In the News
Reason (Volokh Conspiracy): Equal First Amendment Rights for Non-Media Speakers in Oregon
By Eugene Volokh
Here’s the heart of the amicus brief, in Lowell v. Wright, filed on behalf of:
- the Institute for Free Speech and the Electronic Frontier Foundation;
- Oregon law professors William Funk (Lewis & Clerk), Ofer Raban (U. of Oregon), and Kyu Ho Youm (U. of Oregon); and
- bloggers Prof. Glenn Harlan Reynolds, Howard Bashman, SCOTUSblog, and me.
(Many thanks to Owen Yeates of the Institute for Free Speech, who is our local counsel, to Sam Gillen, a UCLA law student who worked on the brief with me, and of course to Scott and Cyan Banister, for generously supporting our UCLA Amicus Brief Clinic.)
This case presents three important related questions:
(1) Does Oregon law unconstitutionally deny ordinary Oregonians the protections offered by
Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974), which limits presumed damages in libel cases brought by private figures?
(2) Does Oregon law unconstitutionally discriminate in this respect against ordinary speakers, denying them the same First Amendment rights that the institutional media enjoy?
(3) Is it unsound for Oregon law to differ from the Ninth Circuit precedent that covers virtually identical lawsuits that happen to be within the federal courts’ diversity jurisdiction?
Supreme Court
SCOTUSblog: Tuesday round-up
By James Romoser
[In] Facebook v. Duguid, the court will revisit the federal anti-robocalling law known as the Telephone Consumer Protection Act. Earlier this year, the court struck down one provision of that law as violating the First Amendment. Now, the court will tackle a thorny statutory-interpretation question that will determine how broadly the law can sweep – and some First Amendment issues are again lingering in the background of the case. Our preview is here.
The Courts
Campaign Legal Center: CLC Files Brief Supporting NJ Law to Limit Influence of Big Money
By Alexandra Copper
CLC filed an amicus brief in New Jersey Bankers Association v. Grewal supporting the state of New Jersey’s defense of its century-old law prohibiting campaign contributions from banks and certain other corporations.
In this case, the New Jersey Bankers Association, a trade association of regional banks, is challenging the constitutionality of New Jersey’s longstanding prohibition against bank contributions, claiming it violates the First Amendment.
FEC
Washington Examiner: Georgia GOP files FEC complaint against Ossoff campaign
By Kerry Picket
The Georgia Republican Party filed a complaint Sunday with the Federal Election Commission alleging the campaign of Georgia Democratic candidate Jon Ossoff is coordinating its message with a newly formed Majority PAC, The Georgia Way…
The state GOP claims The Georgia Way, a super-PAC, established on Nov. 16, “released an advertisement directly tracking language, sources, and claims made on Jon Ossoff for Senate’s campaign website.” They claim the instant organization and sudden sequence of The Georgia Way’s ad shows it is coordinating with Ossoff’s Senate campaign by posting communications of comparable tone and content…
The FEC filing continues:
“Based on the timing, messaging, conduct, and context of the campaign update and the advertisement, Jon Ossoff for Senate is coordinating its message against Senator Perdue with the Senate Majority PAC’s newly formed committee, The Georgia Way. This conduct has resulted in the airing of at least one advertisement that likely constitutes an illegal $690,200 in-kind donation to Jon Ossoff for Senate’s campaign.”
FCC
Reason (Video): FCC Head Ajit Pai on Section 230 and Free Speech
By Nick Gillespie and Paul Detrick
In an exclusive Reason interview, [chairman of the Federal Communications Commission Ajit] Pai discusses what he thinks should happen regarding Section 230 and the future of free speech in America. “I am pessimistic about where this goes in the future,” he tells Nick Gillespie. “We’ve grown up…with a culture of free speech and free expression. And I think we’ve often taken that for granted…Once that culture frays, who puts it back together? It’s not going to be a politician. It’s not going to be a regulator. It has to be the aggregated decisions of millions of Americans to say, no, we want pluralism again.”
First Amendment
The Atlantic: What If We Wrote the Constitution Today?
By Jeffrey Rosen
[D]uring the past two centuries, changes in politics, technology, and values have led many to assume that if Americans set out to write a new Constitution today, the document would be quite different. To find out what a new Constitution might look like, my colleagues and I at the National Constitution Center recently asked three teams of scholars-conservative, progressive, and libertarian-to draft new Constitutions for the United States of America in 2020 from scratch…
The three teams also strongly disagree about how to strike the balance between liberty and regulation when it comes to the First Amendment rights of speech and religion… The Libertarian Constitution emphasizes that “the freedoms of speech and conscience include the freedom to make contributions to political campaigns or candidates for public office.” The Progressive Constitution, by contrast, provides that “everyone shall have the right to freedom of thought, conscience, and religion” but emphasizes that “Congress and the legislature of any State shall … have the power to establish by law regulations of the financing of campaigns for elected office, provided that such regulations are reasonably aimed at ensuring that all citizens are able to participate in elections meaningfully and on equal terms.” In the three Constitutions, as on the Court today, the progressives diverge from the conservatives and libertarians on campaign-finance restrictions and on religious exemptions from generally applicable laws.
The Media
National Review: Journalists Turn on Free Expression
By David Harsanyi
In an interview with MSNBC’s Kasie Hunt, The New Yorker’s Steve Coll contends that Facebook founder Mark Zuckerberg’s “profound” support of free speech – oh, how I wish that were true – is problematic because “free speech, a principle that we hold sacred, is being weaponized against the principles of journalism.”
Journalism has turned on free speech, the one belief that had been somewhat impervious to the ideological tendencies of most editors and reporters…
If you believe Americans are too stupid to hear wrongthink, transgressive ideas, and, yes, fake news, you’re not a fan of the small-l liberal conception of free expression. That’s fine. Those ideas seem to be falling into disfavor with many. But the sanctity of free speech isn’t predicated on making sure people hear the right things, it’s predicated on letting everyone have their say. Because as always, the question becomes who decides what expression is acceptable. I’m not keen on having the fatuous media reporters at CNN or activist “fact-checkers” at the Washington Post adjudicating what is and isn’t permissible for mass consumption…
Speech is a neutral principle – universal, fundamental, and unassailable. A Facebook user no more “weaponizes” speech than a criminal weaponizes due process.
Online Speech Platforms
Wall Street Journal: Covid and the New Age of Censorship
By Alex Berenson
Information has never been more plentiful or easier to distribute. Yet we are sliding into a new age of censorship and suppression, encouraged by technology giants and traditional media companies. As someone who’s been falsely characterized as a coronavirus “denier,” I have seen this crisis firsthand.
Since June, Amazon has twice tried to suppress self-published booklets I have written about Covid-19 and the response to it…
Google-owned YouTube censors even more aggressively. The company disclosed in October that it had pulled more than 200,000 videos about the epidemic-including one from Scott Atlas, a physician who was advising President Trump. Facebook has not only censored videos and attached warning labels or “fact checks” to news articles, but removed groups that oppose lockdowns and other restrictions…
Tech companies aren’t alone in their efforts to stifle debate. Traditional news outlets, book publishers and even scientific journals are reluctant to publish information that challenges ideological orthodoxies…
Outlets like the Times are increasingly unwilling even to ask ideologically inconvenient questions.
Candidates and Campaigns
Center for Responsive Politics: Biden campaign becomes first to raise $1 billion from donors
By Karl Evers-Hillstrom
President-elect Joe Biden’s campaign is the first in history to raise $1 billion from donors, adding yet another broken record to the 2020 cycle that set a new benchmark for political fundraising.
Biden wielded a massive financial advantage over President Donald Trump during the final months of the 2020 campaign. Biden heavily outspent Trump on the airwaves in key swing states he ultimately won by narrow margins. He also had superior backing from big-money super PACs and “dark money” groups.
The Biden campaign netted nearly $107 million from Oct. 15 to Nov. 23, according to Federal Election Commission filings released Thursday, pushing its total past the billion-dollar mark.
Overall, the 2020 election cycle is by far the most expensive ever. OpenSecrets estimated that the election will cost roughly $14 billion – twice as expensive as the 2016 contest – and the total could rise further with big spending in the Georgia Senate runoffs…
Through mid-November, Trump raised an estimated 49 percent of his money from small donors giving $200 or less, an astoundingly high figure for a presidential candidate. Biden brought in an estimated 38 percent of his campaign cash from bite-sized donors.
Bloomberg Government: Red-State Voters Stuck With Trump’s Party in Pricey Senate Races
By Greg Giroux
A Bloomberg Government analysis of campaign finance reports due Dec. 3 to the Federal Election Commission found that Democrats easily topped Republicans in campaign receipts in 10 Senate races Democrats lost by wider-than-anticipated margins. The data underscored the limits of campaign spending when the presidential election dominated voters’ attention and was a good predictor of down-ballot election results…
“We saw that money can’t narrow the partisan leans of the state” by much, said Jessica Taylor, the Senate and governors editor for the nonpartisan Cook Political Report. “President Trump did better in many of these states than expected, and that in turn helped Republicans down-ballot too.” …
Montana Gov. Steve Bullock (D) raised almost $50 million against Sen. Steve Daines (R) despite entering the race at the last minute, in March. Running against a Republican incumbent, Bullock couldn’t harness the same partisan crossover appeal as in his two wins for governor, and he lost by an unexpectedly large margin of 10 points in a state where Trump trounced Biden by 16 points.
“It seemed like a ‘green wave’ could lift Democrats even in traditionally tough states, but in the end that cash flow – largely from out-of-state, enraged, small-dollar donors – may have been a double-edged sword, leaving voters wondering what liberals may want in return for investing so heavily in a race,” Taylor said.
The Texan: New Finance Reports Show Failed Democratic Candidates Outraised Republicans
By Daniel Friend
In the campaign finance reports published before the November election, federal Democrats in Texas reported large hauls that signaled many of the races would be tight.
New reports released this week, which detail receipts and disbursements in the weeks before and after the election, show that Democrats continued to outperform Republicans in many key races leading up to the election.
But the results proved that the cash advantages did not pay off as much as some had hoped, with no party making any gains in the congressional races.
[In Texas’ 21st Congressional District, Wendy] Davis outraised [Rep. Chip] Roy by two-to-one…
But ultimately, Roy won the election with 52 percent of the vote and nearly seven points ahead of Davis…
Likewise, Julie Oliver outraised Rep. Roger Williams (R-TX-25) in the last period before the election by about $130,000, but fell behind him in the election by 14 points.
Republican challengers who outraised sitting House Democrats did not perform much better.
Wesley Hunt outraised Rep. Lizzie Fletcher (D-TX-07)…by $1.2 million…but lost by three points.
And Genevieve Collins – supported by $2 million in self-loans to her campaign – essentially matched Rep. Colin Allred’s (D-TX-32) funding…but lost by a wider margin of six points…
While campaign finances undeniably play an important role in general elections, the results in the 2020 congressional races show that they are far from the only factor.
The States
Bloomberg: Lawmaker to Shame New Yorkers Who Donate to Anti-SALT Candidates
By Laura Davison
Representative Tom Suozzi, a New York Democrat, said he plans to publish a list of New Yorkers who donate to candidates opposing the removal of a $10,000 limit on state and local tax deductions.
The list will include large individual and business donors from New York to members of Congress who oppose repealing the cap on write-offs for state and local taxes, or SALT, Suozzi told reporters Monday. He said he hopes the list will unite New Yorkers behind lawmakers who want to allow taxpayers to write off their entire state and local tax bills.
“No New Yorker should contribute to a politician who is undermining our state,” Suozzi said. “They are funding our own demise.” …
The congressman said he was inspired to create the list — which he said he will draw from quarterly Federal Election Commission fund-raising reports — after Bloomberg News reported that Goldman Sachs Group Inc. was considering moving its asset management business to Florida to save on taxes.
