In the News
Washington Post: West Virginians should reject a misguided call for less political speech
By Thomas Wheatley
A 2013 study from the University of Massachusetts, for example, studied the negative effects of public disclosure laws on individual willingness to give and found startling results. “When some citizens believe that their contributions will be posted publicly on the Internet,” concluded the study, “they tend to cut back on donations or not give at all.” Individual citizens are especially cognizant of what the study calls “social influence theory,” and are vastly more likely to be fearful of public backlash in a way corporations are not. In West Virginia, even a $1 contribution is published online for all the world to see. In other words, enacting overbroad disclosure laws to diminish corporate influence in elections – as West Virginia has – may in fact aggravate the disparity…
Second, there’s little evidence that “getting the money out of politics” actually yields better government. Another 2013 study from the Institute for Free Speech, using data from the Pew Center on the States, found “no relationship between a state’s regulation of corporate or union contributions to candidates and the quality of management in a state.” In fact, of the 21 states that prohibited corporate contributions entirely, only three were considered “above average” in state management. Eight were deemed “below average.” Meanwhile, of the five highest-scoring states, three had no limit on election contributions by corporations.
The Courts
Forbes: Another California Intrusion On Businesses’ Free Speech Fails In Court
By Cory L. Andrews
On February 20, a Northern District of California judge handed the state its latest speech-regulation defeat, striking down a law designed to limit information that entertainment database company IMDb.com could publish (IMDb.com Inc. v. Becerra).
A 2016 California law, AB 1687, required the company, upon the request of a person who subscribes to the private IMDb Pro service, to remove his or her age from their public IMDb biography. The law claims to advance the state’s interest in preventing age discrimination…
California had argued that the challenged law regulated commercial speech, which traditionally receives somewhat lesser constitutional protection than non-commercial speech. Judge Chhabria appropriately shot down that argument, explaining that the restricted information is conveyed “in a manner unconnected to any commercial transaction” and that IMBb.com’s “financial interest in people’s reliance on [it] for information” does not mean the speech is commercial. The court’s reasoning will be valuable for other business plaintiffs in First Amendment challenges, as state and federal regulators routinely attempt to classify all expression by businesses as “commercial speech.”
Free Speech
New York Times: Free Speech and the Necessity of Discomfort
By Bret Stephens
The truth may set you free, but first it is going to tick you (or at least a lot of other people) off. This is why free speech requires constitutional protection, especially in a democratic society. Free speech may be the most essential vehicle for getting the truth out. But the truth, as anyone minimally versed in history knows, is rarely popular at first…
In addition to a legal sanction, free speech has flourished in the United States because we have had a longstanding cultural bias in favor of the gadfly, the muckraker, the contrarian, the social nuisance. For over a century, editors and publishers and producers – at least the more enlightened ones – have gone out of their way to make allowances for opposing points of view.
They do so not because they have no strong convictions of their own, but rather out of a profound understanding that the astute presentation of divergent views makes us more thoughtful, not less; and that we cannot disagree intelligently unless we first understand profoundly … Ultimately, they do so because we will not be able to preserve the culture and institutions of a liberal republic unless we are prepared to accept, as Judge Learned Hand put it in 1944, that the “spirit of liberty is the spirit which is not too sure that it is right” – and must therefore have the willingness to listen to the other side.
ACLU: Can Schools Discipline Students for Protesting?
By Vera Eidelman
Plans for coordinated student walkouts have been making national news and have already engendered disciplinary threats from some school administrators. Since the law in virtually all jurisdictions requires students to go to school, schools can typically discipline students for missing class, even if they’re doing so to participate in a protest or otherwise express themselves. But what the school can’t do is discipline students more harshly because they are walking out to express a political view or because school administrators don’t support the views behind the protest. In other words, any disciplinary action for walking out cannot be a response to the content of the protest.
Before deciding whether to join a political walkout, students might want to find out what policies govern discipline for absences in their state, school district, and their particular school so that they’re aware of the potential consequences. They should also know that in addition to walkouts, there are actions they can take for which schools cannot legally impose punishment.
For example, during school hours, students cannot be punished for speaking out unless their speech disrupts the functioning of the school. This is because – as the Supreme Court recognized in a 1969 decision upholding the right of Mary Beth Tinker to wear an armband to school in protest of the Vietnam War – students do not lose their constitutional rights “at the schoolhouse gate.”
Internet Speech Regulation
New York Times: Russia Wanted Trump to Win. And It Wanted to Get Caught.
By Julian Sanchez
With President Trump dutifully refusing to implement retaliatory sanctions imposed on Russia by a large bipartisan majority in Congress, legislators have begun eyeing the online platforms on which so much disinformation spread. “You created these platforms,” Senator Dianne Feinstein, Democrat of California, railed at a panel of lawyers for Google, Facebook and Twitter in November, “and now they’re being misused. And you have to be the ones who do something about it – or we will.”
That would be a final irony, and an unpleasant one. No less than our “meddling” in their internal elections, Russia has long resented United States criticism of the country’s repressive approach to online speech. Their use of online platforms to tamper with our presidential race reads not only as an attack, but as an implicit argument: “The freedoms you trumpet so loudly, your unwillingness to regulate political speech on the internet, your tolerance for anonymity – all these are weaknesses, which we’ll prove by exploiting them.”
Urgent as it is for the United States to take measures to prevent similar meddling in the next election, we should be careful that our response doesn’t constitute a tacit agreement.
By Mike Masnick
Among the various attacks aimed at social media companies (mainly Facebook) it feels that many are using this as yet another excuse to demand more regulation of these platforms or to poke more holes in Section 230 of the CDA.
We’ve already spent many posts explaining why undermining CDA 230 will do a lot more harm than good, but it seems worth especially highlighting how undermining it here in response to Russian attacks would only help the Russians accomplish what it is they’ve set out to do. CDA 230 is a key aspect of enabling free speech online. It’s what allows platforms to host our speech without having to carefully review it before it’s allowed, or take it down at the first sign of complaint (allowing a heckler’s veto). This is tremendously important in making the internet a platform for everyone, as opposed to just the elite and connected. And, yes, with that comes serious challenges, because some people will inevitably seek to abuse that openness to try to turn us against each other (as appears to have happened here).
But it would be quite an “own goal” to turn around and dismantle the tools that enable free speech in response to foreign attacks.
FEC
KJZZ Phoenix: Lesko Campaign Finance Scandal May Be ‘Gray Area’
By Bret Jaspers
Congressional candidate Debbie Lesko is under fire after she gave money from her state re-election campaign to a SuperPAC supporting her federal campaign.
Lesko is running to represent the 8th Congressional District. It’s a special election and she resigned from the state Senate to run. But federal records show Lesko gave $50,000 of her state re-election fund to a SuperPAC supporting her bid for Congress.
Candidates aren’t supposed to coordinate with SuperPACs. Lesko’s lawyers said she didn’t coordinate activities and the donation was legal…
Paul Ryan, vice president with the government watchdog group Common Cause, sees several murky legal questions with the transfer.
“I think it’s in a somewhat of a gray area legally,” he said. “There are good reasons it should not be permitted but I don’t think the Federal Election Commission has ever stated explicitly that it’s not permitted.”
The FEC declined to weigh in on a matter that might come up for review. One of Lesko’s opponents, Phil Lovas, announced he’s filing a complaint with the FEC and the Arizona Attorney General’s Office.
The States
Public News Service: Critics Warn Bill Advancing in WY Senate Could Chill Free Speech
By Eric Galatas
A bill making its way through the Wyoming Legislature would make it a crime to impede “critical infrastructure,” including oil and gas pipelines, storage facilities and refineries.
Critics of Senate File 74 say it’s an effort to silence public opposition to projects like the Dakota Access and Keystone pipelines, by preventing the kinds of protests that occurred at Standing Rock, and by people who symbolically shut off valves in five states.
Sabrina King, policy director for the American Civil Liberties Union (ACLU) of Wyoming, says community groups protesting gas wells near schools and homes could also be at risk under the new law.
“Whether or not someone ever actually did any damage or went near that piece of critical infrastructure, even advocacy is being criminalized here,” says King. “So, we’re really being put in a position as citizens of not even being able to advocate for our own health and safety.” …
King says the bill isn’t necessary to protect infrastructure when trespass and vandalism are already illegal under Wyoming law. She believes the goal of the measure is to discourage people and organizations from engaging in protected free speech and free association, in order to protect companies’ assets and profits.
New York Daily News: Ex-City Council candidate Albert Alvarez charged with stealing $4,500 in public election funds
By Glenn Blain
State investigators on Thursday charged former City Council candidate Albert Alvarez Thursday with stealing $4,500 in public election funds.
Alvarez also violated state and city campaign laws by knowingly accepting funds from so-called straw donors during his 2013 campaign for council, officials said.
“New York City’s public financing system is not a piggy bank for criminals,” said state Attorney General Eric Schneiderman, who announced the charges with state Controller Thomas DiNapoli.
“As we allege, Mr. Alvarez took advantage of our campaign finance system, using straw donors and false filings to line his campaign’s coffers,” Schneiderman said.
VT Digger: House to pass campaign ad disclosure requirements on Facebook
By Xander Landen
The Vermont House advanced a measure Thursday that would clarify disclosure requirements for candidates and others who pay for online political advertisements.
Bill H.828 would require individuals, candidates, political parties and committees who pay to distribute political ads on social media, including Facebook and Twitter, to identify themselves and the candidates they support in the advertisements…
Rep. John Gannon, D-Wilmington, who sponsored the bill, said Vermont statutes need to be updated because they don’t address social media advertising explicitly.
“While Vermont campaign finance law currently applies to online advertising, it did not … envision a world of Google Adwords, Facebook and other forms of social media advertising,” he said on the House Floor Thursday afternoon.
Pacific Legal Foundation: Seattle clashes with the First Amendment
By Ethan Blevins
Today, we filed the opening brief on appeal in Elster v. City of Seattle, our legal challenge to Seattle’s program that forces taxpayers to pay for private individuals’ campaign contributions. Seattle calls this a “democracy voucher” program.
Here’s how it works: the city hands out four $25 vouchers to each Seattle resident at the beginning of an election year. The voucher holder then decides which electoral candidates to donate that money to. The voucher funds in turn come from a special levy imposed on property owners for that sole purpose. In other words, the program forces property owners to underwrite other people’s political viewpoints.
This political donation tax clashes with the First Amendment principle that government cannot force you to support speech you oppose. As Thomas Jefferson put it: “To compel a man to furnish funds for the propagation of ideas he disbelieves and abhors is sinful and tyrannical.” We’re confident the court of appeals will agree with him.
Oklahoma Watch: Step Up Campaign Highlights Gap in State Disclosure Laws
By Paul Monies and Trevor Brown
Step Up Oklahoma, which billed itself as a grassroots coalition of business and civic groups, rolled out its plan in early January. By the time a key House vote occurred almost six weeks later, the organization, operating as a private company with unknown owners, had bought or enabled television and radio ads, robo-calls, mailers, endorsements, one-to-one outreach, and the deployment of registered lobbyists of supporting companies. A top public-relations firm was hired to coordinate the Step Up campaign in support of an array of bills, including House Bill 1033xx, which contained most of the proposed new taxes.
In the end, that measure failed to clear the three-fourths majority in the House required to raise taxes…
Left unknown about Step Up and opposing groups was how much was spent and where the money came from…
Although disclosure of sources and amounts of money spent are typically required when groups directly try to influence the election of candidates and votes on state ballot questions, little must be disclosed when a group or business tries to influence legislation.
The exception is activity by registered lobbyists, but even that disclosure is limited, and Step Up’s and its opponents’ efforts are not considered lobbying under state law.
