We’re Hiring!
Summer Associate Legal Fellowship
The Institute for Free Speech Summer Associate LegalFellowship is a unique opportunity for law students to explore a career in public interest and First Amendment law. The program is open to students who will finish their first or second year of law school by the summer of 2021.
Fellows are expected to work full time for 10 weeks in our Washington, D.C. area headquarters, but other arrangements may be available to especially outstanding candidates. In light of the ongoing pandemic, the possibility remains that fellows will work remotely for some or all of the summer fellowship.
Fellows are eligible to earn $10,000 in salary for their 10 weeks of employment.
During the fellowship, students will work with Institute for Free Speech attorneys for a portion of their time. Each fellow will also be expected to complete a project. Applicants are encouraged to be creative in suggesting a project as part of their application. While many projects may produce papers suitable for publication, we will consider any project related to protecting or advancing First Amendment rights.
[You can learn more about this role and apply for the position here.]
In the News
Stanford PACS: The Election Reform Agenda – Part 4: Campaign Finance
Webinar: February 9th, 2021 – 12:00 pm to 1:15 pm
What exactly is included in H.R. 1 and what are the arguments of its supporters and detractors? Join us for a deep dive into four components of this historic legislation. Each panel brings together advocates, critics, and academics to describe the specific reforms under consideration…
Session Moderators:
Nate Persily, Co-Director of the Program on Democracy and Internet at Stanford PACS and the Stanford-MIT Healthy Elections Project
Didi Kuo, Associate Director for Research, Center on Democracy, Development and Rule of Law at Stanford University
Speakers
- Bradley Smith – Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School
- Richard Pildes – Sudler Family Professor of Constitutional Law, New York University School of Law
- Meredith McGehee – Executive Director, Issue One
- Alex Kaplan – Vice President of Policy & Campaigns, RepresentUs
- Adav Noti – Senior Director of Trial Litigation & Chief of Staff, Campaign Legal Center
Donor Privacy
PPLI: Reviving the Nixon “Enemies List,” Using IRS Form 990, Schedule B
By Barnaby Zall
Following discussions with participants in the First Tuesday Lunch Group, a bipartisan discussion group of public policy practitioners, we have revised The Curious History of Schedule B legal analysis published last week into a new one, called “Revising the Nixon ‘Enemies List,’ Using IRS Form 990, Schedule B.” The new analysis is longer and more detailed, with additional discussion of how useful and effective Schedule B to Form 990 actually is. In particular, we have added specific looks at arguments already presented in court by the California Attorney General as justification for demanding that any charity that wishes to operate or raise funds in California reveal its donors…
To read or download the full analysis, click here:
Reviving the Nixon “Enemies List,” Using IRS Form 990, Schedule B
Congress
The Hill: Top Democrats urge Yellen to crack down on dark money groups
By Jonathan Easley
Top Democrats in the Senate are urging Treasury Secretary Janet Yellen to crack down on dark money spending in political campaigns.
Sens. Elizabeth Warren (D-Mass.) and Sheldon Whitehouse (D-R.I.) wrote a letter to Yellen on Wednesday arguing that it’s time for Treasury and the IRS to regulate and enforce laws around the explosion of campaign spending by nonprofit organizations formed as 501(c)(4) groups, which do not have to publicly disclose where their contributions came from…
Warren and Whitehouse are asking Yellen to address the explosion of spending first by working with the Justice Department to investigate whether dark money groups helped organize the Jan. 6 siege on the Capitol.
They’re asking Treasury to back California Attorney General Xavier Becerra (D) in a case that is expected to go to the Supreme Court, in which a group backed by billionaire conservative philanthropist Charles Koch is challenging a regulation in California that requires nonprofits to report donor information to the state.
And they’re calling on Yellen to enforce existing regulations under the 501(c)(4) code that they say have been flaunted by nonprofit groups in the decade since Citizens United.
Fulcrum: First HR 1 ad campaign focuses on keeping Democrats from purple districts in line
By David Hawkings
The uphill climb to enact HR 1…won’t begin for weeks. But advocates have already decided they need to buck up and provide cover to their most loyal congressional allies – Democrats in the House.
Good-government and progressive groups will start spending $1.3 million on Wednesday to press 18 lawmakers, all of whom just survived intense and expensive re-election challenges, to continue supporting the measure. They all voted for the bill when it first passed two years ago.
The advertising campaign is a clear signal that lobbying for the measure will be sustained and expansive, on the one hand, but also the freshest of several signs that the legislation’s prospects are very far from guaranteed.Although federal lawmaking is now entirely under the control of HR 1’s Democratic authors, the party’s narrow margin of control in the House is the smallest since World War II – just five seats. If Republicans remain unified against the bill, which seems very likely to be the case, passage will require 98 percent buy-in from the other side.
To boost those prospects, the groups are buying 30-second TV ads and 15-second digital spots designed to reach into districts in 14 states that look to be purple again in 2022…
The ads are being underwritten by the campaign finance reform group End Citizens United, the progressive democracy reform groups Public Citizen and Common Cause, the Communication Workers of America, and the pro-gun-control Brady PAC.
FCC
The Dispatch: A New Fairness Doctrine is an Old, Bad Idea
By Paul Matzko
Every few years since 1987, when the Federal Communications Commission repealed the Fairness Doctrine, a congressional Democrat garners headlines by proposing that we ought to bring it back to stymie conservative dominance of talk radio or cable news. Conservative broadcasters respond by pointing out the liberal bent in television or newsprint. Everyone has a satisfying galumph, gets bored, and nothing happens.
But that predictable pattern has been disrupted, in part because of social media. Since 2017, a growing number of Republicans have begun calling for Fairness Doctrine-style government regulation of the internet. At the same time, interest in internet regulation is peaking among progressive Democrats, who want to counter the misinformation that helped fuel the January 6 insurrection. Given that President Biden has himself expressed a desire to curtail Section 230 protections for online platforms, the odds of significant government regulation of the internet have not been this high since the 1990s.
Progressive support for such measures is to be expected-they’ve never met a system that a little technocratic tinkering couldn’t improve-but what is truly surprising is that self-described conservatives would support this kind of government intervention. That is because the last time the government attempted to regulate mass media to ensure fairness and ideological diversity, it resulted in one of the most successful episodes of censorship in U.S. history. And conservatives were the target.
The Courts
Metro News: Federal judge connects former superintendent’s retaliation to lobbyist’s free speech rights
By Brad McElhinny
With a federal lawsuit against former state schools Superintendent Steve Paine set for trial March 30, the judge has already determined Paine may well have violated the free speech of a lobbyist while complaining to a national standardized testing company.
The jury will still be asked to determine how lobbyist Jason Webb’s free speech rights were affected when Paine cited his state authority by repeatedly complaining to executives at ACT, which Webb was contracted to represent.
U.S. District Judge John Copenhaver ruled last week that Webb’s criticism of Paine and state education policies were protected – and that there was a direct line to Paine’s retaliation.
What remains for a jury to decide is whether the superintendent’s retaliation actually resulted in chilling Webb’s speech. Or, as the issue is stated in court, “that the defendant’s alleged retaliatory action adversely affected the plaintiff’s constitutionally-protected speech.”
Online Speech Platforms
Lawfare: The Wall Street Journal Misreads Section 230 and the First Amendment
By Berin Szóka and Ari Cohn
Ironically, [law professor Philip] Hamburger’s proposal would require the government take the side of those spreading hate and falsehoods online. Under his “narrow” interpretation of Section 230, the law would not protect the removal of Holocaust denial, use of racial epithets or the vast expanse of speech that-while constitutionally protected-isn’t anything Hamburger, or any decent person, would allow in his own living room…
Perversely, the law would favor certain kinds of content moderation decisions over others, protecting websites from lawsuits over removing pornography or profanity, but not from litigation over moderating false claims about election results or vaccines or conspiracy theories about, say, Jewish space lasers or Satanist pedophile cannibal cults. But if Hamburger’s argument is that Section 230 unconstitutionally encourages private actors to do what the government could not, how does favoring moderation of some types of constitutionally protected speech over others address this complaint? This solution makes sense only if the real criticism isn’t of the idea of content moderation, or its constitutionality, but rather that social media platforms aren’t moderating content according to the critic’s preferences.
Wall Street Journal: India Threatens Twitter With Penalties If It Doesn’t Block Accounts
By Rajesh Roy and Newley Purnell
India threatened to punish Twitter if it doesn’t comply with a government request to restore a block on accounts connected to tweets about farmers’ protests that the government says are inflammatory.
On Monday Twitter blocked more than 250 accounts from being seen within India following a government request after Indian officials said the tweets could incite violence. The officials singled out the hashtag #ModiPlanningFarmersGenocide, which some Twitter users have been using to bring attention to the government’s crackdown on protesters…
The blocking of the accounts on Monday, which included some respected news organizations and political activists, triggered an outcry on Twitter.
Twitter reversed the ban within 12 hours, saying the tweets in question should be allowed as part of free speech. The company said protecting public conversation and transparency was fundamental to its work.
When it explained the thinking behind the original ban on Monday, Twitter said it had received a formal request from an authorized entity in India, adding that it was sometimes necessary to withhold access to certain content in some countries.
Persuasion: The Insiders’ Game
By David Sacks
Some of us warned of a slippery slope when Parler was taken down and a sitting president was systematically ghosted from every online speech platform. But we could not have foreseen how slippery the slope would be, or how fast we would slide down it. We were told that the curbs on speech of President Trump and his supporters were necessary to prevent further “insurrection” and protect the peaceful transition of power. However, much like the troops and barricades that still ring the Capitol, these speech restrictions remain in place well after the transition of power has occurred. The censorship power is always justified in response to a genuine outrage or crisis, but it is rarely relinquished once the threat passes. Rather it gets weaponized to protect powerful, connected insiders, as the GameStop fiasco illustrates.
New York Times: Are Private Messaging Apps the Next Misinformation Hot Spot?
By Brian X. Chen and Kevin Roose
So in the world of extremists and conspiracy theorists that I follow, there’s been a kind of frantic mass migration from big platforms like Facebook, Twitter and YouTube, as those platforms crack down on misinformation and hate speech. A lot of the biggest figures in that world – including groups like the Proud Boys and QAnon conspiracy theorists – have moved onto more private platforms, where there’s less danger of getting deplatformed.
So there’s now this debate about whether it’s good that all these unsavory characters from the dregs of the internet are disappearing from big social platforms, or whether it’s dangerous to have them congregating in spaces where researchers, journalists and law enforcement can’t keep tabs on them as easily.
The States
National Review: DeSantis Proposes Fine for Tech Companies that Deplatform Political Candidates
By Zachary Evans
Florida governor Ron DeSantis proposed legislation to fine tech companies that deplatform political candidates in the state, at a press briefing on Tuesday evening…
“We’ve seen the power of” social media companies’ “censorship over individuals and organizations, including what I believe is clear viewpoint discrimination,” DeSantis told reporters on Tuesday. “Under our proposal, if a technology company de-platforms a candidate for elected office in Florida during the election, a company will face a daily fine of $100,000 until the candidate’s access to the platform is restored again.”
The bill is still being drafted, and will include a provision penalizing social media companies whose algorithms are perceived to favor one specific candidate over another, The Miami Herald reported. The legislation would also require a tech company that promotes one candidate over an opponent to record the value of that promotion as a campaign contribution, to be regulated by the Florida Elections Commission.
DeSantis went on to label social media companies as “monopoly communications platforms” that have become “enforcers of preferred narratives.”
“You don’t like Parler? Then don’t read it,” DeSantis told reporters. “Let’s not have those choices made for us, or before long we will have nothing more than someone else’s choices imposed upon us by a bunch of monopolies whose core business is to sell advertising.”
Laconia Daily Sun: Should NH close the “LLC loophole” in campaign finance law?
By Anna Brown, Citizens Count
Under current state law, each limited liability company (LLC) can make a campaign donation under the same limits as an individual. This follows the U.S. Supreme Court ruling that businesses have the same free speech rights as individuals when it comes to political donations.
However, in some cases it appears that individuals are using LLCs to make multiple maximum donations. HB 105 would close this so-called “LLC loophole.” The bill has a public hearing this Friday, February 5…
HB 105 would require that a political donation by an LLC be allocated to members when calculating the maximum political contribution allowed under law. The bill would require an LLC to submit a list of members, and the amount of the contribution attributed to each member, whenever making a political donation. A member’s share of the donation would count towards their campaign donation limit…
Opponents argue HB 105 would harm the privacy of members of LLCs and give the state a reputation as anti-business.
Several similar bills failed before HB 105: SB 156 (2019), HB 1368 (2018), and SB 115 (2017).
In his veto message for SB 156, Gov. Sununu wrote, “The bill would discourage the formation or maintenance of an LLC in New Hampshire because it would force the LLC to choose between maintaining the confidentiality of its members and their percentage of ownership and exercising the LLC’s right to make political speech.”
Chicago Tribune: Elgin eyeing ethics rule changes, including election donation ban for anyone doing business with the city
By Gloria Casas, Elgin Courier-News
The Elgin City Council is considering changes to its ethics ordinance that would prohibit anyone doing business with the city from making contributions to candidates or elected officials and ban elected officials from political activities, including lobbying.
Mayor Dave Kaptain introduced the idea of amending the existing ethics ordinance in February 2020 but after one council discussion, the issue was tabled until last week’s council meeting…
Under the donation proposal, anyone currently doing business with the city within the current year, planning to do business in the future or having done business in the previous year could not contribute money to a council candidate’s campaign fund.
However, there are other options that could be considered as well, City Attorney Bill Cogley said.
The council might prefer instead to put a limit on contributions or require city council members to disclose campaign contributions of more than $750 before voting on an agenda item involving a donor, similar to an ordinance recently passed by the Naperville City Council, Cogley said.
