Supreme Court
The Hill: Supreme Court polling place dress code decision is victory for free speech
By Wen Fa
[T]he decision in the case of Minnesota Voters Alliance v. Mansky carries a lesson of far greater consequence than a voter’s clothing choices: This decision is a strike against laws giving government officials too much discretion to censor viewpoints they don’t like. As the court noted today, states cannot impose blanket bans on political expression. Rather, they “must be able to articulate some sensible basis for distinguishing what may come in and what may stay out” of the polling place…
A key argument in the case was that the apparel law inevitably would be enforced in an unequal manner. Conservative poll workers might be more willing to enforce a political-apparel ban against voters wearing the apparel of the AFL-CIO; liberal poll workers, against voters wearing Chamber of Commerce t-shirts…
Justice Samuel Alito pressed the government’s attorney to show how poll workers could enforce the statute in an even-handed way. Yet the exchange only underlined the risk of biased enforcement. Under the government’s view, voters could vote while wearing shirts bearing the text of the First Amendment, but would risk prosecution if they wore t-shirts with the text of the Second Amendment. The court expressly noted the government’s untoward statement at oral argument in its decision striking down the Minnesota law.
As the American Civil Liberties Union observed in an amicus brief supporting the challenge to the Minnesota law, the political apparel ban forced citizens to choose between their right to speak and their right to vote.
SCOTUSblog: Opinion analysis: Court strikes down Minnesota ban on “political” apparel at the polls
By Amy Howe
Minnesota had defended the law as a measure to ensure an “orderly and controlled environment” at the polls, but today the justices agreed with the challengers that the law is too vague. However, the justices left open the possibility that the state could pass a new law regulating apparel at the polls, as long as that law is more targeted…
In an opinion by Chief Justice John Roberts, the majority emphasized that states have the right to try to ensure a peaceful polling place. Moreover, because polling places are, “at least on Election Day, government-controlled property set aside for the sole purpose of voting,” restrictions on speech there are subject to a relatively low bar: The restrictions simply have to be reasonable.
But Minnesota’s ban on “political” apparel fails even that “forgiving” test, the majority concluded, because both the text of the law and the state’s interpretations of it provide so little guidance about what kind of apparel may or may not be worn to the polls…
Justice Sonia Sotomayor dissented, in a relatively brief opinion joined by Justice Stephen Breyer. Sotomayor agreed with the majority that states can place at least some restrictions on apparel at the polling place, but she would have asked the Minnesota Supreme Court “for a definitive interpretation of the political apparel ban,” “which likely would obviate the hypothetical line-drawing problems that form the basis of the Court’s decision today.”
Slate: The Supreme Court Made a Good Decision on Election Law
By Richard L. Hasen
Not every Supreme Court decision about elections is a disaster, and the ruling in Minnesota Voters Alliance v. Mansky striking down Minnesota’s very broad ban on wearing political apparel in polling places is a pretty good one. Although the court struck down a law I thought it should have upheld, the opinion shows a more realistic and functional understanding of the political process than the court has shown in campaign finance cases. It gives states ample room to assure that people can vote at polling places free of political pressure and intimidation…
[W]hen the court described permissible state laws to ban electioneering in polling places, it did not endorse the narrow, formalistic view of what counts as election speech that it has adopted in the campaign finance area. There, the court on First Amendment grounds has said that limits on election spending (say, barring foreign nationals from spending in our elections) are permissible only when they prohibit express advocacy (like “Vote for Trump”) or its functional equivalent.
In Mansky, the court endorsed a much broader and more functional approach. As an example of a permissible law, it pointed to Texas Elections Code section 61.010, which bans at the polling place and within 100 feet of it “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election.” That “relating to” language is much broader than the narrow tests the court has used in campaign finance cases, and it recognizes the reality that campaign-related speech often does not use “magic words” of advocacy.
The Courts
Reason: Victory in Lawsuit Over Colorado’s System of Private Enforcement of Campaign Finance Law
By Brian Doherty
In 2002 Colorado passed a set of campaign finance regulations that allowed private citizens to target other people’s political speech, launching very expensive (to the targeted) legal investigations. The law is structured so that even when complaints are judged baseless, the defendants end up on the hook for their legal costs.
The Institute for Justice (IJ) sees this as a violation of Coloradans’ First Amendment rights. “With no oversight by any government official to screen out frivolous or legally insufficient complaints,” the group argues, “the system is rife with abuse, with disgruntled politicians or their allies routinely filing complaints to silence or intimidate those who would dare to criticize them.”
Tammy Holland had twice been sued for daring, without forming a political committee, to pay for newspaper ads criticizing the “common core” approach to education and suggesting that voters scrutinize school board members and candidates. The suits came from school board members themselves. In 2016, IJ helped Holland sue Colorado Secretary of State Wayne Williams over the state’s campaign finance law.
A law that incentivizes politicians to sue their citizen critics is pretty clearly bad policy irrespective of constitutional questions. As Holland said in a press release from IJ, “All I did was ask my neighbors to get engaged in a local school election, and I got sued two times by people who didn’t like what I had to say. It was incredibly intimidating. Nobody should be able to sue their neighbor for talking about politics.”
This week U.S. District Judge Raymond P. Moore decided that the private-party provisions of Colorado’s campaign finance laws do indeed violate the First Amendment.
Bloomberg: Twitter to Face Claims by ‘White Advocate’ Over Banned Accounts
By Robert Burnson
Twitter Inc. lost its bid to dismiss a lawsuit by a “white advocate” who was banned from the site in a challenge to the company’s ability to exclude users it deems objectionable.
California Superior Court Judge Harold Kahn in San Francisco rejected Jared Taylor’s claims that Twitter violated his free speech rights and discriminated against him when it permanently suspended his accounts in December.
But he said Taylor properly supported his allegations that Twitter’s policy of suspending accounts, in the judge’s words, “at any time, for any reason or for no reason” may be unconscionable and that the company calling itself a platform devoted to free speech may be misleading and therefore fraudulent.
Taylor is the founder of the New Century Foundation, an organization that “purports to show the inferiority of blacks to whites,” according to the Southern Poverty Law Center. Taylor describes himself as a “racialist” who believes in “racial realism.” Taylor alleges Twitter won’t allow him and his publication “to respectfully share their views on its open platform.”
Twitter contends that it has a First Amendment right, just like newspapers, to publish or not publish whatever it wants. It also insists that the federal Communications Decency Act, originally passed to regulate pornography, gives it to right to ban offensive content.
Internet Speech Regulation
New York Times: Facebook’s New Political Algorithms Increase Tension With Publishers
By Ben Sisario
The most recent salvo came on Thursday, when Mark Thompson, the chief executive of The New York Times Company, accused Facebook of unintentionally “supporting the enemies of quality journalism” by using algorithms that can mischaracterize news as partisan political content.
Mr. Thompson was speaking at a panel discussion in New York, which also included Campbell Brown, Facebook’s head of global news partnerships. Ms. Brown defended a policy Facebook recently introduced in response to criticism over how its ad network was able to be manipulated during elections.
Ms. Brown cited the importance of safeguarding elections and said the problems with political ads were “something we are deeply concerned about. We hear you.”
In criticizing Facebook, Mr. Thompson showed two advertisements that The Times had recently purchased on the platform. Both had been flagged as political…
Last month, with public and political pressure growing over Facebook’s role in the 2016 election, the company unveiled a policy that created a publicly searchable archive for ads that its algorithms deemed to be political. In addition, Mark Zuckerberg, Facebook’s chief executive, said the company would start ranking publishers by their perceived “trustworthiness.” …
Publishers have been vocal in their protests of being included in the same archive as political ads…
In response to his complaints about the ad policy, Ms. Brown said there was a “fundamental misunderstanding” of the policy, adding that “The New York Times does not want to be transparent about the money they spend” on ads.
Lobbying
Wall Street Journal: Prosecutors Investigating Michael Cohen for Possible Illegal Lobbying
By Nicole Hong, Jonathan D. Rockoff and Drew FitzGerald
Federal prosecutors in Manhattan are investigating whether Michael Cohen, the longtime personal lawyer for Donald Trump, illegally engaged in secret lobbying, people familiar with the investigation said, as part of the government’s broader probe into Mr. Cohen’s business dealings.
In the course of that investigation, the prosecutors have contacted companies that hired Mr. Cohen as a consultant after Mr. Trump won the 2016 presidential election, including AT&T Inc. and Novartis AG , according to other people familiar with the matter. The companies paid a total of about $1.8 million to Mr. Cohen in 2017 and early 2018 for his insights into the Trump administration.
Investigators in the U.S. attorney’s office for the Southern District of New York are examining whether Mr. Cohen violated any federal disclosure laws in connection with his consulting deals, including whether he lobbied for domestic or foreign clients without properly registering, the people familiar with the investigation said…
Other Trump associates have been investigated for foreign lobbying violations. Former national security adviser Mike Flynn, as part of his guilty plea for lying to the FBI, has admitted to false statements and omissions made in his forms disclosing his lobbying for Turkey. Former Trump campaign chairman Paul Manafort and former campaign aide Rick Gates were both charged by Mr. Mueller’s office with failing to register as foreign lobbyists for their work with Ukrainian politicians.
Candidates and Campaigns
Washington Post: How Trump allegedly used his nonprofit to support his presidential bid
By Philip Bump
From the attorney general’s lawsuit: “The Investigation revealed that the Iowa Fundraiser was planned, organized, financed, and directed by the Campaign, with administrative assistance from the Foundation.”
The ties to the campaign were apparently numerous: The deputy state director for the campaign was listed as the event organizer on a website created by the campaign’s digital media director, Brad Parscale. (Parscale is now the campaign manager for Trump’s reelection bid.) Speaker invitations were handled by Hope Hicks, then the campaign’s communications director.
The event, ostensibly meant to raise money for the foundation, used the campaign’s look, feel and slogan.
About half the money that was raised went to the foundation – where campaign staff members took over, “dictat[ing] the manner in which the Foundation would disburse those proceeds, directing the timing, amounts and recipients of the grants,” the lawsuit alleges…
In essence, the attorney general’s lawsuit alleges, the foundation made “an improper in-kind contribution of no less than $2.823 million (the amount donated to the Foundation) to the Campaign that provided Mr. Trump and the Campaign a means to take credit at campaign rallies, press briefings, and on the Internet, for gifts to veterans charities.”
The lawsuit notes that the foundation’s certificate of incorporation – signed by Trump – asserts that the foundation would not be used to the benefit of its directors or officers, a prohibition that includes the benefit of promoting his campaign. That certificate also barred intervening in “any political campaign on behalf of any candidate.”
The States
New York Times: In Name of Free Speech, States Crack Down on Campus Protests
By Jeremy W. Peters
When the Board of Regents of the University of Wisconsin wanted to address the issue of free speech on campus last fall, it adopted a three-strikes policy that is the strictest of its kind: Any student found to have disrupted the free expression of others is expelled after a third infraction…
Wisconsin is not alone. Republican-led state legislatures in Arizona, Georgia and North Carolina have imposed similar policies on public colleges and universities, and bills to establish campus speech guidelines are under consideration in at least seven other legislatures. These efforts, funded in part by big-money Republican donors, are part of a growing and well-organized campaign that has put academia squarely in the cross hairs of the American right…
Many liberals agree that universities should be extremely judicious in how they regulate political expression. They also say that Republican lawmakers are stifling free speech in the name of protecting it by forcing codes of conduct on universities…
Conservatives say that one of their biggest concerns is a growing misunderstanding about what “free speech” means and how the principle is selectively enforced. They point to the slogan used by many liberals today, “Hate Speech is Not Protected Speech,” as an example of how distorted the debate has become. (The First Amendment protects speech regardless of how offensive it is.)
Kansas City Star: Missouri Ethics Commission dismisses complaint against AG Hawley
By Edward McKinley
The Missouri Ethics Commission on Friday dismissed a complaint against Attorney General Josh Hawley over his failure to disclose free legal representation from a Washington, D.C., law firm.
St. Louis attorney Jane Dueker – a Democrat who was chief of staff for former Missouri Gov. Bob Holden – filed a complaint in March alleging that Hawley had failed to disclose pro bono legal services he’d received on campaign finance forms.
Hawley should have been required to report the free legal help as an in-kind donation to his campaign or as a gift on his personal financial disclosure, Dueker argued…
In a letter Friday morning, the ethics commission ruled that Cooper & Kirk’s legal work was not directly related to Hawley’s campaign, so it didn’t count as an in-kind donation. The commission also ruled, based on an earlier case, that pro bono legal work doesn’t count as a gift, so Hawley was off the hook on both accounts.
Baltimore Sun: Can Baltimore afford to finance candidates?
By Editorial Board
So even if elected officials are convinced they’ve acted in the public’s best interests, there’s often the lingering appearance of impropriety.
That’s why a charter amendment scheduled to be heard by the Baltimore City Council on Wednesday is so important to the city’s future. It would for the first time authorize a public fund to finance city election campaigns. Like similar approaches in Montgomery and Howard counties, candidates for mayor, city council, council president or comptroller would qualify (through small donations) to receive matching money from the proposed “Fair Election Fund” in return for not accepting donations above a certain amount – perhaps $150. Indeed, the specifics of how this would work would be determined by an 11-member commission. Most likely the first city election held under this system would be in 2024…
This year, most of the candidates running in Montgomery County have elected to participate. In D.C., a similar measure passed the city council unanimously in January. Baltimore’s proposal leaves open all kinds of questions: Where will the money come from? What are the exact parameters to qualify? What percentage is the match? But that’s actually a good thing. It will be up to the 11-member commission to recommend specifics. The city council, mayor and voters need only to commit to creating a non-lapsing special purpose fund – and to the principal that we’d rather politicians be beholden to their neighbors then to self-interested outsiders.
