New from the Institute for Free Speech
All I Want for Christmas Is Lawmakers to Respect Privacy
By Tiffany Donnelly
He’s making a list and checking it twice. But he’s not Santa – he’s Congressman Tom Suozzi, a New York Democrat who plans to name and shame New Yorkers who donate to candidates he doesn’t like. Nothing shouts holiday spirit more than a personalized political enemies project.
Rep. Suozzi wants to repeal the federal cap on write-offs for state and local taxes (SALT). Even if you disagree, you probably respect his right to express his views, but the Congressman won’t grant you the same courtesy. In early December, he told reporters, “No New Yorker should contribute to a politician who is undermining our state.” If you dare disobey, he’ll add you to his naughty list – one with serious, real world consequences, like potential harassment and retaliation. His plan? Use the FEC’s donor database to publish the private information of New Yorkers who give to candidates opposing repeal of the SALT cap.
Aside from being authoritarian and creepy, his plan is also sloppy. Suozzi said on Monday, “We have to get organized and start holding these elected officials who are consciously undermining our state to account.” Ah yes, hold these elected officials to account by punishing ordinary Americans who are minding their own business! That makes perfect sense. Way to stick it to The Man.
ICYMI
Top 4 Money in Politics Takeaways from the 2020 Election Cycle
By Nathan Maxwell
If money suppresses turnout, it’s apparently quite bad at it – even worse if it purports to buy elections. Contrary to the popular narrative, money does not corrupt the democratic process or discourage voters from participating. Even so-called “dark money,” a frequent victim of the vendetta against privacy and free association (despite accounting for a relatively insignificant portion of overall spending), is not a mechanism for corruption. If 2020 has shown us anything, it’s that the campaign against money in politics is mistaken on virtually every score.
- Record Spending. Record Turnout.
At an estimated $14 billion, 2020 federal election spending totaled $1 billion more than the 2012 and 2016 federal elections combined. Moreover, independent spending far exceeded previous records at over $2.7 billion, compared to roughly $1.1 billion and $1.4 billion during the 2018 and 2016 cycles, respectively. Meanwhile, voter turnout was at its highest since 1908, at over 66% of the voting-eligible population.
Of course, correlation is not causation, but it’s clear that historic levels of spending did not suppress turnout. This squares with research showing that political advertising may lead voters to become more engaged, better informed, and thereby more likely to vote. Money doesn’t buy elections, but it does buy recognition, and without it, you could reasonably expect voter turnout to decline.
Congress
Politico: Morning Tech
By Alexandra S. Levine
[GOP Rep. Greg] Walden, one of the most influential conservative figures in the tech and telecom policy landscape, is set to retire from Congress next month and caught up with Cristiano and John over the phone on Wednesday. Below are some of the highlights from their chat (and Pros can read the full interview):
– Walden pushed back on GOP-led calls for the FCC to step in on Section 230, even as FCC chief Ajit Pai faces pressure to do so before he leaves the agency next month: “I’m not so sure that I want the FCC in the middle of all of this,” Walden said. “Even if some think they have the authority, I’m not convinced that’s the case. And I’m not sure they’re the right agency to be in the middle of speech police.” Walden said talk of amending Section 230 “needs to be hammered out in the halls of Congress.”
FIRE: Professor Mike Adams’ suicide will always haunt me
By Greg Lukianoff
For those of you who’ve never been in the middle of the battle between the worst of the ideological left and the worst of the ideological right, I can tell you it really gets inside your head. You get to see people on both sides go from loving you to hating you depending on who you defend, even if the moral principles of the case are identical.
I’ve seen people turn on professors and students that were once their friends and treat them as if they’d transformed into immoral monsters, deserving of only banishment or worse. I’ve felt that directed at me, my co-workers, and my friends. It creates a paranoia that everything can be stripped away from you if you make one wrong move, one wrong comment, one wrong joke. And once you transgress, you can be unpersoned into a caricature of societal evil, an object of scorn – no longer a real person, but an evil abstraction, sometimes a laughable cautionary tale. It’s a nasty paranoid lonely little universe, and back in 2007, I felt like I was alone there.
Chicago Tribune: White supremacists should have First Amendment protection
By Steve Chapman
The awkward effects of the First Amendment are visible in the Minnesota town of Murdock, where a white supremacist group that presents itself as a religious sect bought an old church to serve as its base. Some residents regard the intrusion as harmful to their welfare and the values of the community, according to a story in The Washington Post, and urged the City Council to deny a permit to the Asatru Folk Assembly. But the council, fearing a costly lawsuit that it would lose, voted to grant it…
Historically, says University of Chicago law professor Geoffrey Stone, “laws restricting speech in our nation have been directed primarily against those who opposed a war, those who advocated socialism or communism, those who advocated for civil rights, those who engaged in sexually oriented expression and those who advocated for the rights to contraception and abortion.” Only a broad and neutral application of the First Amendment has given them relief…
It may be tempting to dream of narrowing the First Amendment so that we could more easily combat hateful groups. But if its protections were ever weakened, it’s not oppressed minorities who would reap the benefit. It’s the oppressors.
Independent Groups
Center for Responsive Politics: Digital ad bans end for Georgia runoffs, opening the door to more ‘dark money’
By Anna Massoglia
Within hours of when Google’s [political ad] ban was lifted, super PACs, “dark money” groups, campaigns and other political groups launched ad buys on the platform.
In addition to providing another platform for spending by super PACs pouring millions into Georgia’s Senate runoffs through TV and other outlets, online advertising has opened the door to opaque spending by “dark money” groups that would be required to report spending on more traditional ad platforms to the FEC.
Senate Republican leadership-aligned 501(c)(4) nonprofit One Nation spent at least $22,500 on digital ads in the first three days after Google’s ban was lifted…
Since online issue ad spending is not subject to the same disclosure requirements as TV and radio ads, One Nation may buy ads up until the runoff without ever disclosing their spending to the Federal Election Commission so long as they stick to online ads and avoid explicitly calling for candidates’ election or defeat.
One Nation poured more money into 2020 elections than any other dark money group. It’s been able to avoid disclosing any of its spending to the FEC since it stopped spending on TV issues ads in the window 60 days before Election Day and limited its activities to spending on online ads and giving money to a closely-tied super PAC.
Online Speech Platforms
By Mike Masnick
Earlier this fall, Facebook was (not surprisingly) the first big internet company to cave and to tell Congress that it was open to Section 230 reform. I say not surprisingly, because it’s done this before. Facebook was the company that caved in and supported FOSTA, which was the first major reform of 230. We heard from multiple people who said that Facebook recognized that it could weather the storm much better than its smaller competitors…
So, this puts many other internet companies in an impossible position: if they continue to completely fight changing Section 230 (as they should), then Facebook becomes the only voice in any reform “negotiations.” And, seeing how Congress handled this last time, it likely means that Facebook gets to shape the “reform” in a way that helps Facebook and harms everyone else. But, Congress, of course, will pretend that Facebook’s blessing means the rest of the internet agrees as well.
The end result, then, is that smaller companies, which absolutely rely on Section 230, feel pressure to get into the negotiations as well. And that’s why the NY Times now has a story saying that Snap, Reddit and TripAdvisor have told Congress they’re willing to talk about reform options…
It’s ridiculous that these companies had to do this, and now the anti-230 crowd will cheer on this dismantling of their own protections.
New York Times: Facebook reverses postelection algorithm changes that boosted news from authoritative sources.
By Kevin Roose
Facebook confirmed that it has in the past few days rolled back a change that lifted news from authoritative outlets over hyperpartisan sources after November’s election, signaling a return to normalcy for the social network.
The change involved boosting the weight that Facebook’s news feed algorithm assigned to an internal publisher quality score known as “news ecosystem quality,” or N.E.Q. It was implemented several days after the election as part of Facebook’s emergency “break glass” plan to combat misinformation during the critical post-election period, while votes were still being counted.
The change resulted in an increase in Facebook traffic for mainstream news publishers including CNN, NPR and The New York Times, while partisan sites like Breitbart and Occupy Democrats saw their numbers fall. After the election, some Facebook employees asked at a company meeting whether the “nicer news feed” could stay, according to several people who attended.
But they were told that the “break glass” measures, including the N.E.Q. change, were never supposed to be permanent.
New York Times: Twitter will begin removing vaccine misinformation.
By Sheera Frenkel
Twitter said on Wednesday that it would begin removing misinformation about coronavirus vaccines. The planned takedowns, which will begin next week, were announced as misinformation about the vaccines, which are just starting to be distributed in the United States, is increasing.
Tweets that claim the vaccines intentionally cause harm, or conspiracies about the dangers of vaccines, will be removed according to Twitter’s new policy. Facebook and YouTube have already said they would remove false claims about the vaccines…
While Twitter already labels misinformation about the coronavirus, such as claims that masks, social distancing and other best health practices are not effective, the new policy specifically addresses vaccines.
Twitter said it would also try to draw a distinction between outright misinformation – which will be removed – and tweets that fall into a gray zone, like those expressing concern about vaccine side effects. Starting next year, the company will add labels to tweets that “advance unsubstantiated rumors, disputed claims, as well as incomplete or out-of-context information” about vaccines.
“We will prioritize the removal of the most harmful misleading information, and during the coming weeks, begin to label tweets that contain potentially misleading information about the vaccines,” the company said in the blog post.
The States
New Mexico In Depth: Nonprofit groups put new independent expenditure law to the test
By Bryan Metzger
After a decade-long effort, New Mexico lawmakers passed new campaign reporting requirements in 2019 to force nonprofit groups, which can spend money on political campaigns without registering as political committees, to disclose their spending as well as the names, addresses, and contribution amounts of their donors who fund such “independent expenditures.”…
In 2020, two nonprofit groups immediately put the new law to the test by refusing to disclose donors despite enforcement efforts by both the Secretary of State and the New Mexico State Ethics Commission…
One group has disclosed its expenses – but not its donors – aftersettlingwith the State Ethics Commission following the agency’s conclusion that the group’s activities were political. The group argued that contributors asked in writing that the funds not be spent on political advocacy, and in the statute such written requests make the contributions exempt from disclosure regardless of how the funds are actually spent.
In the other case, the group has taken aim at the definition of “contribution” in the state statute, arguing that since none of its donors were solicited specifically for political activities, their donations don’t count as political contributions even if the money was later used for political campaigning.On Dec. 14, the State Ethics Commission announced it had filed a lawsuit against that second group – the Council for a Competitive New Mexico – in New Mexico’s 2nd Judicial District Court. The commission is seeking to force the group to register as a political committee, disclose its donors, and pay fines for its prior refusal to disclose.
Reason (Volokh Conspiracy): N.Y. Aims to Ban “Symbols of Hate” Sold by Private Vendors at State (or State-Funded) Fairgrounds
By Eugene Volokh
The new § 146, despite its title, is constitutional; New York can choose what it sells or displays, and doesn’t have to display the swastika any more than it has to display the hammer and sickle.
But the “measures” contemplated by the new subdivision 51 are unconstitutional. Government-run fairs are “limited public fora,” see Heffron v. ISKCON (1981)), when it comes to the “exhibitors … [who] present their products or views, be they commercial, religious, or political” through the fair. This means the government can impose reasonable content-based restrictions on speech in those places, but not viewpoint-based restrictions. See Christian Legal Society v. Martinez (2010); Cornelius v. NAACP Legal Defense & Educ. Fund (1985). A ban on display or sale of Confederate flag merchandise at fairs is based on the viewpoint that many people perceive the Confederate flag to express; likewise for “symbols of white supremacy” or “neo-Nazi ideology” or any other “symbols of hate” that the Department might use its power to ban…
Note that subdivision 51 probably can’t be challenged at this point, because it doesn’t itself ban any sales at fairs; it only authorizes the Department to institute such bans. That’s also why the “symbols of hate” language isn’t unconstitutionally vague (even though it’s not well-defined, given the “include, but not be limited to” language). Any viewpoint discrimination or vagueness challenge would have to wait until the Department implements a particular regulation.
Reclaim the Net: Pennsylvania educator sues after being forced to resign for anti-BLM Facebook post
By Cindy Harper
Another school teacher in Pennsylvania was fired for sharing anti-BLM content on her personal Facebook account. In a lawsuit, [Ashley Bennett, the] teacher claims that the school district violated her First Amendment rights in firing her…
Soon after she shared the post, the North Penn School District put her on administrative leave and posted its decision in a press release on its website…
“[Bennett’s] comments do not align with the North Penn School District’s core values. The views expressed conflict with our work to develop a community that values diversity. We strive to acknowledge, respect, understand, and celebrate the dynamics of racial and cultural differences. … The employee has been placed on administrative leave while an investigation is conducted,” the school district wrote in the press release.
In the lawsuit, Bennett’s lawyer noted that the press release was “an astonishing and straightforward admission of viewpoint retaliation and discrimination in violation of Bennett’s rights to free speech and political affiliation under the First Amendment.”
The Detroit News: Michigan AG reviewing whether lawmakers can lobby out of state
By Craig Mauger
The Michigan Attorney General’s Office is reviewing whether legislators serving in the state can legally be registered lobbyists outside its borders, and regardless, Republican lawmakers are planning to change the policy.
