In the News
InvestigateTV: You’re in a political ad. (But you don’t know who’s behind it)
By Jamie Grey, Megan Luther, and Lee Zurik
In December, the Federal Election Commission clarified social media political ads advocating the election or defeat of a federal candidate must follow the same disclosure laws for TV and print ads.
If a candidate or political committee sponsors an ad about a candidate, they must say so. But an unregistered organization, like News for Democracy, must list in the ad its “permanent street address, telephone number, or World Wide Web address of the person who paid for the communication and state that the communication is not authorized by any candidate or candidate’s committee,” according to federal law.
David Keating, president of the Institute for Free Speech, disagrees with the FEC’s interpretation.
“The idea that social media ads must have a bunch of gibberish written by the FEC and Congress that was written before anyone knew there would be an Internet… is lunacy,” he said…
David Keating advises hiring a campaign finance attorney before speaking out against or for political candidates.
“When it comes to speech by individuals or by people banding together into groups, I think there’s already too much regulation.”
New from the Institute for Free Speech
Plaintiff Massachusetts Fiscal Alliance (“Alliance”) wishes to produce written, radio, internet, and television communications that are “merely ideological policy statements, principally about the revenue generation and state spending preferences of members of the Massachusetts General Court.” Pl. Br. in Supp. of Mot. (“Opening Br.”) at 3. Because those communications will refer to candidates for office, in particular “an unopposed candidate for re-election,” they must carry scripts drafted by the Commonwealth of Massachusetts (“Commonwealth” or “Government”). Opening Br. at 2. This compelled speech will “give[] center stage” to the Government’s message at the Alliance’s expense. Def. Br. in Opp’n to Pl. Mot. at 10 (“Opp’n Br.”). This commandeering of the Alliance’s speech is out of all proportion to any relevant governmental interest, and accordingly violates the First Amendment.
Supreme Court
Forbes: In-N-Out Asks Supreme Court To Look At Labor Regulators’ Mistreatment Of Commercial Speech
By Corbin Barthold
In April 2015 a pair of workers at an Austin, Texas, In-N-Out wore a button with the number 15-a reference to a campaign to raise the minimum wage to $15 an hour-in front of a clenched fist. Enforcing the “no flair” rule, the manager forbade employees from wearing the button on the job.
A labor group filed a complaint with the National Labor Relations Board. An administrative law judge ruled that In-N-Out violated section 7 of the National Labor Relations Act. The Board agreed. So did the U.S. Court of Appeals for the Fifth Circuit.
Section 7 bars an employer from punishing an employee for labor-related speech.
This does not without more establish that In-N-Out must tolerate clenched-fist buttons behind its cash registers. Although an employer may not censure an employee for hosting a pro-union Facebook group, nothing in section 7 requires the employer to advertise the group on the employee’s behalf. You may not, in the name of protecting your right of free speech, use your boss’s megaphone just because you lack one yourself.
According to the Board, however, an employer must privilege section 7 speech. Any rule that inhibits such speech-even a basic uniform policy-is “presumptively invalid.” …
The gloss the Board has put on section 7 conflicts with the First Amendment. Like any other association, a business generally cannot be compelled to adopt another speaker’s message as its own. The government must identify a good reason for demanding such speech, and it must require no more forced speech than is needed to address a real-not speculative-problem. The Board’s section 7 protocol turns the First Amendment and the NLRA upside down.
Colorado Independent: News organizations across the nation back Colorado Independent’s open-records fight at US Supreme Court
By Alex Burness
Many of the nation’s biggest news organizations, some of its top legal scholars and a squadron of Colorado newsrooms have joined The Colorado Independent in its petition before the U.S. Supreme Court in a case that seeks to protect the public’s First Amendment right to court records.
The case could determine the extent to which the public and the news media have access to court records in Colorado and possibly beyond.
Fifty six state and national media outlets and groups – including The Denver Post, NPR, The Washington Post, the Associated Press, BuzzFeed, Sinclair Broadcast Group and The New York Times – plus 21 First Amendment scholars from around the country backed The Independent by formally signing on to “friend of the court” briefs this week.
The briefs, known as amicus curiae, asked the high court to review a unanimous ruling in June by the Colorado Supreme Court that denied the nonprofit news outlet’s request to unseal court records related to prosecutorial misconduct in the capital case against Colorado death-row inmate Sir Mario Owens.
Four amici briefs were filed this week. They came from the Reporters Committee for Freedom of the Press, the First Amendment Clinic at the Sandra Day O’Connor College of Law at Arizona State University, the University of Denver’s Sturm College of Law, and Yale Law School’s Media Freedom & Information Access Clinic.
The Courts
WyoFile: Judge strikes down ‘data trespass’ laws as unconstitutional
By Andrew Graham
The District Court of Wyoming has ruled controversial data trespass laws passed by the Wyoming Legislature violate the First Amendment of the U.S. Constitution and has blocked the state from enforcing them.
The statutes, passed by the Legislature in 2015 and amended in 2016, made illegal the collection of research data, photographs and other information from private lands and from public lands if private lands had been crossed to reach data-gathering sites.
Environmental, animal rights and food safety groups joined with the National Press Photographers Association to take Wyoming to court over the data trespass laws in 2015, claiming they violated constitutional rights of free speech and equal protection under the law.
The ruling released Monday afternoon upheld the plaintiff’s free speech concerns.
“The government has not proven a strengthening of the state’s trespass laws would not accomplish the same goals without infringing on protected speech,” Judge Scott Skavdahl wrote…
The laws imposed additional criminal and civil penalties beyond trespassing laws for anyone who collected research data, took photographs or other forms of “preserv[ing] information in any form.” It also required government agencies to erase any data that was collected in violation of the laws…
“There is simply no plausible reason for the specific curtailment of speech in the statutes beyond a clear attempt to punish individuals for engaging in protected speech that at least some find unpleasant,” Skavdahl wrote.
The court found “plausibl[e]” the advocacy groups’ arguments that the inaccuracies of maps and GPS and the “intertwined nature of public and private lands in Wyoming” have led to some parties refraining from practicing their First Amendment rights out of a fear of the law.
Daily Caller: Judge Brings End To California Law Requiring Pro-Life Groups To Promote Abortion
By Kevin Daley
A federal judge in San Diego has permanently barred enforcement of California’s Reproductive FACT Act, which requires pro-life crisis pregnancy centers to disseminate information about abortion.
The Friday order follows a June 26 Supreme Court decision that found that the FACT Act likely violates the First Amendment.
“The government has no business forcing anyone to express a message that violates their convictions, especially on deeply divisive subjects such as abortion,” said the Alliance Defending Freedom’s Michael Farris, who represented a coalition of pro-life groups challenging the law…
On appeal to the Supreme Court, a five justice majority led by Justice Clarence Thomas found the law likely violates the First Amendment. The case then returned to the U.S. District Court for the Southern District of California, which entered final judgment against the FACT Act. The plaintiffs may also ask to recoup the cost of the litigation.
In one of his last opinions on the court, Justice Anthony Kennedy wrote a concurrence “to underscore that the apparent viewpoint discrimination here is a matter of serious constitutional concern.”
“Governments must not be allowed to force persons to express a message contrary to their deepest convictions,” Kennedy wrote. “Freedom of speech secures freedom of thought and belief. This law imperils those liberties.”
Courthouse News Service: Judge Finds Memphis Illegally Spied on Activists
By Daniel Jackson
A federal judge in Memphis ruled Friday that the city’s failure to properly train members of its police department caused it to violate a 1978 agreement not to collect political intelligence on activists exercising their First Amendment rights.
“The failure was one of training and inadequate direction over a sustained period of time,” Senior U.S. District Judge Jon McCalla wrote in a 39-page opinion…
In his opinion, Judge McCalla said the city violated its consent agreement when it used its real-time crime center to search several social media sites for posts relating to the Black Lives Matter movement “because the information gathered related to First Amendment rights.” …
In September 1978, Memphis entered into a consent decree with the ACLU after the city burned its political intelligence files gathered on Vietnam War protesters instead of handing them over.
The agreement barred Memphis from investigating people because of their First Amendment activity. For example, it specifically prevents the city from infiltrating groups exercising free-speech rights or recording names, photographs and license plates of people attending meetings and demonstrations.
The ACLU filed suit last year, asking the court to find the city in contempt of the consent decree after a list surfaced of people that required a police escort while visiting Memphis City Hall, some of whom had no criminal record but were involved with Black Lives Matter…
Memphis has moved to vacate the consent decree, and Judge McCalla noted the court will issue a separate ruling on that.
ABC News: Lawmaker sued for banning 2 constituents from Facebook page
By Rachel La Corte, AP
A Washington state lawmaker has been sued by two constituents who argue their First Amendment rights are being violated because they’ve been banned from commenting on the state lawmaker’s Facebook page.
The suit against Rep. Jim Walsh, filed in U.S. District Court in Tacoma on Wednesday, says the Aberdeen Republican unlawfully censored Jeff Nichols and Gilbert Myers when he banned them from his ‘politician’ page on the social media site.
“By banning access to this forum and deleting comments based on the viewpoint of the speaker, Representative Walsh has violated plaintiffs’ right to free expression, to petition the government for a redress of wrongs and grievances, and to hear the banned speech that would have otherwise been engaged in, distorting the expressive forum,” the lawsuit says.
The lawsuit seeks an injunction requiring Walsh to restore the posting privileges of Nichols and Myers, as well as anyone else banned for their viewpoints, and seeks “nominal damages and compensatory damages” as well as attorney fees.
Congress
Roll Call: America Is at a Midterm Crossroads. Let Us Count the Ways
By Kate Ackley
In the House, if Democrats control the chamber, a vocal group of incumbents, including House Minority Whip Steny H. Hoyer of Maryland, along with some of the likely stars of the incoming freshman class, have called for the new majority’s top priority and first order of legislative business to be a far-reaching overhaul of the nation’s campaign finance, voting rights, lobbying and ethics laws.
“All of these items should be packaged, in my opinion, into one reform bill and addressed in the opening days of the next Congress,” Hoyer said recently. “Democrats, if entrusted with the leadership will do exactly that. … If Democrats can fix government we can earn the trust of voters to lead on addressing health care, infrastructure, jobs, the environment and so many other critical issues.”
Hoyer’s endorsement of such a measure is significant. It’s the kind of talking point one would expect from Vermont independent Sen. Bernie Sanders, not Hoyer, who enjoys a friendly rapport with the nation’s business community and has a long list of former aides in the K Street lobbying corridor.
A major campaign finance, lobbying, ethics and anti-corruption package would not pass the Senate, but the proposal would allow Democrats to deliver, in the House, a platform for the party, including those running for president in 2020.
“We’ll be creating a new baseline of what Democrats stand for,” said Rep. John Sarbanes of Maryland, who chairs the House Democrats’ Democracy Reform Task Force. He said his party has big ideas on immigration, health care, gun control and a number of other issues. But first, he said, “You have to establish this idea that you’re unrigging the system.”
Democrats can’t fight pharmaceutical companies on drug prices if the party is beholden to the industry’s donations, he said. More than 100 Democratic challengers have called on the party’s House leaders to embrace the idea.
Time: Democrats Put Ethics Reform at Top of Legislative Agenda, If They Win the Midterms
By Alana Abramson
With the midterm elections just over a week away, Democrats have begun touting an ethics reform package that will top their legislative agenda if they take over the House of Representatives.
On Tuesday, approximately 100 advocacy groups will announce their support for the legislation, which is still being written, as part of a campaign called “A Declaration for American Democracy.”
The package is expected to incorporate proposals for campaign finance reform, voting rights and ethics and accountability…
Democratic Rep. John Sarbanes of Maryland introduced a resolution incorporating these proposals in June with 160 cosponsors, but it never reached the floor in the Republican-controlled House…
Lisa Gilbert, the Vice President of Legislative Affairs for Public Citizen, one of the organizations signing on with the campaign, and who is also working with House Democrats on the package, said she expects the advocacy to persist even if the bill doesn’t become law. Pushing the bill, she said, is only “one piece of the puzzle.”
“We’re going to be pushing this into the Presidential campaigns. We’re going to be seizing on this even if the House doesn’t flip and Republicans are in charge still. The set of reforms that we want, its bigger than any single moment,” Gilbert told TIME.
Corporate Speech
USA Today: Ben & Jerry’s launches Donald Trump-inspired ice cream flavor, Pecan Resist
By Zlati Meyer
Ben & Jerry’s is launching a new flavor, Pecan Resist, which the company made to promote activism in the U.S. …
The Burlington, Vermont-based business is using the new flavor to criticize some of President Donald Trump’s recent pronouncements.
“The company cannot be silent in the face of President Trump’s policies that attack and attempt to roll back decades of progress on racial and gender equity, climate change, LGBTQ rights and refugee and immigrant rights – all issues that have been at the core of the company’s social mission for 40 years,” Ben & Jerry’s said in a statement…
The ice-cream maker made the announcement in the National Press Club’s First Amendment Room in Washington, D.C.
Ben & Jerry’s, which Unilever acquired in 2000, has used its sweet treats to promote its social justice agenda before. For example, Chubby Hubby became Hubby Hubby in 2009 to celebrate same sex marriage in Vermont, Chocolate Fudge Brownie was temporarily renamed Food Fight Fudge Brownie to support GMO labeling and EmpowerMint in 2016 was used to promote voting rights, the company said…
Dipayan Biswas, a University of South Florida professor of marketing, said the new flavor will foster loyalty from some customers and prompt others to boycott Ben & Jerry’s – like what happened to Chick-fil-A in 2012 after CEO Dan Cathy spoke out against gay marriage.
“Paradoxically, it makes good business sense. Brands, like politicians, often do well when they’re more polarizing,” he said. “A lot of people hate them for that. That’s fine. They get loyalty from other segments.”
Independent Groups
New York Times: Republicans Rushing to Save House Seats From Onslaught of Democratic Money
By Jonathan Martin and Alexander Burns
Democratic super PACs and other outside groups are poised to outspend their Republican counterparts by a wide margin, erasing an advantage Republicans planned on having.
Much of the Democrats’ unanticipated firepower comes from one source: Michael R. Bloomberg, the liberal former New York City mayor who may run for president, plans to spend about $20 million on House advertising through his super PAC, Independence USA, in the final week of the campaign, a Bloomberg adviser said.
The States
Greenville, NC Daily Reflector: The Case for a Truly Bipartisan Board of Elections and Ethics Enforcement
By State Sens. Kathy Harrington and Harry Brown
This year, voters will decide whether to pass a constitutional amendment requiring a truly bipartisan Board of Elections and Ethics Enforcement…
The Board of Elections and Ethics Enforcement, as the name implies, is responsible for administering elections and adjudicating campaign finance violations. Under current law, the board has nine members…
Running elections and investigating campaign finance violations should be fully insulated from partisan considerations. The public must have faith that their elections systems aren’t rigged to favor one party over another. Similarly, one political party with more power than the other on a board that investigates political campaigns is ripe for potential conflicts.
Opponents of this amendment — primarily Democrats, since they’re the ones who hold power on the board right now — argue that an equal number of Republicans and Democrats would result in stalemates and inaction.
But the Federal Elections Commission (FEC), as well as the House and Senate Committees on Ethics, all operate under an even power-sharing arrangement between the two major parties. They work as they’re supposed to — disingenuous political accusations are shuffled to the side, while legitimate ethical and campaign finance allegations undergo impartial investigations.
Amendment opponents also argue, oddly, that a bipartisan board could somehow bury crimes. But precisely the opposite is true: a board evenly split between the parties would be in a better position to advance legitimate violations through the process, free from charges of partisan chicanery. And any member of the board has the power at any time to send up a flare if something seems rotten.
We should adopt the same system as the FEC and Congress here in North Carolina. To argue otherwise is to say one party deserves more power than the other in administering elections and adjudicating campaign finance claims.
Ozy: Will Missouri Lead the U.S. in Revealing Dark Money Donors?
By Nick Fouriezos
[J]ust five months ago, Missouri witnessed the resignation of its former governor, Eric Greitens, after a court ordered him to hand over documents related to A New Missouri, a dark-money nonprofit that he was accused of illegally coordinating with. And just last week, Hawley’s campaign was accused of illegally coordinating expenditures with the National Rifle Association, as the same consultant was booking TV ad time on the same day for Hawley and the NRA. (Hawley campaign spokeswoman Kelli Ford calls the Federal Election Commission complaint “frivolous” and politically motivated, coming from a gun control group.)
And Missouri residents will consider a ballot this November called Clean Missouri Amendment 1, which would forbid the state legislature from allowing unlimited campaign contributions and prohibit anonymous donors if approved…
That perfect storm of focus could make Missouri an important indicator for whether average voters can be convinced to care about campaign finance reform, a rallying issue for progressives and liberals ever since the Supreme Court case Citizens United v. FEC ushered in an unfettered era of concealed campaign cash…
It’s true Democrats have proposed fixes federally, including the DISCLOSE Act, which would require groups spending money in federal elections to disclose their donors. And while some Republicans have supported reform efforts – Missouri State Sen. Rob Schaaf, a Republican and Donald Trump supporter, also backs Amendment 1 – many conservative voters have mixed feelings about attempts to end dark money spendi
