In the News
The Hill: Remembering a major victory for free speech, 40 years later
By Thomas Wheately
The case, known as First National Bank of Boston v. Bellotti, challenged the constitutionality of a Massachusetts law that censored speech by corporations on ballot measures. The law included criminal penalties.
In a 5-4 decision, the Court struck down the law, reversing the Massachusetts Supreme Judicial Court. “We … find no support” the Court held, “for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation…” …
But that’s wrong – very wrong. For decades, the Supreme Court has recognized a corporation’s right to free speech. The Citizens United opinion alone cites 25 cases supporting this point, the first cited case being Bellotti, though it was not the first such decision. Nor, as some have suggested, has the Court ever recognized a so-called “media exemption,” which would grant press outlets full First Amendment protection, but not other corporations. Indeed, the Court has explicitly rejected that argument…
Americans of all political stripes have long reaped the rewards of the sort of corporate speech protected by Bellotti and earlier rulings. Take, for example, the civil rights movement.
In 1964, the New York Times defeated a dubious libel suit brought by white southerners in part because the newspaper, a corporation, was able to invoke First Amendment protection.
TaxProf Blog: The IRS Scandal, Day 1829: Wyland Says Johnston’s Op-Ed Contains ‘A Number Of Breathtaking Distortions And Omissions’
By Paul Caron
TaxProf Blog op-ed: David Cay Johnston’s Op-Ed Contains ‘A Number Of Breathtaking Distortions And Omissions,’ by Michael L. Wyland (Sumption & Wyland, Sioux Falls, SD):
In his op-ed Bradley Smith’s WSJ Op-Ed Is A ‘Breathtaking’ Distortion Of The Facts Of The IRS ‘Scandal’, Pulitzer prize winning journalist and author David Cay Johnston has forgotten an old aphorism. When one points an accusing finger at someone, three fingers of the same hand point back at oneself. In short, Johnston’s response to Bradley Smith’s Wall Street Journal commemoration of the fifth anniversary of the IRS scandal contains a number of breathtaking distortions and omissions of its own…
There was a 2017 TIGTA audit report that indicated IRS review of applications for tax exemption that included other types of suspected political activity besides conservative, but that report covered a time period that began in 2004, six years before the 2010 inception of the “tea party cases” activity by the IRS…
Those who point to the 2017 report conveniently ignore a prior 2014 TIGTA report issued in response to assertions by Democratic members of Congress who sought to document the ecumenical nature of the IRS activity.
That report confirmed that the overwhelming majority of the applications flagged were indeed from conservative-sounding organizations, and that the small minority of applications that were also flagged during that time appeared to be included in the group accidentally for reasons not related to their presumed political ideology or assumed activities.
Forbes: Why Are We Still Arguing Over The Facts Of The IRS Scandal?
By David Herzig
There has been a politically charged debate in academic circles for a while now about events that happened in 2013 regarding IRS investigations into groups purportedly because of the use of the term “Tea Party” in their name.
Paul L. Caron on the TaxProf Blog has been running a mostly continuous post (up to around day 1830) about “The IRS Scandal.” …
[A]n interesting feud between Bradley A. Smith (and others) and David Cay Johnston (and others) percolated over the facts associated with Professor Smith’s Wall Street Journal Op-ed…
In the opinion piece, Professor Smith asserts that, “[t]he easy fix here would be for Congress simply to scrap restrictions on political activity by social-welfare organizations, thereby stripping the IRS of authority to decide which groups are “political committees” and which aren’t.” The problem with this “easy fix” is that it fundamentally misses a key distinction between 501(c)(4)’s and political committees – 501(c)(4)’s do not disclose donors while PACs are required to. By collapsing the distinctions, it would appear that Professor Smith would allow PACs to have anonymous donors. The current system at least provides that the more involvement in politics that an entity has, the more transparency is required.
Instead of bickering over the facts some 10 year later, it would be much more productive to focus on the problems of adequately funding the IRS as well as related the fixes to the 501(c)(4) political action committee regime.
Ed. Note: Reply from Bradley A. Smith: “No, under plan I proposed in WSJ, pacs could not have anonymous donors, because FECA prohibits that (or state law for state pacs)…
“And that’s basically my point– this should not be an IRS issue at all.”
Internet Speech Regulation
Bloomberg: Facebook Rethinks News Organizations as Political Advertisers
By Naomi Nix
The company came up with a policy that puts news publishers in the same category as political publishers for the purposes of its new ad-transparency efforts. Facebook told media organizations they would have to verify their identities and have any ads promoting stories about politics placed in a public database, just like political campaigns would.
Within hours of a Bloomberg News report on the initiative and criticism from news organizations, Facebook decided to rethink its plan. It no longer has a clear solution for transparency around ads that promote news stories about politics, according to a person familiar with the matter…
“We’re making changes that impact political and issue ads with new labels and a searchable archive,” Campbell Brown, Facebook’s head of news partnerships, said in a revised statement on Friday. “We recognize the news content about politics is different and we are working with publishers to develop the right approach.”
The social-media giant sent letters this week to members of the News Media Alliance, which include the New York Times and the Washington Post, outlining new rules that would take effect May 22. Under the guidelines, Facebook said it would disclose when news organizations pay to boost the exposure of political articles, and store the details in an archive that includes ads for politicians or political groups. The political articles promoted would include labels specifying “paid for by,” just like the political ads.
Wall Street Journal: News Organizations Flag Concerns on Facebook’s Political-Ad Rules
By Benjamin Mullin
Facebook’s new guidelines, which will go into effect this month, will categorize ad spending on topics such as U.S. poverty, immigration and terrorism as political advertisements.
Publishers fear those guidelines would cover ads news organizations purchase to promote articles that touch on those topics, according to the letter.
Political ads will be listed in a Facebook archive that will disclose the amount of money spent on ads and the demographics of the audience reached by each ad.
In its letter, the group said Facebook’s approach “dangerously blurs the lines between real reporting and propaganda. It is a fundamental mischaracterization of journalism that threatens to undermine its ability to play its critical role in society as the fourth estate.”
The letter said forcing publishers to label their promotion of stories as political ads “will have the effect of elevating less credible news sources on Facebook, the exact opposite of your stated intent.”
Facebook’s head of news partnerships, Campbell Brown, said in a statement that preventing misinformation and interference in elections “is one of our top priorities.”
“We recognize that news stories about politics are different and we are working with publishers to develop the right approach,” she added.
Congress
Washington Post: Democrats’ newest midterm pitch: A crackdown on corruption
By Mike DeBonis
Now, with questions about pay-to-play politics swirling around President Trump and his current and former aides, Democrats are set to introduce anti-corruption proposals Monday billed as “A Better Deal for Our Democracy.”
According to a senior Democratic official familiar with the announcement, the new agenda will include proposals that would eliminate loopholes that allow lobbyists and lawmakers to buy and sell influence without the public’s knowledge. The message: Elect Democrats in November to “clean up the chaos and corruption in Washington.”
One proposal – which would tighten the federal laws governing lobbying disclosures and foreign-agent registration – responds to the apparent sale of influence by Michael Cohen, Trump’s former personal lawyer…
Another proposal could rewrite federal statutes that might have allowed lawmakers of both parties to skirt convictions on bribery and pay-to-play allegations – including former Virginia governor Robert F. McDonnell (R), former senator Ted Stevens (R-Alaska) and Sen. Robert Menendez (D-N.J.)…
The proposals are set to be rolled out Monday afternoon on Capitol Hill with House Minority Leader Nancy Pelosi (D-Calif.), Senate Minority Leader Charles E. Schumer (D-N.Y.) and several other congressional Democrats who have been engaged in anti-corruption issues, including Rep. John Sarbanes (Md.) and Sen. Sheldon Whitehouse (R.I.).
The Courts
Washington Post: A red flag on campus free speech
By George F. Will
A splendid new organization, Speech First, headed by Nicole Neily, is not content merely to respond after the fact to violations of students’ constitutional rights. It is suing to invalidate Michigan’s “elaborate investigatory and disciplinary apparatus” that exists “to suppress and punish speech other students deem ‘demeaning,’ ‘bothersome’ or ‘hurtful.'” Speech First’s complaint notes that “the most sensitive student on campus effectively dictates the terms under which others may speak.” The university darkly warns that “bias comes in many forms” and that “the most important indication of bias is your own feelings.” Speech First says that Michigan’s edifice of speech regulation, with its Orwellian threats to submit offenders to “restorative justice,” “individual education” and “unconscious bias training,” amounts to unconstitutional prior restraint speech and is too overbroad and vague to give anyone due notice of what is proscribed.
“Verbal conduct” that “victimizes” or jeopardizes a “social climate” that is “safe and inclusive”? Such vaporous language must have a chilling effect on humor, parody, satire or plain speech about almost anything. What constitutes forbidden “cultural appropriation”? You will be told – after someone, encouraged by the administration to do so, has notified law enforcement.
FEC
Election Law Blog: “FEC Democrat Pushes for Foreign Campaign Money Rules”
By Rick Hasen
A Democrat on the Federal Election Commission is renewing her push for FEC rules to prevent foreign campaign spending following an announcement from the Senate Intelligence Committee confirming Russian election meddling.
“There is no doubt that Russia undertook an unprecedented effort to interfere with our 2016 elections,” the Senate committee said.
Ellen Weintraub, the FEC’s vice chairwoman, said she would call for consideration of a new rulemaking effort at the FEC’s next open meeting May 24.
Weintraub acknowledged that divisions between Democratic and Republican commissioners have prevented the FEC from agreeing on new rules in the past. She said the bipartisan agreement on the Senate Intelligence Committee, headed by Chairman Richard Burr (R-N.C.) and Vice Chairman Mark Warner (D-Va.), provided “hope that the urgency of this threat will finally conquer the partisan divide at the FEC.”
Springfield News-Leader: Greitens saved by split vote after FEC attorneys flagged violations in a campaign mailer
By Will Schmitt
Campaign literature paid for by Gov. Eric Greitens to promote the candidacy of President Donald Trump and Vice President Mike Pence should have been paid for with federal funds, according to a report by attorneys working for the Federal Election Commission.
A split vote prevented further action, however. The commission voted in February to neither accept the recommendations of its legal staff nor dismiss the complaint, which a Missouri Democrat filed against the Republican governor days before the November 2016 election…
The complaint was filed by Crystal Brinkley, then the executive director of the Missouri Democratic Party, in the homestretch of a heated race between Greitens and Democrat Chris Koster, the former state attorney general.
Brinkley cited a “get-out-the-vote” mailer paid for by the Greitens for Missouri campaign that implored Missourians to “Vote November 8th” and included the Trump-Pence campaign logo as well as those of Greitens and Lt. Gov. Mike Parson. The mailer also included a photo of Pence and Greitens together and included a statement of Greitens’ priorities.
Candidates and Campaigns
NBC News: DOJ seeks probe of FBI conduct in 2016 campaign after Trump ‘spy’ claim
By Adam Edelman
Following demands by President Donald Trump for the Justice Department to investigate his claim that his campaign had been “infiltrated or surveilled” by the FBI, the agency on Monday directed the Inspector General to probe those accusations.
“The Department has asked the Inspector General to expand the ongoing review of the FISA application process to include determining whether there was any impropriety or political motivation in how the FBI conducted its counterintelligence investigation of persons suspected of involvement with the Russian agents who interfered in the 2016 presidential election,” Department of Justice spokeswoman Sarah Isgur Flores said in a statement…
Deputy Attorney General Rod Rosenstein, who oversees special counsel Robert Mueller’s investigation into Russian interference in the 2016 race and the Trump campaign’s possible involvement with Moscow, added that “if anyone did infiltrate or surveil participants in a presidential campaign for inappropriate purposes, we need to know about it and take appropriate action.”
The Justice Department’s internal watchdog is already examining Republican complaints of FBI misconduct in the early stages of the Russia investigation.
Washington Post: The Stormy Daniels payment isn’t the story. Michael Cohen is.
By Bob Bauer
Cohen and Trump could eventually be found to have run afoul of campaign-finance law on the theory that, because Cohen’s payment on Trump’s behalf was motivated exclusively by political rather than any personal or family considerations, it was a campaign contribution that exceeded legal limits and should have been reported. But the case could well go the other way. The Federal Election Commission is generally disabled by partisan divisions: If Republicans are interested in blocking enforcement, they will attempt to show that the case against Trump is no stronger on the element of motive than in the failed case brought against former senator John Edwards (D-N.C.) over money paid by benefactors to support his mistress and child during the 2008 presidential campaign. These same factors present challenges in meeting the more demanding requirements for a successful criminal prosecution…
At any rate, the campaign-finance issue and Office of Government Ethics issues would be considerably less interesting to prosecutors than other features of the Cohen-Trump relationship. Rudolph W. Giuliani, Trump’s lawyer, said earlier this month that Trump’s “reimbursement” was in the neighborhood of $470,000, considerably more than three times the sum paid to Daniels. For some reason, it was also made in installments…
Cohen also allegedly received millions of dollars from other sources with interests before the government, raising the question of what Trump knew about this income; whether any official actions were taken to facilitate Cohen’s business arrangements; and who, other than Cohen, may have had the benefit of the payments.
The States
U.S. News & World Report: Analysis: Arkansas Court Race Sparks Free Speech Battle
By Andrew DeMillo
Pulaski County Circuit Judge Chris Piazza on Friday ordered several Little Rock area TV stations to stop running the Judicial Crisis Network ad going after state Supreme Court Justice Courtney Goodson. Hours later, another Pulaski County judge assigned to take up Goodson’s lawsuit challenging the spots in northwest Arkansas said they could resume up there…
“There’s something obscene about what’s going on with the type of judicial advertising that’s going on right now,” Piazza said.
Pulaski County Circuit Judge Mackie Pierce also criticized the ads, but said he didn’t believe he could legally stop them…
Goodson is portraying her fight as one against groups like JCN, which doesn’t disclose its donors, and says legal action is necessary to halt ads that she’s described as false and defamatory.
“No one is ever going to be able to compete with dark money. Their resources are endless…How does one good candidate in any race stand toe-to-toe with those kinds of resources?” Goodson told reporters…
Efforts to block the ads have also drawn the ire of the American Civil Liberties Union of Arkansas and First Amendment advocates who say courts shouldn’t be in the position of deciding what kind of political speech is acceptable.
“However we might even detest dark money or even however we might say that it’s inappropriate to have something that’s misleading, the fact is that in the public marketplace these things are protected and have been protected since the establishment of this republic,” Philip Kaplan, an attorney who represents Comcast of Arkansas in the Little Rock-area case, said at Friday’s hearing.
New York Post: Politicians need to stop trying to squelch even odious speech
By Karol Markowicz
In February, the National Rifle Association attempted to hold a fundraising dinner at Gargiulo’s restaurant in Coney Island, Brooklyn. Several politicians, including Rep. Hakeem Jeffries, city Comptroller Scott Stringer and Sen. Diane Savino issued a statement asking the restaurant to cancel the event. The restaurant, of course, did just that.
The event was then moved to The Grand Prospect Hall in Park Slope and received the condemnation of Borough President Eric Adams, City Councilman Brad Lander and Assemblyman Robert Carroll. The Grand Prospect Hall also canceled.
When the event finally took place in Dyker Heights, Councilman Justin Brannan gloated that the group had to sneak around to hold the event.
Lest we imagine he limits this type of attack on free speech to the NRA, Brannan was also proudly responsible for pressuring the Dyker Beach Golf Club to cancel a Brooklyn Republican Party event featuring ex-Trump aide Seb Gorka…
It’s not surprising that the restaurants ditched the NRA event when pressured by politicians. Politicians can easily make their lives more difficult through a range of government agencies.
For example, they can ask the IRS to take a closer look at a business that dares host an event of which they disapprove. This isn’t a conspiracy theory: In 2012, Peter Welch, a Democratic congressman from Vermont, wrote a letter to the IRS asking it to investigate conservative Tea Party groups. The IRS then did just that.
