In the News
Sioux Falls Argus Leader: Free speech group can publish ballot information ahead of election, federal judge rules
By Danielle Ferguson
A national free speech group suing South Dakota over its campaign finance laws can distribute educational materials about two upcoming ballot issues ahead of the November election, a federal judge ruled this week.
The Institute for Free Speech will be able to distribute an analysis on two ballot issues without fear of the state seeking prosecution for violating a South Dakota law regulating independent communication expenditure in political campaigns, a ruling filed Tuesday says.
“We are grateful for today’s decision, which will allow us to publish our ballot measure analysis,” IFS Legal Director Allen Dickerson said in a statement. “We look forward to addressing the remaining issues in the law as the case proceeds.”
IFS earlier this month asked a federal judge to declare a South Dakota campaign finance law unconstitutional, saying the law regulating independent communication expenditure in political campaigns is “unconstitutionally vague” and a violation of First Amendment rights.
“South Dakota laws pose a trap for the unwary,” the group’s petition said.
The court did not declare the law unconstitutional, but granted a preliminary injunction to prevent the state from prosecuting IFS for posting the analysis.
IFS wants to publish an analysis on two upcoming ballot issues: Amendment W, which would impose more campaign finance requirements and lower contribution limits for candidates and political parties; and Initiated Measure 24, which would ban out-of-state donations to committees sponsoring statewide ballot issues…
IFS said in its complaint that it wanted to distribute “educational publications” about the ballot measures but couldn’t because of the vagueness of South Dakota law, saying it is “noticeably silent in protecting from criminal liability.”
Idaho Press-Tribune: Lawmakers debate free speech, privacy, transparency, as they craft campaign reforms
By Betsy Z. Russell
Concerns about free speech, privacy and transparency clashed at a legislative committee meeting Tuesday, as Idaho lawmakers on the Campaign Finance Reform Interim Committee tangled over proposed new disclosure rules for independent campaign expenditures…
“I want as much transparency as we can possibly have, while protecting people who might want to donate to a cause, a 501c3 or a 501c4, and it may be a controversial topic,” said Sen. Mary Souza, R-Coeur d’Alene, who opposed the change. “I would be very hesitant to open them up to harassment, retaliation, all those things.”
She read from a letter submitted to the committee by the Institute for Free Speech, based in Alexandria, Va., saying, “The First Amendment will not tolerate a system where citizens must give the government mountains of information in order to speak about important issues of the day.”Rep. John VanderWoude, R-Nampa, sided with Souza. “To try to restrict free speech over that long of a time period … we could run afoul of the courts,” he said…
Rep. Mat Erpelding, D-Boise, said he worried that the proposal would classify some “accountability” mailings as electioneering, like a flier a group sent out criticizing a policy position he took. “If we go down that road, I think we run the risk of ending up in court with this,” he said.
Rep. Sage Dixon, R-Ponderay, said, “Transparency is imperative in our system, but so is protecting the individual and not subjecting them to fear of reprisal.” The committee will meet again in the coming weeks and review options on independent expenditures and electioneering communications, as well as the final wording of the already agreed-upon legislative changes, so they can be drafted and presented to lawmakers in the first week of the 2019 legislative session.
Keloland News: Federal Judge Makes Ruling In The Institute For Free Speech Case
By Anna Peters
A judge has decided a national non-profit can let you know about two measures on South Dakota’s November ballot that it claims violate First Amendment Rights.
As we told you last week on KELOLAND News, The Institute for Free Speech sued Attorney General Marty Jackley and Secretary of State Shantel Krebs. The judge heard the case on Friday.
Amendment W and Initiated Measure 24 are the measures in question.
The federal judge decided that the group could face state charges if it distributes pamphlets in South Dakota. But he says the group can share the information on its website. It can also send out a news release to the media.
The Howie Carr Show: Unions, Elections And More – 10.11.18 (Hour 4)
By Grace Curley
Howie talks to a variety of guests in this jam-packed and informative hour.
[IFS Legal Director Allen Dickerson joins the show at 19:00 to speak about our new case, Massachusetts Fiscal Alliance v. Sullivan. Learn more about the case here.]
The Courts
Courthouse News Service: Sixth Circuit Weighs Ohio Online-Harassment Law
By Emily Zantow
The Sixth Circuit heard arguments Tuesday in a case brought by liberal political commentators and conservative activists challenging the constitutionality of Ohio’s law against online harassment, claiming it criminalizes protected speech.
Columbus-based blog Plunderbund Media LLC, John Spinelli and the Portage County Tea Party teamed up and sued last year out of fear they could be criminally prosecuted if police or prosecutors think their politically charged web articles were posted with the purpose of abuse or harassment.
Their fear stems from a statute the Ohio General Assembly passed in 2016, which reads: “No person shall knowingly post a text or audio statement or an image on an Internet web site or web page for the purpose of abusing, threatening or harassing another person.”
The plaintiffs clarified that they were challenging the language prohibiting “abusing” and “harassing,” not “threatening.”
U.S. District Judge Sara Lioi shot down their claims in February for lack of standing, calling their worries “too speculative” to establish a threat of imminent injury required for constitutional standing.
The ruling prompted an appeal to the Sixth Circuit, where attorney Eugene Volokh of UCLA’s Scott & Cyan Banister First Amendment Clinic represented the plaintiffs at Tuesday’s oral arguments.
The panel asked if his clients or anyone at all had been prosecuted for political speech under the changed statute since its implementation two years ago.
“We don’t know of any under this subsection for political speech… but if political speech were, again, a statutory exception, and if it were well enough defined, then perhaps that would give our clients assurances that they wouldn’t be prosecuted,” Volokh answered.
Bloomberg: Stormy Daniels’s Libel Suit Is Over. The Mudslinging Can Continue.
By Noah Feldman
A federal district court in California was correct Monday to dismiss Stormy Daniels’s libel suit against the president for using the phrase “total con job” to describe her allegation of being threatened by an unknown man in a parking lot.
Not only that, the judge was probably right to make Daniels (or her supporters on CrowdJustice) pay Trump’s legal fees. The president’s style of discourse, with its constant insistence that everyone else is a liar, is path-breaking in its coarseness. But it’s now legitimately part of public rhetoric…
The upshot of the court’s decision is that Trump is now calling Daniels “Horseface,” and she’s calling him “Tiny.” It’s more than a little embarrassing to be living in an era when this passes for political discourse. But that’s one consequence of truly free speech: The words chosen can be thoroughly nasty. Good civil liberties are no guarantor of good taste…
To say in a politically charged case that an opposing litigant’s statement is a “total con job” is, alas, politics as normal nowadays. As the judge noted, finding against Trump here would curb other political speech.
If Trump can’t call Daniels a liar, he might not be able to call Clinton a liar and a felon. That would be no loss to civility. But it would be a loss to unfettered political speech…
There’s a case to be made that Avenatti’s theory was in bad faith, insofar as it is hard to see how it could have won, given the free speech protections that attach to political speech…
The fee award therefore says something like, “Don’t threaten free speech to win points for your client.”
Trump has long been a libel bully, and it’s poetically appropriate for him to have been sued for libel. But two wrongs don’t make a right, and Avenatti’s failed bullying on libel threatens free speech as much as Trump’s.
Daily Signal: Chief Who Was Fired for Marriage Views Wins Major First Amendment Victory
By Monica Burke
In a major victory for free speech, the city of Atlanta has awarded former Fire Chief Kelvin Cochran with $1.2 million after violating his First Amendment rights.
Cochran was a highly decorated firefighter who served as the U.S. fire administrator after President Barack Obama hand-picked him for the job. In 2010, he agreed to return to his former position as fire chief of Atlanta at the invitation of Mayor Kasim Reed…
But his career came to an abrupt halt in 2015 when Reed suspended him without pay for 30 days and ultimately fired him…
Cochran had written and self-published a 162-page Christian devotional-on his own time-that included a few paragraphs on the biblical view on sex and marriage.
He shared the book with a few colleagues, which was when activists complained. The mayor then construed Cochran’s belief that marriage is between one man and one woman as discriminatory and ordered him to attend “sensitivity training.”
The mayor also launched an investigation into whether Cochran had ever discriminated against anyone. Even though the investigation found no evidence that Cochran had ever exhibited discrimination, Reed fired Cochran anyway…
In December 2017, a federal district court ruled that the city’s treatment of Cochran had violated his constitutional right to free speech. The court affirmed that the city cannot police non-work speech, nor can it target views with which it does not agree.
The court pointed out how the city’s over-broad “pre-clearance” rules, which stipulate that the government must sign off on what materials can be disseminated at work, impede free speech.
First Amendment
Harvard Law Review Blog: Counterfeit Campaign Speech
By Rebecca Green
In a forthcoming article, I explore whether a ban “counterfeit campaign speech” is constitutionally possible. A ban on counterfeit campaign speech would address the manufacture of fake images or audio of an identifiable candidate for public office to create a false appearance that the candidate has done or said something that he or she has not done or said. It would prohibit only fakes produced with knowing or reckless disregard of fake-ness and an intent to harm a candidate’s chance of electoral success, mislead voters, and undermine the electoral process.
The problem with such a prohibition is that courts have consistently held that, though we can ban frauds and counterfeits in other contexts, elections are different. When it comes to political speech, the First Amendment severely and appropriately curtails efforts to combat deception. Court after court has ruled that attempts to prevent lies in political campaigns chill speech and put the state in the impossible position of discerning truth from falsity. Far better to let the marketplace of ideas sort out what is true and what is not when it comes to politics.
Banning counterfeit campaign speech therefore feels like a radical proposition. But a careful reading of cases like New York Times v. Sullivan reveals that the Supreme Court does not extend First Amendment immunity to calculated falsehood that wreaks specific and identifiable harm. Assuming that a prohibition of counterfeit campaign speech reaches only fraudulent speech that is knowingly so, no First Amendment protections should attach. This argument has not won the day when it comes to regular lies. But faked speech is different than a regular lie-it’s fraud. And scholars who have examined laws banning lies in political campaigns have left the door open to narrow prohibition. A prohibition of faked candidate speech could fit that bill.
Wall Street Journal: Deepfake Videos Are Getting Real and That’s a Problem
By Hilke Schellmann
Deep-learning computer applications can now generate fake video and audio recordings that look strikingly real.
In a recent video published by researchers to show how the technology works, an actor sits in front of a camera moving his face. The computer then generates the same expressions in real time on an existing video of Barack Obama. When the actor shakes his head, the former president shakes his head as well. When he speaks, Mr. Obama speaks as well.
“This is a big deal,” Hany Farid, computer science professor at Dartmouth College, told The Wall Street Journal. “You can literally put into a person’s mouth anything you want.”
Prof. Christian Theobalt, part of a team working on the technology at the Max-Planck-Institute for Informatics in Germany, said he is motivated by the creative possibilities that it holds for the future.
He said researchers have developed forensic methods to detect fakes.
But Prof. Farid says researchers who push computer-generated technology need to think about the consequences these computer-generated fakes could have for society. He believes forensic experts are being outpaced by the development of fakes and that there is no method yet that can detect them all.
“How are we going to believe anything anymore that we see? And so to me that’s a real threat to our democracy,” Mr. Farid said.
Trump Administration
Newsweek: New Government Rules Would Restrict Free Speech Near the White House
By Robin Urevich, Capital & Main
The Trump administration is seeking to limit protests on the National Mall in Washington, DC and in nearby city parks and squares in new rules the National Park Service has proposed in the Federal Register. The parks service argues the regulations are just a routine update. But many opponents see them as an attempt to curb the rights of Americans to assemble and speak out at the very monuments that proclaim the nation’s uniqueness as a free and democratic country.
The proposed regulations’ largest impact is likely to be felt at the White House, where Americans have historically made their voices heard on national issues. The plan would nearly seal off the area surrounding the presidential residence, with only a five-foot-wide stretch of sidewalk remaining open to the public.
The suffragettes who stood in front of the White House in 1917 demanding the vote for women would have been hard-pressed to fit in the tiny space now proposed to be available to the public…
Many of the government’s proposed rules would violate the Constitution, the ACLU contends in its formal comments on the changes.
“…the amendments now proposed harken back to the era in which the courts had to be called upon to protect the right to dissent in the nation’s capital,” the organization wrote, noting that some of the newly proposed regulations would also violate court orders issued in previous ACLU cases and which are currently in effect.
The ACLU is among more than 38,000 groups and individuals that have weighed in on the proposals during a 60-day comment period that ended October 15…
The administration is also requesting public comment on charging demonstrators for permits to recover government costs for large events. It has not formally proposed charging fees, but the ACLU said in its comments that doing so would amount to “charging Americans a fee to exercise their constitutional rights.”
FEC
Roll Call: Mia Love Claims FEC Cleared Her – Others Say Not So Fast
By Griffin Connolly
Utah Rep. Mia Love does not appear to be out of the woods just yet over a complaint filed with the Federal Election Commission over funds she raised for a GOP primary race she allegedly knew she would not have.
That’s despite Love claiming in a statement Monday night that the FEC has cleared her of any wrongdoing after she agreed to re-designate roughly $370,000 in campaign contributions made between the GOP nominating convention in April and the June primary date, when Love did not face a Republican challenger.
She also returned more than $10,000 to donors in the third filing quarter for donations that her campaign legal team deemed she needed to return.
Love told reporters Monday that her campaign received a call from an FEC employee who told the campaign that it could “keep all the primary funds that we have raised through the convention and that the agency attorneys agree with the legal assessments made” by Love’s campaign finance legal team.
But the group that filed the initial complaint forcing Love to revisit her primary funding, the Alliance for a Better Utah, said that phone conversation is not tantamount to a clearance from the FEC on the matter.
Online Speech Platforms
Reason: When Social Media Platforms Block Conservatives
By John Stossel
Conservatives claim social media companies are quicker to censor conservative speech. That’s probably true. The people who work for social media companies lean left. Twitter CEO Jack Dorsey admitted that, telling CNN, “We need to constantly show that we are not adding our own bias, which I fully admit is more left-leaning.”
That’s why conservative sites like PragerU have been limited by YouTube. Restricting Prager University’s videos is absurd. The site has millions of followers. It offers dignified lectures on conservative philosophy. They explain things my Princeton professors never taught me.
The lectures violate neither YouTube’s standards nor Facebook’s standards. But recently, PragerU discovered that some of its Facebook videos were watched by no one. Zero people.
Facebook later apologized, saying someone flagged PragerU’s videos as “hate speech,” and at least one Facebook human “content monitor” agreed. He was being “retrained,” said Facebook…
But I haven’t seen enough data to convince me that the sites actively limit conservative speech alone. Facebook just deleted 800 political pages, including some that criticize police brutality.
Leftist Glenn Greenwald tweeted after that purge, “those who demanded Facebook & other Silicon Valley giants censor political content … are finding that content that they themselves support & like end up being repressed. That’s what has happened to every censorship advocate in history.”
The best answer to speech we don’t like is: more speech.
Fundraising
New York Times: Small Donors Fuel a Big Democratic Lead in 2018 Fund-Raising
By Alexander Burns, Rachel Shorey, and Jugal K. Patel
Democratic challengers have outpaced Republican incumbents in large part by drawing in millions of dollars from many thousands of supporters online – a strategy wielded by Barack Obama and Bernie Sanders in presidential elections but never replicated on a massive scale in House races, until now…
Nicco Mele, director of Harvard’s Shorenstein Center on Media, Politics and Public policy, said the breakout fund-raising by Democratic congressional candidates reflected a confluence of two forces: the steady growth of political giving online over more than a decade, and the unique passion of Democrats this year to challenge Mr. Trump.
“We have been building toward this,” said Mr. Mele, a former political strategist who built online outreach campaigns. “I think when we look back, we will not see this year as an outlier.” …
Mr. Mele said Republicans had plainly failed to match Democrats’ enthusiasm for online political giving, noting that the party had struggled for years to match the infrastructure Democrats have constructed for amassing small dollars.
“There’s no ActBlue in the Republican Party,” Mr. Mele said, referring to the website that serves as the Democrats’ main fund-raising portal. “And by the way, I know of at least three attempts to start one.”
The States
KUNC Northern Colorado: Opponents Say Amendment 75 Wrong Way To Take On Colorado’s Millionaire Candidates
By Michael de Yoanna
The proposed amendment states that “if a candidate contributes $1 million or more of their own money to their campaign, then other candidates in that race may accept aggregate campaign contributions five times greater than the limits specified in current law.” …
Opponents of 75, including Colorado Common Cause, a nonpartisan nonprofit that fights for accountability in government, view the proposed amendment as misguided.
“We don’t believe the solution to money in politics is more money in politics,” said Caroline Fry, the organization’s director of outreach. “The whole theory of leveling the playing field by quintupling contribution limits — all this is doing is opening our elections to more big spenders.”
Amendment 75, she added, has the potential to undermine a law that’s key to state campaign finace rules: Amendment 27, which Common Cause and other groups introduced a generation ago as a way to rein in money in elections…
Fry also takes issue with wording in Amendment 75, which would relax limits for candidates who are “facilitating or coordinating” third-party contributions that amount to more than $1 million. She said that could open the floodgates for outside groups to spend millions more dollars on elections.
