FEC
FEC: FEC to hold hearing on internet disclaimers Wednesday, June 27, and Thursday, June 28, 9:30 a.m.
On June 27, the Commission will convene a two-day public hearing on the Notice of Proposed Rulemaking (NPRM) regarding internet disclaimers and the definition of “public communication.” The NPRM contains proposals to amend Commission regulations concerning disclaimers on public communications on the internet that contain express advocacy, solicit contributions, or are made by political committees. The Commission has received over 165,800 public comments and signatories to others’ comments on the NPRM …
Eighteen individuals are scheduled to testify at the two-day hearing. The witnesses (with links to their or their organizations’ comments) are:
Allen Dickerson, Legal Director, Institute for Free Speech …
The hearing is scheduled to begin at 9:30 a.m. on June 27 and will be held at the Commission’s new headquarters at 1050 First Street, N.E., Washington, D.C. The full agenda is here: https://www.fec.gov/updates/june-27-28-2018-public-hearing/.
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
Heritage Foundation: Politicians: The Worst Kind of People to Run the Government, Except for All the Others
Americans love to trash their politicians as corrupt and self-interested, but they don’t agree on a solution. How can America attract good leaders to the thousands of elective offices in the land? In Politicians: The Worst Kind of People to Run the Government, Except for All the Others, Bruce Chapman lays out a bold plan for the changes we need to make in our public life if we are serious about enable worthy leaders to emerge to and to succeed. Drawing on history as well as his own extensive experience in politics and public policy, Chapman challenges the conventional wisdom about politicians, arguing that their chief rivals – the media, bureaucrats, college professors, and even political “reform” groups – are often sources of further political demoralization rather than renewal.
Date: June 26, 2018
Time: 12:00 PM to 1:00 PM EDT
Location: The Heritage Foundation
Supreme Court
The Atlantic: The Supreme Court Tells the Government to Get a Warrant
By Garrett Epps
The real issue in Carpenter was whether the Court would or should recognize the changed technological universe Americans live in, or would insist on deciding 21st-century issues with 20th-century doctrines. The case jumbled two venerable lines of Fourth Amendment precedent. One, set out in a case called Katz v. United States, asks whether an individual has a “reasonable expectation of privacy” in a given location or activity, whether inside the home or nominally in public. The Katz Court held that there was such an “expectation” in a public phone booth (younger readers see one here). The other line of cases, called the “third-party doctrine,” states that individuals have no “expectation of privacy” in materials-such as bank records or lists of phone numbers they call-that they turn over to businesses instead of keeping themselves…
In 2014, Roberts wrote the majority opinion in Riley v. California, which held that authorities need a warrant to download data on a cellphone even after a lawful arrest of its owner. In that opinion, and in Friday’s, Roberts tried to turn the Court’s attention to the changed world of digital and cellular communications, and its potential to give government an “intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.'” For this reason, Roberts argued, the Court should extend the “reasonable expectation” test for the first time to information held by a third party.
Free Speech
Concurring Opinions: FAN 194.5 (First Amendment News) ACLU’s David Cole responds to Wendy Kaminer
By Ronald K.L. Collins
Statement of David Cole, ACLU’s National Legal Director, responding to Wall Street Journal piece by Wendy Kaminer:
For nearly one hundred years, the ACLU has been at the forefront of battles for free speech. We will continue to defend the speech rights of the unpopular, whether we agree with them or not. Ms. Kaminer’s concerns are refuted not only by the very document she cites, but by the ACLU’s actions in continuing to defend those who express views contrary to our own.
The ACLU has not changed its longstanding policy of defending speakers with whose views we strongly disagree…
We developed the case selection guidelines mentioned by Kaminer to address the conflicts between the many cases we consider, such as between privacy and women’s rights, gay rights and religious freedom, and speech and equality. To be clear, the guidelines do not dictate how and when we take cases, nor do they change our policy of representing those whose views we detest. They expressly reaffirm that free speech rights “extend to all, even to the most repugnant speakers-including white supremacists-and pursuant to ACLU policy, we will continue our longstanding practice of representing such groups in appropriate circumstances to prevent unlawful government censorship of speech.
We didn’t make the guidelines public because they are internal case selection guidelines to be used by affiliates, if they so choose, to help them think through case selection in particular cases. It was an internal document for internal purposes. They had no public purpose. But now that they have been released and published by Ms. Kaminer through her WSJ piece, we are making them public. We have nothing to hide.
Concurring Opinions: FAN 194.6 (First Amendment News) Ira Glasser & Nadine Strossen weigh in on ACLU free speech dispute
By Ronald K.L. Collins
The following statements were sent to FAN in response to David Cole’s reply to Wendy Kaminer’s Wall Street Journal op-ed.
The first is by Ira Glasser, who served as executive director of the ACLU from 1978 to 2001.
The second statment is by Professor Nadine Strossen of New York Law School; she served as as president of the ACLU from 1991 to 2008.
The memo that gave rise to the controversy is set out below along with a just published op-ed.
Finally, a more extended reply by Cole to Kaminer’s op-ed was recently posted on The Volokh Conspiracy.
The New Yorker: How Social-Media Trolls Turned UC Berkeley Into a Free-Speech Circus
By Andrew Marantz
Whether a sophist like Milo Yiannopoulos may speak at a public university like Berkeley is less a question of what the law is than of what the law should be. The Supreme Court has been consistent, during the past half century or so, in its broad interpretation of the First Amendment. “Speech can’t be prevented simply because it’s offensive, even if it’s very deeply offensive,” Erwin Chemerinsky, the dean of the U.C. Berkeley School of Law and the co-author of a book called “Free Speech on Campus,” told me one morning in his office. He grimaced sympathetically as he talked, like a doctor delivering bad news. “I would argue that it’s generally a good idea to protect speech we don’t like, even when we’re not legally obligated to do so, but in this case we are.”
Internet Speech Regulation
Washington Post: Facebook expands its fact-checking tools but says its work ‘will never be finished’
By Hamza Shaban
The company said it has expanded its fact-checking of traditional links posted on Facebook to photos and videos. Partnering with third-party experts trained in visual verification, the company will also flag images that have been posted on Facebook in a misleading context, such as, for example, a photo of a previous natural disaster or shooting that is displayed as a present-day event.
Facebook will also use machine-learning tools to identify duplicates of debunked stories that continue to pop up on the network. The company said that more than a billion pictures, links, videos and messages are uploaded to the social platform everyday, making fact-checking difficult to execute by human review. The automated tools will help the company find domains and links that are spreading the same claims that have already been proved false. Facebook has said it will use AI to limit misinformation, but the latest update applies to finding duplicates of false claims.
Earlier this year, Facebook said it would start a new project to help provide independent research on social media’s role in elections and within democracies. The commission in charge of the elections research is hiring staff to run the initiative, will launch a website in the coming weeks and will request research proposals on the scale and effects of misinformation on Facebook, the social network said.
American Thinker: Isn’t There Some Way that Facebook and Twitter can be Forced to Stop Excluding Conservatives?
By Mark J. Fitzgibbons
The new rules are in response to Congressional pressure that Facebook was not doing enough “to counter misinformation from foreign operatives who use fake online accounts to influence elections and sow division in the U.S.” Facebook admits it has now taken on the role of “protecting legitimate political discussion within our community and fighting foreign interference in elections.”
Before pressure from Congress, these restrictions were not in place at Facebook. The company, however, had already proven itself an easy mark, willing to cave to government pressure to censor speakers on its platform. In 2016, and as a way to get back into China’s market, Facebook created a tool to allow the Chinese government to censor.
One can ask, what business is it of a global, interactive, public forum to enforce U.S. law on foreign interference with elections? That seems to be the government’s job, and its enforcement should be targeted at those who violate the law instead of using blanket, prophylactic restrictions that sweep in lawful and protected speech…
However, absent plausible evidence of state action, such as government supervision of, or meddling with, Facebook’s censorship employees or facilities, or other collaboration such as guidelines provided by the government or memos implying coercion (which, after recent years of government corruption and lawlessness, seems more possible than many conservatives may have previously feared), the First Amendment would not seem to apply.
Harassment
Washington Post: The latest sign of political divide: Shaming and shunning public officials
By Mary Jordan
Anger and division in American politics are creating a rising phenomenon: the public shaming and shunning of political figures while they are going about their private lives.
Few laws expressly prohibit a business from refusing service to a customer because of political views. Civil rights lawyers said that while there have been many cases in recent history involving establishments barring black people, women or members of the LGBT community, shunning people for their political ideology or affiliation has been relatively uncommon.
Until now. And in a time of intense political division, social media is magnifying the confrontations…
Rep. Maxine Waters (D-Calif.) this weekend encouraged harassment of Trump officials in public spaces…
“For these members of his Cabinet who remain and try to defend [Trump], they’re not going to be able to go to a restaurant, they’re not going to be able to stop at a gas station, they’re not going to be able to shop a department store. The people are going to turn on them, they’re going to protest, they’re going to absolutely harass them,” Waters said.
The States
ABC 30 Fresno: Fighting for the First Amendment in the Valley
By Corin Hoggard
Campaign signs are a normal part of the landscape during an election year.
As of last week, they could get you in trouble in some California cities with ordinances restricting the dates you are allowed to have them in your yard.
“Many of these ordinances are misdemeanors which means someone is subject to going to jail for putting out a political idea,” said Maggie Melo.
She has sued a couple cities over campaign sign ordinances, calling them a restriction of first amendment-protected political free speech.
Melo says the regulations give incumbents a big advantage over challengers because office holders can tout themselves whenever they want…
Melo already got Tulare to change its ordinance and her latest lawsuit targeted Coalinga on behalf of the Dolores Huerta Foundation.
The city’s ordinance banned campaign signs more than 60 days before an election and seven days after.
Coalinga’s city attorney told me they didn’t enforce the rule and nine days after Melo filed the lawsuit, the city council voted on a special agenda item to change it.
Melo’s mission will just move forward.
“There’s other cities such as Bakersfield oh my gosh, it’s all over the state. So we’ve started in our local backyard so to speak and we’re moving up and then down the state,” said Melo.
The Columbian: In Our View: Shine Light on Political Ads
By Editorial Board
Knowledge of who is paying for political advertisements is a foundational principle of campaign transparency. Understanding who is attempting to influence voters and how much they have spent on those efforts is essential to creating an informed electorate.
Those are the lessons state Attorney General Bob Ferguson is imparting through lawsuits recently filed against Google and Facebook, and they are lessons the tech giants would be wise to heed. “In our view the law is pretty clear on this point,” Ferguson told The Seattle Times. “I understand this is a hassle for them, but I think the voters of our state have made it clear they expect transparency in this area.” …
This does not mark the first time Ferguson’s office has worked to hold powerful interests accountable to Washington election law. In 2013, the national Grocery Manufacturers Association launched a surreptitious – and successful – campaign to defeat a ballot measure that would have required labels upon genetically modified foods. A lawsuit brought by the state resulted in fines of $18 million plus legal costs of $1.1 million levied upon the grocery association. That ruling is being appealed, but it should have served as a clear message to Facebook and Google that Washington is serious about enforcing campaign law.
