In the News
Ballot Access News: U.S. District Court Enjoins Florida Law Preventing Candidates for Non-Partisan Office from Mentioning their Party
By Richard Winger
On July 14, U.S. District Court Judge M. Casey Rodgers, a Bush Jr. appointee, enjoined the Florida law that makes it illegal for candidates for non-partisan office from mentioning their political party. Hetherington v Madden, n.d., 3:21cv-671. Here is the order.
[Ed. note: Read more about the recent IFS victory here.]
ICYMI
Issue Analysis No. 11: Do Out-of-State Donations Lead to Electoral Success?
By Nathan Maxwell
Proponents of further restrictions on political spending often argue that money effectively buys elections. To ensure a fairer election process, they maintain it is necessary to limit the inflows of campaign cash so better resourced candidates can’t claim an unfair advantage. Increasingly, political cash does not stop at the state border, and in 2020, donors contributed significantly to federal races outside their home state, sometimes to the opposing candidates’ chagrin. Georgia Republican David Perdue, who lost to Democrat Jon Ossoff in a 2020 runoff election for a U.S. Senate seat, was not fond of the out-of-state contributions received by his opponent, saying “we don’t want people from outside of state trying to come down here and dictate what we’re going to do.” This sentiment, of course, is driven by the belief that money spent on an election unilaterally determines votes received, but further, that this axiom must be the case irrespective of donor geography.
But do out-of-state contributions actually lead to electoral success? This analysis examines that assumption. The results suggest that concern about out-of-state dollars deciding election outcomes is unfounded. This study looks at competitive U.S. Senate races in the 2020 election cycle and finds that most of the candidates who received a greater percentage of their campaign contributions from out-of-state donors than their opponent lost the election.
Daily Caller: MAXWELL: Joe Manchin’s ‘Compromise’ On Voting Rules Is A Trojan Horse For Censorship
By Nathan Maxwell
In the name of protecting democracy, Democratic leaders have built a Trojan horse for censorship.
The so-called “For the People Act” failed a key vote in June. Yet Sen. Joe Manchin’s proposed compromise would revive Democratic leaders’ attempt to disguise harmful restraints on political speech as a win for democracy.
The DISCLOSE Act, a tortured acronym for “Democracy is Strengthened by Casting Light on Spending in Elections,” is a part of both S. 1 and Manchin’s compromise proposal. The bill is full of new privacy invasions and political speech regulations that have nothing to do with elections. Instead, the measure burdens the First Amendment freedom to join groups with like-minded individuals and speak freely on bills pending in Congress.
Supreme Court
RealClearPolicy: Supreme Court Protects First Amendment by Protecting Donor Privacy
By Andrew Langer
Powerful forces, especially those in government, despise contrarians — those who want to change the course of politics and policy, correct some kind of historic injustice, or disrupt the cozy relationship between those who make the political decisions and their cronies who financially benefit from them. They guard their power jealously and use whatever means available to them to intimidate their opponents into silence — especially governmental power.
In the 1950s, we saw this play out throughout the American South as people of color worked passionately to fundamentally change the political landscape and gain the full-measure of political rights that were supposed to be guaranteed to them by the Constitution, but that evildoers had, over decades, denied…
The same arguments, the same power-hungry political establishmentarians keen on silencing dissent have once again tried using government power to achieve those ends. Thankfully, the Supreme Court is a voice of reason in pushing back against this nauseating practice.
Roll Call: ESG movement origins trace back to financial crisis, Citizens United
By Keith Lewis
The exponential growth of investment focused on environmental, social and governance factors that has unexpectedly aligned many progressive-backed policies with corporate agendas can be traced at least in part to a Supreme Court decision derided by Democrats: Citizens United, according to a legal scholar.
The 2010 high court rulings in Citizens United v. Federal Election Commission and in Burwell v. Hobby Lobby Stores Inc. four years later recognized a corporation’s right to assert the political views and religious beliefs of shareholders. Those decisions, coming in the aftermath of financial and environmental catastrophes, sparked the rise in shareholder activism that is reshaping global financial markets, said Kent Greenfield, a professor at Boston College Law School.
The Courts
Hartford Courant: Federal court: The state’s regulation of non-profit fundraising solicitations violates free speech protections
By Edmund H. Mahony
A federal court has found that state laws closely regulating paid, nonprofit fundraising probably violate free speech guarantees, ruling in favor of a professional fundraiser representing a conservative group which “promotes education about America’s founding principles and history” and “the broader traditions of western civilization.”
The decision by federal Judge Jeffrey A. Meyer prohibits enforcement of nonprofit fundraising laws, at least temporarily, in a decision critical of state solicitation laws in general.
The court ruled for professional fundraiser Adam Kissel, who challenged laws requiring him and others to submit to an array of bureaucratic requirements before soliciting Connecticut donors. Kissel plans to raise money for the Pennsylvania-based Jack Miller Center.
Meyer said three regulations enforced by the Department of Consumer Protection specifically, and perhaps unconstitutionally, restrict Kissel’s First Amendment right and presumably those of other fundraisers — requirements that he notify the department 20 days in advance of making solicitations, provide the department in an advance with the text of his intended solicitation and make records available to the department of who donates and in what amount.
Congress
Wall Street Journal: Bill Would Strip Social Media of Protections for Health Misinformation
By Siobhan Hughes
Sen. Amy Klobuchar introduced a bill Thursday that would strip online platforms such as Facebook Inc. and Twitter Inc. of liability protections if their technology spreads misinformation about coronavirus vaccines or other public-health emergencies.
The bill, which Ms. Klobuchar (D., Minn.) has previously telegraphed was in the works, would create an exception to the law known as Section 230 that shields internet platforms from lawsuits for content generated by their users and other third parties.
At a congressional hearing last year, Big Tech executives signaled cautious support for modifying Section 230, a provision in the 1996 Communications Decency Act that generally shields internet platforms from liability for content posted by users on their sites…
The measure is written to apply only to events that are formally declared public-health emergencies by the Health and Human Services secretary. And it would apply only when internet platforms spread misinformation through programs like algorithms.
The bill would designate HHS to determine what constitutes health misinformation and to act after consultation with other federal agencies and outside experts. The law would take effect 30 days after enactment.
Ms. Klobuchar said she had decided to try to enact new laws because campaigns of persuasion weren’t sufficient.
Washington Post: Facebook and YouTube spent a year fighting covid misinformation. It’s still spreading.
By Gerrit De Vynck and Rachel Lerman
On Thursday, Sen. Amy Klobuchar (D-Minn) proposed a bill that would take away liability protections enjoyed by tech companies when it comes to health misinformation on their platforms…Even if it passes though, it’s unlikely to survive a first amendment challenge, said Jeff Kosseff, a cybersecurity law professor at the United States Naval Academy.
NLRB
Reason (Volokh Conspiracy): NLRB Rejects Complaint Against “Scabby the Rat”
By Jonathan H. Adler
Yesterday, the National Labor Relations Board rejected a claim that union displays of a giant inflatable rat, aka “Scabby the Rat,” outside the entrance of a neutral employer, by itself, violates Section 8(b)(4) of the National Labor Relations Act.
The Board voted 3-1 in support of Scabby…
The relevant portion of the NLRA prohibits unions from attempting to threaten or coerce third-parties (e.g. a company’s suppliers or customers) into boycotting a company involved in a labor dispute. Put another way, it bars efforts to coerce others to participate in secondary boycotts. Former NRLB General Counsel Peter Robb had argued that use of “Scabby” crossed the line. The NLRB disagreed.
Chair McFerran wrote a concurring opinion stressing that the decision was dictated by prior Board precedent, which has been sensitive to the First Amendment implications of limiting protests, and has interpreted the relevant NLRA provisions so as to avoid infringing upon constitutionally protected speech.
Members Kaplan and Ring concurred separately, reaching a very similar bottom line…
While there are serious arguments that the First Amendment does not protect all secondary boycott efforts, I think the NLRB reached the correct conclusion here. The Board should err on the side of safe-guarding First Amendment protected speech. Alas, the Board has not consistently taken such an approach, as seen by its decision regarding a humorous tweet by Ben Domenech of The Federalist. Fortunately, the U.S. Court of Appeals for the Third Circuit will have the opportunity to correct that error.
Free Speech
By Stephen Jones
Two surveys gauged tech worker opinions on the importance of being free to discuss politics at work and the findings are clear: most want that freedom.
The Information asked 1,500 Silicon Valley executives, managers and workers for their views…
More than half — 54% — said that they would not work for a company that prevented political conversations in the office, though it’s worth noting there isn’t a way to measure whether they would follow through.
The Information noted this still means 46% of its respondents would work for an employer that didn’t permit political discussions — suggesting a ban isn’t universally unpopular.
The Information’s findings were reflected by a separate survey of 750 tech workers by Protocol, with 71% saying that it was important to discuss politics and social issues with colleagues.
While there was a majority among all age demographics, younger workers were in general more likely to value workplace freedom of political expression, with 75% of under 45s saying so, compared to 59% of those aged 45-65 and 54% of those aged over 65.
Online Speech Platforms
Tech Policy Press: Facebook, Google political ad bans not effective, researchers say
Two researchers at the Duke University Center on Science and Technology Policy conclude that bans on political advertising put in place by the tech platforms just before and in the period after the November 2020 U.S. elections were not necessarily effective, and had a number of negative side effects…
Among its findings, the report says that there is “little evidence that the bans reduced misinformation.”…
The impact of the bans was asymmetrical in a number of ways. The report concludes that “the bans likely hurt poorer candidates more than wealthier ones” by putting the onus on campaigns to make decisions and find alternative means to reach voters, something that was easier to do for campaigns with more resources…
Another finding concerns the possibility that the bans hurt Democrats more than Republicans.
Reuters: YouTube says it pulled Bolsonaro videos for COVID-19 misinformation
YouTube said on Wednesday it had removed videos from Brazilian President Jair Bolsonaro’s channel for spreading misinformation about the coronavirus outbreak, becoming the latest tech giant to pull his pandemic pronouncements.
YouTube said in a press release the decision was taken “after careful review” and without consideration for Bolsonaro’s job or political ideology. The far-right former army captain, who has overseen the world’s second deadliest outbreak, has won widespread criticism for railing against lockdowns, touting unproven miracle cures, sowing vaccine doubts and shunning masks.
“Our rules do not allow content that states that hydroxychloroquine and/or ivermectin are effective in treating or preventing COVID-19, that states there is a cure for the disease, or says that masks do not work to prevent the spread of the virus,” [Youtube] said in a statement.
