New from the Institute for Free Speech
By Alex Cordell
The primary theme of this event was the importance of having a thorough, historical background on the relationship between corporations and democracy. As such, the role of nonprofits throughout American history in enabling groups of like-minded individuals to speak freely must be part of that conversation. That history suggests that efforts to regulate corporate involvement in American democracy are usually driven by short-sighted and self-serving motives.
During the question and answer session, several audience members asked the panelists what they believed the correct government response should be to the precedent set by Citizens United v. FEC and other recent Supreme Court cases. Unfortunately, several of the panelists opined that regulation of speech by nonprofits, businesses, and trade unions through disclosure requirements, such as the so-called “DISCLOSE Act” and the misleadingly-named “Honest Ads Act,” was the best path forward. Both of these bills would effectively halt the progress that has been made by the Court’s recent pro-speech rulings, but they wouldn’t make politics fairer or more equal, as their supporters contend.
Internet Speech Regulation
Washington Post: Election officials move closer to placing new rules on Facebook and Google
By Hamza Shaban
All five members of the commission voted Thursday to start a rulemaking process to require disclaimers for small, character-limited political ads that run online on places such as Facebook, Google and Twitter.
The commissioners described working together to prevent foreign operatives from influencing American voters as a crucial priority. “Foreign interference in U.S. elections is inimical to our nation’s interests and democratic values,” said the Republican commissioners in a motion to advance the rulemaking process…
Disclosure requirements already exist for television, radio and digital ads. But the commission has not made explicit what is required of small online political ads, whose dimensions and display make it challenging to include a disclaimer. The rulemaking process would seek to clarify those obligations.
Campaigns & Elections: FEC Pushes Forward on Digital Disclaimers
By Sean J. Miller
Public comment on the FEC’s Advanced Notice of Proposed Rulemaking on Internet Disclaimers has already drawn mixed reaction.
Facebook, in its comment dated Nov. 13, noted how challenging a uniform disclosure requirement could be for campaigns in the mobile era when voters see digital ads in different formats on different devices…
Meanwhile, the Coolidge-Reagan Foundation, a 501(c)3 advocating for free speech, echoed Facebook’s call for flexibility, but argued that the FEC should broaden “the regulatory exemption from disclaimer requirements for Internet-based communications,” and “consistently apply the small items and impracticabitity [sic] exemptions to Internet and social media communications.”
Ultimately, the organization said Nov. 8, the internet “must be left largely unregulated to preserve it as a convenient, inexpensive, easily accessible tool.” …
The commission’s next step will be to draft, approve and publish the Notice of Proposed Rulemaking, which will provide the framework for the new oversight.
That will determine what questions will be addressed during the process governing “disclaimers on paid internet and digital communications.”
The FEC will continue to solicit public comment and potentially hold another open hearing in the near future, according to a spokeswoman for the commission.
Wired: Facebook’s Russia Problem Proves Feds Are Missing the Point
By Matthew Spector
Despite their newfound technology fluency, elected officials must still manage an increasingly complex digital world. They need entirely new tools at their disposal to reflect the limitations of the FCC’s network oversight and companies’ periodic testimonies in Congress.
Among these efforts should be the establishment of a Federal Platform Commission, a new federal regulator with statutory authority to observe and constrain network players-akin to the consumer bureaus that used oversight to protect consumers from big banks, following the recession. To protect these new commons, Congress must adopt agile methodologies, and it should mandate algorithmic transparency that prevents foreign active measures designed to sow racial tension and political division…
Congress must come to terms with these platforms. The Senate’s proposed Honest Ads Act and November’s hearings are first steps, but regulators at the FCC and FTC need a partner agency that operates at the speed of the technology industry. The Federal Platform Commission must have broad statutory oversight to understand platform biases and explore reviving a fairness doctrine that ensures exposure to a diversity of thought, not the cognitive barriers our filter bubbles create.
Supreme Court
National Review: SCOTUS’s Choice: Preserve Constitutional Liberties or Detonate the Culture War
By David French
The First Amendment is a core liberty that protects all others and helps preserve civil peace and national unity. It’s the liberty that gives dissenting Americans hope that they will always have another opportunity to persuade, that their ideas will always have a chance.
If, however, you deprive Americans of that hope and try to conscript them into serving the ideas they oppose, you won’t “settle” any debate; you’ll just create a pressure-cooker of fury and resentment. History teaches us that it’s extraordinarily difficult to separate people from their convictions, and societies that don’t protect the rights of conscience and free will are vulnerable to instability and civil unrest.
No, I’m not arguing that pro-life Americans will revolt if they lose this case. The system is not that fragile. But we maintain firewalls for a reason, and if you seek to breach the constitutional firewall against compelled speech, you are asking for a dramatic escalation in the culture wars. You’re begging for more polarization. You’re forsaking the wisdom of the Founders for the short-term satisfaction of authoritarianism. And, over the long run, you will tear this country apart.
Congress
The Hill: Protecting free speech rights through tax reform
By Rep. Jody Hice
Simply put, H.R. 1 is a critical victory for the First Amendment as it takes necessary steps to correct a patently unconstitutional provision in the U.S. Tax Code. This rider, commonly referred to as the Johnson Amendment, was the result of then-Texas Sen. Lyndon B. Johnson airdropping language into H.R. 8300, the Internal Revenue Code (IRS) of 1954, during the House-Senate conference, for the purpose of ridding himself of political foes he faced back home who claimed that he was soft on communism.
When the 1954 tax package was signed into law, the Johnson Amendment placed undue communication constraints on political speech of 501(c)(3) organizations…
[W]e need a permanent, legislative remedy that codifies broad corrections to the tax code by adhering to our Constitution and putting an end to the violation of these basic rights.
Congress has the opportunity to achieve just that by passing the Tax Cuts and Jobs Act, which incorporates language from the Free Speech Fairness Act – legislation I introduced along with House Majority Whip Steve Scalise (R-La.) and Sen. James Lankford (R-OKla.). The substantive change in the code reinstates the speech rights of any 501(c)(3) institution that wishes to communicate its political viewpoint in the normal course of business with de minimis expenses.
The Media
Wall Street Journal: FCC Rolls Back Limits on Local Broadcast Ownership
By John D. McKinnon and Joe Flint
The Federal Communications Commission voted 3-2, along party lines, to reverse or revise a number of longstanding limits on local ownership of TV stations as well as radio stations and newspapers.
FCC Chairman Ajit Pai, a Republican who led the charge for the overhaul, said at Thursday’s meeting that “few of the FCC’s rules are staler” than the broadcast media ownership rules, some of which date to the 1970s. “It’s about time” that the agency overhauled them to make sense for the digital-media age and give local media more ability to compete in the new environment, he said…
Television station owners have long complained that the federal rules, enacted over the years to ensure diversity of views, have become burdensome, particularly at a time when online rivals are disrupting their markets…
One change eliminates the longstanding rule that generally prohibits a single individual or company from possessing a daily newspaper and a radio or TV station in the same market. A second eliminates a similar rule regarding cross-ownership of radio and TV stations.
Other changes make it somewhat easier for a company to own two TV stations in a single market.
Harassment
New York Times: She Took On Colombia’s Soda Industry. Then She Was Silenced.
By Andrew Jacobs and Matt Richtel
It began with menacing phone calls, strange malfunctions of the office computers, and men in parked cars photographing the entrance to the small consumer advocacy group’s offices.
Then at dusk one day last December, Dr. Esperanza Cerón, the head of the organization, said she noticed two strange men on motorcycles trailing her Chevy sedan as she headed home from work. She tried to lose them in Bogotá’s rush-hour traffic, but they edged up to her car and pounded on the windows.
“If you don’t keep your mouth shut,” one man shouted, she recalled in a recent interview, “you know what the consequences will be.” …
Their organization, Educar Consumidores, was the most visible proponent of a proposed 20 percent tax on sugary drinks that was heading for a vote that month in Colombia’s Legislature. The group had raised money, rallied allies to the cause and produced a provocative television ad that warned consumers how sugar-laden beverages can lead to obesity and diet-related illnesses like diabetes.
The backlash was fierce. A Colombian government agency, responding to a complaint by the nation’s leading soda company that called the ad misleading, ordered it off the air. Then the agency went further: It prohibited Dr. Cerón and her colleagues from publicly discussing the health risks of sugar, under penalty of a $250,000 fine.
Candidates and Campaigns
The Atlantic: Donald Trump Jr.’s Messages With WikiLeaks Point to Campaign-Finance Violations
By Bob Bauer
Donald Trump Jr.’s private Twitter correspondence with WikiLeaks adds significant detail to the emerging picture of a political alliance between the Trump campaign and Russia in 2016. It provides evidence of criminal violations of federal campaign-finance rules, which prohibit foreign spending in U.S. elections.
The prohibition has a broad sweep. It disallows contributions, donations, or “anything of value” provided by a foreign national to sway an election. It also bars a campaign from offering “substantial assistance” to a foreign national engaged in spending on American races. Trump Jr.’s messages not only powerfully support the case that the Trump campaign violated these rules, but they also compound the campaign’s vulnerability to “aiding and abetting” liability under the general criminal laws for assisting a foreign national in violating this spending ban.
The States
Arizona Daily Star: Lawsuit challenges new Arizona law allowing more ‘dark money’ in politics
By Howard Fischer
A voter advocacy group, a union and Democratic lawmakers are asking a judge to void a new Arizona law expanding the ability of some groups to make anonymous “dark money” contributions to political campaigns.
The lawsuit filed Wednesday in Maricopa County Superior Court contends the Republican-controlled Legislature acted illegally earlier this year in exempting some organizations from laws requiring them to register before they can spend money to influence elections…
Attorney Jim Barton filed suit for the Arizona Advocacy Network, the Brickworkers and Allied Crafterworkers Union Local 3 and more than two dozen Democratic lawmakers…
Barton said the new state law, known as SB 1516, allows nonprofits and similar entities to make unlimited contributions to political parties. Then the parties can spend unlimited amounts of money on behalf of their nominees…
Most significant, it eliminates laws that require groups spending money to influence elections to register first with the state. These same groups also can refuse to disclose donors to the public if they are registered with the Internal Revenue Service as a “social welfare” organization.
CT Post: Newton’s campaign finance retrial postponed
By Ken Dixon
Newton declined comment after the brief hearing, but his public defender, J.L. Stawicki, said that Newton is a small fish compared with last year’s $325,000 fine that the Democratic State Central Committee paid to settle charges that Gov. Dannel P. Malloy’s 2014 campaign used money from a federal account including contributions from state contractors who are banned from contributing to statewide races.
[E]arlier this week, Newton’s appeal was bumped up from the state Appellate Court to the Supreme Court over whether Newton “intentionally” or “knowingly” accepted the $500 in contributions that would have made him eligible for more than $80,000 in state funding.
In 2005, Newton was sentenced to five years in a minimum-security federal prison with an accompanying probation period. If he is convicted in state court, he could be sent back to federal prison for violating his terms of release.
“Basically, public campaign financing is a travesty,” Stawicki said. “It’s set up to protect incumbents who are in with the in crowd, because they have an economic advantage.
“Somebody who’s not in with the in crowd, like Ernie, if there’s something that’s questionable about $500, you’re criminally prosecuted. If you’re the Democratic Central Committee, the governor, some high-ranking member of the Senate or Legislature, any discrepancies are overlooked.”
