In the News
Washington Examiner: Election yard signs are as American as apple pie
By Ryan Morrison
Now that the election is over, you are probably looking forward to enjoying the view without campaign signs dotting the landscape. But you should think twice before cursing these ubiquitous election lawn ornaments.
Yard signs represent a proud tradition of political advocacy. For candidates who receive limited media coverage, they are a low-cost way of introducing themselves to voters. They are also an outlet for personal expression at the core of the First Amendment…
Today’s yard signs can be traced back to ancient Romans who promoted their preferred candidates on the walls of their homesteads. Historians credit President John Quincy Adams with bringing the practice to the United States with yard signs in the 1820s. Now, millions of dollars are spent distributing them every election season.
Despite their long-standing role in the political process, some cities enact laws to keep signs from obstructing the scenery but censor free speech in the process…
In 2012, Tennessee resident Bill Thomas used several of his billboards to support the U.S. Olympic team and, later, wish everyone happy holidays. But the Tennessee Department of Transportation demanded that Thomas remove the billboards because they did not advertise commercial activity on the premises. Bill sued, and in 2019, the U.S. Court of Appeals for the 6th Circuit ruled that Tennessee’s law was an unconstitutional content-based restriction on speech. The Institute for Free Speech represented him in the appeal.
New from the Institute for Free Speech
IFS, CAIR Team Up to Protest Ninth Circuit Decision
By Zac Morgan
When it comes to success in the courts, the rules of access matter just as much as judicial precedents or the judges on the bench. That’s the message coming from two cases before the Supreme Court this term: one in which certiorari has been granted, Uzuegbunam v. Preczewski, and another petition currently before the justices, Rentberry v. City of Seattle.
In both cases, governments imposed outlandish prohibitions on speech, then once hauled into court, backed down and sought to avoid the judicial consequences of their actions by claiming the case was now “moot.” Since the constitutional injury has stopped, there’s no need for a judicial resolution, the thinking goes…
The Rentberry case is particularly egregious. The City of Seattle banned an entire category of commercial speech – so-called “rent-bidding websites” – and upon its case reaching the Ninth Circuit, summarily reversed course. What’s incredible about Rentberry, however, is that the Ninth Circuit Court of Appeals…already applies the rule that Uzuegbunam seeks to turn into a nationwide standard. As a matter of law, litigants in that circuit are entitled to nominal damages, and such a request avoids mootness.
But because the complaint filed in Rentberry asked for all relief that is “just and proper,” as opposed to listing specifically what categories of relief the plaintiffs sought, the Ninth Circuit acted as if the nominal damages exception did not apply at all. This decision was stunning…
IFS teamed up with the Council on American-Islamic Relations (CAIR) to protest the Ninth Circuit’s decision and urge the Supreme Court to hear Rentberry in tandem with Uzuegbunam. While IFS and CAIR often litigate different types of constitutional questions, we have a shared experience in receiving the short end of the stick regarding mootness.
Supreme Court
Catholic News Agency: Warning of donor harassment, Trump administration backs foes of Calif. disclosure rule
The Trump administration has asked the Supreme Court to review a challenge to a California requirement that charitable organizations disclose their major donors to the state attorney general, siding with groups like the Thomas More Law Center that say the requirement will make their donors vulnerable to retaliation, harassment, and violence…
Acting Solicitor General Jeffrey B. Wall filed a brief asking the Supreme Court to grant a hearing on the case, which was victorious in federal district court but suffered a defeat in the Ninth Circuit Court of Appeals
“As this court’s precedents make clear, compelled disclosures that carry a reasonable probability of harassment, reprisals, and similar harms are subject to exacting scrutiny, which requires a form of narrow tailoring,” said the brief to the Supreme Court. The solicitor general’s office said the appeals court ruling “compromises important associational interests protected by the First Amendment.”
“Petitioners alleged that their contributors had in the past suffered harassment, reprisals, and similar harms because of their association with petitioners,” the brief said. Disclosure would likely “expose their substantial contributors to those harms, and thereby deter those contributors and others from making future contributions.”
[Ed. note: The Institute for Free Speech filed an amicus brief in support of the petitioners in the case. We also filed a related lawsuit challenging then-Attorney General Kamala Harris’s demand for nonprofit Schedule B information in IFS v. Becerra. Read more about that case here.]
SCOTUSblog: Case preview: Dueling statutes, pre-enforcement review and the fight over tax shelters
By Blaine Saito
CIC Services v. Internal Revenue Service is one of the rare tax cases to come before the Supreme Court. While apparently technical, the case has great implications for jurisdiction, administrative law and the tax system overall. The stakes in the case, which will be argued on Tuesday, are about how the government implements a tax code that affects numerous policy spheres outside of mere revenue-raising and how it can fight tax shelters.
[Ed. note: The Institute for Free Speech filed an amicus brief in support of the petitioner in the case.]
The Courts
Reason (Volokh Conspiracy): California AG’s Brief Claims “Hate Speech” Is Constitutionally Unprotected
By Eugene Volokh
From a brief filed by the California Attorney General’s office in Ogilvie v. Gordon, a case dealing with restrictions on personalized license plates (such as exclusions of “racially degrading term[s]”):
There are well-defined and narrowly-limited classes of speech, “the prevention and punishment of which have never been thought to raise any Constitutional problem.”
Chaplinsky v. N.H., 315 U.S. 568, 571-572 (1942) (emphasizing that certain types of speech are protected by the First Amendment). Obscenity, vulgarity, profanity, hate speech, and fighting words fall outside the scope of the First Amendment’s protections.
See Brunetti, 139 S. Ct. at 2303 (Roberts, C.J., concurring in part and dissenting in part) (forbidding registration of “obscene, vulgar, or profane marks does not offend the First Amendment”);
Brown v. Entertainment Merchants Ass’n, 564 U.S. 786, 791 (2011) (listing instances where the First Amendment does not protect speech);
R.A.V. v. City of St. Paul, 505 U.S. 377, 383, 393 (1992) (“fighting words,” defamation, and obscenities fall outside the First Amendment).
Actually, nothing in Chief Justice Roberts’ separate opinion in Brunetti, or the majority opinions in Brown and R.A.V., says or even suggests that “hate speech” is “outside the scope of the First Amendment’s protections.”
Congress
Politico: Republicans’ eleventh-hour telecom push
By Leah Nylen
The Senate GOP is seeking to install Trump’s FCC nominee Nathan Simington at the five-member agency to prevent Biden from filling the seat, a move that would also stall his ability to form an immediate Democratic majority. Another source of Democratic alarm: As POLITICO broke last week, Simington sought to use his position as an administration official to push conservative media to pressure the FCC, an independent agency, to target social media companies ahead of Election Day to boost Trump’s prospects. Senate Commerce is scheduled to vote on Simington’s nomination on Wednesday…
Trump spent Thanksgiving morning tweeting about tech’s liability shield. And now Senate Judiciary Chair Lindsey Graham’s (R-S.C.) bill [The Online Content Policy Modernization Act, S. 4632 (116)] to pare back internet companies’ liability protections is on the agenda for this week’s panel markup…
Graham’s bill, which melds copyright and Section 230 reforms, has backing among Senate GOP members but isn’t likely to garner much enthusiasm from Democrats. Still an overhaul of tech’s liability protections may have some support in a Biden administration. On Tuesday, Bruce Reed, a top Biden advisor who is likely to take a role in the executive branch, is set to talk about reforming the law alongside Sen. Mark Warner (D-Va.) at an event hosted by Georgetown Law School.
FCC
Wall Street Journal: FCC Chairman Pai to Step Down, Giving Biden Clearer Path to Reshape Agenda
By Ryan Tracy
President-elect Joe Biden gained a clearer path to redirecting U.S. telecommunications policy Monday, after Federal Communications Commission Chairman Ajit Pai announced plans to step down on Jan. 20, 2021…
Mr. Biden’s choice could halt some pending Trump administration initiatives, including a rule-making procedure Mr. Pai began in response to a presidential executive order that could scale back Section 230, the immunity internet companies enjoy for content posted by their users. Both parties have raised concerns about Section 230, the law granting the immunity, but Democrats have opposed the FCC’s involvement.
Biden Transition
Business Insider: Big companies including Ford, UPS, Aflac, and BofA are lining up to bankroll Biden’s inauguration – and the president-elect now says he’ll take their money
By Dave Levinthal
From the earliest days of his campaign, President-elect Joe Biden has sniped at special interests itching to influence politics with their money.
“Our Constitution didn’t begin with the phrase, ‘We the Democrats,’ or ‘We the Republicans.” And it certainly didn’t begin with the phrase, ‘We the Donors,'” Biden told supporters at his campaign kickoff rally on May 18, 2019.
“For too long, special interests and corporations have skewed the policy process in their favor with political contributions,” states the government reform plank in Biden’s campaign platform.
But when Biden on Monday launched his official inauguration committee, the fine print indicated that Biden’s inauguration will accept money from a variety of sources, including most big businesses and trade lobbies…
“The Biden Inaugural Committee accepts contributions only from U.S. citizens, lawfully admitted permanent residents, and American corporate entities and associations,” its committee website states.
It added, however, that it would not accept contributions from individual lobbyists, foreign agents, or “fossil fuel companies (i.e., companies whose primary business is the extraction, processing, distribution or sale of oil, gas or coal), their executives, or from PACs organized by them.” …
Some reformers, however, are skeptical.
Biden should be bold, buck recent practice, and ban corporate contributions to his inaugural committee, said Rick Claypool, a research director with Public Citizen, a nonpartisan consumer advocacy organization.
“Corporations, they aren’t giving to the committee out of some deep-seated sense of selfless civic duty,” Claypool said.
Candidates and Campaigns
Washington Post: Trump raises more than $150 million appealing to false election claims
By Josh Dawsey and Michelle Ye Hee Lee
President Trump’s political operation has raised more than $150 million since Election Day, using a blizzard of misleading appeals about the election to shatter fundraising records set during the campaign, according to people with knowledge of the contributions…
Much of the money raised since the election is likely to go into an account for the president to use on political activities after he leaves office, while some of the contributions will go toward what’s left of the legal fight…
The surge of donations is largely from small-dollar donors, campaign officials say, tapping into the president’s base of loyal and fervent donors who tend to contribute the most when they feel the president is under siege or facing unfair political attacks. The campaign has sent about 500 post-election fundraising pitches to donors, often with hyperbolic language about voter fraud and the like…
The donations are purportedly being solicited for the Official Election Defense Fund, which is blazed in all red across the Trump campaign’s website, with an ominous picture of the president outside the White House.
There is no such account, however…
“Small donors who give to Trump thinking they are financing an ‘official election defense fund’ are in fact helping pay down the Trump campaign’s debt or funding his post-presidential political operation,” said Brendan Fischer, who directs federal regulatory work at the Campaign Legal Center, which supports greater restrictions on the role of money in politics. “The average donor who gives in response to Trump’s appeal for funds to ‘stop the fraud’ likely doesn’t realize that their money is actually retiring Trump’s debt or funding his leadership PAC.”
Fischer said that “only bigger donors who’ve maxed-out to Trump’s campaign or the RNC will see any portion of their contribution go to dedicated recount or legal funds.”
The States
Cincinnati Enquirer: It’s past time to reform Ohio’s campaign finance rules
By Catherine Turcer
[Ohio] lawmakers must pass comprehensive campaign finance reform that does three key things.
First, we must increase disclosure so we know who is trying to influence our votes and elected representatives. It’s time to shine a light on the funding of all political advertisements and require the original source of funding be disclosed to the Ohio Secretary of State. No longer should big political donors or partisan special interests be able to hide behind fake groups, nonprofits, or LLCs that do not have to disclose the source of their funding.
Second, our state legislators must pass reform that guarantees real-time disclosure of top donors in advertisements…
Finally, we must strengthen anti-coordination rules so that candidates for office or their go-betweens can’t use outside political groups that can raise unlimited funds from special interest donors to evade campaign contribution limits.
In addition to action from the state legislature, Ohio cities and counties can and should take action to avoid the kind of scandals that are unfolding in the Cincinnati City Council…
One proven local reform is enacting a citizen-funded elections program to ensure that candidates and elected officials are paying attention to everyday voters instead of just big donors…Another option is the democracy voucher program used in Seattle, Washington, where every voter is mailed a $25 “voucher” to give to the candidate of their choosing who has agreed to stronger campaign finance restrictions.
Wiley’s Election Law News: 2020 State Ballot Measure Round-Up
By Carol A. Laham and Louisa Brooks
The 2020 general election saw voters in three states, Oregon, Missouri, and Alaska, adopt ballot measures related to campaign finance, lobbying, and ethics. These three state ballot measures are summarized below. Separately, just before the 2020 election, the City Council in Aurora, Colorado, adopted a campaign finance ordinance, which will place limits on contributions to city candidates for the first time. The new Aurora ordinance goes into effect January 1, 2021.
