In the News
Keloland TV: Federal Judge Hears The Institute For Free Speech Case
We have an update on the national non-profit that says two measures on South Dakota’s November ballot may violate your First Amendment Rights.
The Institute for Free Speech is suing Attorney General Marty Jackley and Secretary of State Shantel Krebs. Friday morning a federal judge heard the case.
The group claims it wants to educate voters about Amendment ‘W’ and Initiated Measure 24. But, it says current state laws may not allow that.
The judge will issue a written order at a later date.
[Learn more about the case here.]
Taunton Daily Gazette: Beacon Hill Roll Call: Mass. Fiscal Alliance files suit against AG Healey, OCPF, over campaign finance law
By Bob Katzen
The Massachusetts Fiscal Alliance last week filed a lawsuit against Attorney General Maura Healey and the Office of Campaign and Political Finance, alleging that one of the state’s campaign finance laws violates the constitution. The law requires ads that name any candidate or ballot question within 90 days of a General Election to include a statement from the sponsor’s chief executive officer in the case of a corporation, the chairman or principal officer of a group or association or the chief executive or business manager of a labor union. The law includes ads on television, radio and billboards, and in newspapers, magazines, periodicals and mailers.
The law is very specific and requires an officer’s statement on a television ad to be “conveyed by an unobscured, full-screen view of the person making the statement.” On Internet advertising, the statement must appear “in a clearly readable manner with a reasonable degree of color contrast between the background and printed statement.”
The ad must also include a list of the organization’s top five contributors and a link to the OCPF’s website. Anyone who violates any part of the law faces a year in prison and/or a $10,000 fine…
“There is no legitimate reason for the government to require a group’s CEO to appear on-screen during an ad,”, said Allen Dickerson, Legal Director of the Institute for Free Speech Legal which is working with MassFiscal on the suit. “Nor is there justification for listing individual donors on ads they may know nothing about. These requirements simply raise the cost of speaking about government by forcing speakers to waste their resources promoting the government’s message.”
State Policy Network: Institute for Free Speech sues South Dakota for right to analyze ballot measures
By Matt Nese
The Institute seeks to do something it has done many times before: publish an objective analysis of ballot measure proposals that implicate First Amendment rights. Yet, under a recently adopted South Dakota law, any expenditure for any communication “concerning” a ballot measure triggers burdensome reporting, disclaimer, and donor disclosure requirements. IFS’s lawsuit asks the court to strike the law down as unconstitutional…
“If the First Amendment protects anything, it should protect speech about threats to the First Amendment. South Dakota’s sweeping regulation of speech about ballot measures strikes at our core values and violates constitutional rights,” IFS Chairman and former Federal Election Commission Chairman Bradley A. Smith explained…
Failure to comply with the law can result in prosecution and fines. Worse, South Dakota provides no way for groups to get advice from the state about the reach of the law. As a result, the Institute for Free Speech has turned to the courts to get an answer.
As IFS Legal Director Allen Dickerson warned, “the Institute’s analysis is not a political ad in any sense of the term. But South Dakota’s law is so broad that it may even regulate lengthy, academic publications. In regulating so broadly, South Dakota has left the realm of campaign finance regulation and directly threatens Americans’ right to publish.”
The Institute’s complaint is available here, and the request for a temporary restraining order is here. More information about the case is available here.
New from the Institute for Free Speech
By Allen Dickerson and Zac Morgan
The Institute for Free Speech is a nonpartisan, nonprofit organization dedicated to the defense of the First Amendment. Accordingly, it is acutely concerned with our long national tradition of public protest. That tradition is especially robust in the National Capital Region, the seat of federal power and the stage upon which Americans have long exercised their rights, guaranteed by the Constitution, to freely assemble and petition their representative government. Accordingly, the Institute appreciates this opportunity to respond to the National Park Service’s (“NPS” or “Service”) proposed rules regarding protests and demonstrations in Washington, D.C
Americans are a protesting people. Every year, hundreds of thousands of citizens come to Washington for a range of causes…
This cultural norm is reflected in the First Amendment itself, which restrains the federal government, including the NPS. Yet, if enacted, the Service’s proposed rules will, as written, violate that restraint and impose unreasonable burdens on Americans’ access to their own capital.
As a general matter, the proposed rules focus almost entirely on the alleged benefits to the government that would come from more heavily regulating demonstrations in the National Capital Region. It is disappointing that the Service pays comparatively little attention to the collateral damage it is causing to the First Amendment rights of Americans in whose name the Service operates.
In particular, the Institute writes to draw attention to three specific facets of the proposed rules: the proposed tax on speech and assembly through cost recovery fees, the attempt to remove most of the White House sidewalk from lawful protest, and the attempt to restrict the signs that protestors may carry at multi-site demonstrations.
Free Speech
Law and Liberty: Section 501(c)(3)’s Legacy of Prejudice: Mark Pulliam Sees No Evil
By Philip Hamburger
My new book, Liberal Suppression, argues that section 501(c)(3)’s speech restrictions are prejudiced and unconstitutional. These conclusions run counter to widespread assumptions, and it is therefore understandable that Mark Pulliam and other thoughtful readers find them difficult to stomach. All the same, it is important at least to come to grips with the realities that underlie the book’s conclusions, and Pulliam’s review fails to do this. To evaluate the prejudice, one must understand its nature; and to judge the constitutional arguments, one must recognize their breadth and strength…
One of Pulliam’s constitutional objections is that section 501(c)(3) does not clearly limit much communication. In support of this sanguine view, he recites the extent of speech by contemporary churches and non-profits-as if the amount of speech possible under the speech limits is evidence that speech is not limited. But my point is not that all political speech by non-profits is suppressed. Instead, it is simply that some of it is suppressed.
Indeed, the book cautions against extremes of over- and understatement: “This book’s concerns should . . . be neither overstated nor dismissed. Although not near[ly] the most egregious sort of suppression, the restrictions are, in the American context, more than bad enough.” …
Tax lawyers and First Amendment lawyers tend to have very different sensibilities about the speech restrictions. Tax lawyers usually observe that churches etc. are only slightly quieted down, for they can convey their messages through auxiliary organizations, such as section 501(c)(4) organizations and section 527 PACs. First Amendment doctrine, however, treats even the slightest restriction on political speech with apprehension. And the freedom of speech is not merely the freedom to have one’s message come out of someone else’s mouth; most basically it is the freedom to speak-to speak through one’s own mouth, in one’s own voice.
Online Speech Platforms
Washington Post: Facebook purged over 800 U.S. accounts and pages for pushing political spam
By Elizabeth Dwoskin and Tony Romm
“I would gladly abide by Facebook’s terms if I understood what they were,” said Chris Metcalf, the publisher of the left-leaning “Reasonable People Unite” which was shut down along with eight additional Facebook pages, which he said had a total of 2.25 million followers. “I am a legitimate political activist. I don’t have a clickbait blog. I don’t have a fake news website. And I haven’t been doing anything that all the other pages in this space aren’t doing.” …
False information peddled by foreign actors was clear-cut manipulation. But the same content, when spread by domestic actors, could be considered free speech — and a crackdown on it would be contrary to a principle social media embraces.
At stake is the company’s future ability to operate with minimal government scrutiny: Prominent Republican and Democratic politicians now say Facebook should be regulated more heavily if it cannot control a growing list of abuses, including foreign meddling, the spread of misleading news — and if it abuses its power to censor, as conservatives have repeatedly alleged…
Facebook was “changing the rules as they went,” said James Reader, who helped found Reverb Press in 2014. Reader, who calls himself a progressive, said Facebook’s actions were also unfair to the conservative sites that were taken down. “This is what the First Amendment is all about. It should be a fair, equal playing field, that’s all we ever asked for.”
The challenge of policing domestic content is even trickier than going after foreign interference because many – including Facebook itself – question whether Facebook should be in the role of deciding what constitutes legitimate political expression to begin with. By removing the groups entirely, Facebook is eliminating any opportunity to redeem themselves and is curtailing their speech for good.
Candidates and Campaigns
New York Times: Now for Rent: Email Addresses and Phone Numbers for Millions of Trump Supporters
By Kenneth P. Vogel and Maggie Haberman
Early in his presidential campaign, Donald J. Trump dismissed political data as an “overrated” tool. But after he won the Republican nomination, his team began building a database that offers a pipeline into the heart of the party’s base, a comprehensive list including the email addresses and cellphone numbers of as many as 20 million supporters.
Now, consultants close to the Trump campaign are ramping up efforts to put that database – by far the most sought-after in Republican politics – to use, offering it for rent to candidates, conservative groups and even businesses.
It is an arrangement that has the potential to help the Republican Party in key midterm races, while providing a source of revenue for President Trump’s campaign and the consultants involved.
It has also set off concerns about diluting the power of one of Mr. Trump’s most potent political assets, while raising questions about whether his team is facilitating the sort of political profiteering that he disparaged during his campaign.
It is not unusual for candidates to rent supporter data to – or from – other campaigns. The new effort by Mr. Trump’s team, however, appears to be the first time the campaign of a sitting president facing re-election has opted to market its list.
Federal election law allows campaigns and political action committees to sell or rent their lists, provided that the payments received are fair market value…
While list brokers could not recall any previous first-term presidents renting their lists through vendors, Mr. Trump is the first such president since a 2014 Supreme Court ruling made the campaign finance legal landscape more amenable to such list sharing. It struck down a law that had prevented donors from giving big checks to as many candidates as they wanted.
Mother Jones: Democrats Are Hauling In Unprecedented Funds for the Midterms
By Russ Choma
As Democrats continue to wring their hands over whether they can turn out voters on Election Day, yet another candidate is reporting a remarkable multi-million dollar fundraising haul, adding to the arguably historic numbers reported by a number of campaigns already. One such candidate is Abigail Spanberger, a former CIA officer running to upset Rep. Dave Brat (R-Va.), who announced on Sunday that she raised $3.6 million between July and September.
To put that in perspective, the average amount raised by a House Congressional candidate over the entire 2016 election-from January 2015 until December 2016-was just $1.1 million, according to OpenSecrets.org, the non-partisan campaign finance data website. And only nine Democratic House candidates raised $3.6 million or more in that time…
According to the Democratic Congressional Campaign Committee, at least 60 Democrats have raised $1 million or more in the last three months-prior to these numbers, the average amount raised so far this election by a candidate, Republican or Democrat, was just $920,000. And, the DCCC announced, 30 Democratic House candidates raised $2 million or more in the last three months, and eight candidates raised more than $3 million since July. Spanberger is presumably included in those totals, which were announced on Oct. 4, but her numbers had not previously been released.
Beto O’Rourke, the Democratic Senate candidate for Texas, says he has raised a record-breaking $38 million in the third quarter, but it’s not clear if other Democratic Senate candidates have done as well.
Intimidation
National Review: Sorry, Democrats, Progressive Mob Action Is a Real Problem
By David French
There is a yawning legal and moral gap between First Amendment-protected activity, no matter how angry and boisterous, and a true mob. Screaming protesters picketing on a sidewalk are in a fundamentally different position from screaming protesters who invade private property to chase a senator from his meal. Angry demonstrators chanting in front of the Supreme Court are different from people who break police cordons and pound on its doors. Handmaids silently mourning the birth of Gilead are not the same as men and women who disrupt Senate hearings and votes.
Legally protected protest is safe. It’s consistent with the best traditions of American dissent. It’s truly what “democracy looks like.” Mob action, by contrast, is dangerous. It creates imminent risk of personal harm. It’s designed to frighten and intimidate…
Presidential contender Cory Booker urged protestors to “get up in the face of some congresspeople.” Former attorney general Eric Holder said – to loud cheers – “When they go low, we kick them” (before assuring the crowd that he didn’t mean anything inappropriate). Members of the media rightly had no problem condemning Trump when he called for violence in response to protests at his campaign rallies. Why the reluctance to engage with Democratic threats? …
It’s time to stop excusing, rationalizing, and minimizing behavior that is dangerous, menacing, and threatening. When public disorder threatens, and when we’re one wayward shove or impulsive shot from a truly ugly moment, it’s imperative for the people who aspire to lead to shed their preferred narratives and unite behind a single, common idea: Dissent, yes. Mobs, no.
Tax-Financed Campaigns
In These Times: The Case For Giving Every American $25 “Democracy Vouchers” For Every Election
By Adam Eichen
Over the past forty years, starting with Buckley v. Valeo (1976)-a case striking down candidate spending caps and independent expenditure limits-the Supreme Court has shackled our ability to regulate political spending. With Brett Kavanaugh now on the bench, a deluge of litigation will likely further restrict our ability to rein in big money in politics.
The good news is that we don’t actually have to limit spending to fix our democracy. Rather, we can lift up the voices of non-wealthy Americans to match the influence of current donors through public financing for congressional and state elections…
Campaign finance reform advocates have long focused on two systems of public financing. The first is modeled after a program in New York City, which matches small-dollar constituent donations to participating candidates at a rate of 6-to-1. This system boosts the power of small money, giving donors of all backgrounds a greater voice in our democracy.
The second system, based off of an existing one in Maine, is full public financing of elections. Under this program, once a candidate raises a specified small dollar contribution from a select number of constituents, the state will provide a grant to fund a candidate’s entire campaign. Participating in this program is optional, but once candidates take public money, they can no longer accept any private money…
What’s most exciting for reform advocates is that, as of 2017, a new public financing system has been added to our toolkit. And it has game-changing potential.
In 2015, Seattle voters approved a first-of-its-kind public financing system that gives every city resident four $25 vouchers, or, “Democracy Dollars,” that can be allocated to qualifying municipal candidates.
The States
Santa Fe New Mexican: Independent Ethics Commission can restore faith in state government
By Jeff Bingaman and Garrey Carruthers
New Mexico is one of only six states that does not have a statewide ethics commission.
Despite nearly 50 attempts – and the recommendations of a high-profile ethics task force (chaired by one of us, Gov. Garrey Carruthers) in 2006-07, the Legislature has never passed a measure to create a commission. But this year, legislators agreed to send the question to the voters in the form of a constitutional amendment. It will appear near the end of the ballot, and we urge you to vote for it.
The commission triggered by passage of this amendment in November will oversee public employees, state officials, contractors, candidates and lobbyists, and will investigate and adjudicate violations of the governmental conduct act and campaign finance laws. It will be independent of the legislative and executive branches and provide an avenue for ordinary citizens to safely lodge complaints of possible wrongdoing. The commission will have subpoena power and the power to investigate and resolve complaints it receives or initiates. It will hold hearings and issue rulings. Illegal activities will be referred to the secretary of state, the courts or the attorney general. It will also help elected officials navigate the often-cloudy waters by issuing advisory opinions.
