New from the Institute for Free Speech

Why Contribution Limits Pose a Threat to Free Speech

By Alex Cordell

Contribution limits, in effect, are little more than a cap on free speech and free association.

Unfortunately, current campaign finance laws allow this restriction on free speech. While the Supreme Court, in the 1976 decision Buckley v. Valeo, has upheld certain limitations on political giving, those decisions don’t make contribution limits a good policy.

The Court has also been very clear that the only justification for restricting First Amendment speech rights is the prevention of quid pro quo corruption or its appearance, and the burden must always fall on the government to prove any attempts at regulation are narrowly tailored to that end.

Over the years, the Court has struck down some limits. In Randall v. Sorrell, the court struck down limits for being too low. In McCutcheon v. FEC, the Court struck down aggregate contribution limits on the overall amount an individual could give as unconstitutional. And in Citizens United v. FEC (and subsequently SpeechNow.org v. FEC) the Supreme Court and D.C. Circuit Court of Appeals, respectively, said limits on independent groups were unconstitutional. In each of those four cases, the court in question ruled that the limits harmed First Amendment activity without showing any anti-corruption interest.

Internet Speech Regulation

Reason: The Never-Ending Search for Foreign Subversives

By Jesse Walker

As in past panics over foreign propaganda, from the 1790s onward, these fears have culminated in calls for controls on expression. Tim Wu had an Orwellian op-ed in The New York Times last week that redefined certain forms of speech-“false stories,” “foreign propaganda”-as forms of censorship, so that suppressing them is really “reinvigorating the First Amendment.” At this week’s hearings, Sen. Dianne Feinstein (D-Calif.) warned of “a major foreign power with the sophistication and ability to…sow conflict and discontent all over this country,” and then she told Facebook, Google, and Twitter: “You created these platforms, and now they’re being misused. And you have to be the ones who do something about it-or we will.” (Remember when the big fear was that tech companies would set up “walled gardens”? Now the big goal is to get those walled gardens to enforce the government’s preferences. For all the anti-Silicon Valley rhetoric floating around these days, the momentum right now is toward a system where Facebook is Washington’s partner, policing speech to prove that it’s “responsible.”)

If you said a year ago that the Trump era would see officials invoking alleged foreign conspiracies to push for new controls on speech, a lot of people would have nodded their heads. But I don’t think they would have imagined Democrats leading the charge.

Techdirt: Congress Pats Itself On The Back Via Social Media For Its Opportunity To Slam Social Media

By Mike Masnick

As you may have heard, this week there were three Congressional hearings in two days, allowing various Congressional committees to drag out officials from Facebook, Twitter and Google and slap them around for the fact that some bad things happen on those platforms. The general sentiment appeared to be sputtering anger that social media companies haven’t magically figured out how to “stop bad stuff” on these platforms…

At the very same time that tons of people are complaining about these platforms failing to stop loosely defined “bad speech,” you have another group that is complaining about bad/bogus takedowns/censorship. How do you balance those two things? If you think there’s an easy way, you’re wrong…

While these Senators were attacking these three companies, they were relying heavily on Twitter and Facebook to talk up and promote the fact that they were in a hearing bashing Twitter and Facebook. . . These platforms became so useful in large part because they were free to innovate and to experiment and to allow for lots of different uses. And, sure, some of those uses are ones that many of us find distasteful, offensive, or even potentially dangerous. But before we leap in with wild abandon with Congress mandating solutions that will be policed by these very same platforms, shouldn’t we be at least a little careful that the end result will create a lot more problems than it’s supposedly solving?

The Courts

Florida Politics: David Boies offers pro bono defense of St. Pete campaign finance ordinance

By Mitch Perry

If St. Petersburg gets legally challenged next year when its recently passed campaign finance law goes into effect, the city will have big-time representation (at no cost) for a case some predict could go all the way to the Supreme Court…

Although supporters cite the U.S. Supreme Court’s Citizens United decision in advocating for the ordinance, Free Speech for People has been working on trying to bring down the SpeechNow.org case.

In March 2010, the U.S. Court of Appeals for the D.C. Circuit in SpeechNow.org v. FEC opened the door to super PACs by holding that the federal law limiting contributions to political committees to $5,000 per person each year did not apply to a political committee that promised to make only “independent expenditures.”

While some federal appellate circuits have followed the SpeechNow ruling, the Eleventh Circuit Court of Appeals, which has jurisdiction over federal cases in Alabama, Florida, and Georgia, has not ruled on this question, nor has the U.S. or Florida Supreme Courts.

Courthouse News: Google Takes Fight of Canadian Court’s ‘Censorship’ Stateside

By Matthew Renda

A federal judge appeared inclined after a Thursday morning hearing to award Google a preliminary injunction in a case with major implications for the tech giant’s freedom to publish search results around the world.

Google sought a preliminary injunction against Canada-based Equustek Solutions’ quest for a Canadian Supreme Court order prohibiting Google from publishing search results of a rival’s goods that were found to have infringed Equustek’s copyrights…

“Google now turns to this court, asking it to declare that the rights established by the First Amendment and the Communications Decency Act are not merely theoretical,” Google said in the complaint filed in July.

Google argued allowing the Canadian Supreme Court to dictate the policy of a U.S.-based company set a bad precedent with far-ranging implications.

“Imagine if we got an order from North Korea that said we could not publish anything critical of Dear Leader,” Caruso told Davila. “Imagine if Russia doesn’t like what people are saying about Putin. It would be very dangerous to deny relief in this instance.”

Congress

American Prospect: Foreign Influence Peddling Bill Comes Due

By Eliza Newlin Carney

The renewed focus on the disclosure law, known as the Foreign Agents Registration Act, also spotlights FARA’s potential as a potent tool to fight political disinformation campaigns by Russia or other foreign actors…

A loophole in the law also has enabled lobbyists to register under the Lobbying Disclosure Act and not FARA when they represent foreign commercial interests, as opposed to foreign governments. But LDA disclosures are less comprehensive, and some foreign firms are stand-ins for foreign governments…

Republican Senator Chuck Grassley of Iowa introduced legislation this week that would close that loophole and give the Justice Department subpoena power when investigating FARA violations. Louisiana Republican Mike Johnson has introduced a companion measure in the House. Democratic Senators Jeanne Shaheen of New Hampshire and Tammy Duckworth of Illinois also have introduced separate bills to buttress FARA enforcement…

This week, lawmakers grilled Facebook, Google, and Twitter on their role disseminating Russian disinformation, and Democrats have rallied behind legislation to boost internet ad disclosure. But new internet rules could be tough to enact, and have raised First Amendment concerns in some quarters. By contrast, FARA offers a ready-made tool to sanction foreign propaganda.

The Hill: GOP tax bill would allow churches to endorse political candidates

By Brett Samuels

The House Republican tax bill released Thursday would allow churches to endorse political candidates, rolling back a 1950s-era law that bars such activities.

The proposed change is listed at the end of the 429-page legislation.

It states that churches should not lose their tax-exempt status based on statements about political candidates made during the course of religious services.

The change to what is known as the Johnson Amendment has long been a priority of leaders on the religious right. They say the policy violates the First Amendment.

The Johnson Amendment prohibits 501(c)(3) nonprofits from engaging in certain political activities.

FEC

Broadcasting & Cable: CLC, Pro-Trump PAC Prod FEC on Online Disclosures

By John Eggerton

The Campaign Legal Center is teaming up with a pro-Trump PAC to try and force the Federal Election Commission to establish strong online ad disclosure rules.

That comes as the Senate and House are hearing from Google, Facebook and Twitter this week about social media’s role in Russian election interference, which included online political ads.

CLC has teamed up with the Take Back Action Fund (TBAF) to file an advisory opinion request with the FEC that they say requires the commission to address the issue of online ad transparency by the end of 2017. They don’t want a new election cycle to rev up without the protective gear of strong disclosure…

“The FEC may not write new online ad rules for quite some time. And legislation may not be enacted any time soon. But by using this advisory request mechanism, TBAF and CLC are invoking their legal right to ensure that the FEC timely address the issue of disclaimers for online political ads,” they said…

Take Back President John Pudner and CLC’s counsel also want to be able to appear at any public FEC meeting where the issue is discussed.

Supreme Court

International Business Times: The Supreme Court Case That Let Clinton Hijack Party Fundraising

By Josh Keefe

Brazile inherited the DNC chair position from Florida congresswoman Debbie Wasserman Schultz, who handed the Clinton campaign keys to the party fundraising apparatus through a joint fundraising group called the Hillary Victory Fund: an agreement between the Clinton campaign, the DNC and 32 state parties to raise campaign funds together. The power of that agreement, which effectively allowed Clinton to avoid campaign limits by funneling donations through state parties, was a direct result of a split 2014 Supreme Court decision…

The case in question is McCutcheon v. FEC, a suit brought by Shaun McCutcheon, a Republican activist from Alabama. The Supreme Court ruled in his favor, striking down a federal limit on the total amount individuals could give to parties, candidates and committees each election cycle, which at the time was $123,300.

While there are still limits on how much money a donor can give to single candidates and committees, the court said that a cap on the total amount of money a donor could give per election cycle was an unconstitutional violation of donor free speech rights, continuing a string of decisions following Citizens United in 2010 that have dismantled campaign finance rules on First Amendment grounds.

Political Advertising

Reason: Did 15 Years of War Win the Presidency for Donald Trump?

By Brian Doherty

On a deeper level, an interesting study forthcoming in the American Political Science Review casts some cynical shadows for all attempts to connect an election’s outcome with specifics about what a candidate says about his policies, at least to the extent that those policy communication attempts come via the standard efforts of the political campaign itself.

The paper was written by Joshua L. Kalla, a grad student in political science at Berkeley, and David E. Broockman, who teaches political economy at Stanford Graduate School of Business. They conclude that “the best estimate of the effects of campaign contact and advertising on Americans’ candidates choices in general elections is zero.”

What exactly do they mean by this, which seems to imply that all paid attempts at messaging about a politicians’ stances to potential voters is a big waste of time? The question they strive to answer is: “How susceptible are American voters’ choices in general elections to influence from political elites in the form of campaign contact and advertising?” (This question has some relevance to how much panic, moral or otherwise, Americans should have about Russian attempts to influence the election via Facebook ads-though they consider their conclusions less certain when it comes to the online world.)

New York Post: America just spent more on Halloween than on all 2016 elections

By Dan Backer

When it comes to candy, toys and politics, Americans understand they have a choice: Tune in or ignore the noise. All commercial advertising is simply information – however well or poorly packaged – meant to encourage or dissuade the audience from buying a product. As consumers, the choice rests with us…

Consumer ads flood our economy to the tune of billions of dollars, yet there’s no visceral reaction to large corporations promoting their goods and services. We simply accept it as a way of life, and we should. These ads are an integral part of our free-market system, in which information is conveyed to consumers who freely choose a Snickers or a Milky Way.

But if a group of citizens bands together and spends $1 million on a political ad, the acceptable response is outrage? The same logic applies: Politics ads are an integral part of our democratic system, in which voters must make informed choices in who runs the country.

Do we really want the government – any government – to control our speech? Why should any individual get to decide what information you can and cannot be exposed to?