finance filings in Virginia said ads that One Vote cut for legislative candidates in that state were worth $8,000 to $13,000.
“What these Democrats are doing is illegally circumventing campaign finance law to advance their political fortunes,” Morgan said in a statement.
Jenni Dye, director of the effort to elect Democrats to the Wisconsin Senate, said the ads that One Vote provided as in-kind contributions to candidates she is working with were not worth that much.
“All of the in-kinds were within limits,” she said. “I’m not concerned about that.”
Kansas City Star: McCaskill demands Hawley’s office investigate hidden-camera videos of her campaign
By Jason Hancock
U.S. Sen. Claire McCaskill’s campaign is demanding Attorney General Josh Hawley open a fraud investigation into hidden-camera videos released this week by a nonprofit run by conservative activist James O’Keefe.
The videos show O’Keefe’s Project Veritas Action Fund going undercover to secretly interview members of McCaskill’s campaign. The group, a 501c4 nonprofit, advertised the videos as proof that McCaskill, a Democrat, has been hiding her views on guns and abortion from Missouri voters.
McCaskill and Hawley, a Republican, are in a tight election race that could help determine which party controls the U.S. Senate.
David Kirby, McCaskill’s campaign manager, said in a conference call with reporters on Wednesday that there is reason to believe Project Veritas committed fraud that violated the state’s merchandising practices act.
That law prohibits deceptive business practices and is enforced by the attorney general’s office.
Kirby said the videos were captured under false pretenses and misrepresentations, “which under Missouri law is fraud.”
Kirby said Hawley must recuse himself and appoint a special prosecutor to look into the videos…
Kirby also said the campaign is contemplating other legal actions aside from any potential fraud investigation by the attorney general’s office…
Initially, the McCaskill also insinuated in a prepared statement that Hawley had a direct hand in “fraudulently embedding somebody in my campaign.” She later sent out an amended statement walking that back slightly, saying only that Hawley had embraced someone being fraudulently embedded in her campaign.
Honolulu Civil Beat: Commission Doubles Fines For First-Time Campaign Spending Violators
By Blaze Lovell
Candidates who violate campaign finance laws will face stiffer penalties after a state commission voted to double some fines for first-time offenders Wednesday.
Campaign Spending Commission members voted unanimously to raise the first-time fines from $500 to $1,000…
Commissioners also voted to create a fine schedule for candidates who exceed voluntary spending limits.
Those who spend too much will now face fines of $500 for a first-time offense, $750 for a second and $1,000 for a third.
Candidates can self-impose spending limits to get discounts on nomination filing fees and become eligible to receive public funds for their campaigns, according to the commission’s website.
The only candidate who actually came to the commission meeting was Elton Fukumoto, who lost to Dale Kobayashi in the Aug. 11 primary for the state House District 23 seat in Manoa.
The commission fined Fukumoto $583 for filing an electioneering statement late. Fukumoto said he’s willing to pay, but added the electioneering communication provision in Hawaii’s election laws needs to be more clear.
Electioneering reports are supposed to be submitted within 24 hours of signing a contract for an ad buy, such as TV commercials, newspaper ads or social media promos.
Several commissioners agreed with Fukumoto that the law could be more clear.
Goodenow recommended the commissioners discuss the language of the provision at a future meeting and make recommendations for changes to the Legislature.
American Prospect: Democracy Is on the Ballot
By Eliza Newlin Carney
Missouri is considering a ballot initiative that would both overhaul the redistricting process and tighten up campaign-finance limits and lobbying laws. Voters in North Dakota, New Mexico, and South Dakota will decide on ballot initiatives to establish independent commissions to oversee ethics…
South Dakota similarly approved an anti-corruption ballot initiative to toughen up campaign-finance and lobbying regulations in 2016, only to see it foiled. The Republican-controlled legislature flat-out repealed the referendum, approving a weaker ethics package instead.
Now South Dakota voters are back with another initiative on the November ballot dubbed “Amendment W” that would put a government accountability board in charge of overseeing stricter ethics and political money laws, introduced as a constitutional amendment so the legislature can’t overturn it.
