In the News
Freedom Foundation: Legal Powerhouses Urge SCOTUS to Consider Freedom Foundation Appeal
By Jeff Rhodes
The case in question dates back to 2014, when citizen activists in Sequim, Shelton and Chelan attempted to place labor reform measures on their municipal election ballots only to be thwarted when the city council in each community bowed to union pressure and denied voters a chance to decide for themselves.
The initiative sponsors subsequently challenged their cities in court, and the Freedom Foundation provided all three with pro bono representation.
The lawsuits proved unsuccessful, but in the meantime, a union front group filed a campaign finance complaint against the Freedom Foundation, alleging it was required to report the value of its legal costs as an in-kind political contribution to the pro-initiative forces.
The charge was laughable on its face, given that it’s impossible to commit a campaign finance violation without a campaign. And the trial court judge agreed, but when the unions prevailed on appeal, the case found its way to the unanimously liberal Washington State Supreme Court, which issued its narrow ruling against the Freedom Foundation.
With important Constitutional principles at stake, Freedom Foundation attorneys quickly appealed to the U.S. Supreme Court, which is expected to decide by the end of June which cases to hear when the fall term starts in October.
To help the justices make up their minds, the Freedom Foundation’s case was bolstered by a brief submitted by the Right to Work Legal Defense Foundation; another filed jointly by the Institute for Free Speech and the Cato Institute; and a third filed by a coalition…
“The problem with labeling non-campaign legal work as a campaign expenditure is fairly clear: there can be no campaign-finance violation if there’s no campaign,” Cato Institute attorneys wrote in a blog post about their brief.
Supreme Court
Bloomberg: U.S. Supreme Court Rejects Bid to Let Businesses Donate to Candidates
By Greg Stohr
The justices, without comment Monday, refused to question a Massachusetts law that bars for-profit corporations from making campaign donations.
Two family-owned businesses, represented by the libertarian Goldwater Institute, challenged the law and urged the Supreme Court to overturn a 2003 decision that upheld limits on corporate contributions…
The Massachusetts Supreme Judicial Court, the state’s highest tribunal, upheld the state law as a legitimate means of guarding against corruption.
The two businesses, 1A Auto Inc. and 126 Self Storage Inc., said Massachusetts must at least let corporations donate through political action committees, as is allowed at the federal level.
The appeal also argued that Massachusetts was improperly putting tighter restrictions on for-profit businesses than on nonprofit corporations and labor unions. The Massachusetts court didn’t resolve that issue because it said it isn’t clear what rules apply to nonprofits and unions.
The case is 1A Auto v. Sullivan, 18-733.
The Courts
U.S. News & World Report: Federal Appeals Court Sides With Man in Yard Sign Dispute
By Associated Press
A three-judge panel of the Eighth U.S. Circuit Court of Appeals has ruled in favor of a suburban St. Louis man in his dispute with a municipal government over how many political signs he can have in his yard.
The ACLU in January 2018 filed a First Amendment lawsuit on behalf of Bel-Nor, Missouri, resident Lawrence Willson, who was threatened with fines and jail time over an ordinance that says residents can post no more than one political sign. He had three.
A judge ruled in favor of Bel-Nor, but the appeals panel on Monday reversed that ruling.
ACLU attorney Tony Rothert calls yard signs a “uniquely important form of communicating ideas and political opinions.”
Free Speech
Politico: How Trump Twists ‘Free Speech’
By Jack Shafer
Having previously established himself the foe of the First Amendment-calling defenders of free speech on the internet “foolish people,” coercing White House staffers into signing nondisclosure agreements, attacking the mainstream press as the enemy of the people and urging the jailing of flag-burners-Trump has seemingly switched sides. Now he’s presenting himself as a free-speech proponent, introducing a new White House web survey whose purported fact-finding goal is to “advance FREEDOM OF SPEECH” and deter bias on social media platforms…
Suppressing free speech in the name of free speech, he has jawboned Google News search results, demanding the company surface more flattering coverage of his administration. “I think Google has really taken advantage of a lot of people, and I think that’s a very serious thing. That’s a very serious charge,” Trump said last summer, adding that Google, Twitter, Facebook and others “better be careful, because you can’t do that to people.” He has berated social media platforms for suspending the accounts of his supporters, like Alex Jones and Milo Yiannopoulos, for violating terms of service. He’s accused Twitter of “shadow banning” prominent Republicans.
He even brought Twitter CEO Jack Dorsey to the Oval Office recently to lecture him on how to run his platform, telling him the site was “very discriminatory” and “hard for people to sign on.” Accusing Twitter of “playing their political games” (on Twitter, no less), Trump writes, “No wonder Congress wants to get involved-and they should,” a statement that all but threatens regulation of speech…
Trump’s co-optation of the language of free speech to suppress the free speech rights of social media companies isn’t the last straw, but it might be the ultimate one. He’s given us his operational definition of free speech: If it flatters and fluffs Trump, it’s wonderful. If it doesn’t, it must be damned.
Just Security: Why the Christchurch Call to Remove Online Terror Content Triggers Free Speech Concerns
By Evelyn Aswad
For starters, the Christchurch Call contains a number of pledges geared towards the elimination of “terrorist and violent extremist content” on the Internet, but that phrase is never defined in the pledge (nor does the phrase otherwise have a universally understood definition). While the First Amendment does allow for bans on advocacy of incitement to imminent violence as well as true threats, it does not permit the U.S. government to ban speech that falls in what appears to be the broader and amorphous concept of “terrorist and violent extremist content,” which could potentially encompass content that is being reported by journalists, dissidents, and civil society as well as other protected speech under the Constitution. This lack of a definition of the content to be suppressed (including the lack of any requirement that the illicit speech likely triggers any harm) is a threshold problem that taints the rest of the text.
In addition, the Christchurch Call contains a variety of commitments in which governments and companies pledge to work in unison to eliminate “terrorist and violent extremist content” from the Internet. While U.S. companies are private actors and not bound by the First Amendment, it would pose constitutional problems for the U.S. government to work with private actors to help them remove otherwise lawful speech. As set forth in the Christchurch Call, such collaboration between government and industry is to include prevention of uploading of the illicit content (which triggers concerns about prior restraints on speech) as well as redirecting users from problematic content (which triggers issues in terms of government interference with how individuals impart and receive information).
All in all, given the particular phrasing of the Christchurch Call, the U.S. decision to decline to endorse a text that is not in line with its free speech values is consistent with its past practice.
Online Speech Platforms
New York Times: Kissing Babies, Loving Scrapple, Fighting Viral Hoaxes: ’20 Race’s New Routine
By Jim Rutenberg
Anonymous political attacks are as old as the republic itself. Before the rise of cloaked social media accounts, there were pamphlets of unknown origin, anonymous letters peddling false charges, as well as dubious parking-lot fliers, phone calls and blog posts…
Over the last century, the United States has made a number of moves to take anonymous attacks out of politics, albeit with varied success, through campaign finance laws…
The House recently passed a bill requiring platforms to keep public logs of political advertisers and tightening restrictions on activity originating outside the United States. A similar bill is pending in the Senate, but it has little chance of becoming law ahead of 2020, given the opposition of the Senate leader, Mitch McConnell.
The recent legislative action may be a start, but it’s steeped in assumptions of how media works left over from the days when TV and radio were the dominant forms. Social media posts that cost nothing don’t count as paid political ads, although they may have been created by well-funded organizations or profitable businesses whose goal is to sway voters…
Any move to force users into the light would raise free speech issues here, while potentially harming dissidents looking for safe outlets in repressive countries.
And let’s not forget that certain vital documents, including the Federalist Papers and Common Sense, were written under a pen name or anonymously, and that the First Amendment protects anonymous speech.
But when it comes to elections, do voters have an equal right to transparency?
At the start of another campaign in which false, anonymous attacks are likely to be the norm, that question has gone unanswered.
Fundraising
Politico: As some 2020 rivals forgo corporate cash, de Blasio imposes few limits
By Laura Nahmias and Sally Goldenberg
De Blasio has cast himself as a leader of the progressive wing of his party with a focus on income inequality and getting big money out of politics. But his fundraising practices would appear at odds with that image. The mayor told POLITICO earlier this year that he would not rule out taking money from real estate executives in a potential presidential bid.
He boasted that under his watch, the city’s already stringent campaign finance system was made even more so last year – a reform he sought after being hammered for his record on campaign finance for years.
But as for ruling out specific types of donations, he replied, “That’s very individual. Everyone has to square it with their own values and their own sense of their mission.”
No city officials were charged in the U.S. Attorney’s Office probe of the mayor’s fundraising that closed in 2017, but prosecutors found several instances in which de Blasio and his fundraisers sought money from people with business before his administration and the mayor went as far as to direct city agencies to act on behalf of those donors…
Taken together, they demonstrate what has long become a pattern in de Blasio’s political career – playing fast and loose with established rules for raising and spending money.
“The mayor has repeatedly raised money through various C4 organizations and now PACs [political action committees] from entities and individuals with business before the city, both raising questions of pay to play and undermining the city’s campaign finance limits,” said election reform advocate Susan Lerner, executive director of Common Cause New York. “It’s only barely legal and not outright illegal because the Supreme Court has systematically watered down anti-corruption laws.”
Albuquerque Journal: Senate hopefuls open to some PAC money
By Scott Turner
U.S. Rep. Ben Ray Luján and New Mexico Secretary of State Maggie Toulouse Oliver have made pledges not to take political action committee money from large corporations in their bids to replace fellow Democrat Tom Udall in the U.S. Senate.
But they haven’t sworn off receiving PAC donations from labor unions or advocacy groups…
Toulouse Oliver and Gavin Clarkson, the only announced Republican candidate, suggested Luján return the corporate PAC money he had on hand…
In response, Luján said it was too early “for political gamesmanship.” …
The donations were made before he announced his bid for Senate, and Luján said he has not accepted corporate PAC money since launching his Senate bid.
Toulouse Oliver said she had received “a little money from corporations and businesses” during her bids for secretary of state, but she said her situation was different from Luján’s.
She said she can’t use any of the money left over from her state campaigns in the race for the Senate.
Clarkson, meanwhile, said he had no problems with receiving donations from corporate PACs.
“I’m perfectly happy with the First Amendment,” Clarkson said in a news release. “I’ll proudly accept support from American job creators.”
He labeled decisions by Luján and Toulouse Oliver not to accept corporate PAC donations as “a common base-pandering political stunt that the media falls for all the time.”
The States
Seattle Times: ‘Gray money’: New Washington law to lift the cloak on PAC funders
By Joseph O’Sullivan
State transparency law has tried to help voters determine PAC ad funders. On the advertisements, PACs must disclose their top five contributors who meet a certain dollar threshold. That could be an individual or an entity such as a corporation or labor union.
But what happens when the donor is another PAC with yet another generic, soft-focus name?…
It’s a tactic called “gray money” and it’s a popular strategy in Washington and around the nation for shielding the flow of money. Through a series of “nesting doll” PACs, campaigns or political parties can cloak donations by individuals, corporations, industry associations or labor unions.
Now, a measure passed by state lawmakers this year could aid voters by revealing some of the top donors or organizations behind the cryptic groups.
House Bill 1379, sponsored by Rep. Mike Pellicciotti, D-Federal Way, and was signed by Gov. Jay Inslee. It will take effect this July, in time for this fall’s local, state and judicial elections, including Seattle City Council races.
The law takes its own “nesting doll” approach to transparency.
If the top five contributors listed on a PAC’s advertisement include another PAC, the top three donors to any of those committees must be revealed, provided they meet a certain dollar threshold.
If any of those donors are PACs, those top three-three qualifying contributors must be named. And so forth, until three root contributors or organizations have been named…
The new law also directs the state Public Disclosure Commission, which oversees campaign-finance issues, to develop rules to make sure PACs can’t circumvent disclosure requirements.
Paterson Times: After threatening lawsuit, Shafer now says she did not intend to sue Paterson Times for exposing data breach
By Jayed Rahman
After threatening to file a lawsuit against the Paterson Times for exposing a massive data breach in an unauthorized letter, superintendent Eileen Shafer backtracked on Friday afternoon stating she had no intentions to sue a reporter or a news organization.
“Neither the reporter nor his news organization was the potential target for any litigation by the District,” said Shafer. Her questionable threat to sue a reporter and a newspaper for “serious reputational harm” to the district for exposing the data breach that claimed 23,103 account passwords had been quickly condemned by multiple media law attorneys.
Shafer had no grounds to bring a lawsuit, according to multiple prominent First Amendment attorneys…
Shafer said her letter sought the return of all “materials that had been received” by a reporter. Her letter, written by the district’s general counsel Robert E. Murray, suggested the district would use legal means to obtain the materials held by the Paterson Times, something prohibited by the state’s reporter’s shield law.
