In the News

Liberal Currents: Is Freedom of Speech Obsolete in the “Disinformation” Era?

By Owen Yeates

Is freedom of speech an unquestioned creed, adhered to despite its dangers, or is it a principle that has prevailed by proving its value to the individual and community? Critics like Emily Bazelon assert that freedom of speech is an unproven value, based in “an article of faith . . . that more speech is better.” She contends that recent experience shows not only that truth does not always triumph, but also that speech must be controlled to protect the vulnerable.

This is hardly a novel challenge. The belief that the government must control speech to protect the community is one of the oldest arguments against free speech. When John Cotton defended fellow 17th century Puritans’ actions against dissenters, he argued that they were stopping the spread of harmful ideas in the Bay Colony. And, as Andrew Murphy has pointed out, the Puritan leaders were “deeply concerned about social order and” threats to “their communities’ basic survival.” 

This conflict between concern for one’s community and the freedom to share ideas that might harm it is perennial. The antebellum South sought to suppress abolitionist literature that white Southerners thought would incite slave rebellions. After both world wars, the U.S. feared that communist thought was infiltrating American institutions and culture. And today, politicians and tech platforms push to limit speech that they believe spreads hate or misinformation. 

ICYMI

A Threshold for Violating Your Rights Still Violates Your Rights

By Alex Baiocco

Supporters of H.R. 1, called S. 1 in the Senate, have consistently told the American people that the bill does not restrict speech. Yet the chief proponent of the bill’s nonprofit donor exposure provisions in Congress, Senator Sheldon Whitehouse, predicts (beginning at 10:10) that two-thirds of spending on communications affected by those provisions “goes away” if the bill becomes law. After the bill narrowly passed the House with bipartisan opposition, Speaker Nancy Pelosi celebrated that she and her allies have a better chance of passing their pet policies if certain speakers are “not weighing in,” in a direct reference to the silencing effect of the bill’s disclosure provisions. Put another way, less speech will enter the public square as a direct result of H.R. 1, and those supporting the bill know it.

According to the bill’s backers in Congress, the suggestion that H.R. 1 would violate First Amendment rights is a “myth” because “disclosure requirements only apply to groups that spend $10,000 or more on campaign disbursements” and because the federal government will only collect and publicly expose the names and addresses of Americans giving $10,000 or more to such groups. First, characterizing the broad categories of speech that would trigger donor disclosure under the bill as “campaign disbursements” or “election spending” is incredibly misleading. Speech about legislation would trigger the requirements if federal regulators decide the communication could be perceived as promoting or criticizing an elected official. Speech about unelected judicial nominees would also trigger the requirements. Second, a $10,000 threshold by no means negates any First Amendment harms.

Supreme Court

Philanthropy Roundtable: Five Takeaways: Supreme Court Hears Donor Privacy Case AFPF v. Bonta

By Elizabeth McGuigan

This week the U.S. Supreme Court heard oral argument in the case Americans for Prosperity Foundation v. Bonta (formerly AFPF v. Becerra). The Roundtable has closely followed this case since AFPF’s complaint against California’s then-state Attorney General Kamala Harris for demanding that nonprofit organizations file their confidential IRS Schedule B forms, including the names of major donors, with the state.

Previously, the Philanthropy Roundtable had submitted two amicus briefs, the most recent of which was cited by AFPF in its February 22, 2021, brief. The value of all the amici’s briefs, including the Roundtable’s, was clear yesterday as several justices referred to the broad range and large number of groups who filed amicus briefs as evidence that the regulation will have significant impact on the philanthropic and nonprofit sectors.

AFPF’s arguments appeared to resonate with the justices. Below are five key takeaways:

SCOTUSblog: Justices ponder narrow ruling in student speech case

By Amy Howe

The Supreme Court on Wednesday appeared conflicted over a school district’s plea to be allowed to discipline students for their speech outside of school. Some justices expressed concern about whether allowing schools to regulate off-campus speech could sweep in too much speech by young people, while others worried that – particularly in the internet era – a contrary rule would give too little weight to the harmful effects that some speech, such as cyberbullying, can have at school even when it happens off campus. After nearly two hours of oral argument, the landmark First Amendment ruling that many had expected seemed much less certain, particularly in light of widespread skepticism among the justices about whether the student at the heart of the case should have been disciplined at all.

Congress

CNN: Read Republican Sen. Tim Scott’s response to Biden’s address to Congress

South Carolina Sen. Tim Scott delivered the Republican response to President Joe Biden’s address to Congress Wednesday night. Read his remarks as prepared for delivery:

…

“Fact-checkers have called out the White House for misstatements. The President absurdly claims this [Georgia law] is worse than Jim Crow. What is going on here?

I’ll tell you. A Washington power grab.

This misplaced outrage is supposed to justify Democrats’ sweeping bill that would take over elections for all 50 states; send public funds to political campaigns you disagree with; and make the bipartisan Federal Elections Commission… partisan!

This is not about civil rights or our racial past. It’s about rigging elections in the future.”

Wall Street Journal: Sheldon Whitehouse Is No Friend of the Courts

By David B. Rivkin Jr. and Andrew M. Grossman

The “Trump judiciary” is corrupt, Sen. Sheldon Whitehouse claims, and the remedy is to scrutinize parties presenting legal arguments in friend-of-the-court, or amicus, briefs. The proposal wouldn’t make the courts any cleaner, but it would violate the First Amendment. It is also part and parcel of the broader Democrat-driven effort to politicize and intimidate the judiciary…

Where others see public-spirited legal advocacy, Mr. Whitehouse sees a plot…

The senator has introduced legislation, the Assessing Monetary Influence in the Courts of the United States Act, that would require any organization filing three or more amicus briefs a year to register with the government and disclose the identities of those who worked on the brief and of its significant donors, even those who didn’t seek to fund any particular brief. In February Mr. Whitehouse wrote a letter to the Judicial Conference Committee on Rules of Practice and Procedure, urging it to adopt the same approach through court rules…

The endgame, per the senator, is to dry up support for what he regards as “unpopular and self-serving positions.” The First Amendment exists precisely to protect the right to take unpopular positions.

RealClearPolitics: Create More Competitive Districts to Limit Extremism

By Richard H. Pildes

Indeed, sophisticated new work in political science is already starting to undercut the view of those analysts who doubt that safe seats foster extremism. Rather than treat roll-call voting on all issues as the same, Professors Brandice Canes-Wrone and Kenneth Miller focus on only the most significant bills a given Congress votes on, which in their study range from two to six bills a year. On these bills, they find that members in safe seats respond far more to their most polarized donors than do members in competitive districts…

More specifically, Canes-Wrone and Miller find, first, that national donors are much more polarized than donors from within a member’s district. They then find that when seats are competitive, representatives respond much more to the preferences of their constituents, but that when seats are safe, representatives are more responsive to the preferences of this highly polarized national donor class. In other words, in safe seats, members can defect more from their district’s preferences and endorse the more extreme positions of their national donors. This is not surprising: If you’re going to win a safe seat with 75% of the vote, you have a lot of slack to satisfy your national donors with positions that your constituents don’t support, even if your victory margin winds up dropping by 10 points next time…This is why I have also argued that to reduce extremism, a public financing system that provides $6 for every $1 a candidate raises from small donors – another aspect of H.R. 1 – should limit those matching funds to small donors from within a member’s district.

Free Speech

Axios: Exclusive: Coalition calls on Biden to form disinformation task force

By Ina Fried

A coalition of groups is calling on President Biden to create a task force that can explore ways to crack down on deliberate disinformation campaigns in ways that don’t unduly limit free expression.

The spread of false information around elections, health, climate and other pivotal issues has had a huge impact on American institutions, but civil liberties groups say it is critical to find solutions that maintain free speech protections.

• “The prevalence of deceptions, propaganda, and conspiracy theories related to the 2020 election, COVID-19, and the recent Capitol insurrection illustrates the clear and present threat that disinformation poses to our democracy and national security,” the group says in a letter to Biden being sent today and provided first to Axios.
• “However, we are equally mindful that solutions adopted in moments of crisis can themselves pose significant dangers to our fundamental freedoms.

Signatories of the letter include Writers group’ Pen America, Voto Latino, Common Cause, the Center for Democracy and Technology, Access Now, SimplySecure, the Electronic Frontier Foundation, the Center for American Progress, and Free Press.

As the groups note in the letter, policymakers have to thread a fine needle in trying to reduce misinformation while protecting free speech.

• “We know that fighting disinformation also means remaining vigilant against censorship and other threats to free expression,” said Matt Bailey, director of Pen America’s Digital Freedom Program. “We also know that disinformation itself is a profound threat to free speech, because it prevents the robust exchange of ideas and sows distrust and polarization.”

Read the letter in full, below:

PACs

Insider: Google’s political committee quits its effort to recoup stolen money

By Dave Levinthal

Google boasts of possessing the “world’s most advanced security infrastructures.”

But the company’s political action committee could use some more of it.

The Google LLC NetPAC told federal regulators that it’s effectively ending efforts to recover the money it reported stolen in December.

The money — about $2,500 — disappeared because of “fraudulent activity” by an “unknown, unauthorized, external party” who “cashed three counterfeit checks from the committee’s Wells Fargo Bank account,” Seth Webb, the assistant PAC treasurer, told the Federal Election Commission.

An investigation by Wells Fargo proved fruitless, Webb wrote on Friday to the FEC.

“The fraud case has now been closed by the bank,” Webb said.

Google’s PAC is among dozens of political committees that together lost at least $2.7 million to thieves during the 2020 election, an Insider analysis of federal campaign-finance records showed.

Candidates and Campaigns

Washington Post: You’re not supposed to say that out loud, Ted Cruz

By Philip Bump

[I] am not used to elected officials suggesting there is a direct line from contributions to policy.

In an essay for the Wall Street Journal, Sen. Ted Cruz (R-Tex.) got about as close to that as you’ll see…

“Corporations that flagrantly misrepresent efforts to protect our elections need to be called out, singled out and cut off,” Cruz wrote. “In my nine years in the Senate, I’ve received $2.6 million in contributions from corporate political-action committees. Starting today, I no longer accept money from any corporate PAC. I urge my GOP colleagues at all levels to do the same.”

Think about this line for a second. Normally speaking, if you tell someone you won’t take their money, how do they respond? Are they mad at you? Or are they more likely to say, oh, cool. Cruz is suggesting that by accepting the corporations’ money, he’s doing them a favor — a favor that will now come to an end.

If perhaps you missed that subtle point, Cruz went on to make it unsubtle.

“When the time comes that you need help with a tax break or a regulatory change, I hope the Democrats take your calls, because we may not,” Cruz said. “Starting today, we won’t take your money either.”

A senator is not only suggesting that he may ice out an affected constituency when developing policy, but also that he understands that both access and contributions can be used as leverage against them. It’s like the guy who runs the sausage factory taking out an ad on television to ensure everyone knows the manufacturing process.

The States

The Detroit News: New filing claims Senate Leader Mike Shirkey is at center of Unlock Michigan effort

By Craig Mauger

A filing Thursday from a Democratic attorney contends that Senate Majority Leader Mike Shirkey has quietly been at the center of the Unlock Michigan campaign to repeal a law that underpinned Gov. Gretchen Whitmer’s initial COVID-19 response.

Shirkey, R-Clarklake, has used Unlock Michigan “to achieve his political goal of repealing that law, a plan executed by his agents under his direction and control and funded with his dark money,” wrote Democratic attorney Mark Brewer in asking the Secretary of State’s office to reconsider a campaign finance complaint involving the committee…

Brewer, the former chairman of the Michigan Democratic Party, submitted a request for reconsideration on behalf of Bob LaBrant, ex-counsel of the Michigan Chamber of Commerce.

LaBrant has argued the donors of Michigan Citizens for Fiscal Responsibility, a nonprofit group that provided about $1.9 million in funding for Unlock Michigan through a series of contributions, should have to file its own fundraising disclosures under state law.

“What Bob argues is that if any nonprofit organization wants to support an initiative, they have to throw away any sort of good governance and go absolutely all-in, or just stay out,” Wszolek said. “If they provide support in multiple installments, Bob has designed this presumption that they are behaving illegally.”

He added, “It’s simply nuts to say that this model of giving automatically presumes illegal behavior …”

Earlier this month, the Bureau of Elections found that the timing of the contributions to Unlock Michigan wasn’t enough to require disclosures.

The Oregonian: Big political donors get big say in Oregon political money limits

By Hillary Borrud

Now that campaign donation limits are legal in Oregon, the specifics that lawmakers are negotiating in private would set much higher limits than voters have approved and allow the broadest possible array of entities to continue pouring big money into state politics.

While the general public can’t attend those meetings, big political donors have been allowed in, according to lawmakers and donors’ testimony referencing the private proposals.

Lawmakers’ interest in capping political money was never particularly high this session — no Democratic leaders listed it as a priority — and now appears to be withering.

“Every year I feel like we get closer and so I’m optimistic that maybe this is the year,” said Rep. Dan Rayfield, D-Corvallis, chief sponsor of the proposal under negotiation, in a hearing last month, the last time such plans have been discussed in public…

Rayfield’s proposal, House Bill 2680, is the bill most actively being discussed. In addition to contribution limits, it would do two other things: create a public donation matching program and repeal the low contribution limits Oregon voters approved in 2006.

Missoulian: Legislature approves campaign finance exemption for religious groups

By Sam Wilson

It took several tries, but Republican lawmakers on the final day of the legislative session passed a bill exempting religious organizations from some of the campaign reporting requirements for political communications.

Senate Bill 689, which was originally written to target a political organization representing students in the state university system that generally supports liberal causes, also includes language that exempts churches and other religious groups from having to file campaign finance reports on the cost of political communications.

The bill’s sponsor, Rep. Julie Dooling, R-Helena, had previously objected to that language being inserted into her bill when in it was in the Senate. It mirrored the content of a bill sponsored by Sen. David Howard, R-Park City, which had been tabled by a House committee.

After a fruitless conference committee to resolve their differences Wednesday morning, the two Republicans later in the day managed to settle on language putting a finer point on the exemption language. The bill now requires that those exempt communications are “not for distribution to the general public,” intended to allay concerns that political groups could masquerade as religious organizations to dodge campaign finance reporting requirements.

Tallahassee Democrat: GOP-controlled Florida Legislature approves elections overhaul, social media crackdown

By John Kennedy

SB 7072 imposes hefty fines on Twitter, Facebook and other sites that censor people – similar to what happened to Trump and many other conservative users posting dubious content about election fraud, Covid-19 and other issues.

It was approved 23-17 in the Senate and 77-37 in the House.

It orders social media companies to publish standards with detailed definitions of when someone would be censored or blocked and makes companies subject to as much as $250,000 daily fines for de-platforming a Florida candidate.

The bill also requires a site to notify users within seven days that they could be censored, giving them time to correct the posting…

Florida’s move raises a host of constitutional issues, with opponents saying it violates both interstate commerce and free speech protections.

DeSantis called for Florida to now regulate the sites by condemning the “oligarchs in Silicon Valley” for de-platforming Trump and other conservatives.

The Center Square: North Carolina lawmakers push legislation to fight social media ‘censorship’

By Nyamekye Daniel

North Carolina legislative Republicans have proposed two bills that would allow North Carolinians to seek civil action if their social media posts are censored or apps are removed from the marketplace.

Sen. Ted Alexander, R-Cleveland, one of the sponsors of Senate Bill 497, said the legislation is a response to Facebook and Twitter blocking a New York Post article during the 2020 presidential election cycle.

Alexander said part of the federal Community Decency Act gives states the ability to block censorship abuse. SB 497 mirrors North Carolina law to the federal provision, which he said limits censorship in certain instances.

“It creates a civil reaction that can deter what we consider to be deceptive trade practices, false advertising, breach of contract and bad faith, an unfair dealing amongst social media, a fraudulent inducement and stifling of political and religious speech,” Alexander said. “This is in the modern-day public digital square.” …

Rep. Jeff McNeely, R-Iredell, filed House Bill 494 after a tweet from his wife was blocked.

“At the time the election was going on. It said that ‘no matter what happens here that I know my God is in charge,’ ” McNeely said. “It was very religious but very pure in thought, and after two days, it was taken down from her account.”

HB 494 allows North Carolinians to seek legal action through the attorney general or on their own if apps with religious or political content are disabled or removed from digital marketplaces such as Apple or Google Play stores. It applies to digital platforms that make $10 million a year in sales.