In the News
Opinion of the Supreme Court in Lozman v. Riviera Beach
As a final matter, it must be underscored that this Court has recognized the “right to petition as one of the most precious of the liberties safeguarded by the Bill of Rights.” BE&K Constr. Co. v. NLRB, 536 U. S. 516, 524 (2002) (internal quotation marks omitted). Lozman alleges the City deprived him of this liberty by retaliating against him for his lawsuit against the City and his criticisms of public officials. Thus, Lozman’s speech is high in the hierarchy of First Amendment values. See Connick v. Myers, 461 U. S. 138, 145 (1983). For these reasons, Lozman need not prove the absence of probable cause to maintain a claim of retaliatory arrest against the City…
For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
Ed. Note: On page 10 of the opinion, the Court cites the Institute for Free Speech, noting the “risk that some police officers may exploit the arrest power as a means of suppressing speech.”
Morning Consult: Eliminate Schedule B to Protect Public Debate
By Brian Garst
Schedule B requires 501(c) organizations to include certain contributors’ names and addresses with their annual Form 990 reports. Yet the IRS has acknowledged that this information has no enforcement value. Instead, its collection creates opportunities for abuse and chills speech and civic participation.
Like the secret ballot, respecting donor privacy and thus anonymous speech and association is essential to prevent majoritarian abuse and intimidation that subverts democracy. This was a lesson learned in the civil rights era after the shameful attacks on the NAACP and its supporters.
Although officials pledge to keep the collected information confidential, there’s good reason to question the ability of the government to protect sensitive taxpayer information given the history of inadvertent disclosures and information leaks at the IRS…
For minority viewpoints, public exposure can lead to intimidation or other private consequences. We saw this when Brendan Eich was forced out as Mozilla CEO after it was revealed he donated in support of California Prop 8.
Not long after that, an effort by then-California Attorney General Kamala Harris to collect donor information was found to be unconstitutional as applied to the Americans for Prosperity Foundation and the Thomas More Law Center, though a similar challenge by the [Institute for Free Speech] failed. In ruling on the Thomas More Law Center challenge, the district court found that “in the context of a proven and substantial history of inadvertent disclosures,” the state’s government could not assure donor confidentiality.
Sunlight Foundation: Spate of anti-protest bills target social justice infrastructure
By Eliza Newlin Carney
Last year state lawmakers introduced more than 40 bills that took aim at protesters. Some expanded the definition of “riot” or “domestic terrorism,” some introduced new categories of crimes, such as “unlawful mass picketing,” some penalized protesters who block traffic or wear face coverings.
Many proposed prison time or fines into the tens of thousands of dollars, and proved too draconian even for Republicans. Of more than 40 anti-protest bills introduced in 2017, only seven were enacted into law. Another 22 died or were vetoed or defeated, and 17 carried over. In the 2018 legislative session, which is in the process of winding down, GOP legislators introduced more than a dozen new anti-protest bills, with varying degrees of success. Almost half of them went after protesters who impede so-called critical infrastructure, a dangerous turn that troubles civil rights advocates…
“They are trying to bankrupt and punish what they perceive to be movement organizations,” says Moira Meltzer-Cohen, a staff attorney with the Water Protector Legal Collective in North Dakota, which provides pro bono legal help to Dakota Access pipeline protesters charged at Standing Rock. Imposing such steep fines and long sentences “functions in the same way as prior restraint,” she warns. “It makes it so risky to engage in protected speech … that it will disincentivize people from doing so.” …
As a champion of campaign finance deregulation, the Institute for Free Speech does not often side with progressives. But in Reason magazine, one research fellow with the group warned: “Faced with the possibility of fines or legal battles, many will choose not to speak at all.”
New from the Institute for Free Speech
IFS Welcomes Senior Policy Analyst Eric Peterson to External Relations Department
By Matt Nese
The Institute for Free Speech is excited to welcome Eric Peterson to the External Relations team as a Senior Policy Analyst.
Prior to joining IFS, Eric was a Senior Policy Analyst at Americans for Prosperity, where he worked on issues ranging from pensions to occupational licensing reform. He graduated from Tulane in 2012 with degrees in both Political Economy and Economics.
Throughout his political life, Eric has always been a champion of fiscal restraint, but more recently he has come to see the eroding of the First Amendment and free political speech as an equally significant issue.
As Eric explains, “I had always believed there was a consensus in this country that everyone had the right to voice their opinion on anything ranging from their political views to their favorite sports teams. I was either naïve in my assessment, or the opponents of free speech are far louder than I imagined. Our country is an outlier in the world as a result of the free speech rights granted to every citizen. Unfortunately, America becomes more and more of an outlier everyday as countries are passing laws to crack down on speech deemed unpopular by the government. Regrettably, the United States isn’t immune to this problem. I want to preserve what makes America so special in the world when it comes to the expression of ideas. I am excited and humbled that the Institute for Free Speech will allow me the opportunity to focus on such an important issue.”
As a Senior Policy Analyst, Eric will be working in a variety of capacities. Primarily, Eric will be responsible for authoring policy publications on a variety of topical campaign finance issues and speech regulatory proposals. He will also monitor legislative developments on numerous political speech issues in the states and work with the Director of External Relations to conduct legislative and policy outreach on these proposals. In addition to authoring op-eds on the Institute’s behalf and regularly blogging on the organization’s website, Eric will also work with groups and individuals from across the political aisle to promote and protect free speech.
Event
Featuring Bradley Smith, Chairman and Founder, Institute for Free Speech and Josiah H. Blackmore II/Shirley M. Nault Professor of Law at Capital University Law School, Capital University; Lawrence Noble, former General Counsel, Federal Election Commission; moderated by John Samples, Vice President, Cato Institute.
Sixty years ago, the United States Supreme Court decided the landmark case of NAACP v. Alabama. In 1956, as part of the civil rights struggle, the state of Alabama sought the membership lists of the NAACP chapter in that state. The Court ruled against the state and discerned a “vital relationship between freedom to associate and privacy in one’s associations.” The decision remains a high point from the civil rights era. However, many now deny the Court’s assertion that a broad right to privacy offers a vital protection for the freedom to associate and to speak.
Since the decision, the Court has placed few limits on government’s power to mandate disclosure of political activities and associations. As the new online era of speech dawns, the principles at stake in NAACP v. Alabama remain at the center of public debates. Is the right to associational privacy recognized in NAACP v. Alabama still good law? Or should the Court reconsider the tie between privacy and association? Please join us for a vigorous debate that takes this important anniversary as a starting point for our common future.
Date: June 28, 2018
Time: 12:00 PM to 1:30 PM EDT
Location: Cato Institute
Supreme Court
Washington Post: Supreme Court allows retaliatory arrest lawsuit to move forward
By Robert Barnes
The Supreme Court on Monday gave a civic activist in Florida another shot at proving that his arrest at a city council meeting was in retaliation for his criticism of public officials…
Justice Anthony M. Kennedy, writing for the court, said a citizen’s ability to criticize government without fear of retribution ranks “high in the hierarchy of First Amendment values.”
But he wrote what even he described as a narrow ruling, sending the case back to a lower court and saying that Lozman will have to prove “the existence and enforcement of an official policy motivated by retaliation” on the part of the city council members.
The vote was 8 to 1, with Justice Clarence Thomas dissenting…
Lozman in an interview called the ruling a “really big day for citizen-activists” and said it makes clear that municipalities are not immune to the law. He said he would be willing to settle the case in exchange for an apology from the city council – now very different from the one he initially sued – and reimbursement for legal fees.
Lozman v. City of Riviera Beach grew from an attempt to cut off Lozman at a city council meeting into a major free-speech showdown…
The Supreme Court years ago decided that a finding of probable cause barred a claim of retaliatory prosecution. So the question before the court was whether the same standard should be applied to arrests.
Reason (Volokh Conspiracy): The Year of the Punt, or At Least of the Bunt
By Eugene Volokh
Lozman v. Riviera-Beach was expected to resolve a hugely important question-can someone sue for retaliatory arrest if he there was probable cause to arrest him for some fairly petty crime, but there’s lots of reason to think that he wouldn’t have been arrested if it weren’t for his past constitutionally protected speech?-but instead produced a very narrow opinion limited to the rare cases where plaintiff can show a municipal policy of going after him because of his speech.
Of course, some, both on the left and on the right, have argued that such narrow decisionmaking, or remand or dismissal on procedural grounds, are often a good idea, and that the Supreme Court should indeed often decide as little as possible. And perhaps these were indeed the right answers in these cases. But I just wanted to note that at least so far, a lot of the expected big bangs have fizzled…
Free Speech
BuzzFeed News: Here Are The Things Charities Say They Won’t Be Able To Do In Australia Anymore
By Josh Taylor
Ahead of expected debate in parliament in coming weeks on whether there should be tight new rules around political advocacy for groups that accept foreign donations, charities in Australia are arguing they won’t be able to campaign for medical treatment, land rights, and overseas humanitarian issues.
The legislation before the parliament would require charities and other organisations that spend more than $100,000 per year on political campaigning to register as political campaigners.
The definition of “political campaigning” is broad. It includes any public views expressed on a registered political party, candidate, or MP; public expression on an issue that is likely to be part of an election; and commissioning an opinion poll or research relating to an election, or voting intention.
Charities falling under this new class of political campaigners will need to register with the government, and ensure that funding received from foreign donors is not used as part of any campaign about an issue that might be deemed political.
A parliamentary committee in April recommended narrowing the scope of what could be considered “political campaigning” to just those attempting to influence voters, but charities say that they would still be caught up by the legislation.
Charities have revealed exactly what might be at stake, in a move to try to prevent the legislation from passing in its current form.
These are some of the things they’re worried Australia will lose: …
Candidates and Campaigns
McClatchy DC: Cash-free candidates: Some win primaries with less than $5,000
By Mike Woodel
Congressional candidates must file reports with the Federal Election Commission after their campaigns raise or spend $5,000. McNeil, who won the Democratic primary in Idaho’s 1stcongressional district on May 15, has filed no such reports.
Her spending came in under the threshold, so she didn’t have to…
This is the counterpoint to all the discussion of the skyrocketing cost of running for office: Improbably enough, a handful of candidates have advanced to the general election while raising and spending relatively infinitesimal sums.
The Media
Columbia Journalism Review: Advocates are becoming journalists. Is that a good thing?
By Matthew Ingram
As the media landscape continues to fragment and many outlets struggle to afford more ambitious reporting projects, non-governmental organizations and advocacy groups like the ACLU and Human Rights Watch are increasingly taking on the role of reporter-breaking stories and in some cases even helping to change policy…
But these groups are not fundamentally journalistic in nature. Although they may look and behave like modern media organizations, they are advocacy groups, and have an explicit agenda; they’re looking for impact. That agenda may coincide with the news, and they may use traditional journalistic techniques to advance it, but in most cases the larger goal of this work is in service of some kind of policy change or other action, and not information or the public record per se…
The line between advocacy groups and media organizations has been blurring for some time. As the internet enabled the democratization of information production and distribution, and social platforms have given everyone the ability to reach an audience, smart NGOs long ago realized they could use these tools to spread their own message, instead of having to rely on partnerships with traditional media.
