We’re Hiring!
Legal Director – Institute for Free Speech – Washington, DC or Virtual Office
The Institute for Free Speech anticipates the need for a highly experienced attorney to direct its litigation and legal advocacy. In September, President Trump announced the nomination of our longtime Legal Director to the Federal Election Commission, and it is likely he would be confirmed this fall. Once the hearing for that nomination is officially announced, the Institute for Free Speech will move forward with interviewing applicants.
This is a rare opportunity to develop and implement a long-term legal strategy directed toward the protection of Constitutional rights. You would work to create legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, that threaten citizens’ privacy if they speak or join groups, and that impose heavy burdens on organized political activity.
The Legal Director will direct our litigation and legal advocacy, lead our in-house legal team, and manage and expand our network of volunteer attorneys.
A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country.
[You can learn more about this role and apply for the position here.]
Supreme Court
Reason (Volokh Conspiracy): Supreme Court Sends DeRay Mckesson Black Lives Matter Protest Case Down to the Louisiana Supreme Court
By Eugene Volokh
From today’s unsigned (per curiam) Supreme Court 7-1 opinion in McKesson v. Doe (Justice Thomas dissented without opinion, and Justice Barrett didn’t participate):
Petitioner DeRay Mckesson organized a demonstration in Baton Rouge, Louisiana, to protest a shooting by a local police officer…
I do think that the Louisiana Supreme Court might well conclude that there would be no liability here under state law, for reasons I discussed when the Fifth Circuit decision was handed down:
[1.] It seems to me that the Fifth Circuit’s general negligence theory is plausible: The claim is that Mckesson’s actions (and not just inaction) indirectly and foreseeably caused the injury to Doe-he organized a protest that illegally went into the highway, which foreseeably led to the police enforcing the law by clearing the highway, which foreseeably read to a physical attack on Doe…
Of course, there is then the question whether the First Amendment should preempt this standard negligence rule when the defendant’s conduct, though unlawful, nonetheless involves organizing a political protest. I think the answer is complicated, for reasons I discuss here…
The Courts
By Mike Masnick
It hasn’t garnered that much public attention, but a couple weeks ago Shiva Ayyadurai decided to sue Massachusetts’ Secretary William Galvin, claiming that efforts to have some of Shiva’s tweets removed from Twitter violated the 1st Amendment. It may surprise many people to hear this, but I think Shiva has a point. And it actually raises some interesting (and somewhat new) 1st Amendment questions regarding social media, election disinformation, and the role of election officials in fighting disinformation online.
DOJ
Wall Street Journal: FBI Probes ‘Stay Home’ Robocalls Amid Vote-Suppression Fears
By Erin Ailworth, Dustin Volz, and Sarah Krouse
The Federal Bureau of Investigation is probing a robocall that urges recipients to “stay safe and stay home” over concerns that the message might be an attempt to suppress votes in Tuesday’s election, according to officials familiar with the matter.
Congress
Politico: Republicans clinging to Senate majority as Dems under-perform
By Andrew Desiderio and James Arkin
Democrats’ path to a Senate majority has narrowed dramatically as the party underperformed expectations in a handful of the most expensive races in the country, but control of the Senate remains undecided with a handful of states still too close to call.
Though Democrats expanded the battleground map in the fall and ran closer than expected to GOP incumbents, they fell short in their second- and third-tier targeted races like South Carolina, Texas and Kansas – states where the party raised and spent nine-figure sums.
Politico: Every incumbent who’s been booted out of Congress
By Catherine Kim
Here are all the House and Senate incumbents around the country who have lost their fights for reelection.
The Media
Wall Street Journal: So Much for the Election Landslide
By The Editorial Board
A surge of unexpected votes for Donald Trump has confounded the forecasters-again. Whether it’s enough to carry him to victory in the Electoral College, as it did in 2016, was uncertain at this publication Wednesday morning. But by making the 2020 race close, and perhaps taking it into overtime, Mr. Trump has pulled off a second huge political surprise. At least a few pollsters might be looking for a new line of work…
The tight race reminds us that democracy is surprising, and humility is good journalism practice.
Washington Examiner: New York Times deletes tweet claiming only media can declare winner in presidential election
By Carly Ortiz-Lytle
The New York Times swiftly deleted a tweet proclaiming that the “role of declaring the winner” of the election falls to the media.
“The role of declaring the winner of a presidential election in the U.S. falls to the news media,” the outlet tweeted on Tuesday, hours before the first electoral results were expected.
The tweet linked to an article explaining how broadcasters and journalists report a candidate has won an election. The tweet stirred up outrage among some pundits and others.
“In all seriousness, I’m glad that a group of people which inspires so much trust and confidence across the political spectrum and across the country – the national media – has anointed itself responsible for declaring the winner of the election. That should calm everyone down,” journalist Glenn Greenwald tweeted…
The outlet apologized for “imprecisely” describing the role of the media, clarifying that the media was not responsible for declaring the winner of an election.
Online Speech Platforms
Politico: Twitter flags Trump tweet on election results for ‘misleading’ content
By Lara Seligman
Twitter pinned a warning label to President Donald Trump’s early Wednesday tweet claiming he is “up BIG” in the presidential race and once again casting doubt on election results even as votes were still being counted across the country.
“Some or all of the content shared in this Tweet is disputed and might be misleading about an election or other civic process,” read the label Twitter attached to Trump’s tweet.
Hours later as votes were still coming in, Trump falsely claimed victory during a press conference at the White House. He called for “all voting to stop,” hinting without evidence of massive voter “fraud” and vowing to take the case all the way to the U.S. Supreme Court.
“This is a fraud on the American public. This is an embarrassment to our country,” Trump said. “We were getting ready to win this election. Frankly, we did win this election. So our goal is to ensure the integrity for the good of the moment. This is a major fraud on our nation. We want the law to be used in a proper manner.”
Washington Post: Trump’s early victory declarations test tech giants’ mettle in policing threats to the election
By Elizabeth Dwoskin, Isaac Stanley-Becker, and Heather Kelly
Twitter on Tuesday removed a network of accounts pushing anti-Biden conspiracy theories and other extremist content as part of a coordinated onslaught attributed by Alethea Group, a consultancy tracking disinformation, to Chinese billionaire Guo Wengui “with support from Stephen K. Bannon.” …
The online activity, which spanned numerous platforms, boosted pro-Trump talking points and spread baseless or misleading accusations about the former vice president and his son Hunter, as well as about urban unrest and other hot-button issues. It also spread narratives critical of the Chinese Communist Party, all the while seeking to drive clicks to news sites run by Guo Media, Alethea Group found.
Twitter said it had suspended about 150 accounts for violating the company’s rules against platform manipulation and spam, specifically coordination geared toward “abusive behavior.” Bannon did not respond to a request for comment.
CNBC: YouTube will end full-day ‘masthead’ reservations like Trump bought for Election Day
By Jennifer Elias and Megan Graham
President Donald Trump may dominate YouTube’s home page on Election Day. But that slot won’t be available for advertisers to buy in the same way again, according to a recent policy update by YouTube.
Candidates and Campaigns
By Alexandra Hutzler
Senate Majority Leader Mitch McConnell has defeated Democrat Amy McGrath to win reelection in Kentucky…
McConnell staved off a competitive challenge from McGrath, a former fighter pilot who raked in nearly $90 million in donations in her bid against him. She was one of the top fundraisers of the Democratic Party, but the resources still weren’t enough to dethrone McConnell. McGrath spent more than $73 million in the race, while McConnell spent nearly $44 million.
CBS News: Senator Lindsey Graham wins reelection in South Carolina, CBS News projects
By Caitlin O’Kane
CBS News projects Senator Lindsey Graham has won reelection in South Carolina. Graham, the Senate Judiciary Committee Chairman, faced a closer-than expected reelection race against his Democratic challenger, Jaime Harrison…
Harrison, the former state Democratic Party chair, received a financial boost when the race received national attention. His campaign raised over $100 million during the election cycle, shattering shattered Senate records. Graham’s campaign raised $74 million.
Reason (Volokh Conspiracy): When “Please Vote” Becomes Political
By Josh Blackman
Under federal election law so-called “express advocacy” messages expressly advocate for candidate X. For example, if a famous celebrity publishes an advertisement that says “Please vote for John Doe,” he would have engaged in express advocacy. Any funding used to promote that message would be strictly regulated.
Now, let me modify the hypothetical. That same celebrity is a known supporter of John Doe. The celebrity has given the maximum contribution to John Doe, to John Doe’s political party, and to various advocacy groups that support John Doe. The celebrity has appeared at public rallies in support of John Doe and has hosted fundraisers for John Doe. More importantly, the celebrity has repeatedly criticized John Doe’s opponent. The night before the election, this celebrity sends a two word message to his millions of followers on social media: “Please vote.” The celebrity doesn’t mention the name of a candidate, or even what race he was referring to. He only tweets, “Please vote.”
The States
OPB: Oregon opens door for campaign finance limits
By Dirk VanderHart
Limits to campaign contributions and spending should be explicitly allowed in the state’s constitution, Oregon voters decided Tuesday.
In a historic vote that presages the demise of some of the nation’s most permissive campaign finance rules, voters appeared to have approved Ballot Measure 107. The measure led by a wide margin in early, unofficial returns, and had no organized opposition.
The result is an exclamation point to decades of fighting over how much say the state and local governments can have over campaign cash. While the measure contains no actual campaign finance limits, it inserts language into the state constitution that ensures restrictions on contributions and spending are unquestionably allowed at all levels of government. The measure also allows rules requiring campaigns to be transparent about how political ads are funded, and about contributions and spending in general.
The measure’s passage sets the stage for a fraught debate in Salem, where state lawmakers are expected to take up new campaign finance rules in the 2021 legislative session. Campaigners behind the measure plan to lobby hard for strict regulations, and are already threatening to bring a scheme before voters in two years if legislators don’t act.
“It’s time for the Legislature to either step up and come up with a regime that’s gonna get big money out of politics and allow grassroots donors to be a solution, or we go to the ballot in 2022,” said Jason Kafoury of the group Honest Elections Oregon, which supported the measure and previously helped pass limits in Portland and Multnomah County.
Oregon Live: Portland Mayor Ted Wheeler’s $150,000 loan to his own campaign wasn’t illegal, city auditor says
By Everton Bailey Jr.
Portland Mayor Ted Wheeler didn’t violate city election rules by loaning his reelection campaign $150,000, City Auditor Mary Hull Caballero announced Wednesday -four hours before the 8 p.m. ballot drop off deadline.
In a statement, Hull Caballero noted that while Portland voters in 2018 approved campaign finance restrictions that included a $5,000 limit on candidates making personal loans to their campaigns, the Oregon Supreme Court in April deemed expenditure limits violated the First Amendment.
Because of that, and a similar precedent set by the U.S. Supreme Court, the auditor said she didn’t believe Wheeler’s loan to himself in September was a violation.
“I will always uphold the will of the voters to the greatest extent allowable by law,” Hull Caballero said. “I cannot, however, infringe on any candidates’ free speech rights until the courts decide that the city’s regulations are not in conflict with Supreme Court precedent.”
Fox 4: Missouri voters approve Amendment 3, reversing redistricting process approved in 2018
By Makenzie Koch and Shannon O’Brien
Missourians have approved Amendment 3 Tuesday, reversing the redistricting process voters just approved two years ago.
Amendment 3 was one of two questions on Missouri ballots for the general election. It asked voters if they wanted to amend the Missouri Constitution to ban gifts from paid lobbyists to legislators and reduce campaign contribution limits.
But a third aspect of Amendment 3 will reverse a key element of the “Clean Missouri Initiative,” which Missourians largely passed in 2018.
