New from the Institute for Free Speech 

A Teachable Moment for @alt_fec

The Twitter handle @alt_fec, which claims the mantle of “resistance” to the present administration, has tweeted to request our views on the First Amendment implications of a letter from a private attorney to a private publisher concerning Fire and Fury: Inside the Trump White House…

The author behind @alt_fec suggests that this is our “chance to denounce the President’s attempted prior restraint of a book – just about the worst [First Amendment] violation there is.”

That short tweet contains three basic legal errors.

First, the letter protesting Fire and Fury is from Donald Trump’s private attorney. Donald Trump, the man, is different from Donald Trump the President. The letter isn’t an attempt by the President to prevent publication using the powers of his office. It’s a warning from a private party that he will sue for libel if the book is published.

Second, this isn’t a prior restraint. By definition, a prior restraint involves a legal prohibition on publishing something. Threatening to sue after publication isn’t a prior restraint.

Third, there is no First Amendment violation when a private party sends such a letter. The First Amendment prohibits action by the government, not private individuals.

Three Campaign Finance Media Trends to Watch Out for in 2018

By Joe Albanese

1) Candidates with more money will be treated as heavy favorites – but won’t always win…

We all know the biggest primary and general election spenders of 2016 came up short in their campaigns. That won’t stop some from claiming that financial imbalances between campaigns mean elections are “rigged”…

2) The media will complain about “record spending” and out-of-state money in races…

Rising media costs, an increased population of voters to reach out to, more candidates in the ring, and, of course, simple inflation, all basically guarantee that spending will generally increase every year for completely innocuous reasons…

3) The media will fixate on the role of “big donors” while ignoring its own central role in public discourse…

To most, it comes as no surprise that news stories are the dominant force in shaping public perceptions, rather than paid advertising or campaign rallies. That hasn’t stopped the outlets that gave billions of dollars of free airtime to candidates like Donald Trump from scratching their heads, wondering how he became so successful.

Free Speech

Reason: What Is Hate Speech? We Asked College Students

By Justin Monticello & Zach Weissmueller

40 percent of Americans now believe the government should regulate so-called “hate speech.”

Many developed countries, including Canada and much of Europe, have passed laws that criminalize certain speech deemed hateful. France has prosecuted comedians for Facebook posts, the U.K. has imprisoned people for offensive tweets, and Germany threatened to prosecute a comic over a poem about Turkish leader Recep Tayyip Erdogan.

Social media examples have also demonstrated how speech codes often backfire and hurt the very minorities they are intended to protect. Though Facebook and Twitter are private companies free to ban whatever they like on their platforms, their attempts to control hateful speech have resulted in bans of feminists for saying that “all men are trash,” and rapper Lil B was suspended for posting “White people are the only ones who really love they guns U can tell they are violent people!”

College campuses have become the epicenter of the free speech debate, with incidents of college students shouting down and even physically attacking controversial speakers becoming increasingly common in recent years. So we headed to the University of Southern California to see if students there could define “hate speech” for us, and whether they thought it should be outlawed.

Independent Groups

Think Progress: The Trump administration may have just admitted to violating campaign finance law

By Josh Israel

Katie Walsh, President Trump’s former White House deputy chief of staff, reportedly provided unflattering information about the president and his administration to Michael Wolff, author of the soon-to-be-published book Fire and Fury: Inside the Trump White House. Now, according to an Axios report on Thursday, senior Trump White House officials “are debating whether Katie Walsh should be fired from Trump’s main outside group, America First.”

But there’s one major problem. If the report is true, campaign finance law experts say, it would put the Trump administration in clear violation of a provision of the campaign finance law commonly known as McCain-Feingold.

America First Policies is a tax-exempt 501(c)(4) organization…

That law states federal office holders and candidates – and their employees and agents – may not “[d]irectly or indirectly establish, finance, maintain, or control” political organizations that do not adhere to federal campaign finance limits ($5,000 per individual, nothing from corporations). Deciding to fire an employee would, at minimum, appear to be indirect control.

Washington Examiner: White House mulls pressure campaign against America First staffer who criticized the president: Report

By Gabby Morrongiello

The group says it won’t budge on Walsh, regardless of what the White House does.

“Katie Walsh is a political professional who has navigated the D.C. Swamp with skill and grace, and worked tirelessly to help launch our new president and his administration on a path to success,” said America First President Brian Walsh, who is unrelated to Katie Walsh. “She is a pivotal part of our team at America First, and there has been no discussion about any change in her role.”

The Courts

Spokesman-Review: 9th Circuit rules Idaho’s ‘ag-gag’ law illegally targeted free speech, investigative journalism

By Kimberlee Kruesi, Associated Press

Idaho’s ban on spying at farms, dairies and slaughterhouses violated free speech rights, a federal appeals court ruled Thursday.

“The panel held that the subsection criminalized innocent behavior, was staggeringly overbroad, and that the purpose of the statute was, in large part, targeted at speech and investigative journalists,” wrote U.S. Circuit Judge M. Margaret McKeown in a 56-page ruling…

According to the opinion, the panel particularly took exception to the law’s ban on audiovisual recordings but not photography, rejecting the state’s argument that the act of making a video or audio recording is not protected by the First Amendment.

“Without some legitimate explanation, we are left to conclude that Idaho is singling out for suppression one mode of speech – audio and video recordings of agricultural operations – to keep controversy and suspect practices out of the public eye,” the opinion stated…

Seven states have similar measures – Kansas, North Dakota, Montana, Iowa, Utah, Missouri and North Carolina. Legal challenges are pending in Utah and North Carolina.

New York Law Journal: Second Circuit Sides With Albany Food Truck in Speech Restriction Suit

By Colby Hamilton

The panel of U.S. Circuit Judges Guido Calabresi and José Cabranes, with U.S. District Judge Carol Bagley Amon of the Eastern District of New York sitting by designation, applied the recently decided U.S. Supreme Court case Matal v. Tam, which found officials in the state Office of General Services committed viewpoint discrimination against the plaintiffs, who operated the “Wandering Dago” food truck…

“Although ethnic slurs are used to express a variety of opinions and obtain a variety of effects, under Matal the mere use of these potentially offensive words in the factual setting presented here reflects a viewpoint and cannot be framed by the government as a larger viewpoint-neutral category of speech content available to advance multiple viewpoints and therefore subject to less First Amendment protection,” the panel found…

The Second Circuit’s decision “fortifies” First Amendment commercial speech protections, according to Carpinello.

“Commercial speech has always been considered the poor cousin to political speech,” he said. “This case really fortifies the standards for commercial speech because in effect the Second Circuit’s decision doesn’t make much distinction between the two.”

The States

Brennan Center: States and Cities Took on Secret Election Spending in 2017

By Shyamala Ramakrishna

In late November, a bipartisan group of Idaho lawmakers drafted a bill that would require spenders in local and state races to reveal more layers of funding and make public disclosures more frequently…

In September, California significantly boosted its already-tough transparency laws by passing the California DISCLOSE Act…

In New Mexico, Secretary of State Maggie Toulouse Oliver pushed through stronger campaign finance disclosure rules that took effect in October…

In Washington, the state House of Representatives passed a proposed law in March to treat nonprofit groups that spend in elections as a type of political committee subject to the same transparency requirements…

In Arizona, some advocates are proposing a state constitutional amendment to require the disclosure of the “original source” of funds given to any group spending $10,000 or more to influence an election.

Spokane Inlander: Mayor David Condon vetoes campaign finance reform

Condon argues that the council’s ordinance would create a burden on the city’s bureaucracy, would push spending to less-accountable political action committees and could potentially run into legal problems…

In particular, Condon criticizes the ordinance for not being “evenly applied,” arguing that, by imposing campaign finance restrictions on city contractors but not on city unions, it would unconstitutionally restricted free speech rights of one group but not another.

“When you prohibit one versus another, it starts getting into a definite legal gray area,” Condon says.

But according to Stuckart, one of the reasons why they exempted unions from the restriction was because of concerns raised by the city’s own HR and legal departments.

“My original version was something [Condon] probably agreed with,” Stuckart noted wryly.

But ultimately, Condon says he fundamentally disagreed with the council president on key features of the ordinance. While the original bill passed with enough votes to override the mayor’s veto, Condon says he hopes it will spark discussion.