In the News
Center for Individual Freedom: Russian Indictments and Americans’ First Amendment Political Speech Rights
Bradley A. Smith, Chairman and Founder of the Institute for Free Speech, discusses the Mueller indictments, campaign finance laws, and proposals to respond to foreign interference with broad-based restrictions on American online issue speech.
The Courts
KTAR Phoenix News: Arizona State University violated students’ free speech, lawsuit claims
Arizona State University, the Arizona Board of Regents and Arizona Attorney General are the subjects of a federal lawsuit filed on behalf of American Muslims for Palestine and its founder, Hatem Bazian. The lawsuit was filed in the U.S. District Court of Arizona on March 1 by the Council on American-Islamic Relations…
Arizona passed a statute in 2016 that bars the state from “entering into government contracts with companies or persons who engage in or advocate for economic boycotts of Israel.” This act also forced the university to amend its standard outside speaker contract to contain a “No Boycott of Israel” clause.
The lawsuit claimed that American Muslims for Palestine and Bazian could not agree to that clause, therefore they were “barred” from presenting at the campus event “solely because they engage in and advocate for economic boycotts of Israel as a means to promote Palestinians’ human rights.”
The lawsuit argued that the state statute and university clause are “facially unconstitutional under the First Amendment and cannot be enforced against anyone by the Arizona attorney general.”
Both the statute and clause “constitute viewpoint discrimination because they only bar speech and expression against Israel, and not speech or expression in favor of Israel or against Palestine,” the lawsuit argued.
Courthouse News: N.M. Campaign Funding Settlement Hashed Out
By Victoria Prieskop
In 2016, Pearce asked New Mexico’s then-Secretary of State Brad Winter if a federal officeholder could transfer funds from a federal to a state campaign.
Winter, also Republican, told Pearce he could because a state law restricting contributions to a state election campaign was found unconstitutional in federal court.
In that case, New Mexicans for Bill Richardson v. Gonzales, Richardson sued the secretary of state for the right to use his federal campaign funds in his run for governor. The court ruled for Richardson on First Amendment grounds in 1996…
But Pearce received a different opinion from Winter’s successor, Maggie Toulouse Oliver, in a letter from Deputy Secretary John Blair…
In response, Pearce sued Oliver, Attorney General Hector Balderas Jr., and Fifth Judicial District Attorney Dianna Luce, saying that the money should not be treated as one routine contribution, but as a state candidate rolling over his funds from one election cycle to the next.
U.S. District Judge Judith C. Herrera sided with Pearce in November last year. Last week Pearce and the state officials filed a proposed settlement that would allow people holding federal office to use old donations to run for state office, provided that the contributions were no bigger than allowed under New Mexico law, so long as the donations were reported to the Federal Election Commission.
Free Speech
Richmond Times-Dispatch: Shut up, they explained (again)
By A. Barton Hinkle
Many progressives have long believed America would be a much better place without the Second Amendment. These days, some of them seem to think we’d also be better off without the First.
That might sound like an exaggeration. But it’s hard to square the First Amendment with a recent proposal in The New Republic: “Ban Facebook Before Elections.” And yes, the headline accurately represents the text…
Perhaps The New Republic should be forced into silence before an election as well – along with the rest of the media. After all, letting some American citizens, but not others, speak their mind before an election is not exactly equal protection of the laws.
But then, many in the media really do think First Amendment law should be unequal. That was precisely the case before the Supreme Court’s decision in Citizens United, when campaign-finance law carved out an exception for media corporations so they could speak freely about politics when others could not. Huge numbers of progressives, and many media outlets, feel the decision allowing unions and non-media corporations to speak freely about politics was very, very wrong.
By Robby Soave
Student-activists at Lewis and Clark College in Portland, Oregon, made good on their threat to disrupt a Christina Hoff Sommers event at the Law School yesterday afternoon.
Sign-wielding protesters rushed to the front of the classroom where Sommers was attempting to speak and drowned her out…
“The chaos inside the lecture hall at Lewis & Clark Law School was only part of the problem,” wrote Sommers on Twitter. “Protesters outside were chanting loudly… most of the students, conservatives & progressives, were civil. A noisy minority was willing to impose its will on everyone else.”
This seems to be true in most campus censorship incidents I’ve covered. Many students want to listen to the speaker and ask questions at the appropriate time. A small cabal of illiberal activists are resolutely opposed to any speech that offends them, on grounds that said speech is itself a form of violence against marginalized people.
Reason: Meet Speech First, a New Combatant in the Campus Free Speech Wars
By Robby Soave
A brand new legal organization has joined the fight to defend free expression on college campuses…
Its president is Nicole Neily, a former executive director of the Independent Women’s Forum and manager of external relations for the Cato Institute.
“When students’ speech rights on campus are violated, it’s tough to fight back,” Neily said in a statement. “A lone student doesn’t stand a chance against a school with a huge endowment and an army of lawyers. It’s a real David versus Goliath situation. That’s why Speech First was created.”
Speech First is a membership organization for students, faculty, parents, alumni, and concerned citizens. Members pay a one-time $5 fee, which connects them to a network of people “who are fighting to preserve the freedom of speech on college campuses, according to the organization’s website.
In the future, the group will be filing lawsuits in defense of students’ First Amendment on specific campuses, in the same vein as the work being done by the Foundation for Individual Rights in Education and the Alliance Defending Freedom. There are certainly enough free speech violations on campuses each year to justify the existence of multiple legal defense groups concentrated on the issue. And as a membership organization, Speech First is structured slightly differently than those other organizations, Neily tells me.
FEC
The Hill: With 2018 midterms approaching, our elections are not protected
By Trevor Potter
The FEC has done nothing to address the tremendous and fundamental changes to our campaign system in recent years, from the rise of super PACs to new threats posed by untraceable money in online ads. The FEC has completely abdicated its responsibility to police super PACs and dark money groups like 501(c)(4)s, refusing to enforce current rules or put in place new rules to regulate their conduct…
The Campaign Legal Center, the nonpartisan election watchdog organization where I am president, filed 13 complaints in 2016, all unresolved because the FEC is slow and often mired in gridlock…
But there is now a chance to fix the FEC. Two of the agency’s six commissioner positions are vacant, and the four remaining commissioners – some of whom have opposed almost all regulation and are responsible for gridlocking the agency – are serving on expired terms. In other words, all six commissioner positions can now be filled with new appointees.
The responsibility for fixing the FEC therefore falls on President Trump and the Senate. They can make the FEC a functioning agency again by appointing commissioners who take seriously their responsibilities to American voters and who believe in transparency and accountability. Led by such commissioners, the FEC could uphold the integrity of elections as it did, albeit imperfectly, when I worked there.
The Media
Wall Street Journal: A New Business Takes On Fake News
By L. Gordon Crovitz
Before the internet, displays of newspapers and magazines featured well-known brands. No one mistook the National Enquirer for the Philadelphia Inquirer. The internet often feels like a mass of pages ripped out of publications and scattered randomly on the floor…
This is why Steve Brill and I are launching NewsGuard. Instead of black-box algorithms, NewsGuard will use human beings to rate news brands Green, Yellow or Red depending on whether they are trying to produce real journalism, fail to disclose their interests, or are intentional purveyors of fake news. Our team of journalistically trained analysts will also create “nutrition label” write-ups reporting key facts about each brand. The nutrition labels will profile the 7,500 news brands that account for 98% of online news engagement in the U.S., with overseas markets to follow. We will be transparent about our criteria and processes, and invite readers and publishers to contribute. Our evaluations will reflect the wisdom of both experts and the crowd.
Our nutrition labels will describe publishing missions, history, and the political and other viewpoints expressed by sites so that readers can make their own judgments. We’ll release our first set of ratings and nutrition labels before November’s U.S. midterm elections.
Trump Administration
Wall Street Journal: Kellyanne Conway Violated Law on Political Expression, Investigators Say
By Julie Bykowicz
“While the Hatch Act allows federal employees to express their views about candidates and political issues as private citizens, it restricts employees from using their official government positions for partisan political purposes, including by trying to influence partisan elections,” the report said…
In a Nov. 20 interview on Fox News, Ms. Conway said of Mr. Jones: “He’ll be a vote against tax cuts. He’s weak on crime, weak on borders. He’s strong on raising your taxes. He’s terrible for property owners. And Doug Jones is a doctrinaire liberal which is why he’s not saying anything and the media are trying to boost him.”
When the host asked Ms. Conway, “So vote Roy Moore?”, she said: “I’m telling you that we want the votes in the Senate to get this tax bill through.”
The Office of Special Counsel said this interview amounted to advocating against Mr. Jones and an “implied endorsement” of Mr. Moore. In a later CNN interview, on Dec. 6, Ms. Conway “advocated for the defeat of one Senate candidate and the election of another candidate,” the report said.
The OSC began its investigation after the Campaign Legal Center, a nonpartisan Washington group that has been critical of the Trump administration’s approach to ethics, filed complaints about the TV appearances.
Independent Groups
By Christina Wilkie
America First Policies, a nonprofit group with close ties to President Donald Trump, has hired Trump’s pollsters to conduct a wide range of political polling and research that experts say resembles the kind of expensive work the Republican National Committee has performed for prior GOP administrations.
Such a practice breaks with decades of tradition and raises concerns about potential coordination between the pro-Trump dark money group, the White House and the RNC. America First Policies and the RNC have denied coordinating. The White House did not respond to multiple requests for comment…
Much of what the group polls and surveys would be standard work for a presidential campaign or a major political party. But America First Policies, which was founded days after Trump’s inauguration, is not a campaign or a party. It’s what the IRS calls a “social welfare organization,” permitted to operate tax-free and keep its donors secret as long as its main focus isn’t politics and it doesn’t coordinate with candidates.
Candidates and Campaigns
Wall Street Journal: Lock Her Up! Lock Him Up! They Could Lock You Up
By Mike Chase
Millions of Americans can’t wait to find out what crime will finally bring down Donald Trump, Hillary Clinton and a host of other unpopular political figures…
The calls for prosecution have grown ever more obscure and dangerous. Didn’t Sarah Huckabee Sanders commit a crime when she said Jemele Hill’s tweets about Trump were a “fireable offense”? Shouldn’t Barack Obama be charged under the Logan Act for meeting with Chinese President Xi Jinping after Mr. Trump took office? After all, each offense has its own “§” in Title 18 of the U.S. Code. Dusting off those statutes and using them might even feel good.
But does that feeling come from a sincere desire for justice, or is it something else? And what if you are the criminal?
In fact, you probably are. There are thousands of federal statutes and hundreds of thousands of regulations with criminal penalties. The Justice Department tried to count them but gave up. Many require no evil intent…
All this makes for good TV. It may make for excellent TV if the president or more people close to him are indicted. But I fear Americans are growing used to cheering criminal sanctions as an expedient tool for dispatching political enemies. Instead they should embrace criminal law’s appropriate use: a last resort for punishing real, harmful wrongs.
The States
Portland Mercury: A Judge Has Ruled Multnomah County’s New Campaign Finance Rules Unconstitutional. That Was Sort of the Plan.
By Dirk VanderHart
In an 11-page ruling Multnomah County Circuit Judge Eric Bloch ruled that provisions limiting how much could be donated to candidates for county office, how much could be spent independently to help county candidates, and strict new disclosure rules all violated the Oregon Constitution’s protections on free speech.
“Political contributions which are the subject of the Petitioner’s charter and ordinance are a form of highly-valued expression that falls squarely within, and are not historically excepted from, the protections of Article I, Section 8 of the Oregon Constitution,” Bloch’s decision says at one point…
Elections activists who’d pushed the finance reforms made no secret of their goal to see the law challenged all the way up to the Oregon Supreme Court. In proponents’ minds, the law was a vehicle to change a broad 1997 Supreme Court ruling that has made regulating campaign contributions largely impossible in Oregon.
Still, Dan Meek, who represented a number of Multnomah County citizens in defending the regulations in court, called the ruling “bad news.”
“The circuit judge could certainly have ruled in our favor,” Meek tells the Mercury. “Then it would have been up to the opponents to appeal this.” Instead, he says, his clients will appeal Bloch’s decision. He expects Multnomah County’s attorneys to follow suit.
Washington Post: Charity backs probe into ‘misuse’ of resources by Greitens
By David A. Lieb, AP
A veterans’ charity founded by Missouri Gov. Eric Greitens says it will support an attorney general’s inquiry into “the misuse of our resources by the Greitens campaign,” following reports that the Republican governor used the charity’s donor list and email account as he launched his political career.
The president of The Mission Continues posted a statement online Tuesday assuring supporters that the charity did not authorize Greitens’ campaign to use its donor list. A similar statement was emailed Monday evening to supporters.
The Missouri attorney general’s office confirmed last week that it has an open inquiry into The Mission Continues under the state’s consumer protection and charitable reporting laws.
Federal tax law prohibits charities such as The Mission Continues from being involved in political campaigns on behalf of candidates, with penalties ranging up to the loss of their tax-exempt status. The legal consequences for individual charity directors are less clear.
