In the News

Knoxville News Sentinel: Do we still believe in free speech? Only until we disagree

By Anders Gyllenhaal

After a century of building free speech rights into our laws and culture, Americans are backing away from one of the country’s defining principles.

Set off by the nation’s increasingly short fuse, students, politicians, teachers and parents are not just refusing to hear each other out, we’re coming up with all sorts of ways of blocking ideas we don’t agree with…

“When people quit listening to each other, there’s that lack of discussion and a lack of understanding,” said Bradley A. Smith, the former chairman of the Federal Election Commission and professor at Capital University Law School in Columbus, Ohio. “That’s when there’s a growing tendency to think the other side shouldn’t be able to say what they think.”…

Today’s conflicts are the most complicated yet and show no sign of easing. But as more than one scholar has pointed out, free speech is the starting place for all our other rights. We shouldn’t lose sight of what’s at stake: Without the free flow of ideas, the American experiment cannot succeed.

The Courts

Washington Post: No qualified immunity in First Amendment and Fourth Amendment lawsuit against Louisiana sheriff in criminal libel case

By Eugene Volokh

The decision in Anderson v. Larpenter, handed down yesterday by U.S. District Judge Lance M. Africk in Louisiana, starts: “Some qualified immunity cases are hard. This case is not one of them.” It then goes on to give the facts as alleged in the complaint, which seem pretty damning…

The Andersons sued, for the obvious reason: Their home was searched for evidence of conduct that, under binding Louisiana court precedents, is not a crime…

For the same reasons, the court concluded that Jennifer Anderson stated a valid claim under the First Amendment itself and not just under the Fourth Amendment, and that Sheriff Larpenter wasn’t entitled to qualified immunity as to that, either. (“The First Amendment bars government officials from ‘abridging the freedom of speech,’ including taking ‘adverse governmental action against an individual in retaliation for the exercise of protected speech activities.'”)

FEC

The Hill: Federal Election Commission must not shy away from Russia probe

By Stephen Spaulding

Last week, my organization, Common Cause filed complaints asking the FEC and the Department of Justice to investigate if the solicitation violated federal campaign finance law. Joining with the Campaign Legal Center and Democracy 21 three days later, Common Cause supplemented its complaint with new and more disturbing information.

Then last Thursday, FEC Commissioner Caroline Hunter, a Republican, said in an open meeting that the FEC should not “wedge” into the matter of foreign-government election meddling; she claimed, erroneously, that the agency has “no expertise whatsoever” in the subject. In fact, as Commissioner Ellen Weintraub said, the FEC has a “duty to respond, and to respond forcefully.”

Relative to the Russia investigation, Sen. McCaskill’s admitted “manipulation” of the Missouri Republican Senate primary is child’s play. Still, the FEC’s lawyers took it seriously, even if the Republican commissioners did not. Upholding the integrity of our elections against foreign interference is squarely within the FEC’s mission and mandate; the commissioners do not have the luxury of looking the other way.

Supreme Court

Washington Post: Five face sentencing Monday for Supreme Court disruption

By Spencer S. Hsu

Five protesters who disrupted a session of the U.S. Supreme Court by shouting their disapproval of its rulings on campaign finance law face sentencing Monday morning after losing a bid to overturn a 1949 law restricting public protest at the court.

U.S. prosecutors have asked U.S. District Judge Christopher R. “Casey” Cooper in Washington to order 10-day jail sentences for the defendants, members of an organization called 99Rise, who stood and spoke one by one just after the court was gaveled into session April 1, 2015, about a year after the justices struck down overall limits on campaign contributions.

“Money is not speech. One person, one vote!” shouted defendant Matthew Kresling, 43, of Los Angeles, before being led away. David Bronstein, 30, of the District, sang, “We who believe in freedom shall not rest.” A third defendant demanded the court overturn its campaign finance decision in Citizens United v. Federal Election Commission.

Congress

KRWG New Mexico: Udall, Heinrich Cosponsor DISCLOSE Act To Protect American Elections From Foreign Interference

By Office of Senator Martin Heinrich (D-NM)

With more details of Russia’s interference in the 2016 election emerging daily, U.S. Senators Tom Udall and Martin Heinrich cosponsored legislation led by U.S. Senator Sheldon Whitehouse (D-R.I.) to address threats to America’s campaign finance system…

The DISCLOSE Act would require organizations spending money in elections to disclose their donors. The new bill would also crack down on shell companies by requiring companies spending money in elections to disclose the true owner of the company, so election officials and the public know who is behind the company. Under current law, foreign nationals and foreign corporations are prohibited from engaging in any election spending. However, domestic companies with significant foreign ownership are not subject to the same restrictions. The DISCLOSE Act of 2017 would prohibit domestic corporations with significant foreign control, ownership, or direction from spending money in U.S. elections.

National Review: BDS, Hypocrisy, and Our Barren Public Sphere

By Noah Daponte-Smith

This proposed legislation is indeed unconstitutional and unconscionable, an abridgment of the right to free speech, which is quasi-sacred in American life and enshrined in the founding document of our government. The senators who currently support it should be, quite frankly, ashamed of themselves; they have lost sight of one of the founding principles of American government, allowing it to be overshadowed by the spectral world of the Israeli-Palestinian dispute.

This condemnation will, I would hope, suffice for those on the Left whose first instinct, on hearing the news of the bill’s consideration, was to ask somewhat sardonically when the ostensible right-wing defenders of free speech would profess their opposition to the bill. . . A significant number of prominent supporters of campus free speech have also expressed opposition to the Senate bill. Nicholas Christakis has; Jonathan Chait has; Yair Rosenberg has; Walter Olson has. The hypocrites whom those on the left desperately wish their opponents to be have not materialized; they are, by and large, a highly principled bunch.

The States

NM Political Report: Campaign finance reporting changes prove controversial

By Joey Peters

On the surface, Secretary of State Maggie Toulouse Oliver’s proposed changes to campaign finance reporting rules appear to be a wonky topic.

But to some outspoken opponents it’s a free speech violation. Burly Cain, the New Mexico state director of Americans for Prosperity, compared the proposed changes to forcing an 80-year-old woman to “wear an armband to say what she believes on her arm.”

Officials with the secretary of state’s office say they are simply attempting to update outdated sections of the state’s Campaign Reporting Act that are no longer legally valid after high-profile court decisions…

But Cain argued that the rules will force disclosure of people who donate to organizations but want to remain anonymous, violating their First Amendment rights. He said this practice goes against precedent set in NAACP v. Alabama, a landmark 1958 civil rights case where the Supreme Court decided the state of Alabama could not subpoena the National Association for the Advancement of Colored People for its membership lists.

Albuquerque Journal: Secretary of State’s dark-money proposal protects public and donors

By Editorial Board

Toulouse Oliver gets that in this hyperpartisan world it’s direly important for voters to know who’s funding dark-money organizations. In part, such transparency allows voters to make informed decisions at the ballot box…

Under the proposal, groups active in New Mexico elections have to disclose their donors if they spend more than $1,000 on political advertising during an election cycle – however, only the names of donors giving more than $200 to the group in the previous 12 months would have to be disclosed. And donors who mark their gifts as not for political purposes do not have to be revealed at all. Groups that give more than $3,000 would face additional disclosure requirements.

It is important to remember the rule only applies to independent expenditure groups; candidates and political parties must list the names and addresses of all their donors, regardless of donation amounts, with the Secretary of State’s office under state law…

And while “reasonable interpretation” is in the eye of the beholder – one contributor’s electioneering is another’s educating – and will undoubtedly end up in court, it’s a solid start that could improve with judicial guidance.

Los Angeles Times: In Seattle, vouchers let voters steer city money to political campaigns. But some aren’t buying it

By Rick Anderson

While some U.S. cities have public campaign financing, Seattle’s program is considered one-of-a-kind, having been approved by voters and imposing no matching funds requirement…

Seattle’s famously liberal voters easily authorized a 10-year, $30-million property tax levy to support the campaign contribution fund. Amounts vary, depending on the size of a property, but the average homeowner pays $11.50 a year.

At least one of those homeowners, architect Mark Elster, thinks that’s a 1st Amendment violation.

“Our free-speech rights come with a right not to speak,” Elster said at a news conference last week after joining Seattle landlord Sarah Pynchon in a lawsuit backed by the conservative Pacific Legal Foundation.

“They’re putting political speech in my mouth,” said Elster, who lives in Seattle’s upscale Magnolia neighborhood. “They’re using my money for political campaigns I may or may not agree with.”

The lawsuit contends that the “politician enrichment tax” compels property owners to “pay for political viewpoints they object to and enrich the campaign coffers of politicians they don’t support.”