New from the Institute for Free Speech
[T]he Institute for Free Speech respectfully submits that this Court should reject any mode of analysis for First Amendment retaliatory arrest claims that ignores whether protected speech actually was or was not targeted based on its message. If the presence of probable cause alone defeats the existence of a First Amendment retaliatory arrest claim under all circumstances, arrests rooted in an effort to stifle protected speech will become judicially unscrutinized and undisturbed throughout the nation. Such a result risks impairing public confidence in both law enforcement and the judiciary at the same time it is irreconcilable with this Court’s duty to protect First Amendment rights.
Internet Speech Regulation
Campaigns & Elections: The Stories That Will Shape The Industry In 2018
By Sean J. Miller
Here are some major storylines that will continue to shape how consultants work in 2018…
The Honest Ads Act introduced in October, which would require “those who purchase and publish [political ads] to disclose information about the advertisements to the public,” has bipartisan support and some Beltway media backing. But it’s the FEC, a body equally well known for its gridlock, that may act faster than Congress on disclosure requirements for campaign and advocacy social media marketing.
In mid-December, the FEC made what Commissioner Ellen Weintraub called “a small step forward” on the disclosure front. That step came when it ruled that the group Take Back Action Fund, which had sought guidance from the commission, must include disclaimers on “its proposed Facebook image and video ads that call for the election or defeat of candidates.”
The legal opinion approved by commissioners is narrow and applies only to the Take Back Action Fund’s advertising. But it was the latest indication that the FEC is going to rollback the small-item exemption on digital ads.
“Look for real clarity in the 2018 rulemaking,” predicted Dan Backer, a campaign finance attorney.
Wisconsin John Doe
MacIver News Service: Is This Justice? Deborah Jordahl And Her Family Lived The Real John Doe
By M.D. Kittle
Deborah Jordahl and her family felt like they woke up in another country in the predawn hours of Oct. 3, 2013.
That’s when law enforcement officials, directed by the prosecutors of Wisconsin’s infamous John Doe investigation, showed up with warrants and raided the homes of several Wisconsin conservatives – including the one in Jordahl’s middle-class Middleton neighborhood…
In the days following state Attorney General Brad Schimel’s bombshell report last month detailing a litany of legal and ethical breaches, John Doe agents have offered breathless – if not seemingly outlandish – defenses of their conduct.
And so it goes for a remorseless lot of government agents who, two-and-a-half years after the state Supreme Court declared the political investigation unconstitutional and ordered it shut down, stubbornly deny any wrongdoing. They do so amid growing evidence exposing just how partisan their little campaign finance probe was.
But the agents and board members of the old Government Accountability Board, the “nonpartisan” political speech regulator that helped lead the John Doe II, have expressed little compunction about the investigative tactics employed.
Free Speech
CNN: It’s not Twitter’s job to silence Trump
By Scott Jennings
I concede that tweeting about nuclear buttons is something worth debating vigorously, especially since no one will be around to say, “I told you so,” if our countries do start a nuclear war using the platform of a company that has never turned an annual profit.
But we can’t expect a corporation — as my fellow panelmate Symone Sanders suggested last night — to censor the President. I was stunned, frankly, that someone with such close ties to the most anti-corporate wing of the Democratic Party would want this to happen.
I thought Sen. Bernie Sanders’ supporters hated corporate influence in our politics. But now, because the President said something they don’t like (and is admittedly weird), they clamor for a corporation to intervene? …
We can all be upset or outraged at the speech and actions of our elected officials on any given day, especially in this case. But to suggest a solution of corporate intervention is, in my opinion, a dangerous school of thought in a country built on free speech and a process-driven representative democracy.
Reuters: Top-selling German newspaper says new online hate speech law must be scrapped
By Michelle Martin
The law which took effect on Jan. 1 can impose fines of up to 50 million euros ($60 million) on sites that fail to remove hate speech promptly. Twitter has deleted anti-Muslim and anti-migrant posts by the far-right Alternative for Germany (AfD) and blocked a satirical account that parodied Islamophobia.
“Please spare us the thought police!” read a headline in Wednesday’s Bild above an article that called the law a “sin” against freedom of opinion enshrined in Germany’s constitution.
The law requires social media sites to delete or block obviously criminal content within 24 hours but Bild Editor-in-Chief Julian Reichelt said it could be applied against anything and anyone since there was no definition of what was “manifestly unlawful” in most cases.
Intended to prevent radical groups from gaining influence, it was having precisely the opposite effect, he said.
“The law against online hate speech failed on its very first day. It should be abolished immediately,” Reichelt wrote, adding that the law was turning AfD politicians into “opinion martyrs”.
The Media
Axios: Facebook stops putting “Disputed Flags” on fake news because it doesn’t work
By Sara Fischer
Facebook announced that it will no longer use “Disputed Flags” – red flags next to fake news articles – to identify fake news for users. Instead it will use related articles to give people more context about a story.
The tech giant is doing this in response to academic research it conducted that shows the flags don’t work, and they often have the reverse effect of making people want to click even more. Related articles give people more context about what’s fake or not, according to Facebook.
Facebook’s Sheryl Sandberg says Facebook is a technology company that doesn’t hire journalists. Without using editorial judgement to determine what’s real and what’s not, tackling fake news will forever be a technology experiment.
Facebook says putting Related Articles next to fake news leads to fewer shares than when the Disputed Flag is shown. “Putting a strong image, like a red flag, next to an article may actually entrench deeply held beliefs – the opposite effect to what we intended,” Facebook writes in a blog post.
The States
Charleston Gazette-Mail: WV secretary of state to enforce ban on anonymous campaign ads
By Eric Eyre
West Virginia Secretary of State Mac Warner plans to enforce a state law that bars anonymous campaign mailers, even though Attorney General Patrick Morrisey has called the law unconstitutional, Warner’s office said Wednesday.
The state law aims to rein-in anonymous political attack ads…
Last year, Warner wrote to Morrisey’s office, asking the attorney general to assess whether the ban on anonymous campaign materials violated the First Amendment right to free speech.
In October, Morrisey’s office concluded that the campaign transparency law is unconstitutionally “over-broad” and unenforceable…
“Under a proper application of First Amendment principles and a close reading of existing precedent, the West Virginia law violates the First Amendment because it is over-broad and not narrowly tailored to a compelling state interest,” the opinion reads…
The campaign transparency law says a person may not publish, issue or circulate any anonymous letter, radio or television ad supporting the election or defeat of a candidate.
Columbia Daily Tribune: Missouri Democrats place target on Greitens through pre-filed legislation
By Rudi Keller
Democrats in the Missouri House took aim at Gov. Eric Greitens’ fundraising and communication practices in a package of bills filed Tuesday.
The measures include bills requiring disclosure of donors to inauguration committees, banning the use of data-purging programs to conduct public business and forcing political not-for-profits to disclose spending and donors like regular campaign committees.
U.S. News & World Report: Officials Force Group to Reveal Ballot Question Donors
By Steve LeBlanc, AP
State campaign finance officials have required a group that funneled large donations to 2016 ballot questions regarding charter schools and marijuana legalization to disclose the identity of its donors…
The Office of Campaign and Political Finance required Strong Economy for Growth to form a ballot question committee, disclose its donors and pay $31,000, all of the money left in its bank account, to the state for violating campaign finance laws.
As part of the resolution with campaign finance officials, the group also agreed not to engage in any election-related activity in Massachusetts through 2018…
Last year a New York-based group that also backed the charter school question paid more than $425,000 to Massachusetts as part of a campaign finance settlement.
The civil forfeiture by Families for Excellent Schools-Advocacy is the largest in the 44-year history of the Office of Campaign and Political Finance.
Worcester Business Journal: Corporate campaign donations case heads to SJC
By State House News Service
The Supreme Judicial Court in March will hear oral arguments in a case brought by conservative business-owners who have challenged state laws prohibiting corporations from donating to state candidates.
The businesses 126 Self Storage Inc. and 1A Auto Inc. sued the state in 2015 arguing the laws are unfair to businesses because unions can donate up to $15,000 to a candidate for state office. Rick Green, president of 1A, is a Republican candidate to succeed Congresswoman Niki Tsongas.
Superior Court Judge Paul Wilson last April ruled in favor of the defendants in the suit, the Office of Campaign and Political Finance, finding that the distinction between labor and corporate political giving “serves the anti-corruption interest” used by the state as justification for the law.
In August the business groups, who have the legal backing of the Goldwater Institute, appealed for the SJC to review Wilson’s decision and the state did not oppose that motion, according to the plaintiffs’ brief. The state’s brief is due Feb. 5, according to the attorney general’s office.
Ravalli Republic: COPP: Former Darby mayor violated campaign finance laws
By Eve Byron
On Nov. 1, 2017, Mangan’s office received a copy of a political postcard supporting three candidates in the Darby municipal election, with a return address of “Responsible Governing for Darby.” A review of the commissioner’s records didn’t turn up any information on a political committee with that name, but when contacted McDowell stated he was responsible for creating and paying for the mailer.
“Candidate McDowell stated he thought he did not need to update his statement of candidacy until he paid for the mailer, and had not yet received the invoice,” Mangan wrote. “He stated it was his intent to both report the change in candidacy and report the expenditure.”
McDowell said he didn’t know that he was supposed to estimate the amount of the expenditure, instead of relying on an invoice. He also planned on only filing one report, since he believes the forms are complicated.
“The report dates are confusing, and I was trying to be mayor and had a full-time job,” McDowell said. “My intention was to file the form… but I clearly didn’t understand their definition of expenditure.”
CT Viewpoints: The Citizens Election Program is at risk again
By Karen Hobert Flynn
Earlier in the session the General Assembly attempted to shut down the program, and succeeded in weakening enforcement and making it harder for challengers to use CEP, all in the name of “budget discipline.” If allowed to stand, the changes they made then and are trying to make now will cost Connecticut taxpayers far more in the long run than the pittance they’ll save in the short term.
Word is that a number of our legislators want to slice funding for the CEP, and/or the State Elections Enforcement Commission (SEEC), by 25 percent. The cuts would not make a dent in the state’s $208 million budget shortfall, but could be devastating to programs that in the past decade have made our elections cleaner and more competitive and our lawmakers more connected to the people they represent.
Anyone who wants Connecticut to continue to lead the nation toward cleaner, truly fair elections, and not slip backwards toward corruption of, by, and for special interests instead of government of, by and for the people must speak up now. Action could come as early as this week.
