In the News
Washington Examiner: The answer to political corruption is more sunlight for government, not for private citizens
By Brent Gardner
A recent raid by San Francisco police on the home of a freelance journalist has put the spotlight on how government officials can abuse their power to target dissenting voices…
It’s incidents like these that make it easy to understand why the public is concerned about corruption, transparency, and accountability in politics. Some proposed solutions, though, would merely shield politicians from accountability and silence the people speaking out against abuses. One such example is the so-called For the People Act, which the House passed in March and that is now being split up into its component parts as part of a tactic to persuade the Senate to take up at least some of its provisions.
Packaged as “transparency” measures, many would further insulate politicians from the people they are supposed to represent.
Engaged voters holding their elected officials accountable is the lifeblood of an open political system, and a foundational freedom upon which the American political system rests.
To see how the measure runs counter to that idea, consider the stand-alone Honest Ads Act (Subtitle C in the original HR 1), which would make it harder for Americans to engage in policy debates and exercise their free speech rights.
New from the Institute for Free Speech
YouTube Hate Speech Policy Rollout Backfires Predictably
By Luke Wachob
Facebook CEO Mark Zuckerberg and others appear to want the government to save them the trouble by taking the responsibility for content moderation off their hands. Some politicians are eager to take on the task, whether they understand the basics of the Internet or not. Yet even a competent government would be constrained by the First Amendment in its ability to moderate content. Unlike private actors, government generally cannot discriminate on the basis of viewpoint.
Even as private companies fail to satisfy just about anyone when it comes to moderating content, they remain the only entities with the flexibility to eventually find a better way. Companies are also more likely to adapt to changing technologies than the notoriously sluggish government. Legislative proposals to regulate online speech, such as the Honest Ads Act (a key provision of H.R. 1), threaten to stifle the constant innovation that has made the Internet so useful for speakers.
Legislators and regulators cannot foresee the ways Americans will wish to speak and communicate in the future, and undervalue the benefits of free speech. The result is a tendency towards strict regulation that constrains future technology and insulates major firms from competition. We should remember that companies often welcome regulation not out of the goodness of their hearts, but out of the belief that it will benefit them…
Internet speech laws passed in Maryland and Washington were so restrictive and unclear that even Google temporarily stopped selling state political ads in both places. If the actions of private companies strike you as frustratingly inept, just imagine what a circus it would be to have state governments or Congress take the wheel. Or work hand-in-glove with Big Tech. Policymakers can’t even make workable rules for ad disclaimers – what makes anyone think they can regulate content effectively?
Supreme Court
Washington Free Beacon: SCOTUS: Private Firms Not Bound by First Amendment
By Charles Fain Lehman
A private corporation that runs a public “forum” is not bound by the First Amendment, the Supreme Court ruled Monday morning…
The basic details of Manhattan Community Access Corp. v. Halleck are mundane. New York City designated Manhattan Neighborhood Network (MNN), a private nonprofit corporation, operator of a public access channel. Respondents DeeDee Halleck and Jesus Papoleto Melendez produced a film critical of MNN, which MNN agreed to air. The corporation subsequently removed their film and suspended the pair, claiming that they had made threats against MNN employees. Halleck and Melendez sued, claiming that MNN had violated their free speech rights under the First Amendment…
Writing for his conservative colleagues, Justice Brett Kavanaugh concluded that MNN was categorically acting as a private actor, not a state actor. Because MNN does not cross that threshold into state action, he argued, whether or not it fulfills a role as a public forum is irrelevant to whether it is bound by the strictures of the First Amendment.
“[M]erely hosting speech by others is not a traditional, exclusive public function,” Kavanaugh wrote, “and does not alone transform private entities into state actors subject to First Amendment constraints.”
The dissenting opinion authored by Justice Sonia Sotomayor, and joined by the court’s left, leaves more leeway for possible First Amendment obligations for public forums, insofar as they are acting on behalf of a government agency. Specifically, Sotomayor argued, “By accepting [an] agency relationship [with New York City], MNN stepped into the City’s shoes and thus qualifies as a state actor, subject to the First Amendment like any other.”
Congress
CNBC: The ‘wild, wild West days of Big Tech’ are over, says Sen. Mark Warner
By Michelle Fox
“We need to put some, in a sense, rules of the road in place and not with a heavy hand,” the Democrat from Virginia said on “Closing Bell. “
“There are ways we can even look at industry-based standards and industry-based regulatory bodies as the first step,” he said. “But the wild, wild West days of Big Tech, I think, are over – both from a consumer standpoint and from both political parties.” …
However, while there have been calls from some to break up the industry titans, Warner said that could give Chinese companies the upper hand in the competitive industry.
“As global companies, I don’t want Facebook [and] Google replaced with Alibaba, Baidu and Tencent … Chinese companies that offer similar services without any constraints, ” said Warner, vice chairman of the Select Committee on Intelligence. He began studying Facebook as part of the committee’s investigation into Russia’s involvement in the 2016 presidential election.
Instead, he sees regulation addressing four key issues: privacy, identity validation, content and the lack of transparency at the companies…
“If we don’t get our act together before the next election, shame on us,” he said. “We need to make sure that we put in place some guardrails around social media to protect our election in 2020.”
FEC
The Federalist: Election Commissioner: Clinton Can Get Info From Foreigners, But How Dare Trump Think About It
By Adam Mill
“Let me make something 100% clear to the American public and anyone running for public office: It is illegal for any person to solicit, accept, or receive anything of value from a foreign national in connection with a U.S. election….This is not a novel concept,” partisan Democrat and Perkins Coie law firm alumnus Ellen L. Weintraub, who sits on the Federal Election Commission, wrote in a statement.
Was she writing about the October 25, 2017 complaint filed against the Democratic National Committee and Hillary for America that pointed to Clinton using Perkins Coie to use foreigners to help the Clinton campaign defeat Trump? Of course not! …
Writing for the Washington Post, lawyer Eugene Volokh challenged Weintraub’s logic that merely providing information amounts to a “campaign contribution,” and that accepting information from a foreign national is therefore a crime. Volokh wrote:
It would raise obvious First Amendment problems…Americans have the right to receive information even from speakers who are entirely abroad. See Lamont v. Postmaster General, 381 U.S. 301 (1965). Can Americans – whether political candidates or anyone else – really be barred from asking questions of foreigners, just because the answers might be especially important to voters? The Supreme Court did affirm (without opinion) a federal court decision in Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), that upheld a ban on contributions and independent expenditures by non-citizen non-permanent-residents, on the theory that the government can use such a ban to limit foreign influence on American elections. But the panel decision expressly stressed that it was limited to the restriction on spending money. And it seems to me that restrictions on providing information to the campaigns – or on campaigns seeking such information – can’t be constitutional.
Online Speech Platforms
Los Angeles Times: Keep politicians away from social media regulation, and let God tweet
By Matt Welch
We did it, America. After letting our social media panic rise for years, we finally helped convince Twitter to ban God.
OK, it wasn’t God, per se, but rather TheTweetOfGod, a satirical account run by a former “Daily Show” writer who posts quips such as, “What happens after you die is pretty funny actually.” Twitter, which like all social media platforms is under increasing consumer and political pressure to police bigotry and extremism, ruled on Tuesday that the ersatz Yahweh had engaged in suspension-worthy “hateful conduct” by tweeting, “If gay people are a mistake, they’re a mistake I’ve made hundreds of millions of times, which proves I’m incompetent and shouldn’t be relied upon for anything.”
The company quickly reversed itself after the ensuing brouhaha, claiming it had made an “error.” Still, this should be (though it almost certainly won’t be) a wake-up call – not to the Lords of social media, but to the rest of us heathens. We keep asking Silicon Valley to enforce speech manners on the commons, then recoil in horror when the results inevitably don’t go as expected…
Among civil libertarians, the deeper worry is that social media panics are already turning into bad speech-restricting legislation and regulation. Congress last year overwhelmingly passed a likely unconstitutional Online Sex Trafficking Act that holds web publishers retroactively liable for prostitution advertisements posted by users. Each week brings some new Capitol Hill hearing where politicians browbeat technology companies for alleged viewpoint discrimination.
But let’s not give short shrift to government censorship’s kissing cousin, censoriousness. That’s where users increasingly ask technology companies – sometimes under threat of government force – to shut down the speech of people we find distasteful. We really need to knock that off.
Quartz: Does Google not realize Beto O’Rourke is running for president?
By Jeremy B. Merrill
Google has promised to put ads it receives from candidates for US federal political offices in its political ad archive, for transparency’s sake. But the Beto ads reviewed by Quartz were missing from the archive-until we alerted Google to their existence. Google’s own rules don’t allow any political content in Gmail ads, but Beto’s campaign ads kept showing up there.
A Google spokesperson tells Quartz that there was “error in our enforcement process” that led to both problems…
Google set itself quite lenient rules: While Facebook discloses ads about state and local elections (along with “issue ads” that don’t mention specific candidates), Google only concerns itself with ads mentioning federal candidates. And several weeks after mentioning Beto’s ads to Google-and after Google even told Quartz it had stopped showing the ads in Gmail-more had appeared in this reporter’s inbox…
This is by no means the first time Google has broken its own rules about political ads. Google promised Washington state’s attorney general that it would stop selling political ads there, settling a lawsuit over its alleged failure to comply with long-standing state disclosure rules. But it kept selling them anyways…
“The platforms are bad at self-enforcement,” Katherine Haenschen, a professor of communications at Virginia Tech who studies online political advertising, tells Quartz, “which is why we need external legislation-then complaints about non-compliant ads can be filed with the FEC [Federal Election Commission], for instance. “
The US Honest Ads Act, a bill with some bipartisan support-and which Facebook supports, but Google has not endorsed-would require the platforms to create archives of the political ads they sell, with the possibility of penalties imposed by the FEC.
Privacy
Politico: How a liberal think tank is driving 2020 Dems to crack down on Big Tech
By Nancy Scola
Today, as a standalone group, Open Markets declines to disclose its donors, saying only that the roster does not include for-profit corporations. Asked to explain the lack of transparency, [Matt Stoller, an Open Markets fellow and former staffer on the Senate Budget Committee under ranking member Sanders (I-Vt.)] said “monopolies are vindictive.” Added Sarah Miller, the group’s deputy director and a former Hillary Clinton policy aide, “When you are going up against the world’s most powerful companies, it is probably not strategic to expose some of the people who want to fund that work.”
Trump Administration
Washington Post: ‘No brainer’: Trump tweets support for amendment banning flag burning
By Colby Itkowitz
President Trump is “all in” for a constitutional amendment banning desecration of the American flag, he said in an early-morning tweet Saturday, backing an effort by two Republican senators.
To commemorate Flag Day – which also happens to be Trump’s birthday – Sens. Steve Daines (Mont.) and Kevin Cramer (N.D.) introduced the amendment Friday.
“All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!” Trump tweeted.
This isn’t a new position for the president, who a few weeks after the 2016 election tweeted: “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!”
The Supreme Court ruled in 1989 that flag burning was protected by the First Amendment after a protester was convicted of burning an American flag outside the 1984 Republican National Convention in Dallas. The following year, the nation’s highest court reaffirmed its ruling when it struck down legislation passed by Congress to make flag burning illegal…
Congress voted at least half a dozen times on a flag-burning amendment between 1995 and 2006 but never got the two-thirds support needed in the Senate. The closest it came was in 2006, when it fell one vote shy.
Even if a constitutional amendment made it through Congress, it would require the support of 38 states to be ratified. To even get to that point, Trump would have to first convince a longtime critic of making flag burning illegal: Senate Majority Leader Mitch McConnell (R-Ky.).
McConnell, who decides which bills get called up for a vote in the Senate, was one of the deciding votes that killed the amendment in 2006.
Fundraising
Bloomberg: The DNC Has Spent More Money Than It’s Raised This Year
By Bill Allison
Democratic donors overall have been generous, pouring three times as much into their party’s presidential and congressional campaigns in the first quarter of the year than Republicans gave to their national office-seekers. But the DNC isn’t benefiting from the same donor enthusiasm…
Party officials and fundraisers blamed the deficiency on several factors, and chief among them is competition from the 23 Democrats who are running for president and vacuuming up contributors’ cash. Giving to the party isn’t as compelling as supporting the presidential hopefuls, said John Morgan, an Orlando-based trial attorney and Democratic fundraiser.
“Do you want to fix up the barn or do you want to bet on the horses?” he said…
For the first time, the party is sending fundraising pitches from its presidential candidates to its vast donor list — and splitting the contributions evenly. Campaigns get another set of donors to pitch to, and the party gets to cash in on the crowded field…
Some potential contributors would rather not support a party they perceive as dominated by establishment figures and their more moderate approach to issues, said one bundler who who has held fundraisers for the party, but asked not to be named because he’s not authorized to speak publicly on its behalf.
The Media
Politico: ‘Enjoy the show!’: Trump hypes controversial Stephanopoulos interview
By Matthew Choi
In a Twitter thread Saturday night, Trump wrote he had a positive experience with Stephanopoulos and that he thought other news outlets misinterpreted his comments. The president also tweeted he would consider doing more interviews with network news.
“So funny to watch the Fake News Media try to dissect & distort every word in as negative a way as possible,” Trump wrote on Twitter. “Think I will do many more Network Interviews, as I did in 2016, in order to get the word out that no President has done what I have in … the first 2 1/2 years of his Presidency, including the fact that we have one of the best Economies in the history of our Country. It is called Earned Media. In any event, enjoy the show!”
Trump’s interview with Stephanopoulos, set to be broadcast in full on Sunday, comes as his reelection campaign prepares to launch in the coming week. Trump’s tentative plan to do more network interviews and capture “earned media” – in which a politician garners free publicity from media hits rather than through traditional campaign ad buys – hints at a strategy he used frequently during the 2016 campaign and as president.
The States
Colorado Sun: Colorado Court of Appeals alters the 2020 landscape for politically active organizations
By Mario Nicolais
By determining that Colorado Pioneer Action fell within the constitutionally defined ambit of a political committee, the court of appeals set off a domino-effect that required Colorado Pioneer Action to abide by restrictive contribution amount limits ($625 per contributor, per election cycle) and publicly disclose all its contributors. And, of course, there is the $17,735 penalty imposed on the group…
There are caveats. First, as an unpublished court of appeals decision, the Colorado Pioneer Action case cannot be cited as binding legal precedent. Second, while the lower court reviewed the proportionate amount of money Colorado Pioneer Action made during an individual calendar year, the administrative law judge equivocated on the test’s applicability to groups with a longer history of activity.
Unfortunately for groups like Colorado Pioneer Action and Planned Parenthood, there is no good way to know in advance. The byzantine bramble created by campaign finance and election laws rarely provide bright-line rules that should be requisite when discussing core free-speech rights.
That paradox led former Supreme Court Justice Anthony Kennedy to lament in the landmark Citizens United decision that the “First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory ruling before discussing the most salient issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People ‘of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.'”
Unfortunately, and perhaps unconstitutionally, that is not the position politically active groups may now find themselves. To the contrary, even with the help of legal counsel, it seems the only path to resolution may now be through further litigation.
Portland Press Herald: Bill would limit lobbyists’ contributions to Maine candidates year-round
By Jeff Ham
Maine could place a year-round ban on political candidates accepting contributions from lobbyists outside their districts under a bill facing Democratic Gov. Janet Mills…
Currently, lawmakers can accept contributions from lobbyists or their employers only when the Legislature is not in session. Supporters of the bill who want to restrict money in politics say that Maine’s existing law leads to a situation in which lobbyists jump to donate to lawmakers the moment the legislative session ends.
The latest bill would prevent gubernatorial and legislative candidates from accepting contributions at any time from lobbyists outside their districts. The bill wouldn’t apply to lobbyists who are eligible voters in a candidate’s district, or to contributions from these lobbyists’ employers.
Democratic Sen. Justin Chenette’s original bill, introduced in January, would have banned all contributions from lobbyists or their employers year-round.
But the bill received pushback from the Democratic attorney general’s office, which warned lawmakers that the original bill could infringe on lobbyists’ freedom of political association.
Attorney General Aaron Frey said year-round bans on all lobbyist contributions have been struck down in at least two states, Connecticut and Kentucky.
National Review: With a Huge Punitive Damage Award, the Oberlin Verdict Becomes Even More Meaningful
By David French
[T]he jury in the Oberlin College defamation trial delivered the school a staggering blow – awarding the plaintiffs $33 million in punitive damages after last week handing down an $11 million verdict for the college’s role in a defamatory campaign against a small Ohio bakery. The total damage award is so large that it may exceed state-law limits. But make no mistake, even if the award is reduced to, say, a “mere” $25 million, this case is profoundly important…
The plaintiffs lawyers used longstanding common-law causes of action to attack Oberlin, causes of action that have long existed alongside the First Amendment and provide protection for the economic relationships and public reputation of (especially) private citizens. Given the prevalence of malice and falsehood in modern outrage mobs, the culture was ripe for a case like the Oberlin trial, and the plaintiff’s attorneys have drawn the blueprints for copycat litigation…
[T]he size of the jury award will create a legal market for litigation. There’s a relatively simple reason why campus free-speech codes proliferated well before there was a concerted legal counterattack – money. It takes money to sue universities, and First Amendment cases simply don’t yield eye-popping jury awards. It took the creation of large networks of nonprofit, pro-bono lawyers to turn the free-speech tide on campus.
Common-law torts are different. Plaintiffs can receive real compensation, and universities have deep pockets…
It is true that vexatious defamation suits can be used to punish lawful speakers, but many states have erected statutory guardrails to protect defendants against frivolous litigation. In addition, the First Amendment properly provides extremely robust protection for speech directed at public figures such as politicians, celebrities, and journalists. The fact remains, however, that outrage campaigns are often built on lies, and that when adults irresponsibly or maliciously spread those lies, the law has long provided a remedy.
