In the News
NPR: Judge Shuts Down Multimillion-Dollar Loophole In Election Law
By Peter Overby
Chief Judge Beryl Howell, of the U.S. District Court for the District of Columbia, threw out a regulation adopted by the Federal Election Commission in 1980. The rule said that “non-political” groups, such as 501(c) nonprofit organizations, could ignore a disclosure law if donors’ contributions were not earmarked for specific advertisements – an exception that wasn’t in the law passed by Congress.
Howell’s decision was issued Friday evening.
She listed ways in which the regulation undercut the transparency principles of campaign finance law: “including informing the electorate, deterring corruption, and enforcing bans on foreign contributions being used to buy access and influence to American political officials.” …
It also leaves question marks for 501(c) groups active in the midterm elections, using money raised under the old rules.
“The thing I’d be most concerned about is protecting the donors who gave in good faith,” said David Keating, president of the conservative Institute for Free Speech.
Howell set a 45-day deadline for the FEC to replace the invalid regulation. FEC commissioners had no comment Monday on how they would respond and whether they would seek to appeal the ruling. An appeal is considered unlikely because it would require all four votes on the commission, a six-member panel with two vacancies…
CREW’s lawsuit focused on FEC treatment of spending by the 501(c)(4) group Crossroads GPS, and Crossroads intervened as a defendant. Spokesman Chris Pack said Monday evening, “This was wrongly decided and we will proceed accordingly after reviewing an array of legal options.”
New from the Institute for Free Speech
Four Constitutional Red Flags in State Disclosure Laws
By Luke Wachob
Look for these four red flags to help determine whether a disclosure bill may violate the First Amendment.
1) Low or No Monetary Thresholds. Disclosure laws that are triggered by trivial amounts of spending are often unconstitutional. The government may not set thresholds so low as to effectively prohibit small groups from speaking. For example, a federal court recently ruled that a Colorado law that required reporting from groups that spent as little as $200 was unconstitutional.
2) Long Windows When Speech is Regulated. Courts have upheld some narrow disclosure laws affecting issue speech by nonprofits if the speech is close to an election. But efforts to regulate speech outside of the windows established in federal law – 60 days before a general election or 30 days before a primary – may run afoul of the First Amendment. When a state regulates speech during six or more months of the year, for example, the law clearly isn’t “election-related.”
3) Vague or Broad Definitions of Regulated Speech. The government has an obligation to clearly define speech that triggers regulation. Groups have successfully challenged laws in Arizona (Galassini v. Fountain Hills) and Utah (Utah Taxpayers Association v. Cox) that chilled free speech by creating uncertainty about the reach of the law. Simply put, courts are likely to strike down laws when citizens can’t understand how to comply.
4) Disclosure Requirements for All or Most Donors to an Organization. Forcing groups that engage in a small amount of political speech to publish the identities of all their donors is excessive. These donors may have wished to support the organization’s general mission and not a particular position the group has taken. They may not support or even be aware of the group’s views on every issue. As a result, publicly exposing citizens’ contributions both misleads the public and violates their privacy – while potentially subjecting them to harassment and intimidation.
Is Transparency in Government Always Good?
By Paul Jossey
[A] draft research paper by Michael D. Gilbert of the University of Virginia School of Law casts doubt on prevailing wisdom. Combining law and economics and infusing storylines from a popular TV drama, Gilbert takes a contrarian view. It’s not that disclosure has no positive benefits, but that it’s not an unalloyed good. It comes with tradeoffs and even can facilitate the corruption it seeks to stop. As Gilbert states, “Monitoring [government officials] deters corruption just as patrol cars deter speeding. But sunlight does something else too. It lowers the transaction costs of corrupt bargaining.”
Gilbert shows disclosure’s double-edged sword through hypotheticals, real examples, and popular culture. In the crime drama ‘The Wire,’ transparency laws both prevent and aid corrupt bargains. Detectives use campaign finance records to connect drug dealers and corrupt officials. But the mayor uses the same records as a cudgel against “riding the middle” donors who hedge their bets by supporting both candidates in an election.
The negative aspects of disclosure arise from the information gain to bad actors. Gilbert breaks down corrupt bargains in economic terms as lowering three specific costs: search costs, negotiation costs, and enforcement costs…
“In sum,” Gilbert explains, “disclosure records lower all of the transaction costs of corrupt bargaining. This facilitates exactly those quid pro quos that disclosure aims to prevent.”
Gilbert does not argue all transparency is bad; only that it comes with tradeoffs. “It exposes contradictions in received wisdom. Why, for example, do many election law scholars accept the secret ballot while expressing unbridled support for campaign finance disclosure? The purest scholarship seeks truth, and finding truth requires resistance to dogma and group think.”
The Courts
Center for Responsive Politics: Federal judge rejects FEC regulation allowing secret ‘dark money’ contributions
By Nihal Krishan
The ruling will create a path for new requirements that would require nonprofits to disclose donors who give more than $200 toward impacting federal elections…
U.S. District Court Judge Beryl Howell found that a Federal Election Commission (FEC) regulation used by nonprofit organizations that engage in political activity to shroud donors in secrecy was invalid. The judge said the rule failed to uphold the standard which Congress intended when it required the disclosure of politically related spending…
The ruling only applies to what the FEC terms “independent expenditures” – that is, communications that explicitly call on voters to support or oppose certain candidates. While independent expenditures make up a significant portion of “dark money” spent in elections – more than $733 million since 2010, when the Supreme Court’s Citizens United decision came down – it is not the only way dark money gets into elections. These groups spend heavily on stealthy political ads framed as “issue ads,” and this decision will not affect their ability to buy such ads in the future.
Citizens for Responsibility and Ethics in Washington (CREW), a watchdog group in Washington brought the lawsuit against Karl Rove’s Crossroads GPS after GPS did not disclose the donors who contributed to the $6 million the group spent trying to defeat incumbent Sen. Sherrod Brown (D-Ohio) in 2012. CREW first lodged a complaint with the FEC, which dismissed it, before filing suit…
Barring an appeal, the FEC has 30 days to reconsider its original decision to dismiss the complaint against Crossroads GPS and 45 days to issue interim regulations that comport with Howell’s findings.
First Amendment
Independent Journal Review: Sad! Survey Shows Shocking Percentage of Americans Are Unable to Name a Single First Amendment Right
By Carlin Becker
According to the Freedom Forum Institute’s annual “State of the First Amendment” (SOFA) survey, it looks like a shocking number of Americans are unfamiliar with their First Amendment rights.
Of the more than 1,000 people surveyed in May and June of this year, only one person was able to name all five First Amendment rights. A whopping 40 percent, however, couldn’t name any.
Among those who could name one or a few, the right to freedom of speech was the most commonly remembered, with 56 percent of respondents being able to list it.
The other rights didn’t fare so well, however, with just 15 percent of respondents naming freedom of religion, 13 percent naming freedom of the press, 12 percent naming freedom of peaceful assembly, and a measly 2 percent naming the freedom to petition the government.
On the bright side, the percentage of Americans unable to name a single First Amendment right hasn’t increased since the 2016 survey. However, the percentage was lower in 2014 and 2015, when it sat at 29 percent and 33 percent, respectively.
The survey comes amid a national debate regarding whether or not free speech includes hate speech. The ACLU, for example, claimed free speech sometimes “can inflict serious harms and … often will impede progress toward equality” in a leaked memo.
It also comes as President Donald Trump continues to slam the media as the “enemy of the people” and after his administration barred a reporter from an open-press event for asking a question about Trump’s former lawyer, Michael Cohen, who recorded several of their meetings.
Wired: Win or Lose, the Alex Jones Lawsuit Will Help Redefine Free Speech
By Emma Grey Ellis
Whether Jones wins or loses, his suit, according to First Amendment lawyers, will be a building block for the way we think of free speech in the age of the internet…
In 1964, the Supreme Court heard the case of a Montgomery Public Safety commissioner who felt defamed by an ad in The New York Times that claimed the police departments he supervised had arrested Martin Luther King Jr. seven times. (Really they’d just arrested King four times.) In the resulting case, New York Times v. Sullivan, the court bestowed special status to public officials like the commissioner: Defamation would require “actual malice,” a knowingly false statement in “reckless disregard” of the truth. This high bar was a way of protecting the First Amendment-guaranteed right to speak openly about those in power.
Gertz v. Robert Welch, Inc. added a new wrinkle in the form of another type of public figure-a “limited-purpose public figure,” who also required the high bar of malice. Jones claims that by entering the public debates on misinformation and gun control, De La Rosa and Pozner occupy this second group. (De La Rosa has advocated for an assault rifle ban, and Pozner founded a nonprofit devoted to fighting misinformation.)
This is where the context of the internet starts to matter. The law assumes a narrow notion of fame-not a world where a YouTube channel’s following can rival a media company’s and the parents of a slain child can instantly become household names. “The First Amendment is a legal tool … crafted in a particular time to deal with particular media environments,” says Neil Richards, a First Amendment expert at the University of Washington Law School. “Our libel model is one that envisions establishment media and a bunch of people gossiping. It doesn’t envision social media.”
Online Speech Platforms
Washington Post: The moment when Facebook’s removal of alleged Russian disinformation became a free-speech issue
By Tony Romm, Elizabeth Dwoskin and Eli Rosenberg
Left-leaning political activists accused Facebook of censorship when the social media giant removed an event listing [last] week that it said was part of a new disinformation campaign with ties to Russia.
Facebook said it had to act quickly to disclose that inauthentic operators were behind an upcoming event in Washington to counter a white-supremacist rally inspired by the deadly demonstration in Charlottesville last year. “Resisters,” the page that created the event, was among the 32 pages and accounts Facebook removed [last] Tuesday.
However, activists who had worked with Resisters said the counterprotest they planned against a far-right rally was legitimate – and that Facebook was harming their ability to combat the rise of white supremacy. The event, called “No Unite the Right 2 DC” and promoted by Resisters along with other left-leaning groups, was collateral damage in Facebook’s battle against disinformation, they said.
Facebook has “delegitimized our whole event – and all the work that folks across the D.C. area have put a lot of time and effort into,” said Caleb-Michael Files, an organizer of the March to Confront White Supremacy, a group that was organized after the Charlottesville protests, and a co-host of the counterprotest event page. He said he was much angrier at the social network than at Russia. “Russians might have been there, but Russians are not creating and invoking these feelings. These are real feelings, not Internet-created feelings.”
The incidents show how Facebook’s fight against disinformation and other malicious actors is increasingly butting up against the company’s mission to be a powerful organizing platform for communities – and represents an unexpected twist to Facebook’s disclosure, which many had applauded. Internet activists often connect anonymously and use tools to conceal their identities – the very tactics that Russian operators have also used.
By Kaitlyn Schallhorn
A Republican congressional candidate has accused Facebook of not allowing her to promote her campaign video because it includes scenes from the Cambodian genocide – which her parents survived.
Elizabeth Heng’s campaign ad starts with graphic and stark images from the Cambodian genocide in the 1970s as she talks about her parents’ survival and her campaign mantra: “Great things can come from great adversity.”
Heng’s campaign said Facebook “revoked approval to advertise” the video last week. According to a screenshot posted to Twitter, Facebook said it was not approved because it does not adhere to its advertising policies.
“We don’t allow ads that contain shocking, disrespectful or sensational content, including ads that depict violence or threats of violence,” the message from Facebook read.
In a statement to Fox News, a Facebook spokesperson said after further review of the ad, “It is clear the video contains historical imagery relevant to the candidate’s story.”
The ad has been approved and is now running, the spokesperson confirmed Tuesday morning.
Candidates and Campaigns
Washington Post: Why the Trump Tower meeting may have violated the law – and the Steele dossier likely didn’t
By Philip Bump
There is no reason to think that Clinton’s campaign is culpable for any illegal act related to the employment of Steele and good reason to think that the law was broken around the meeting at Trump Tower – and that members of the Trump team might face legal consequences…
One argument is that, since Steele is not a U.S. citizen, he would be barred from involvement in the campaign as surely as the Russians should have been. Lawrence Noble, former chief counsel for the FEC, explained the difference in the situations over email.
“Paying a foreign national fair market value for opposition research is generally not illegal,” Noble wrote. “It is considered a commercial transaction, which is not a contribution.” Clinton’s campaign had paid Fusion GPS directly; it’s a campaign expenditure, not a campaign contribution. Since it’s not a contribution, the FEC allows it.
Steele was hired by Fusion GPS to see what links might exist between Trump and Russian actors. Those connections, built during his service for the British government, were why he was valuable to Fusion GPS. It’s akin to a campaign looking to investigate an opponent’s history of real estate deals in Mexico: Hiring a Mexican firm that’s familiar with the available records would be perfectly legal, if the firm were paid with legally raised campaign contributions.
“I think there is something fundamentally different about the interference when it comes from a foreign government, as opposed to a foreign national individual or even business,” Noble added. “The campaign finance law doesn’t explicitly make that distinction, but it does implicitly show up in some FEC decisions regarding individuals. For example, a foreign national individual can undertake volunteer activity for a campaign, while a government can’t.”
Fox News: Fusion GPS official met with Russian operative before and after Trump Jr. sit-down
By Catherine Herridge, Pamela K. Browne, Cyd Upson
The co-founder of Fusion GPS, the firm behind the unverified Trump dossier, met with a Russian lawyer before and after a key meeting she had last year with Trump’s son, Fox News has learned. The contacts shed new light on how closely tied the firm was to Russian interests, at a time when it was financing research to discredit then-candidate Donald Trump.
The opposition research firm has faced renewed scrutiny after litigation revealed that the DNC and Hillary Clinton’s campaign paid for that research. Congressional Republicans have since questioned whether that politically financed research contributed to the FBI’s investigation of Russian collusion with the Trump campaign – making Fusion’s 2016 contacts with Russian interests all the more relevant.
The June 2016 Trump Tower meeting involving Donald Trump Jr. and Russian lawyer Natalia Veselnitskaya occurred during a critical period. At that time, Fox News has learned that bank records show Fusion GPS was paid by a law firm for work on behalf of a Kremlin-linked oligarch while paying former British spy Christopher Steele to dig up dirt on Trump through his Russian contacts.
But hours before the Trump Tower meeting on June 9, 2016, Fusion co-founder and ex-Wall Street Journal reporter Glenn Simpson was with Veselnitskaya in a Manhattan federal courtroom, a confidential source told Fox News. Court records reviewed by Fox News, email correspondence and published reports corroborate the pair’s presence together. The source told Fox News they also were together after the Trump Tower meeting.
The Media
Wall Street Journal: The Enemy of the T-Shirt
By Tunku Varadarajan
It took less than 24 hours for the Newseum, a Washington-based museum of news and free speech, to capitulate. Its crime, according to finger-wagging journalists? Lending support to Donald Trump in a tawdry quest for dollars.
On Friday the Poynter Institute, which describes itself as “the world’s leading instructor . . . for anyone who aspires to engage and inform citizens in 21st century democracies,” published an item on its website reporting that the Newseum’s gift shop was selling T-shirts with the words “Fake News.” …
The Poynter story was picked up by the New York Times, whose own reporter repeated that “fake news” had become “a rallying cry for President Trump and his supporters” to heap scorn on journalists…
The Newseum abased itself the next day. In a press release titled “Statement on Store Merchandise,” it said it had removed the T-shirts: “We made a mistake and we apologize. A free press is an essential part of our democracy and journalists are not the enemy of the people.”
This sweeping mea culpa leads one to wonder how well the folks at the Newseum know their history. “Fake news” isn’t Mr. Trump’s own coinage…
That said, the main objection to the Newseum’s decision isn’t pedantic. It has misunderstood completely the semiotics of the T-shirt. Who takes a T-shirt’s text literally? Wearers put them on for all sorts of reasons, frequently in pursuit of irony. Donning a T-shirt that blares “Fake News” on its front can just as easily be a subversion of the idea-a slap at Mr. Trump-as an endorsement of it.
You’d think the guardians of journalism would get that-even as they strong-arm a museum dedicated to free speech to pull a T-shirt whose message they dislike.
The States
The Guardian: Berkeley police under fire for publishing anti-fascist activists’ names and photos
By Sam Levin
Berkeley police have arrested more than a dozen anti-fascist activists and posted their names and photos on Twitter, raising concerns that the department was encouraging harassment and abuse.
Law enforcement’s unusual decision to immediately publicize the personal information and faces of arrested leftwing demonstrators on social media has sparked intense backlash. Critics have accused police of aiding the far right and endangering counter-protesters with “public shaming” and targeted arrests for alleged minor offenses…
The department posted many of their names, photos and cities of residence on its official Twitter account on Sunday before anyone was formally charged. As of early Monday afternoon, a spokesperson for the local district attorney told the Guardian that Berkeley police had not yet brought the cases to prosecutors for consideration.
“This is very disturbing,” said Veena Dubal, a University of California law professor and former Berkeley police review commissioner. “It seems like a public-shaming exercise, which is not the role of the police department … They are making it really accessible for folks who might wish these people harm to locate them.” …
Sam Menefee-Libey, a Washington DC activist who helped protesters prosecuted for demonstrating at Trump’s inauguration, pointed to several similar cases. St Louis police came under fire last year when the department posted the name and addresses of protesters. A rightwing news site also obtained a police list of arrested Trump protesters last year and published the names.
The Oregonian: Campaign spending limits to appear on Portland ballots
By Gordon R. Friedman
An initiative petition that would limit campaign spending in Portland elections has qualified for the November ballot, the city elections office announced Monday.
If adopted, the campaign finance measure would limit how much supporters can give and candidates can spend and would require political ads to disclose financial backers.
The ballot proposal is similar to campaign finance limits adopted overwhelmingly by Multnomah County voters in 2016. A circuit court judge struck down those limits this spring. Supporters’ appeal is pending before the Oregon Court of Appeals. While the case is on appeal, the circuit court’s ruling remains in effect.
Campaign finance limits generally fail when challenged in Oregon courts because judges have interpreted the state’s free speech protections to bar caps on campaign giving or spending.
Reason (Volokh Conspiracy): “Racial Ridicule” Is a Crime in Connecticut — and People Are Being Prosecuted
By Eugene Volokh
Connecticut General Statutes § 53-37 … provides:
“Any person who, by his advertisement, ridicules or holds up to contempt any person or class of persons, on account of the creed, religion, color, denomination, nationality or race of such person or class of persons, shall be fined not more than fifty dollars or imprisoned not more than thirty days or both.”
And, as best we can tell, prosecutors have averaged a bit over one conviction per year under the statute from 2000 to 2016, and in 2017 they had four prosecutions — two that were dropped, and two that were still pending as of the end of 2017…
The statute, though, is pretty obviously unconstitutional, because it suppresses speech based on its content (and viewpoint), and because there’s no First Amendment exception for speech that insults based on race or religion…
But it turns out that Connecticut prosecutors aren’t enforcing the law as it is written. I have found no prosecutions for advertisements that ridicule people based on race or religion…
Rather, based on the 13 police reports that I’ve read, prosecutors seem to be enforcing the statute to punish people for race- or religion-based “fighting words”: generally speaking, face-to-face personal insults that include racial or religious slurs. (The facts of the cases are a mix: Three involved racial insults of police officers, one case with anti-white insults and another with anti-black insults. The other ten mostly involved insults of black ordinary citizens, though one was of a Hispanic, one of someone perceived to be Muslim, and one of an ambiguously labeled “nigga cracker.” The defendants were mostly whites, but two were likely Hispanic and one was black.)
Now that might be less troubling than trying to punish, say, political advertisements. But is itself unconstitutional, for three related reasons…
