New from the Institute for Free Speech
Individuals of All Beliefs Benefit from Strong Privacy Protections
By Jeremy Talcott, Pacific Legal Foundation
On January 8, the Supreme Court accepted Americans For Prosperity Foundation v. Becerra for review. The case is about whether a nonprofit organization has the right to protect the privacy of its donors in California. The Supreme Court’s answer to this question will have substantial implications for free speech and association across the entire country.
Anonymous speech and association have been important in America since its founding. Thomas Paine’s “Common Sense” was first published anonymously – after all, advocating for revolution tends to raise the possibility of government retaliation…
Since the founding, anonymous speech has continued to play an important role in allowing America to develop and evolve. The minority views of yesteryear frequently become the dominant wisdom of the present…
The loss of anonymity in California is certain to chill donations to nonprofit organizations nationwide. The state’s size makes it one of the most active for political speech. In 2013, for example, donations from California represented 13.7% of charitable donations in the United States – over $27 billion.
But more important is the principle involved: Individuals should have the right to freely – and privately – associate.
ICYMI
Analysis of H.R. 1 (Part One): “For the People Act” Is Replete with Provisions for the Politicians
By Eric Wang
This analysis examines Title IV, Subtitles B (“DISCLOSE Act”), C (“Strengthening Oversight of Online Political Advertising”; formerly known as “Honest Ads”), and D (“Stand by Every Ad”) of Division B of H.R. 1 (117th Congress)…
H.R. 1’s substance further underscores how the bill would help politicians and campaign finance attorneys more than it would benefit the public. The bill would greatly increase the already onerous legal and administrative compliance costs, liability risk, and costs to donor and associational privacy for civic groups that speak about policy issues and politicians. Organizations and their supporters will be further deterred from speaking or be forced to divert additional resources away from their advocacy activities to pay for compliance staff and lawyers. Some groups will not be able to afford these costs or will violate the law unwittingly. Less speech by private citizens and organizations means politicians will be able to act with less accountability to public opinion and criticism. Consequently, citizens who would have otherwise heard their speech will have less information about their government.
The Courts
Pacific Legal Foundation: The government can’t prevent you from donating to nonprofits
By Daniel Ortner
When Adam Kissel, a longtime advocate for civic education, agreed to give the Jack Miller Center for Teaching America’s Founding Principles and History (JMC) a helping hand with fundraising, he assumed he would simply be communicating with potential donors who might be open to supporting the organization’s mission.
Instead, Kissel found himself on the front lines in defense of the First Amendment, challenging state bureaucrats for unconstitutional restrictions on his freedom of speech – an object lesson in the very constitutional principles he sought to promote through his advocacy work.
Kissel’s staunch defense of his free speech rights is now the subject of a federal lawsuit challenging Connecticut’s restrictions on nonprofit fundraising. It’s a case that should be on the radar of anyone who cares about protecting individual liberty.
Reason (Volokh Conspiracy): City’s Allowing “Black Lives Matter” Street Painting Doesn’t Require It to Allow Other Writings
By Eugene Volokh
From Judge Lorna G. Schofield’s opinion Thursday in Women for America First v. De Blasio (S.D.N.Y.), which strikes me as quite right (see this post of mine from June):
On July 28, 2020, Plaintiff Women For America First filed a Complaint alleging that Defendants’ denial of Plaintiff’s request to paint a mural similar to New York City’s eight “Black Lives Matter” murals deprived Plaintiff of its First Amendment rights ….
The surfaces of public streets are not traditional public fora for the dissemination of private speech. Plaintiff argues that public streets are public fora that “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Pleasant Grove City, Utah v. Summum (2009). Plaintiff accordingly concludes that the government must narrowly tailor any content-based restrictions of speech to serve a compelling government interest.
This argument is unavailing. Plaintiff does not seek to congregate and share messages with the public in New York City streets. Plaintiff seeks to paint a message on New York City streets. The United States Supreme Court’s characterization of a public street as a place of assembly where citizens can communicate, is undeniably distinct from an endorsement of the use of the face of a street-usually reserved for transportation-related guidance-as a message board for private speech.
Congress
By Brooke Singman
Democracy Reform Task Force Chair Rep. John Sarbanes, D-Md., announced Monday that all House Democrats co-sponsored the legislation – H.R. 1, the For the People Act of 2021…
Last year, during an attempt to bring the bill to the Senate for consideration, the American Civil Liberties Union urged lawmakers to vote against the bill because of “provisions that unconstitutionally impinge on the free speech rights of American citizens and public interest organizations.”
“They will have the effect of harming our public discourse by silencing necessary voices that would otherwise speak out about the public issues of the day,” the ACLU wrote.
One concern of civil libertarians is the bill’s inclusion of the DISCLOSE Act, which would require all organizations that spend money on elections to disclose donors.
The ACLU said it supports making organizations report spending for public communications like TV ads that expressly call for the election or defeat of a candidate for office, but it worries the DISCLOSE Act goes beyond that.
“These standards are unclear and entirely subjective, which will lead to confusion and, ultimately, less speech,” the ACLU said.
New York Times: House Democrats Press Cable Providers on Election Fraud Claims
By Rachel Abrams
In advance of the Wednesday hearing, called “Fanning the Flames: Disinformation and Extremism in the Media,” members of the House Energy and Commerce Committee sent a letter on Monday to Comcast, AT&T, Spectrum, Dish, Verizon, Cox and Altice, asking about their role in “the spread of dangerous misinformation.”
The committee members also sent the letter to Roku, Amazon, Apple, Google and Hulu, digital companies that distribute cable programming…
“To our knowledge, the cable, satellite and over-the-top companies that disseminate these media outlets to American viewers have done nothing in response to the misinformation aired by these outlets,” two Democratic representatives from California, Anna G. Eshoo and Jerry McNerney, wrote in the letter, which was reviewed by The New York Times…
The lawmakers’ letter asks, “What steps did you take prior to, on and following the Nov. 3, 2020, elections and the Jan. 6, 2021, attacks to monitor, respond to and reduce the spread of disinformation, including encouragement or incitement of violence by channels your company disseminates to millions of Americans?”
“Are you planning to continue carrying Fox News, OANN and Newsmax on your platform both now and beyond the renewal date?” it continues. “If so, why?” …
Brendan Carr, a Republican F.C.C. commissioner, blasted the letter from the House Democrats in a statement on Monday, calling it “a chilling transgression of the free speech rights that every media outlet in this country enjoys.”
Independent Groups
New York Times: These Groups Are Raising Millions to Sway the N.Y.C. Mayor’s Race
By Dana Rubinstein and Katie Glueck
Eight years later, another onslaught of barely regulated money is heading New York’s way, with super PACs poised to play an outsize role in the race for mayor, the most important election in recent city history…
[N]ow progressive groups are getting in on the act, creating their own super PACs to supplement their on-the-ground and social media efforts…
[I]n a crowded field, and with an electorate distracted by the challenges of daily life in a pandemic, major spending – in particular, on paid advertising – will also be vital for candidates’ efforts to stand out. And there is a hunger among donors in New York City, one of the nation’s political fund-raising capitals, to play a role in this year’s races without being bound by the strict rules governing direct donations to political campaigns…
[A] group of progressives are starting a super PAC that aims to raise up to $5 million, in hopes of pushing the field of more than 30 mayoral candidates and hundreds of City Council candidates to the left on matters including housing and diverting funding from the police.
The super PAC, Our City, is being led by Gabe Tobias, a former senior adviser to Justice Democrats…
“There’s no other effort like this in recent history that I’m aware of, a progressive independent expenditure aimed at winning control of city government,” Mr. Tobias, the director of the group, said. He is hoping to raise $300,000 in the group’s first month and go from there.
Online Speech Platforms
Axios: Google to lift political ad ban put in place following Capitol siege
By Sara Fischer
Google informed its advertising partners Monday that its platforms will resume accepting all political ads starting Wednesday, after banning them following last month’s insurrection at the U.S. Capitol, according to an email obtained by Axios.
Google and rival Facebook have been instituting political ad bans on and off over the past few months to slow the spread of misinformation and curb confusion around sensitive events, like the Capitol attack and the election.
Google says a limited version of its “sensitive events” policy went into effect Jan. 13 after the violent events in the Capitol on Jan. 6…
The resumption of political ads means that the sensitive events policy put in place last month has been lifted…
Google and Facebook are the two biggest digital platforms for political ads. Their bans over the past few months have meant that more advertisers have shifted dollars to other digital platforms, like smart TVs, that don’t offer the same level of transparency.
Wall Street Journal: Facebook Reaches Deal With Australia to Restore News
By Mike Cherney
Facebook Inc. reached a deal with the Australian government to restore news pages to the social media company’s platform, following a five-day suspension because of a disagreement over payment for content.
The States
New Mexico In Depth: Sen. Wirth seeks to close dark money loophole
By Bryan Metzger
Sen. Majority Leader Peter Wirth, D-Santa Fe, is seeking to tighten a so-called “loophole” in New Mexico’s campaign finance laws that allowed a dark money group to hide its donors during the 2020 election.
“I do think we need to continue our work to be sure that voters know who’s donating to independent expenditure committees,” Wirth said during a hearing today before the Senate Rules Committee. “This bill is a baby step.”
In 2020, the nonprofit Committee to Protect New Mexico Consumers (CPNMC) argued it didn’t have to disclose who funded $264,000 spent on mailers sent to voters, taking advantage of an exception in the campaign reporting act that allows a group to keep donors secret when they request in writing that their contributions not be used for political spending.
Wirth’s Senate Bill 387 would require outside spenders to separate those kinds of contributions from money given for political spending, keeping them in a segregated bank account in order to be legally shielded from disclosure, leaving less room for groups to use that exemption to their advantage.
Missoula Current: Montana’s campaign finance laws
By Alex Sakariassen, Montana Free Press
The Senate State Administration Committee heard testimony Friday afternoon on a pair of bills that would relax state campaign finance laws and allow political candidates to carry personal loan debt from primary contests into their general election campaigns. Both bills are being carried by Sen. Steve Fitzpatrick, R-Great Falls.
The committee started with Senate Bill 224, which Fitzpatrick said is designed to get rid of the “nitpicky things that we’ve all grown to hate in our campaign finance system.” To that end, Fitzpatrick proposes to exempt the use of personal property for fundraising or political events from disclosure requirements, and raise the disclosure threshold for individual contributions from $35 to $50. SB 224 also narrows the type of information that the Montana Commissioner of Political Practices can request from candidates and political committees…
Perhaps the biggest change in SB 224 is a repeal of Montana’s cap on candidate contributions from political committees.
Sludge: Noem Bill Would Make Dark Money Disclosure Illegal
By Donald Shaw
[South Dakota Gov. Kristi Noem] is behind a bill making its way through the legislature that would prohibit the Board of Elections and other state agencies from requiring nonprofits or charities, including those that spend money on politics, to disclosures that are “more stringent, restrictive, or expansive” than what is required by state or federal law. Nonprofits are not required to report their donors publicly or to the federal government.
The bill passed the Assembly on Feb. 3, 62-8, and passed the Senate on Feb. 16, with a minor amendment, by a vote of 32-2. The amended version is now awaiting another vote from the House.
Noem has defended the bill as an attempt to protect the privacy of charitable donors, telling reporters earlier this month that it “does absolutely nothing on campaign finance.”
But campaign finance law experts say that’s not true.
“If enacted, this bill could help shield the donors behind dark money groups active in state politics from scrutiny by state regulators,” Issue One Research Director Michael Beckel told Sludge…
“State agencies seeking to investigate politically active dark money groups would have less information available about such groups if there is no reporting of these groups’ donors to the state,” Beckel said. “Without being able to see the money flowing into these groups, it could be harder for investigators to connect the dots or to see the networks of wealthy individuals and special interests pumping cash into these groups.”
