First Amendment

Reason (Volokh Conspiracy): Do Ordinary Speakers Have Lesser First Amendment Rights Than Newspapers Do?

By Eugene Volokh

I have long argued that the answer is “no” — that the “freedom of the press” is the freedom of all to use mass communication technology (the printing press and its heirs) and not just the freedom of a particular industry (the institutional media). The Supreme Court agrees, as do most lower courts. But a few states do deny non-institutional-media speakers the same First Amendment protections that the institutional media gets; and Minnesota is one of them.

Thus, in the recent Maethner v. Someplace Safe, Inc., the Minnesota Court of Appeals held that a libel plaintiff could recover presumed damages (i.e., damages not supported by specific evidence of lost business opportunities or other harms stemming from injury to reputation) even without a showing that the defendants knew the statements were false or likely false. In Gertz v. Robert Welch, Inc. (1974), the Supreme Court held that this was not allowed when it comes to statements on matter of public concern, even when the plaintiff is a private figure. But Minnesota precedents say that this doesn’t apply to speech outside the institutional media.

Here, Someplace Safe (“a nonprofit organization that provides advocacy and other services for victims of violence and domestic abuse”) gave a “Survivor Award” to a woman, and published an article by the woman in which she described her “surviving domestic violence.” Her ex-husband sued… The appellate court let the case go forward, reasoning partly that “[t]he media, and related concerns to protect constitutional rights under the First Amendment, were not involved.”

The defendants have recently asked the Minnesota Supreme Court to review the case, and I filed an application to file an amicus brief…

The Courts

Politico: Watchdog sues Paul Ryan-aligned dark money group

By Maggie Severns

The watchdog group Citizens for Responsibility and Ethics in Washington sued the nonprofit American Action Network on Monday, the latest turn in a quest to reclassify the Paul Ryan-aligned nonprofit as a political committee and force it to reveal its secret donor list.

The lawsuit, which ramps up CREW’s complaint against AAN after the Federal Election Commission twice voted not to act, could offer an unusual window into the inner workings of one of the country’s largest political nonprofits.

CREW is alleging that AAN violated campaign law by operating as a political committee – using most of its resources to air campaign-related ads and otherwise support Republican candidates for Congress from 2009 to 2011 – while registering as a social welfare organization…

FEC Commissioner Ellen Weintraub – who is currently the only Democrat on the commission – released a public statement last week saying she believed her colleagues at the FEC would find more ways to stall progress on the CREW complaint.

She encouraged CREW to use a clause in federal law that she said has never been fully utilized in order to bypass the commission and directly sue AAN, and she even implied she would stall the FEC behind the scenes in order to clear a path for CREW to sue.

Internet Speech Regulation

Axios: Americans don’t trust tech companies on data privacy

By Kim Hart

[T]he survey also finds that the majority of people want government to do more to regulate Big Tech, especially social media companies…

65% support the Honest Ads Act requiring political advertisements on social media to list who paid for them, just like political ads on radio, print and TV…

38% think the federal government isn’t capable of regulating large tech companies, while 31% think it is capable.

Bottom line: A majority (58%) of people believe regulation of Facebook and other social media companies is inevitable. But it’s not clear they trust the government to get it right: 49% say of congressional representatives do not understand how Facebook works.

Candidates and Campaigns

Washington Post: Sen. Kamala Harris spurns corporate PAC donations, joining other 2020 hopefuls

By John Wagner

Sen. Kamala D. Harris (D-Calif.) said Monday that she will no longer accept donations from corporate political action committees, a shift in her public position from just a few weeks ago.

With Harris’s new stance, announced during a radio interview, she joins a handful of other progressive Democratic senators who are also considered possible 2020 presidential candidates in pledging not to take PAC money.

“Money has now really tipped the balance between an individual having equal power in an election to a corporation,” Harris said on the New York radio show “The Breakfast Club.”

She cited the impact of the Citizens United case, decided by the U.S. Supreme Court in 2010. It “basically means that big corporations can spend unlimited amounts of money influencing a campaign,” she said.

At a town hall in California this month, Harris was asked by an audience member if she would turn down donations offered by a corporation or corporate lobbyist.

“Well, it depends. It depends,” Harris said, prompting the audience member to respond: “Wrong answer.” …

Others in the Senate who have made similar pledges not to take corporate PAC money include Sens. Cory Booker (D-N.J.), Elizabeth Warren (D-Mass.), Kirsten Gillibrand (D-N.Y.) and Bernie Sanders (I-Vt.).

USA Today: This PAC wants to help you ‘fire’ your member of Congress

By Marilyn Icsman

Fire Your Congressman is a nonpartisan campaign fundraising organization that wants to help elect new candidates that normally wouldn’t have a chance against powerful incumbents.

Founder Norbert Richter decided to start Fire Your Congressman after he considered running as a primary challenger against Rep.Ted Yoho, R-Fla. Richter said he found that the party inhibited challengers to the sitting representative by restricting fundraising opportunities and chances to engage with the incumbent in debates…

People can donate money to a “pool” that works against a specific member of Congress. You can also donate to a general fund that targets five Democrats and five Republicans that are determined to be the highest priority to fire, based on an algorithm…

Having funds available for challengers can help give them a foothold and make their campaigns more successful, Richter said. Fire Your Congressman is mainly for people to express their dissatisfaction with a representative and start to contribute against them even before an opposing candidate announces their run…

The group also allows donors to work against an incumbent while still maintaining their relationships with them, Richter said. The PAC has to report the names of anyone who donates more than $200, but there is no method to report who the money is working against. According to Richer, this is important for some donors, like small businesses, who still want to work with the incumbent in Congress, but would prefer a different candidate in office.

The States

PennLive: Want to fix Harrisburg? Start by approving these campaign finance reform bills

By Editorial Board

Late last month, Gov. Tom Wolf, joined by his Democratic allies in the state House and Senate, rolled out a comprehensive suite of reforms aimed at restoring public trust in the electoral process and to limit the influence of special interests in state politics…

The House bill, sponsored by Minority Leader Frank Dermody, D-Allegheny, would, among other things, impose hard caps on contributions…

The bill would also require so-called groups that make uncoordinated expenditures on behalf of candidates and campaigns to disclose those contributions…

Separate legislation, sponsored by Senate Minority Leader Jay Costa, D-Allegheny, would limit election expenditures to “the purpose of influencing the outcome of an election, to expenses directly and exclusively incurred for the campaign in which the candidate is running in the contemporaneous election cycle and not for any personal purpose. The legislation also addresses acceptance of campaign contributions from out-of-state committees.”

Costa’s bill would similarly crack down on independent expenditure groups, and would, like Dermody’s proposal, require corporations to notify shareholders when political expenditures (through political action committees) are made on their behalf. The bills also would require companies to seek shareholder permission for contributions of $10,000 or more.

U.S. News & World Report: Fundraising, Ethics Upfront in Lieutenant Governor’s Primary

By Mallory Moench, AP

Three million dollars have poured into the Alabama lieutenant governor’s race as four candidates vie for a statewide position with limited responsibilities other than succeeding the governor…

The lieutenant governor presides over the state Senate, but only casts a vote in the event of a tie. He or she serves on two dozen committees and appoints more than 400 state positions. The primary responsibility is succeeding the governor if he or she dies, resigns or is impeached…

Beyond fundraising, ethics is a top issue in the race as the Legislature looks to review the state’s ethics law next year and lawmakers currently face corruption charges.

Baltimore Sun: Baltimore City Council to consider public financing of city elections

By Ian Duncan

Councilman Kristerfer Burnett’s charter amendment bill is the first step toward creating a fund that would provide matching public funds for money individual donors contribute to candidates.

If the bill is approved by the council, voters would be asked in November whether to change the city charter to allow for public financing and to create an 11-member commission to oversee the public money available for candidates…

Under the bill, only candidates who agree to accept individual donations of less than $150 would be eligible for matching funds from the city. Individuals currently can contribute up to $6,000 to a local political campaign.

The proposal would offer qualifying candidates some multiple of an individual’s donation. Supporters propose that donations of up to $25 would be boosted seven times – so a $10 donation would draw $70 in public funds. The multipliers would diminish as donations increase in size…

The bill – co-sponsored by eight other council members – calls for establishing a revenue source for the proposed “Fair Election Fund” through an annual budgeted allocation, dedicating certain fines, fees and surcharges, and grants or donations.

The council would have to consider another piece of legislation to make funds available. That legislation is expected to be introduced in coming weeks.