In the News
John Locke Foundation: Preserving Donor Privacy in North Carolina
By Jon Guze
In New York and California, the state attorneys general opened the attack on donor privacy by promulgating rules requiring nonprofits to submit copies of Internal Revenue Service Form 990, including Schedule B, which lists donors’ names and addresses…
[In 2014], California Attorney General Kamala Harris [began serving deficiency notices on nonprofits that submitted redacted Schedule Bs.]
Three unaffiliated nonprofits – Americans for Prosperity, the Institute for Free Speech (known at the time as the Center for Competitive Politics), and the Thomas More Law Center – filed separate lawsuits challenging the enforcement actions initiated by Attorney General Harris. In all three cases, when the challenge reached the United States Court of Appeals for the Ninth Circuit, the court rejected the plaintiffs’ claim that the attorney general’s demand should be reviewed under the strict scrutiny standard, found that the state had met its burden under the less rigorous “exacting scrutiny” standard, and eventually decided the case in favor of the state attorney general.
New from the Institute for Free Speech
When Defending the Rule of Law Means Defending the FEC
By Tyler Martinez
In the early hours of the morning on May 29, 2020, the Institute for Free Speech did something many would not expect: we filed an amicus curiae brief in support of the Federal Election Commission. We did so to support the rule of law and the important safety measures Congress put into the nation’s campaign finance laws .
In Campaign Legal Center v. Federal Election Commission, the FEC blew past a court deadline to “show cause” why it had not responded to CLC’s complaint in the U.S. District Court for the District of Columbia. The problem is, until recently, the FEC was without a quorum of Commissioners due to Matthew Petersen’s resignation in September of last year. At the time of Petersen’s departure, the FEC had two slots vacant already, and the three remaining Commissioners are serving on expired terms. The three-person Commission was therefore powerless to direct its lawyers on how to defend itself against the CLC complaint. (It takes four affirmative votes for the bipartisan Commission to do anything substantive.)
It seems that CLC took advantage of the FEC’s loss of quorum. CLC’s administrative complaint was filed on September 12, 2019 – nearly a year after the underlying facts but just twelve days after Commissioner Petersen left. This tactic should not be encouraged: it is political gamesmanship and a weaponization of campaign finance laws…
Trump Administration
Washington Post: Trump calls governors ‘weak,’ urges them to use force against unruly protests
By Robert Costa, Seung Min Kim and Josh Dawsey
President Trump on Monday berated the nation’s governors during a conference call, describing them as “weak” in the face of growing racial unrest and urging them to take an aggressive stand against unruly protests.
Trump told governors that if they don’t take back the streets and use force to confront protesters they would look like “fools,” alarming several governors on the call as they communicated privately.
“You have to dominate. If you don’t dominate, you’re wasting your time,” he said. “They’re going to run over you. You’re going to look like a bunch of jerks.” …
Trump followed up on the forceful rhetoric to the governors in a Rose Garden announcement later Monday evening, warning that he will dispatch the U.S. military to end the unrest in cities across the country if mayors and governors don’t escalate their law enforcement presence, including the National Guard…
Trump told the governors that “you have to use the military” and “we have a wonderful military.” He also mused about the Occupy Wall Street movement, calling it a “disgrace” that was ended by governors and mayors being tough.
The president said that people arrested at the protests should serve 10-year prison sentences.
“But you’ve got to arrest people, you have to try people, you have to put them in jail for 10 years, then you’ll never see this stuff again,” he said. “And you have to let them know that.”
The Hill: GOP deeply divided over Trump’s social media crackdown
By Jonathan Easley
Conservatives are deeply divided over President Trump’s executive order directing the federal government to consider stripping some of the legal protections afforded to the social media platforms…
The executive order has split traditional ideological allies, including Sens. Ted Cruz (R-Texas) and Mike Lee (R-Utah), two of the most conservative members of the Senate.
Lee described the order as a “terrible precedent” and a “very dangerous, slippery slope” that is certain to be abused by future administrations seeking to regulate political speech.
“You keep government as far away from it as you possibly can,” Lee said on Fox News Radio’s “The Guy Benson Show.”
“Governments have force as their only real weapon. You don’t want force deciding the art of persuasion or deciding the art of communication with social media,” he added.
Cruz cheered the order, describing Big Tech as “the greatest threat facing our democracy” and arguing that the social media platforms have been able to hide behind legal protections to “target speech with which they disagree and advance their own political agendas.”
The Atlantic: Trump’s Warped Definition of Free Speech
By Adam Serwer
The First Amendment was explicitly written to protect the right of citizens to express opposition to their leaders; it says that Congress “shall make no law … abridging the freedom of speech, or of the press.” But to the president, criticism of his falsehoods is a violation of his free-speech rights. This position reverses the purpose of the First Amendment, turning an individual right of freedom of expression into the right of the state to silence its critics.
Internet-communications companies have a tremendous amount of power to shape public discourse, power they have often wielded irresponsibly…But the president’s [Executive Order is] little more than an attempt to use state authority to intimidate social media companies into amplifying his falsehoods…
Trump’s attempt to punish Twitter for labeling his tweet is a textbook free-speech issue, one that involves the core democratic right to criticize the government…
Twitter is hardly the first media company to face this kind of extortion from the president; as my colleague David Graham points out, Trump has attempted to use the authority of his office to silence criticism from the Washington Post, CNN, members of the White House press corps, and even ESPN.
Although the actual legal effect of the order remains unclear, its intent is not. Democracy is impossible if private citizens cannot publicly oppose their leaders. The ultimate goal of Trump’s retaliation is to chill criticism of his actions and behavior, by sanctioning online platforms that engage in such criticism. Contrary to the president’s claim, Twitter was not “stifling free speech” by criticizing the head of state. But in directing the federal government to punish Twitter and other social-media companies, Trump was engaging in a form of censorship.
Supreme Court
SCOTUSblog: Justices will not review challenge to mandatory bar dues
By Amy Howe
The [Supreme Court] declined to review a challenge to the constitutionality of laws requiring lawyers who want to practice law in a state to join the state’s bar association and pay dues. The lawsuit was filed by two Wisconsin lawyers who argue that compelling them to do so violates the First Amendment.
Two years ago, in Janus v. American Federation of State, County, and Municipal Employees, the Supreme Court ruled that government employees who are represented by a union but do not belong to that union cannot be required to pay a fee to cover the costs of contract negotiations. The decision in Janus overruled the Supreme Court’s earlier decision in Abood v. Detroit Board of Education. In the wake of the Janus decision, Adam Jarchow and Michael Dean went to federal court in Wisconsin. Jarchow and Dean are licensed attorneys in Wisconsin but they disagree with the Wisconsin bar association’s advocacy on issues like the death penalty, immigration law, the free exercise of religion and campaign finance, and they object to having to join the bar association and support it with their dues. They argued that Janus “knocked the legs out from under” the Supreme Court’s prior rulings upholding compulsory bar membership and dues. The lower courts turned them down, on the ground that only the Supreme Court can overturn its earlier cases; Jarchow and Dean then went to the Supreme Court last winter, asking the justices to take up their case.
Bozeman Daily Chronicle: U.S. Supreme Court won’t hear challenge to Montana campaign finance law
By Holly K. Michels
The U.S. Supreme Court on Monday declined to take up a case that challenged Montana’s law on disclosing the spending for political ads within 60 days of an election.
In August 2019, the 9th U.S. Circuit Court of Appeals upheld Montana’s law that nonprofit groups running ads that mention candidates, political parties or ballot issues in the 60-day window before an election have to report any spending of $250 or more and say who funded their efforts.
That’s part of the state Disclose Act. At the federal level, those sorts of 501(c)4 nonprofits do not have to say where they get their money or how they spend it.
The case in Montana was filed by the National Association of Gun Rights in 2016. In their lawsuit, the group said it planned to send mailers in Montana but would not report its donors or spending, saying it was a violation of their constitutional rights of free speech.
The Courts
Texas Lawyer: Bad News for Lawyers Suing Over Bar Dues: Court Rules in Favor of Texas Bar
By Angela Morris
Three Texas attorneys have lost their claims that the State Bar of Texas violated their constitutional rights by allegedly using bar dues for political speech.
U.S. District Judge Lee Yeakel of Austin ordered that plaintiffs…take nothing from their lawsuit and also pay the costs for the Texas Bar, said the final judgment in McDonald v. Sorrels…
McDonald is one of many lawsuits filed nationally challenging mandatory bar membership in the wake of the 2018 U.S. Supreme Court decision in Janus v. AFSCME, which overturned decades of precedent by ruling that public-sector non-union workers cannot be required to pay union dues as a condition of employment…
In McDonald, the court explained its ruling in an order on cross-motions for summary judgment. It explained that the plaintiffs argued that Janus overruled two previous U.S. Supreme Court cases, Lathrop v. Donohue and Keller v. State Bar of California, that were specific to bar associations and said mandatory dues were constitutional as long as the bar spent the money on improving legal services or regulating the profession.
The Legal Intelligencer: Gambling Business Stakeholders Can Contribute to Political Campaigns, 3rd Circ. Rules
By P.J. D’Annunzio
A federal appeals court has upheld a ruling that Pennsylvania’s law restricting those with business interests in legalized gambling from contributing to political campaigns is unconstitutional.
In Deon v. Barasch, the U.S. Court of Appeals for the Third Circuit affirmed the district court’s ruling that while Section 1513 of the Gaming Act is important for preventing quid pro quo politics, the act’s restriction on political contributions was not “closely drawn.” …
The case was brought by Pasquale Deon, the chairman of SEPTA’s board who has a controlling interest in the Sands Casino in Bethlehem, and businesswoman Maggie Hardy Magerko, owner of the Nemacolin Woodlands Resort, against state gaming officials and the Attorney General’s Office.
They claimed that the act curtailed their First Amendment rights by limiting political speech. The district court agreed, granting summary judgment in their favor.
Candidates and Campaigns
Wall Street Journal: Trump Encounters New Legal Challenge for ‘Wildly Broad’ Nondisclosure Agreements
By Byron Tau
A former staffer on Donald Trump’s 2016 campaign filed a new challenge against the president’s use of nondisclosure agreements, asking a New York state court to rule in a lawsuit filed Monday that the agreements drawn up by the campaign are “null, void and unenforceable.”
Jessica Denson, who managed phone banks on the Trump campaign before rising to become director of Hispanic engagement, brought a class-action suit in New York state court on behalf of herself and other campaign staffers…
In the complaint, Ms. Denson’s attorneys argue that the campaign’s nondisclosure agreement, which all staffers were required to sign, “is wildly broad, prohibiting a vast array of speech about a candidate for the highest office and the current President of the United States-forever. And the campaign has repeatedly invoked its prohibitions in an effort to chill truthful political speech it dislikes.” …
Ms. Denson also previously filed a federal suit-without being represented by an attorney-seeking to be released from her NDA. The case was instead sent to arbitration, which she lost. The arbitration award was later vacated by a New York state court as invalid.
Media
USA Today: Our journalists are being attacked while doing their jobs. This is unacceptable.
By Maribel Wadsworth, Nicole Carroll, and Amalie Nash
JC Reindl, a reporter for the Detroit Free Press, was withdrawing from a confrontational protest area in his city Saturday night when police began chasing him and several demonstrators with pepper spray. He lifted up his media badge but still got hit fully in the face.
Police slapped a phone from a hand of a Free Press photographer as she streamed the scene live on USA TODAY.
And police ran up to a black reporter from the Free Press and asked for his press ID while ignoring his white colleagues. He was trying to produce the credential while blinded by tear gas in the air.
Free Press reporter David Jesse called it “one of the craziest nights of my career. Got tear gassed multiple times. Police shot rubber bullets at us even though we were moving where they wanted us to go, holding up our press passes and yelling ‘media.'”
This is what happened at just one protest, in one city, over the deaths of George Floyd, Breonna Taylor and others. But the actions – attacking journalists who clearly identified themselves as media, not interfering with police business – occurred all across the country at protests this weekend.
This is unacceptable.
Reporters and photographers are there to record the truth, as peaceful or as violent as it may be. We are considered public servants in this role, not part of the protests but there to document it for the American people…
We must be able to do our jobs safely.
Online Speech Platforms
New York Times: Facebook Employees Stage Virtual Walkout to Protest Trump Posts
By Sheera Frenkel, Mike Isaac, Cecilia Kang and Gabriel J.X. Dance
Hundreds of Facebook employees, in rare public criticism on Monday of their own company, protested executives’ decision not to do anything about inflammatory posts that President Trump had placed on the giant social media platform over the past week…
Mr. Zuckerberg said Mr. Trump’s posts did not violate the social network’s rules.
“Personally, I have a visceral negative reaction to this kind of divisive and inflammatory rhetoric,” Mr. Zuckerberg said in a post to his Facebook page on Friday. “But I’m responsible for reacting not just in my personal capacity but as the leader of an institution committed to free expression.” …
In private online chats, employees have called for the resignation of Joel Kaplan, Facebook’s vice president of global policy. Mr. Kaplan is seen as being a strong conservative voice within the company. In 2018, he upset some employees when he sat in the front row of the confirmation hearings of Supreme Court Justice Brett Kavanaugh, who was a close friend…
Mr. Zuckerberg and Sheryl Sandberg, the company’s chief operating officer, planned to host a call on Monday evening with civil rights leaders who have lashed out publicly against Facebook’s protection of Mr. Trump’s posts…
“It’s really important for Mark Zuckerberg to contend with the fact that he is prioritizing free expression while our democracy is literally burning,” said Ms. Gupta, who organized the call with the executives.
The Verge: Twitter takes action against Rep. Matt Gaetz for glorifying violence
By Makena Kelly
Twitter has restricted a tweet from Rep. Matt Gaetz (R-FL) for violating its policies against glorifying violence, following a similar action taken against President Donald Trump last week.
In a tweet published Monday, Gaetz wrote, “Now that we clearly see Antifa as terrorists, can we hunt them down like we do those in the Middle East?” The post was retweeted over 12,000 times before Twitter took action against it. Hours after it was posted, Twitter determined that it violated its policies against glorifying violence. In doing so, the tweet is hidden from Gaetz’s profile and users must click a “view” button before seeing. Likes, retweets, and replies are all disabled from the tweet in an effort to limit its reach.
“We have placed a public interest notice on this Tweet from @mattgaetz. The Tweet is in violation of our glorification of violence policy,” a Twitter spokesperson tells The Verge.
Other lawmakers, like Sen. Chris Murphy (D-CT) called for Twitter to take down the tweet. “Take the Gaetz tweet down right now @twitter. RIGHT NOW. The survivors of mass shootings are lighting up my phone. They are scared to death this will inspire someone to start shooting into a crowd tonight. They are right,” he said. Gaetz responded to a tweet calling him out “for inciting violence,” by writing in a follow-up tweet, “You know what incites violence? Weakness.”
New America: Free Speech Project: Should We Think Twice Before Limiting Political Advocacy?
Webinar: June 2, 2020 at 4pm ET
Just last year, Twitter imposed a total ban on political ads. Other social media companies have allowed such ads, but imposed a range of restrictions that extend beyond candidates running for election-ensnaring interest groups, non-profits, and others who want to advocate for a wide range of issues. Are platforms going too far in limiting speech or are they simply protecting against deceptive messaging and the outsized influence of well-heeled interest groups in the wake of Citizens United? …
Featuring:
Jesse Blumenthal
Vice President of Technology and Innovation Policy, Stand Together
Director of Technology and Innovation Policy, The Charles Koch InstituteDaniel Kreiss
Associate Professor, University of North Carolina Hussman School of Journalism and Media
Investigator, University of North Carolina at Chapel Hill Center for Information, Technology, and Public LifeJennifer Daskal
Professor and Faculty Director, Tech, Law, & Security Program at American University Washington College of Law
The States
Ballotpedia News: In November, Alaskans will decide two ballot initiatives, one to establish top-four ranked-choice voting and one to increase taxes on North Slope oil fields
By Ryan Byrne
The campaign Alaskans for Better Elections is supporting a ballot initiative that would make changes to Alaska’s election policies, including (a) requiring additional disclosures for campaign finance contributions, (b) replacing partisan primaries with open top-four primaries for state executive, state legislative, and congressional offices, and (c) establishing ranked-choice voting for general elections, in which voters would rank the four candidates that advanced from the primaries. Former Rep. Jason Grenn (I-22), who is chairperson of the campaign, described the ballot initiative as “kind of a three-pronged attack on making our elections better.” The campaign has received financial backing from the nonprofits Unite America, Action Now Initiative, and Represent.Us…
[T]he Alaska ballot initiative faces a lawsuit that could stop them from appearing on the ballot or change their ballot language. Lt. Gov. Kevin Meyer (R) and the Alaska Division of Elections (DOE), which oversee state ballot initiatives, argued that the elections-related ballot initiative addressed multiple issues and violated the state’s single-subject rule. In October, Judge Yvonne Lamoureux ruled that the ballot initiative was designed with a single subject-election reform. Meyer and DOE appealed to the Alaska Supreme Court.
