Supreme Court
By Jacob Sullum
“History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively,” [Gorsuch] writes. “In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age. The freedom to speak without risking arrest is ‘one of the principal characteristics by which we distinguish a free nation.'”
The majority was not blind to that danger, saying probable cause might not be enough to defeat a Section 1983 claim in cases involving trivial offenses that would not ordinarily result in arrest. Writing for the majority, Chief Justice John Roberts gives the example of a vocal police critic who is arrested for jaywalking. And last year in Lozman v. Riviera Beach, the Court ruled that a local gadfly could sue for a First Amendment violation after he was arrested, per “official municipal policy,” for not following procedural rules during a city council meeting.
But Gorsuch goes further, noting that “you will find no reference to the presence or absence of probable cause as a precondition or defense to any suit” under Section 1983. He finds the majority’s discussion of common-law causes of action for false imprisonment and malicious prosecution in 1871, when Section 1983 was enacted, unpersuasive. “The point of this kind of claim isn’t to guard against officers who lack lawful authority to make an arrest,” he notes. “Rather, it’s to guard against officers who abuse their authority by making an otherwise lawful arrest for an unconstitutional reason.”
The Courts
Fox News: University of Illinois sued for allegedly chilling speech with ‘bias response team’
By Sam Dorman
Speech First, a First Amendment advocacy group, sued the University of Illinois on Thursday, claiming that it suppressed political advocacy and instituted a “bias response” regime that chilled students’ willingness to express their opinions.
“On a regular basis, the University of Illinois sends a clear message to students who wish to engage in political and religious speech. There are some views that are welcome and others that are not,” Speech First president Nicole Neily told Fox News.
Speech First brought the case on behalf of member students attending the university. Several students, the group argued, felt uncomfortable either supporting President Trump or engaging in civil discourse that the university might consider biased or offensive — a charge the group says could result in punishment including possible expulsion from university housing.
“Students deserve to be able to express themselves and voice their opinions without fear of investigation or punishment, which is why these policies must be reformed,” Neily also said.
The lawsuit, filed in the Central District of Illinois, targeted three particular aspects of the University’s practices: the bias response team, restrictions on posting flyers for political candidates, and “no contact directives” which effectively function as a restraining order. Speech First sought to block disciplinary action through a preliminary injunction as part of the suit.
Privacy
Wiley Rein Election Law News: The First Amendment Right to Political Privacy Chapter 4 – NAACP v. Alabama
By Lee E. Goodman
The first three chapters of this series traced the jurisprudential evolution of the First Amendment right to political privacy – the individual right to keep political beliefs and associations private against government inquisition. Chapter 1 considered the unsuccessful attempts by the KKK, in the 1920s, and by American communists, in the 1940s, to preserve the anonymity of their fellow travelers. Chapter 2 covered a successful legal effort by an American conservative to preserve the anonymity of like-minded book purchasers in 1953. And Chapter 3 covered a successful legal challenge by a Marxist economist to keep secret the names of fellow Progressive Party partisans in 1957. The First Amendment’s protection for political privacy started as a dissenting idea but gradually made its way into concurring opinions and eventually majority opinions. But it had yet to predicate the holding of a Supreme Court majority. That finally occurred in 1958, when a consensus of Justices held the First Amendment prohibited the State of Alabama from forcing the National Association for the Advancement of Colored People (NAACP) to turn over to the State its list of members and donors. The Supreme Court’s unanimous First Amendment ruling in NAACP v. Alabama is the subject of this chapter.
Tax-Financed Campaigns
WXXI News (Rochester): Connections: Debating campaign finance reform on the national and state levels
By Evan Dawson and Megan Mack
We explore campaign finance reform at the national level and at the state level. Some advocates say that New York State Democrats have been hypocritical. They argue that Democrats claim to want public financing, but don’t follow through when they get the opportunity. At the national level, senator Kirsten Gillibrand has a new proposal.
Our guests debate it:
– Leslie Danks Burke, founder and president of Trailblazers PAC
– David Primo, professor of political science and business administration at the University of Rochester
– Bob Shea, communications consultant
First Amendment
Fox News: What happened to the freedom of speech? Why Assange’s indictment should upset you
By Judge Andrew P. Napolitano
The First Amendment to the U.S. Constitution clearly states, “Congress shall make no law … abridging the freedom of speech, or of the press …” …
As direct and unambiguous as those words are — the Constitution as amended is the supreme law of the land — Congress and the courts have not always been faithful to them.
Thus, at the height of the anti-immigrant hysteria whipped up by President Woodrow Wilson and his supporters, Congress enacted the Espionage Act of 1917, which punished speech deemed harmful to America’s war efforts. Wilson was determined to win the First World War at the price of the suppression of ideas that he hated or feared.
The Espionage Act was used aggressively and successfully (from Wilson’s vantage point) during the war and in the immediate years following.
Then, a series of Supreme Court decisions instructed that the Act is probably unconstitutional as its sole purpose and effect is to suppress speech. These opinions harkened back to Madison, who believed that the only moral and constitutional remedy for hateful or harmful or even seditious speech was not suppression and punishment but rather more speech.
That attitude prevailed generally in the legal and judicial communities and at the Department of Justice for a few generations — even during World War II — until now.
Now, the Trump DOJ has indicted a non-American whose alleged crimes took place in Europe for numerous violations of the Espionage Act, and it has done so in direct defiance of a Supreme Court decision that ruled against this during the Nixon years.
Washington Post: Assange is a spy, not a journalist. He deserves prison.
By Marc A. Thiessen
Some are concerned that the newest Assange indictment will help set a precedent to go after investigative journalists who publish classified information. But as I wrote in 2010, unlike “reputable news organizations, Assange did not give the U.S. government an opportunity to review the classified information WikiLeaks was planning to release so they could raise national security objections.” So responsible journalists have nothing to fear.
Regardless, Assange is not a journalist. He is a spy. The fact that he gave stolen U.S. intelligence to al-Qaeda, the Taliban, China, Iran and other adversaries via a website rather than dead-drops is irrelevant. He engaged in espionage against the United States. And he has no remorse for the harm he has caused. He once called the innocent people hurt by his disclosures “collateral damage” and admitted WikiLeaks might get “blood on our hands.” Sorry, he does not get to aid and abet our enemies, put countless lives at risk and then hide behind the First Amendment. The Justice Department is right to indict him for his crimes.
DOJ
Miami Herald: Federal prosecutors demand Cindy Yang records from Mar-a-Lago, Trump campaign
By Jay Weaver, Sarah Blaskey, Caitlin Ostroff, and Nicholas Nehamas
Federal prosecutors in Washington, D.C., this week sent subpoenas to Mar-a-Lago, President Donald Trump’s private club in Palm Beach, and Trump Victory, a political fundraising committee, demanding they turn over all records relating to Republican Party donor Li “Cindy” Yang and several of her associates and companies, the Miami Herald has learned.
Yang, a South Florida massage-parlor entrepreneur, is the target of a public corruption investigation seeking to determine if she funneled money from China to the president’s re-election campaign or otherwise violated campaign-finance laws. She became a GOP donor in the 2016 election cycle and opened a consulting company that promised Chinese businesspeople the chance to attend events at Mar-a-Lago and gain access to Trump and his inner circle. Some of those events were campaign fundraisers that required guests to buy tickets for entry, payments that are considered political contributions…
The president’s club and the fundraising committee are not the targets of the investigation. The subpoenas cover records from January 2017 to the present…
One subpoena, issued by a federal grand jury in West Palm Beach, compels Mar-a-Lago to turn over all documents, records and communications relating to Yang, as well as 11 other people, one charity and seven companies affiliated with her, according to a person familiar with the investigation who asked for anonymity…
The second subpoena, for Trump Victory … seeks campaign-finance records relating to Yang and her associates…
The investigation is being handled by the FBI and the Justice Department’s Public Integrity Section in Washington. While special counsel Robert Mueller’s inquiry into Russian interference in the 2016 election has ended, the new probe examining Chinese money may add to growing concerns over foreign influence heading into the 2020 election.
Online Speech Platforms
National Review: Silicon Valley, America’s De Facto Censor
By Michael Brendan Dougherty
Silicon Valley’s behemoth companies are incapable of steering through the cross-pressures pushing them to censor more…
The problem goes beyond the large social networks. Banks, credit-card companies, payment processors, fundraising sites, Internet-hosting sites, and registrars have all been pressured to apply some political tests against users…
But let’s take it a step further and posit that Silicon Valley’s executives and their boards further lack the intellectual wherewithal to come up with, in their terms of service, privacy and expression guidelines that they would be willing to defend during a controversy. What then?
The traditional libertarian answer is to throw up one’s hands and say that private companies can do as they wish. Consumers and readers and Internet users will tire of these ever-changing rules, and surely these social-media giants will go into decline like others before them. For some of these companies, that does seem like one possible fate.
Another traditional conservative response is to see size as the problem. Facebook, Twitter, and other platforms have swallowed expression that had been previously spread over a decentralized Internet, and with power, they have become more corrupt, and make for easy targets for activism. One only has to convince a few handfuls of people in order to create wide-reaching change in this model.
But I’m not so sure that the urge to censor will die as competitors move into the social-media space, or if the Internet trends back toward a more decentralized network of individually maintained websites. Activists aren’t going to stop with social-media networks, or nibbling at the soft right-wing fringe of discourse.
Candidates and Campaigns
Roll Call: PAC seeking campaign finance reform launches $50,000 ad targeting Mitch McConnell
By Stephanie Akin
The ad, End Citizens United’s first independent expenditure of the 2020 cycle, highlights McConnell’s work to block campaign finance reform measures in Washington.
“Mitch McConnell has a long history of making sure politicians can be bought,” a male voice says, as pictures of McConnell spanning his 35-year Senate career flash on the screen. “Now Mitch is blocking the most important anti-political corruption legislation since Watergate.” …
The ad is a reference to McConnell’s early years spearheading Republican resistance to a string of campaign finance reform proposals and his recent vow not to allow a Senate vote on Democrats’ signature congressional reform bill, HR-1.
The States
KOAA Colorado Springs and Pueblo News: Griswold defends decision to work with Planned Parenthood
By Andy Koen
Colorado Secretary of State Jena Griswald defended her decision to work with executives at Planned Parenthood to prepare an announcement of her boycott of taxpayer-funded travel to Alabama after that state passed a restrictive new abortion law.
Griswold said she reached out to Planned Parenthood for advice on the press release because she considers them experts on abortion issues.
“Of course I reached out Planned Parenthood, they’re the leading provider of women’s healthcare in the nation and one of the leading experts on this issue,” Griswold said. “I stand by my decision and I will always fight for women’s rights and for Colorado values.”
Former Deputy Secretary of State Suzanne Staiert discovered emails between Griswold’s communication director and executives with Planned Parenthood through an open records request…
Staiert sees the exchange as a conflict of interest.
“Here is a huge lobbying group and a huge special interest group in Colorado that she is supposed to be overseeing, and instead she is coordinating with them,” Staiert said…
Griswold said Coloradoans can trust her to be fair in running the state’s elections. She pointed to a series of reform bills she backed which were signed by Governor Polis Wednesday as proof she is committed to strictly regulating special interests.
House Bill 1248 prevents lobbyists from disguising their clients on disclosure forms by claiming attorney-client privilege. House Bill 1318 requires groups who give money to super PACs to disclose their funding sources in campaign finance filings. It also prevents foreign contributions on political messages. Senate Bill 19-232 codifies the enforcement mechanism established through rulemaking for campaign finance violations.
Oregon Public Broadcasting: Oregon Campaign Finance Bill Might Curb Really Big Donations
By Jeff Mapes
As many critics noted at a hearing this week, there would still be plenty of special-interest money flowing into campaigns.
“It should prevent the outliers of really large contributions,” said Kate Titus, executive director of Common Cause Oregon. “But what it won’t do is fundamentally change the way campaigns are financed.” …
The latest amendments to House Bill 2714 lay out a system that in some ways mimic campaign limits for congressional and presidential campaigns.
Right now, there are no limits on what individuals can give in Oregon. Under the proposed changes, individuals could give no more than $2,800 per election to statewide candidates, $1,500 to state Senate and judicial candidates and $1,000 to state House candidates.
But the new system quickly gets more complicated than that:
– Certain kinds of political committees, such as the legislative party caucuses, could give donations of any size to candidates. This provides the opportunity to shuffle money around to concentrate it on the most competitive races.
– Public-employee unions, key backers of the Democratic majority, would largely be able to operate as usual since they rely on small political donations from thousands of members.
– Congressional candidates could give unlimited amounts to political party committees. That provision allows Oregon’s U.S. senators and representatives – six out of seven of whom are Democrats – to continue being big contributors to voter-turnout efforts. But it could also potentially provide a pathway to funnel big cash to state candidates.
