New from the Institute for Free Speech
Democrats’ Anti-Super PAC Rhetoric Hurts Democratic Voters
By Scott Blackburn
Super PACs are, for those willing to get past the rhetoric, nothing more than groups of people pooling money to help support or oppose candidates. For well-established incumbent candidates with party connections and regular media appearances, super PAC support is a luxury, and super PAC opposition a real thorn in the side. But for candidates without these advantages, super PACs are a lifeline to competitiveness.
Quentin James and Stefanie Brown James, the founder and co-founder of The Collective PAC, started a super PAC to buoy candidates they liked, who were having trouble competing. They believed that the Democratic establishment didn’t sufficiently support African American candidates in primary elections. So, they created a super PAC to fill that gap and give minority candidates the same potential support that the party infrastructure already provided to incumbents. As Politico reported:
“While the entire progressive movement eventually coalesced behind the historic and inspiring gubernatorial candidacies of Stacey Abrams, Andrew Gillum, and Ben Jealous last year, the bandwagon was much emptier, and the cupboards much more bare during their primary campaigns,” James and Brown James of The Collective PAC wrote. “Just a handful of organizations, like ours, built support for the campaigns of those African American leaders and much of the support from that work came from Super PACs created by people of color.”
But The Collective PAC fears that their mission to support underserved candidates is being stymied by other Democrats and anti-speech activists’ continued demonization of super PACs.
“Whether intentional or not, the effect of what you are calling for is to shut down the one reliable source of revenue for engaging voters of color and for supporting candidates of color” they wrote in a letter to fellow Democrats, asking them to cool it on the rhetoric.
The Courts
CNN: Group sues Federal Election Commission over allegation NRA broke campaign-finance law
By Fredreka Schouten
Giffords, a gun-control group run by former Arizona congresswoman and gun-violence survivor Gabby Giffords, and the nonpartisan Campaign Legal Center Action contend in the suit that the FEC has missed a 120-day deadline to act on four complaints brought by the groups.
The lawsuit, provided first to CNN, asks a federal judge to intervene and prod the agency to move ahead with investigations…
The lawsuit and underlying complaints allege that as much as $35 million that the NRA spent to support several GOP candidates over three election cycles amounted to illegal donations because the NRA’s ads were placed by consulting firms that also were handling ads for Republican candidates supported by the powerful gun-rights lobby…
The disclosures that television stations file with the Federal Communications Commission show that four individuals who placed pro-Trump ads for the NRA’s political arm also placed ads for Trump’s presidential campaign, the lawsuit said…
It’s not unheard-of for a single vendor to handle the advertising for both an outside group and a candidate. But to avoid running afoul of federal regulations, companies erect “firewalls” to prevent information flowing between a candidate and the outside group…
Signing a media-buying form can represent a “ministerial task rather than a strategic function,” said Charlie Spies, a veteran Republican campaign-finance lawyer in Washington. “Having the same person on the forms is an optics issue, but not necessarily a legal issue.” …
In an interview with CNN, [FEC Chair Ellen] Weintraub said she could not comment on the lawsuit focused on the NRA but that she is not necessarily opposed to extending her refusal to defend the agency to cases involving lengthy delays in agency action.
Texas Tribune: Conservative group Empower Texans sues lawmaker to gain state House media credentials
By Emma Platoff
Months after being denied media credentials for the Texas House, the conservative organization Texas Scorecard – a product of Empower Texans, a Tea Party-aligned political advocacy group with one of the state’s best-funded political action committees – has filed a First Amendment lawsuit arguing that its rejection from the lower chamber constitutes “unconstitutional viewpoint discrimination.”
Before the legislative session kicked off in January, two employees of Texas Scorecard, Brandon Waltens and Destin Sensky, applied for media credentials in both chambers of the Legislature. In the Senate, their credentials were granted; in the House, they were denied…
House Administration Chair Charlie Geren, a Fort Worth Republican who has sparred with Empower Texans and its PAC in the past, told the group in a January rejection letter that it was ineligible for media credentials because “the organization you are employed by, Texas Scorecard, has a close association with a general-purpose political committee (GPAC) and that the organization’s website prominently displays advocacy on policy matters before the legislature.” As evidence of the group’s affiliation with the PAC, Geren cited the organizations’ shared address – but by the time Geren’s letter was issued, the lawsuit claims, they no longer shared that address.
Empower Texans PAC has backed primary opponents to Geren…
In the lawsuit, filed this week in federal court in Austin, the organization alleges that its history with Geren – who, the complaint says, “has routinely and openly expressed hostility” to the group “on account of their publications” – led him to engage in “bad faith viewpoint discrimination.” It asks a federal judge to force Geren to issue media credentials to the two employees.
Baton Rouge Advocate: Black Lives Matter activist DeRay Mckesson can be sued by Baton Rouge officer, judge says
A federal appeals court says a Baton Rouge police officer injured while attempting to arrest protesters after the 2016 killing of Alton Sterling can sue one of the protest’s organizers on the grounds he acted negligently.
The officer, identified in court records only as John Doe, had sued DeRay Mckesson, of Baltimore, and other protesters who gathered as members of the Black Lives Matter movement. A federal judge had thrown out Doe’s lawsuit, citing First Amendment rights and noting Black Lives Matter was too loosely organized to sue.
In a ruling Wednesday evening, the 5th U.S. Circuit Court of Appeals said Doe should be able to argue that Mckesson didn’t exercise reasonable care in leading protesters onto Airline Highway, setting up a confrontation with police in which an officer was injured by a thrown concrete block.
Mckesson, reached Thursday for comment, said “I’m disappointed and troubled by the 5th Circuit’s reversal of the district court decision. I am currently exploring my legal options and will respond formally soon.”
Courthouse News Service: Residents of Detroit Suburb Fight Anti-Canvassing Law
By Jeff D. Gorman
Michigan Liberation, a nonprofit organization seeking “to end mass incarceration,” and three individual plaintiffs sued the city of Wixom and the Loon Lake Woods Wixom Homeowners’ Association.
Attorneys Bonsitu Kitaba-Gaviglio and Michael Steinberg of the American Civil Liberties Fund of Michigan filed the lawsuit, along with cooperating attorneys Heather and Sheila Cummings of Royal Oak, Michigan.
They want a federal judge in the Eastern District of Michigan to block a Wixom ordinance that bars canvassing in neighborhoods that have “No Canvassing” signs at their entrances. They also want a declaration that the ordinance violates their free-speech rights.
“The ordinance is a content-based restriction on speech, it is not narrowly tailored to a compelling or important government interest, and it does not leave open ample, adequate means of communication,” the plaintiffs say in their lawsuit.
Plaintiff Nicholas Spagnuolo claimed the signs prevented him from canvassing in certain neighborhoods during the November 2018 election…
Michigan Liberation and Spagnuolo claim they want to canvass for a special election on May 7 but cannot “unless this court enjoins the unconstitutional provisions of the ordinance.”
Two other plaintiffs, Loon Lake Woods residents Gary Ackland and Julia Long-Ackland, “want to engage with, and receive information from, canvassers.”
JURIST: Animal rights groups file federal lawsuit over Iowa ag-gag law
By Austin Koltonowski
A coalition of Animal rights groups on Monday filed a federal lawsuit challenging the constitutionality of Iowa’s new “Ag-Gag” Law that makes it a trespass crime to conduct undercover investigations at livestock farms.
The lawsuit was filed in US District Court in Des Moines and claims that the new law violates constitutional free speech and due process rights and is unconstitutionally vague and broad.
The law creates a new crime making it illegal for a person to gain access to an agricultural production facility through deception if the person intends to cause an “injury” to the business interest of the facility. The law applies to to factory farms, slaughterhouses, and puppy mills.
Animal Legal Defense Fund Executive Director Stephen Wells says that factory farms want to hide their abuses but federal courts have consistently ruled that Ag-Gag laws violate our constitutional rights…
The Animal Legal Defense Fund, Iowa Citizens For Community Improvement, Bailing Out Benji, and People for the Ethical Treatment of Animals and Center for Food Safety filed the lawsuit.
FEC
Washington Post: The Cybersecurity 202: Cybersecurity proposal pits cyber pros against campaign finance hawks
By Joseph Marks
The Federal Election Commission could decide today whether nonpartisan groups can offer political campaigns free cybersecurity services…
The proposal’s authors, Hillary Clinton’s 2016 campaign manager Robby Mook and Mitt Romney’s 2012 campaign manager Matt Rhoades, come to the issue from bitter experience…
The bipartisan duo want to help presidential and congressional campaigns steer clear of similar hacking operations by allowing nonprofits to provide cybersecurity free of charge. But first they need the FEC to say those services don’t amount to an illegal campaign contribution…
Good-government advocates, however, say the proposal creates a loophole for cybersecurity and tech companies — or other nonprofit groups — to secretly curry favor with politicians…
“You can go to a lawmaker and say, ‘Hey, remember the time that the Russians tried to hack your campaign and we caught them and didn’t even charge you for it? You owe us,’ ” Adav Noti, chief of staff at the Campaign Legal Center, told me.
Mook and Rhoades plan to offer the services through a nonprofit corporation called Defending Digital Campaigns and would rely partly on volunteer services from cybersecurity professionals…
Mook and Rhoades’s organization is officially nonpartisan and would provide services to any campaign that meets minimum criteria – including third-party candidates…
Chairwoman Ellen Weintraub … said she worried the request would “blow a hole through” the ban on corporate contributions.
“I would like to support this endeavor,” she said. “I also have an obligation to protect the law.”
Congress
Wiley Rein Government Ethics & Investigations Podcast: What is House Bill H.R.1 and How Would it Affect Corporations & Federal Lobbyists?
Wiley Rein Of Counsel Robert L. Walker and Special Counsel Eric Wang, both members of Wiley Rein’s Election Law & Government Ethics practice, co-hosted a podcast focusing on “H.R.1 – For the People Act of 2019” following its recent passage in the U.S. House of Representatives. This episode takes a deep dive into how the bill would impact corporations and the Lobbying Disclosure Act (LDA), including foreign nationals, CEOs, assessing shareholder preferences, and registration requirements for federal lobbyists.
Click here to listen to the podcast episode.
Online Speech Platforms
The Week: Facebook can’t protect voters from their own gullibility
By Bonnie Kristian
Think about what Russian social media operatives actually did: In addition to the ads, they created ordinary accounts, groups, and pages to simply interact with voters. Much of their reach was organic, meaning they didn’t need to pay for advertising to get clicks, likes, and shares.
Millions of Americans followed and propagated the Russians’ content because they decided it was worth that attention. (Special Counsel Robert Mueller’s report notes an estimated 126 million people on Facebook and 1.4 million people on Twitter were reached by posts from Russian Internet Research Agency-controlled accounts, though that certainly reach does not guarantee effective influence.) In some cases, Americans even attended real life rallies and meet-ups organized online by Russian accounts, and they went because they wanted to go.
And here’s the rub where redress and prophylaxis are concerned: None of that is illegal, nor is there an obvious way to ban any of it without thoroughly shredding the First Amendment’s protections of speech, press, and assembly.
This isn’t like stuffing a physical ballot box, compromising online voting, or hacking political opponents’ emails. Posting fake news articles or misleading political memes on the internet is not a crime – and with good reason. Obviously the world in general and American politics in particular would be better if no one were ever wrong on the internet, but that is not a circumstance state regulation can or should attempt to produce…
The good news is most people already avoid spreading false content online. A study published in Science Advances in January found only 8.5 percent of Facebook users shared one or more fake news stories in 2016.
The Media
Rolling Stone: The Press Will Learn Nothing From the Russiagate Fiasco
By Matt Taibbi
On February 15, 2016, the National Review took unprecedented action. In an all-out plea to Republican voters to stop Donald Trump before it was too late, the magazine enlisted 22 of the right’s most prominent voices to band together and throw support elsewhere, to save the party.
The “Conservatives Against Trump” issue didn’t move the needle. Despite a lineup of pleas against Trump that included Glenn Beck, Cal Thomas, Mona Charen, Michael Medved and Dana Loesch, Trump surged in the polls that month, expanding his lead over primary opponents at a critical juncture of the race. Trump voters considered these and other pundits part of the Republican establishment and therefore not to be trusted.
Conservative media throughout 2015-2016 learned a painful lesson. If your approach is based on telling people what they want to hear, audiences might like it at first. They might gobble it up for decades. But you’ll have quietly lost their respect during that time, and in a key moment, they’ll tune you out.
For this reason, it’s shocking to see national media voices after the release of Robert Mueller’s report patting each other on the back, congratulating themselves for a three-year faceplant they must know will haunt the whole business for a long time.
The States
Colorado Independent: House panel OKs bill to thwart lawsuits that stifle free speech
By Jeffrey Roberts
A bill that would protect Coloradans from meritless lawsuits intended to silence criticism won approval Tuesday in a committee of the state legislature.
House Bill 19-1324 would add Colorado to a list of nearly 30 states with anti-SLAPP statutes that provide a process for the early dismissal of civil cases filed against people who are exercising their First Amendment rights of free speech or freedom to petition the government.
SLAPP, a term coined in the 1980s by two University of Denver law professors, stands for strategic lawsuit against public participation.
“We have a compelling state interest in protecting peoples’ free speech, and we also have a compelling state interest in preventing our courts from being used abusively to chill peoples’ exercise of free speech,” said Rep. Shannon Bird, a Westminster Democrat who is sponsoring the bill in the House with Rep. Lisa Cutter, a Littleton Democrat.
Colorado currently has “weak” anti-SLAPP protections, according to the Public Participation Project, which stem from a 1984 Colorado Supreme Court ruling in a case involving an environmental group’s right to petition for redress of grievances.
HB 19-1324, modeled after California’s anti-SLAPP law, establishes an expedited court process in which a defendant in a civil action can file a special motion to dismiss the case based on an assertion that the lawsuit arose from the exercising of his or her constitutional right of petition or free speech.
