New from the Institute for Free Speech
Washington State Sued for Violating First Amendment Right to Provide Pro Bono Legal Services
The Institute for Free Speech, a national nonprofit organization that provides pro bono legal services, today filed a lawsuit in federal court against Washington state Attorney General Bob Ferguson and the members, a former member, and executive director of the Washington Public Disclosure Commission (PDC). The group says the state’s campaign finance laws infringe on the First Amendment right to offer pro bono legal services in PDC enforcement matters.
The Institute wants to represent Tim Eyman, a prominent tax-cut activist, on appeal in a case where a court ruled that he, personally, is a “continuing political committee.” It says the treatment of an individual citizen as a regulated political committee has serious and far-reaching implications for First Amendment rights. Yet the Institute fears representing Eyman could force it to register with the state, file reports, and expose the identities of its confidential donors as if it were involved in an election campaign.
“Washington has no business hampering pro bono legal services for those needing a lawyer to represent them in court,” said Institute for Free Speech President David Keating. “This is a clear violation of the First Amendment. It hampers our access to the courts and prevents our attorneys from representing or speaking to Washingtonians, like Tim Eyman, who need an attorney when threatened by the PDC.
“When we asked the PDC if we could provide free legal representation in a court case, it failed to answer our questions. One of the commissioners we’re suing even admitted the law was ‘clearly unclear.’”
Donor Privacy
Bloomberg Tax: New York Attorney General Halts Donor Identity Disclosure Rules
By Donna Borak
New York is suspending a state requirement to collect unredacted donor disclosures in annual filings of nonprofits effective immediately.
The decision to halt collection of the tax form comes a month after the Supreme Court struck down California rules that allowed the state to obtain disclosure information from nonprofits that identified donors over constitutional issues.
The New York Attorney General said in a notice: “Any notices that charities received regarding any deficiency due to missing or incomplete Schedule Bs are no longer operative as to such deficiency, and annual filings will no longer be considered deficient in such regard.”
Daily Wire: Supreme Court’s Donor Privacy Ruling Affirms Freedoms On Which Our Republic Was Founded
By John Bursch
In our increasingly polarized cultural climate, the Supreme Court’s recent decision in Thomas More Law Center v. Bonta and Americans for Prosperity Foundation v. Bonta was a welcome relief. Having represented Thomas More Law Center in the case, I continue to be struck by the significance of the decision since the court issued it on July 1.
By invalidating California’s blanket demand for confidential, charitable-donor information, the high court has protected the donor privacy and free association rights of all Americans. And while some commentators have framed the 6-3 decision as a partisan one, the briefs filed with the court supporting this decision—including briefs from the American Civil Liberties Union, the NAACP, the Human Rights Campaign, and PETA—tell a very different story.
The Courts
Must Read Alaska: Alaska’s $500 limit on campaign contributions struck by Ninth Circuit Court of Appeals
By Suzanne Downing
“It’s a total win,” said Jim Crawford, one of the plaintiffs in the lawsuit Thompson vs. Hebdon.
The $500 contribution limit to candidates in Alaska has been struck down by the Ninth Circuit Court of Appeals, after having been partially remanded back to that court by the U.S. Supreme Court…
The majority panel did a detailed application of the five Randall factors, designed to determine the constitutionality of restrictions on free speech imposed by campaign contribution limits, to the facts in Alaska. The majority held Alaska had failed to meet its burden of showing that the $500 individual‑to‑candidate contribution limit and that the $500 individual‑to‑political group contribution limit were not “closely drawn” to meet the state’s interest. In particular, the majority seemed concerned that (1) such restrictive campaign contribution limits would make it too difficult for challengers to raise sufficient funds and run competitive campaigns against incumbents, (2) the annual limits favored incumbents because challengers do not fund raise in off-election years while incumbents do fund raise in off‑election years, (3) there was no inflation adjustment on the campaign contribution limit making it more restrictive over time, and (4) there was no special justification for such restrictive campaign contribution limits.
Congress
Fox News: Manchin: No filibuster exception for Democrats’ voting rights bill
By Paul Steinhauser
Sen. Joe Manchin says he “can’t imagine” supporting making an exception to Senate filibuster rules in order to pass the Democrats’ wide ranging elections and campaign finance reform bill, which is a top priority for his party.
“I can’t imagine a carve-out,” the moderate Democratic senator from West Virginia said on Sunday during an interview on CNN’s “State of the Union” when asked if he could back such a move.
Fundraising
NBC News: Big problems with small money? Republicans catch up to Democrats in online giving
By Alex Seitz-Wald and Ben Kamisar
While small dollars tend to be romanticized — Democrats’ voting rights bill includes provision to encourage such giving by matching $6 in public funds for every $1 in small donations — some see a big downside to empowering small donors, who tend to be the most ideological and online.
“The same dynamics that fuel virality on social media in general also apply to small-donor fundraising,” said a leading scholar of democracy, Rick Pildes, a constitutional law professor at New York University.
“The more extreme appeals, the more extreme candidates, the candidates who have the highest profiles because they’re dominant presences on social media or on cable news tend to attract and rely most heavily on small donors,” he said. “There’s a real risk that the rise in small-donor fundraising will throw further fuel on the fires of polarization that are burning so strongly.”
Research has shown that people who give online are more ideological than the general public and that more ideologically extreme lawmakers raise larger proportions of their campaign coffers from individual donors…
“This is the rise of politics as performance instead of governance or legislation,” Pildes said. “Candidates know that if they can successfully stoke this culture of outrage, that is likely to open the spigot of small donations.”
Online Speech Platforms
Politico: Jihadists flood pro-Trump social network with propaganda
By Mark Scott and Tina Nguyen
Just weeks after its launch, the pro-Trump social network GETTR is inundated with terrorist propaganda spread by supporters of Islamic State, according to a POLITICO review of online activity on the fledgling platform…
The rapid proliferation of such material is placing GETTR in the awkward position of providing a safe haven for jihadi extremists online as it attempts to establish itself as a free speech MAGA-alternative to sites like Facebook and Twitter.
It underscores the challenges facing Trump and his followers in the wake of his ban from the mainstream social media platforms following the Jan. 6 Capitol Hill riots.
Washington Examiner: How I became the target of online misinformation and what can be done about it
By Eric Wang
This incident in my little corner of Arlington speaks to the broader social problem of online misinformation, which can lead to real-world threats and acts of violence against people, businesses, and civic and governmental institutions. To date, the private- and public-sector responses have been primarily to: (1) remove or demote false online content, (2) ban or suspend users, and (3) threaten to enact laws to force online platforms to do the foregoing. It seems that one measure that has not been tried up to now is public education.
In reading through the false posts about me on Nextdoor, I saw how many users will simply accept assertions by random strangers as fact, even when they are false. Without making any minimal effort to verify the truthfulness of a claim, many people will start posting responses amplifying the falsehood, thereby creating a snowball effect and distorting the facts even more.
What is missing in the countermeasures taken to date against online misinformation is public education.
Axios: Indie game developer says Facebook rejected his ad
By Stephen Totilo
Indie developer Yoan Fanise says Facebook rejected an ad he attempted to post about his road trip video game earlier this summer, citing restrictions on ads over politics, elections and social issues.
The rejection appears to be the result of an overzealous ad filtering system, raising questions about how a social media giant analyzes submitted content…
Fanise says the incident raises questions about freedom of expression online and whether Facebook has the ability to automatically screen text on submitted ads.
“I thought about [the movie] ‘Minority Report,'” he said. “This is a robot checking in advance what you’re going to do and decide for you, no you’re not going to do that.”
The States
Star Tribune: Inaction on transparency leaves Minnesotans in the dark
By Robert Moilanen
Minnesota’s disclosure statutes have not been meaningfully revised for decades…
The bipartisan Minnesota Campaign Finance and Public Disclosure Board (CFB), on which I served, is charged with oversight of Minnesota’s statutes regulating disclosures by lobbyists, campaigns and public officials. For the past three legislative sessions, the CFB —along with citizen groups like Common Cause Minnesota, Clean Elections Minnesota and the Minnesota League of Women Voters — have pushed to upgrade the statutes. Proposed changes include requiring lobbyists to clearly report the subject matter of their activities, enhancing the reporting of economic interests by public officials, and expanding the definition of “express advocacy” to ensure greater disclosure regarding independent expenditures. Furthermore, certain House members pushed for legislation improving our public campaign financing system as well as disclosure laws.
These initiatives received little traction…
Further, there has been no push to modernize Minnesota’s campaign financing laws in order to give average contributors greater voice. In an October 2018 Humphrey School of Public Affairs report entitled “Transparency and Campaign Spending in Minnesota,” Profs. Kathryn Pearson and Larry Jacobs analyzed the advantage Democrats were enjoying from independent expenditures in the 2018 election.
Washington Post: Suburban NY county considers letting police sue protesters
By Associated Press
Lawmakers in a suburban New York county are set to vote Monday on a proposal that would allow police officers to sue protesters and collect financial damages — a move civil rights activists say is payback for demonstrations after the police killing of George Floyd last year in Minneapolis.
Newsday reports that the bill being considered by the Nassau County Legislature would make police officers and other first responders a protected class under the county’s Human Rights Law, which currently bars discrimination based on race, religion, gender and sexual orientation. No other professions are protected under the Human Rights Law.
The bill would allow a lawyer for the Long Island county to sue protesters on behalf of officers and calls for fines of up to $25,000 for anyone who harasses, menaces or injures an officer. The fine amount would be doubled if the offending behavior happened “in the course of participating in a riot,” the bill says.
Civil rights lawyer Frederick Brewington told reporters Friday that the bill violates free speech rights and, if passed, will have a chilling effect on protesters. The NAACP said it will bring members to Monday’s vote.
