In the News
Fox News: Do you live in a free speech state? (Video)
Best and worst states for free political speech.
[Institute for Free Speech President David Keating speaks about the newly released Free Speech Index.]
Maine Wire: Maine’s campaign laws hurt a free press
By David Keating and Thomas Wheatley
Under Maine campaign law, an independent expenditure is “any [independent] communication that expressly advocates the election or defeat of a clearly identified candidate[.]” Even worse, the law assumes any mention of candidate in any communication within 28 days of an election is an independent expenditure. Independent expenditures over $250 must be reported to the government…
To get the exemption as a periodical publication, a publication must have been publishing “for at least the previous twelve months” on a “variety of topics[.]” Alternatively, outlets must have “a record” of publishing such content and persuade a group of bureaucrats to decide they will “continue to be published” after the election. In addition, exempt media can’t be owned or controlled by a party, PAC or candidate, and must publicly disclose “the names of the persons or entities who own, control, and operate” it…
The statute requires the press be exempt from reporting requirements, but only vaguely discusses which entities fall under the exemption. That leaves the Commission with broad discretion. Yet rather than creating a wide exemption that maximizes free press rights, the Commission has instead elected to adopt demanding criteria that threaten the creation of new media sources.
Concurring Opinions: FAN 184 (First Amendment News) Institute for Free Speech releases free speech index on state campaign finance laws
By Ronald K.L. Collins
The Institute for Free Speech has just released a 102-page report titled Free Speech Index – Grading the 50 States on Political Giving Freedom. The foreword to the report was written by Bradley A. Smith (Chairman and Founder) and David Keating (President). Below is a partial description of the report and an executive summary of it.
ICYMI
Free Speech Index – Grading the 50 States on Political Giving Freedom
The First Amendment to the United States Constitution states that “Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Unfortunately, Congress and the states have passed too many laws limiting these rights. Federal campaign finance laws and regulations contain over 376,000 words, but this statistic only scratches the surface. Each of the 50 states has its own collection of campaign finance laws and regulations limiting the freedoms of speech, assembly, and petition. Many of these state laws are poorly written, complex, or both. Despite the advances made in constitutional protections for speech over the last decade, our politics, and campaign finance in particular, remains more highly regulated than at any time prior to the 1970s, and in some important ways more highly regulated than ever. Far from a “wild west” with no rules, arcane campaign finance rules govern the minutiae not only of almost every campaign, but of what ordinary citizens and the groups they belong to can say, and how and when they can say it.
The Supreme Court has long recognized that political speech strikes at the core of the First Amendment, yet today the Court gives less protection to that core political speech than it does to topless dancing, flag burning, or tobacco advertisements.
To assess the impact of such speech regulation, we created the Free Speech Index (PDF).
SpeechNow.org v. Federal Election Commission: Protecting the First Amendment Rights of Americans
By Luke Wachob
If one person can speak about a candidate without limit, can Congress ban two, three, or hundreds of people from joining together to do the same? That was the simple question presented in the case SpeechNow.org v. Federal Election Commission. Fortunately, a unanimous 2010 D.C. Circuit Court of Appeals decision said no, such a limit would violate the First Amendment. Americans can now form independent expenditure groups to raise and spend money on campaign speech without limits.
SpeechNow extended First Amendment rights already protected for individuals to groups of people who pool their resources to speak. The case legalized what is now known as the super PAC, leading to an increase in speech about candidates and elections. SpeechNow is a pillar of modern free speech rights, and attempts to overturn the decision constitute a major threat to First Amendment political freedoms. This Issue Brief discusses three key facts about the D.C. Circuit Court of Appeals decision in SpeechNow.org v. FEC.
Supreme Court
Election Law Blog: What is the First Amendment Theory of Partisan Gerrymandering?
By Richard Pildes
This week, the Supreme Court will hear argument in the Maryland partisan-gerrymandering case, Benisek v. Lamone. The case is the first to be framed exclusively as a First Amendment challenge to alleged partisan gerrymandering, and it thus raises new, complex questions about what it would mean to apply the First Amendment to partisan gerrymandering.
Until now, the cases the Court has seen have all been framed principally as Equal Protection challenges (references to the First Amendment have sometimes been thrown in but never developed in a full way). What changes when partisan gerrymandering is framed as a First Amendment violation?
The Courts
Hollywood Reporter: Google Beats Lawsuit Accusing YouTube of Censoring Conservatives
By Eriq Gardner
Since the First Amendment free speech guarantee guards against abridgment by a government, the big question for U.S. District Court Judge Lucy Koh is whether YouTube has become the functional equivalent of a “public forum” run by a “state actor” requiring legal intervention over a constitutional violation…
“Plaintiff does not point to any persuasive authority to support the notion that Defendants, by creating a ‘video-sharing website’ and subsequently restricting access to certain videos that are uploaded on that website, have somehow engaged in one of the ‘very few’ functions that were traditionally ‘exclusively reserved to the State,'” she writes. “Instead, Plaintiff emphasizes that Defendants hold YouTube out ‘as a public forum dedicated to freedom of expression to all’ and argues that ‘a private property owner who operates its property as a public forum for speech is subject to judicial scrutiny under the First Amendment.'” …
“Defendants are private entities who created their own video-sharing social media website and make decisions about whether and how to regulate content that has been uploaded on that website,” the opinion states. “Numerous other courts have declined to treat similar private social media corporations, as well as online service providers, as state actors.”
The complaint was dismissed, but the plaintiff was granted permission to file an amended version if they wish.
Congress
By Declan McCullagh
[I]t’s almost tempting to feel sorry for Zuckerberg, who must be puzzling over why it took politicians eight years to discover the existence of a feature that has been publicly documented since its inception and was discontinued three years ago.
Zuckerberg must also be contemplating a second oddity. There was no privacy outcry when Barack Obama’s 2012 campaign took advantage of the same Graph API to exfiltrate information of tens of millions of Facebook users without each voter’s knowledge and consent…
Perhaps Sen. Amy Klobuchar (D-Minn.), who wants to interrogate Zuckerberg in person, has only recently immersed herself in API specifications. Perhaps Sens. Ed Markey (D-Mass.) and Richard Blumenthal (D-Conn.), who issued their own demands to Zuckerberg, happened to miss the 2013 article about how the Obama campaign “blew through an alarm.” (The inexplicable is not limited to Capitol Hill: A cadre of left-leaning privacy activist groups who remained mum before now believe the Federal Trade Commission should investigate.)
The danger now is regulatory overreach. It’s possible to acknowledge that Facebook’s original Graph API was leaky-user notification and consent could have been handled far better-while being worried about what Washington officialdom may concoct as suitable punishment for Internet companies. Good laws and sound policy are rarely made during times of moral or partisan panic.
CNN: Mark Zuckerberg has decided to testify before Congress
By Dylan Byers
Facebook sources tell CNNMoney the 33-year-old CEO has come to terms with the fact that he will have to testify before Congress within a matter of weeks, and Facebook is currently planning the strategy for his testimony.
The pressure from lawmakers, the media and the public has become too intense to justify anything less.
The Facebook sources believe Zuckerberg’s willingness to testify will also put pressure on Google CEO Sundar Pichai and Twitter CEO Jack Dorsey to do the same. Senate Judiciary Chairman Chuck Grassley has officially invited all three CEOs to a hearing on data privacy on April 10.
FEC
Politico: Justice and FEC asked to investigate Cambridge Analytica
By Lorraine Woellert
A government watchdog on Monday asked regulators and federal prosecutors to investigate whether Cambridge Analytica’s work for the campaign of President Donald Trump broke laws against foreign interference in U.S. elections.
In complaints filed with the Justice Department and Federal Election Commission, the nonpartisan group Common Cause said Cambridge Analytica and its affiliate, SCL Group Limited, violated a ban on foreign nationals participating in the “decision-making process” of campaigns or political committees.
The complaint names several Cambridge Analytica employees, including Alexander Nix, who was suspended as the company’s CEO last week. The data firm, staffed almost entirely by non-U.S. workers, did nearly $6 million worth of work for the presidential campaigns of Trump and Sen. Ted Cruz (R-Texas) during the 2016 election, according to the complaint.
“These companies and individuals ignored the law, enriched themselves performing millions of dollars of prohibited work for candidates and committees, and then boasted about the effectiveness of their activities in swaying U.S. elections,” Common Cause’s president, Karen Hobert Flynn, said in a statement.
In 2016, Cambridge Analytica also provided more than $800,000 in services to John Bolton’s political action committee.
CNN: Did Trump campaign and John Bolton PAC get help from overseas?
By Fred Wertheimer and Norman Eisen
Recent revelations about Cambridge Analytica raise serious questions about whether President Donald Trump’s campaign received illegal support from a foreign national. These same questions also exist regarding John Bolton and his super PAC. These matters need to be investigated by the Department of Justice, including special counsel Robert Mueller, as well as by the Federal Election Commission.
Both the Trump campaign and the Bolton Super PAC retained the services of Cambridge Analytica, a data research firm headed by CEO Alexander Nix, a British citizen. The Trump campaign reportedly paid nearly $6 million to Cambridge Analytica over the course of the 2016 presidential campaign, and the Bolton Super PAC reportedly paid Cambridge Analytica $1.1 million since 2014…
Mueller is already examining the connections between the Trump campaign and Cambridge Analytica, as well as foreign interference more generally in the 2016 election. While Russia has been his focus, Mueller has been given broad latitude to pursue matters related to his existing review…
the FEC has its own separate, independent jurisdiction and should also conduct a review. Because of the notorious dysfunction of that agency, however, we cannot accept the possibility of an FEC investigation alone as a substitute for DOJ’s work.
NBC News: FEC ruling on Stormy Daniels payment could take a year or longer
By Geoff Bennett and Kristen Welker
Since the payment far exceeds the maximum allowed for direct campaign contributions, it could be deemed illegal if it was meant to benefit the president’s election bid. The watchdog group Common Cause filed a complaint earlier this year, requesting that the FEC and the Department of Justice investigate the matter.
But Trevor Potter, a former chairman of the Federal Election Commission, said the process won’t be speedy.
“I think it is almost impossible for FEC to finish by the end of year,” Potter told NBC News.
Former FEC Commissioner Ann Ravel agrees.
“The FEC is understaffed primarily in the enforcement division. So it does have an impact on the ability to aggressively enforce matters and bring them up before the commission in a timely fashion,” Ravel said.
Both Potter and Ravel point to another reason why FEC investigations are often delayed – partisan gridlock among commission members.
“The commission has deadlocked, split between Democrats and Republicans, on almost every issue in the last eight years. I don’t think the FEC will resolve this. There’s a possibility that the DOJ could step in if they thought this was worth directly investigating,” Potter said.
Fox News: Did Facebook’s ‘favors’ for the Obama campaign constitute a violation of federal law?
By Hans A. von Spakovsky
A federal law bans corporations from making “direct or indirect” contributions to federal candidates. That ban extends beyond cash contributions to “any services, or anything of value.” In other words, corporations cannot provide federal candidates with free services of any kind. Under the Federal Election Commission’s regulations, “anything of value” includes any “in-kind contribution.” …
According to Carol Davidsen, the former media director for Obama for America, Facebook gave the 2012 Obama campaign direct access to the personal data of Facebook users in violation of its internal rules, making a special exception for the campaign. The Daily Mail, a British newspaper, reported that Davidsen said on Twitter March 18 that Facebook employees came to the campaign office and “were very candid that they allowed us to do things they wouldn’t have allowed someone else to do because they were on our side.” …
[I]f Facebook gave the Obama campaign free access to this type of data when it normally does not do so for other entities – or usually charges for such access – then Facebook would appear to have violated the federal ban on in-kind contributions by a corporation. And the Obama campaign may have violated the law by accepting such a corporate contribution…
It should be investigated by the Federal Election Commission and potentially the U.S. Department of Justice.
The States
KJZZ Phoenix: Tempe Voters, State Legislature Face Off On ‘Dark Money’
By Claire Caulfield
Members of the Arizona Legislature supported banning local governments from requiring politically active nonprofits to disclose donors, contradicting Tempe voters.
With three “no” votes and four “yes,” the Senate Judiciary Committee sent HB2153 to the full Legislature for approval. The bill passed the House in February. If signed into law, the bill would allow 501c nonprofits to support legislation without disclosing where their funding comes from under local election laws.
This would ban a measure recently approved by Tempe voters…
Anne Gill, president of the Tempe Chamber of Commerce, said if this bill does not pass, nonprofits will be burdened with extra paperwork and costly data entry…
“HB2153 protects free speech,” Gill said. “The Tempe Chamber and other nonprofits have a right to express their opinion on local issues without undue requirements that expose the personal information of our members.”
In the past the Arizona Supreme Court has ruled that local elections are not a statewide concern, and opponents of the bill said this bill could lead to lawsuits.
National Review: Joe Markley’s Fight for Political Free Speech in Connecticut
By Jack Fowler
In October 2014, roughly three weeks prior to elections, the State Election Enforcement Commission, or SEEC, issued an Advisory Opinion holding that candidates who take public funds (yep, Nutmeg State elections allow for taxpayer funding of legislative and non-federal statewide campaigns) are forbidden, in campaign literature, to attack candidates other than the one they are challenging. Violate and be called for hearings, threatened with fines, and indeed, fined.
This prohibition was very important to Democrats, who did not (and do not) want their party’s under-ticket candidates tied to Connecticut’s extremely unpopular governor, Dannel Malloy … Still, the tagging proved irresistible to Republicans, as well it should have: Many did such, believing that the SEEC opinion was more an opinion than an order…
Complaints were filed, hearings held, findings found, fines proposed. Rather than face fines and to be rid of the matter, GOP candidates charged with attacking “other” candidates (in the large, Malloy) entered into an agreement with the SEEC to admit they shouldn’t have done so, and won’t again.
Except for two people: Markley and another principled conservative, state representative Ron Sampson (R., Southington), who challenged that the SEEC opinion and rulings – which would have effectively prohibited them from criticizing the policies of a sitting governor during statewide election – are a violation of political free speech…
There is an “administrative appeal” looming.
Orange County Register: California bill offers phony solution to ‘fake’ news problem
By Steven Greenhut
A new California bill targeting internet “bots” – short for robots that post retweets or do other automatic tasks on the worldwide web – sounds like a simple way to deal with the sometimes irksome automated accounts that can spread misinformation in the guise of media campaigns. But the legislation could wreak havoc on the internet, where around 52 percent of all traffic is generated in some way or another in this bot-based manner.
California’s Legislature is known for its grand intentions, so this kind of bill is nothing new. But we all should be concerned when state lawmakers – who seem incapable of even fixing the state’s most basic problems, such as underfunded pensions, decrepit infrastructure and the troubled education system – start tinkering with something as complex and fundamental as the internet.
The measure, Assembly Bill 1950 by Assemblyman Marc Levine, D-Marin County, would “require that bots are linked to a verified human and that all advertising purchases on social media to be made by verified human accounts.” The apparent goal is to battle “fake” news, where automated accounts spread dubious news stories and create the impression of a grassroots groundswell.
Baltimore Sun: Citizens United is bad. A constitutional convention to overturn it would be worse.
By Richard Boldt
The Maryland General Assembly is considering legislation calling for a federal constitutional convention to overturn the U. S. Supreme Court’s Citizens United decision, in which the court held that laws that prevent corporations and unions from engaging in certain forms of political advertising violate the First Amendment…
Article V of the U.S. Constitution provides that the legislatures of two-thirds of the states can direct Congress to call a convention to propose amendments to our nation’s fundamental charter. That mechanism has never been used in our constitutional history. Perhaps that is because of the enormous uncertainly associated with such an enterprise. The text of Article V provides no guidelines or rules on how a convention would work, leaving many unanswered questions about whether a convention can actually be limited to one issue…
The lack of clear rules of the road, either in the text of the Constitution itself or in historical or legal precedent, makes the selection of the convention mechanism a choice whose risks dramatically outweigh any potential benefits. The members of the Maryland General Assembly should think long and hard before exposing the citizens of the state to such an experiment.
