We’re Hiring!
Senior Attorneys – Institute for Free Speech – Washington, DC or Virtual Office
The Institute for Free Speech is hiring three attorneys, including at least one Senior Attorney with at least 10 years of experience and two other experienced attorneys with at least four to six years of experience in an expansion of its litigation and legal advocacy capabilities.
This is a rare opportunity to work with a growing team to litigate a long-term legal strategy directed toward the protection of Constitutional rights. You would work to secure legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, threaten citizens’ privacy if they speak or join groups, and impose heavy burdens on organized political activity.
A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country. In addition to litigation or advocacy-related travel, a virtual candidate would be required to travel for quarterly week-long visits to IFS’s headquarters after the pandemic’s impact has receded.
[You can learn more about this role and apply for the position here.]
In the News
RealClearPolitics: House Dems’ Misguided Effort to Muzzle Conservative Media
By Bradley A. Smith
On Feb. 24, House Democrats will hold a hearing on “traditional media’s role in promoting disinformation and extremism.” This hearing is a dangerous threat to American democracy and goes entirely against what the Founders intended when they made a free press Americans’ guaranteed First Amendment right in the Constitution.
It’s also just the latest threat against free speech from the left, which has now mainstreamed a despotic desire to use government to cancel conservative speech. Just last week, New York Times columnist Nicholas Kristof called for Fox News to be on trial for supporting former President Donald Trump. This is the same Kristof who recently began calling for a War on Terror-style campaign against Trump supporters and “the ecosystem that produces them” — completely missing the key difference between the right to free speech and the lack of rights to commit political violence…
Freedom of expression is essential to a flourishing democracy, which is why I oppose unconstitutional limits on free speech. It’s why I supported the rights of liberal groups like the Brennan Center to oppose my nomination to the Federal Elections Commission 20 years ago even though they said things I felt were often unfair and sometimes untrue.
The Hill: House panel to dive into misinformation debate
By Thomas Moore
House lawmakers on Wednesday will examine the role misinformation on cable news played in the Jan. 6 insurrection in a hearing that will test the boundaries between congressional oversight, regulation and issues of censorship.
Representatives of Fox News have already complained about the premise, saying it “sets a terrible precedent” when members of Congress “highlight political speech they do not like.” Newsmax also decried the hearing as “an attack on free speech and basic First Amendment rights,” adding that the event “should send chills down the spines of all Americans.” …
Bradley Smith, founder and head of the conservative group the Institute For Free Speech and a former member of the Federal Election Commission, also called the hearings an attempt to control constitutionally protected speech.
“I’m appalled by this hearing,” Smith said. “I think it’s a rank use of power. McNerney and Eshoo are basically acting as censors and abusing their powers.” …
Both [journalist Glenn] Greenwald…and Smith argue that the hearings and the letter sent by McNerney and Eshoo may have already violated First Amendment protections by seemingly pressuring cable providers and others to drop Fox News, OANN or Newsmax.
“It has been priorly established that the government can’t indirectly do things that it can’t do directly, and that includes using private actors to do it,” Smith said.
Epoch Times: Democrats’ H.R. 1 Sets ‘Unconstitutional’ Limits on 1st Amendment: Free Speech Group
By Mark Tapscott
House Democrats’ massive voter registration and campaign procedure reform bill gives federal bureaucrats vast new power to control political speech, according to an analysis of the proposal by the Institute for Free Speech (IFS).
“All of the provisions we analyzed are bad ideas, some of them are plainly unconstitutional, and some of them it would be dubious whether they were constitutional,” IFS President David Keating told The Epoch Times on Feb. 22.
Keating was referring to H.R. 1, the “For the People Act of 2021,” the top priority legislation of Speaker of the House Nancy Pelosi (D-Calif.), which includes a wide range of reforms in how Americans register to vote and cast their ballots in federal elections, as well as who can participate and how in campaigns for president, Senate, and the House of Representatives…
“Buried in H.R. 1’s nearly 800 pages is a censor’s wish list of new burdens on speech and donor privacy. It proposes a democracy where civic engagement is punished and where fewer people have a voice in our government, our laws, and public life,” Eric Wang, the author of the study, said in a statement accompanying the release of the analysis. He is an IFS senior fellow and special counsel in the election law practice group at the Washington law firm of Wiley Rein, LLP.
Bloomberg Government: Election Overhaul Plan Secures Wide Backing of House Democrats
By Kenneth P. Doyle
Supporters of the bill (H.R. 1) announced Monday that all 221 House Democrats signed on to the nearly 800-page measure…
No plans have been announced yet in the Senate to move the chamber’s version (S. 1) of the Democratic-backed elections bill…
“It’s a huge uphill climb in the Senate,” said Meredith McGehee, executive director of the nonprofit Issue One, who’s worked to pass campaign finance legislation since the 1980s.
McGehee expects Senate Republicans to oppose the bill, even though it contains some provisions Republicans have endorsed. Lacking enough GOP support, McGehee said Democrats likely would need to eliminate the filibuster – with its 60-vote requirement to cut off debate – to pass their elections bill. But Democrats don’t have the votes to change filibuster rules, she said, noting at least two Senate Democrats, Kyrsten Sinema (Ariz.) and Joe Manchin(W.V.), have said they’re opposed to getting rid of it.
Republicans have spent years fighting a Democratic proposal to disclose sources of campaign money, known as the DISCLOSE Act, that’s a key element of the new legislation. Groups such as the nonprofit Institute for Free Speech have argued that more disclosure would “hinder grassroots political speech and activism, with little or no benefit to public accountability,” according to a letter to congressional leaders released by the group and signed by nine former GOP members of the Federal Election Commission.
The Courts
Miami Herald: Former congressman Rivera fined $456,000 for propping up a ringer candidate
By Alex Daugherty
A federal judge ruled Tuesday that former Miami Republican Rep. David Rivera violated campaign finance law when he funneled $75,927 in campaign money to a novice political candidate running against Rivera’s likely Democratic challenger in Florida’s 26th Congressional District – and ordered Rivera to pay a $456,000 fine for devising a scheme he knew was illegal.
In a scathing order, Judge Marcia Cooke said Rivera’s violations were knowing, willful and injured the public. She said Rivera has the money to pay the fine and also issued a permanent injunction to further prevent Rivera from breaking campaign finance law in the future since he continued to run for office after losing the 2012 race for Florida’s 26th Congressional District to Democrat Joe Garcia…
The judgment was the latest development in a four-year legal battle between Rivera and the Federal Election Commission, which began in 2017 after the FEC sued him over unreported money Rivera and Ana Alliegro, a GOP political consultant, used in 2012 to prop up straw candidate Justin Lamar Sternad against Garcia in the Democratic primary.
“The Commission sought a civil penalty of $456,000, which the district court granted,” the FEC wrote in a press release responding to the case.
Congress
Reason: Lawmakers to Cable Providers: Why Are You Letting News Channels Say These Things?
By Robby Soave
[T]wo Democratic members of Congress sent letters to the presidents of Comcast, AT&T, Verizon, Cox, Dish, and other cable and satellite companies implying that they should either stop carrying Fox News, One America News Network, and Newsmax or pressure them to change their coverage. According to the lawmakers, these conservative channels are responsible for promoting misinformation and political violence…
As the words “misinformation” and “disinformation” come to refer not to just clear falsehoods but to information that is contentious, disputed, or highly partisan but nevertheless true, it is important to reject the idea that there is a “fake news” exception to the First Amendment. If a statement is libelous, then an outlet can be sued for printing it. If it contains a call to violence, platforms may have some legal responsibility to take action against it. But the First Amendment’s protections are extremely robust, and the government may not criminalize the dissemination of information that is merely wrong or uninformed. Such a move would imperil not just right-wing news channels, but all speech that criticizes the government.
Fox News: Cuccinelli to lead initiative to take on Democrats’ sweeping HR 1 election bill
By Morgan Phillips
In his post-Trump administration days, Ken Cucinelli is taking on an initiative to both restore confidence in election systems and drum up opposition to Democrats’ wide-ranging HR 1 election bill…
Cucinelli, former deputy secretary of homeland security, is partnering with Susan B. Anthony List and American Principles Project in the campaign and will chair the Election Transparency Initiative. The effort, led by social conservatives, has a starting war chest of $5 million.
Cucinelli said his goal was to “act quickly to defeat the efforts of Democrats in Washington to federalize election laws through H.R.1, while simultaneously going on offense at the state level to rally the grassroots around meaningful reforms.
“The pro-life movement must engage in election transparency and integrity reform, or their ability to elect pro-life, pro-family lawmakers – and pass laws that save lives – will be greatly diminished, if not extinguished,” the former Trump official and former Virginia attorney general said.
The group plans to mount a defense of the Senate filibuster and current Senate rules of the reconciliation process and to mobilize the grassroots in battlegrounds such as West Virginia, Arizona and Montana, to convince those senators to oppose HR 1. The initiative will also push for state-based election reforms.
Wiley’s Political Law Podcast: H.R. 1 – Digital Ad Regulation and Foreign National Prohibitions
By Eric Wang and Joan Stewart
This is the second episode in a series of podcasts on H.R. 1, a bill that has been introduced in Congress that will affect campaign finance, lobbying, ethics, and voting laws. In this episode, Election Law Special Counsel Eric Wang and TMT Of Counsel Joan Stewart discuss how the H.R. 1 provisions will affect the regulation of digital political ads (both campaign and issue ads); how the bill will affect sellers and purchasers of ads; and how the bill will make advertising platforms and media companies responsible for preventing foreign nationals from purchasing political ads.
SEC
Washington Post: Activist shareholders pressing companies to disclose more of their political activity after Capitol attack
By Tory Newmyer
A day after JPMorgan Chase announced it would freeze its political contributions in the wake of the Jan. 6 attack on the U.S. Capitol, the nation’s largest bank made an unpublicized move indicating it may not be eager to overhaul how it does business in Washington.
The company wrote the Securities and Exchange Commission asking the agency to block activist investors from forcing the bank to provide a fuller accounting of its political spending. Specifically, the shareholders, organized by social impact investment firm Rhia Ventures, want JPMorgan to report on how its campaign giving squares with its stated commitment to a lofty set of values.
The investors say the mob attack highlights the urgency of their cause…
JPMorgan, in its letter to the SEC, argued the company already sufficiently explains its political advocacy, including through an annual report listing its contributions to state and federal candidates and its trade group memberships…
The SEC will decide in the weeks ahead whether to allow the activist investors to put the matter to a vote at JPMorgan’s annual shareholder meeting later this year. Last week, the agency approved a similar resolution targeting Pfizer.
“This is a moment of truth for companies,” said Bruce Freed, president of the nonprofit Center for Political Accountability, which scores companies on how transparent they are about political giving. “Is there going to be a change in their accountability policies?”
Online Speech Platforms
By Mike Masnick
Two separate stories from Southeast Asia help demonstrate why intermediary liability protections like Section 230 are so important for free speech online (and why it’s positively ridiculous that some have argued that 230 is an attack on free speech). The first is an article about a court case in Malaysia, in which a small independent media site has been fined an astounding amount: $124,000 over five reader comments that a court said violated the law. Notably, the website in question, Malaysiakini, had removed those comments relatively quickly. But the court said that the removals weren’t fast enough…
In their verdict, the judges concluded that Malaysiakini should have vetted the comments and refrained from posting those that constituted contempt of court.
The site argued — quite reasonably — that it shouldn’t be held liable for user comments, but the court rejected that argument…
The article goes on to note what a massive chilling effect this will have for speech in Malaysia, where most media organizations are propaganda operations for the government. Malaysiakini is one of a group of small independent sites that have been known to challenge the government.
The States
Missouri Times: Missouri Legislature considers social media censorship bills following national trend
By Cameron Gerber
Missouri is joining states across the country in considering legislative measures to prevent social media companies from censoring users.
HB 482 from Rep. Jeff Coleman would establish the “Stop Social Media Censorship Act.” The bill would prohibit social media platforms with at least 75 million users from censoring political or religious content and allow injured parties to seek up to $75,000 in statutory damages unless the speech is found to be obscene, from a false impersonation, or enticing violence.
Coleman presented his bill before the House General Laws Committee during a marathon hearing Monday evening, the first of three pieces on the same subject. Coleman said his bill would allow Missourians to contest what he considered to be a breach of contract from juggernauts like Facebook and Twitter…
“Aside from legislation like this making social media websites completely unusable, they’re blatantly unconstitutional under the First Amendment,” Shoshana Weissmann, a fellow at the R Street Institute in Washington, D.C., told The Missouri Times. “Just as there is no ‘hate speech’ exception to the First Amendment, which applies to government actions, the government also cannot mandate ‘hate speech’ – or any speech in particular – remaining on the platforms created by private companies. The proposal is chilling, bizarre, and unconstitutional.”
Ballotpedia News: South Dakota lawmakers advance bills limiting disclosure of nonprofit donor information
By Jerrick Adams
Last week, South Dakota state lawmakers advanced two separate bills limiting the disclosure of identifying information about donors to nonprofits: HB1079 and SB103.
HB1079 would prohibit any executive branch entity (e.g., the governor, the secretary of state, etc.) from requiring “any annual filing or reporting of a nonprofit corporation or charitable trust that is more stringent, restrictive, or expansive than that required by state or federal law.” The legislation would not apply to information required “to determine eligibility for or compliance with a state grant or contract.” The bill also exempts information required for, or obtained during a state fraud investigation or enforcement action.
SB103 would bar any public agency (including state and municipal government units and courts) from:
-Requiring a tax-exempt nonprofit to provide a public agency with “personal affiliation information,” which is defined as “any list, record, register, registry, roll, roster, or other compilation of any kind that directly or indirectly identifies a natural person as a member, supporter, volunteer, or donor of financial or nonfinancial support to any nonprofit corporation.”
-Publicly disclosing any such information a public agency might possess.
-Requiring a current or prospective contractor to provide a public agency with a list of the nonprofits “to which it has provided financial or nonfinancial support.”
Boston Globe: Commission calls for allowing campaign funds to be spent on child care
By Stephanie Ebbert
A legislative commission is recommending that political candidates be allowed to spend campaign funds on child-care expenses while they’re running for office, a move supporters say would make it easier for more parents to participate in politics.
In a report to the Legislature, the Special Commission on Family Care and Child Care Services concluded that child care is an appropriate campaign expenditure when it’s the “direct result of the candidate’s campaign activities.” Legislation filed this month in the House and Senate would allow that expense for the first time.
Candidates in 13 states already can spend political contributions on child-care costs, the report stated. Congressional candidates have done the same since 2018, when the Federal Election Commission advised a New York candidate she could use donations on child care while on the campaign trail.
