In the News
Civitas Institute: A cure worse than the disease: Internet speech regulations hurt more than they help
By Matt Nese and Donald Bryson
Would elections be more secure if it was harder for Americans to speak about them? That bizarre proposition has been put into legislation in North Carolina, in the form of H.B. 700.
At first glance, the bill may look like a simple effort to define technical terms like “electioneering communication” and “qualified digital communication.” The devil is in the details, however. H.B. 700 is a modified version of failed congressional legislation called the “Honest Ads Act.” It would expand restrictions on online political speech, including on social media, limiting North Carolinians’ ability to air their opinions about government and hear the views of others…
In addition to regulating speech that isn’t campaign-related, H.B. 700 would burden political speakers with unnecessary red tape. Raising the cost of speech will discourage many from speaking. That’s a loss for democracy, not a win. This is particularly true for the Internet, where cash-strapped and grassroots organizations often thrive.
Internet speech bills like H.B. 700 are a bait-and-switch. They promise voters more ethical campaigns but merely restrict their ability to speak about them. They promise a solution to foreign interference in elections, specifically Russian efforts to influence the 2016 presidential election, despite the fact that paid advertising was a small and likely ineffective part of their strategy…
Other states’ efforts to expand regulations for online political communications have been a debacle…
Maryland’s law attracted a lawsuit from a coalition of press organizations, including The Washington Post and The Baltimore Sun, for violating their First Amendment rights. In January, a federal court stopped the state from enforcing the law against the publishers, indicating it was likely unconstitutional. If North Carolina legislators succeed in passing similar regulations, it’s a safe bet the courts will wind up resolving the issue in a long and costly fight.
Supreme Court
SCOTUSblog: SCOTUS: Private Firms Not Bound by First Amendment
By Amy Howe
Justice Brett Kavanaugh wrote for the majority, in an opinion that was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch. Kavanaugh began by stressing that a private entity can be a state actor only when it is doing something that only the government has traditionally done. Very few things fall into this category, Kavanaugh noted, and the operation of public-access cable channels is not one of them, because both public and private entities have historically operated the channels.
Halleck and Melendez can’t get around this fact, Kavanaugh emphasized, by turning the court’s attention to the broader question of whether the operation of a public forum – places like streets and parks, where people are able to speak freely, and where the First Amendment protects speech – is a traditional public function. Providing a forum for speech does not, standing alone, make a private entity a state actor: “After all,” Kavanaugh explained, “private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights.”
Nor is MNN a state actor just because New York City has authorized it to operate the public-access channels on Time Warner’s cable system and regulates its operations. The key question, Kavanaugh made clear, is still whether MNN is performing a traditional government function, which it is not…
Justice Sonia Sotomayor dissented, in an opinion that was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Sotomayor began by observing wryly that Kavanaugh’s opinion “tells a very reasonable story about a case that is not before us.” In her view, the actual facts would lead to a very different conclusion: Because New York City has a property interest in the channels, and the state’s regulations require that the public be given access to the channels, the public-access channels are indeed a public forum.
The Courts
Arkansas Democrat-Gazette: Judge blocks law on timing of donations
By Linda Satter
On April 8, Peggy Jones of Pulaski County sued over the law, Arkansas Code 7-6-203(e), which creates a blackout period for accepting campaign contributions…
Jones contends it infringes on her right of political expression by preventing her from donating money now to people she wants to support as candidates in the 2022 election cycle.
U.S. District Judge James Moody Jr. heard arguments Wednesday on Jones’ request for a preliminary injunction to keep the state from enforcing the law while he determines its constitutionality. He said then that her case would be stronger if she identified one of the candidates she wants to support.
In response, Jones’ attorney, Chad Pekron of Little Rock, filed an updated affidavit from her on Thursday identifying one of the candidates she wants to support…
In a three-paragraph order issued Monday, Moody said he finds that Jones has standing to pursue the case…
In Monday’s order, Moody cited reasons he discussed during last week’s hearing to determine that she has established a likelihood of prevailing. He also referred to a 2012 opinion by the 8th U.S. Circuit Court of Appeals in St. Louis saying that “when a plaintiff has shown a likely violation of his or her First Amendment rights, the other requirements for obtaining a preliminary injunction are generally deemed to have been satisfied.” …
Moody’s order said the state is “enjoined from enforcing” the law “during the pendency of this matter.”
The attorney general’s office filed an immediate notice that it planned to appeal the preliminary ruling to the 8th Circuit, which spokesman Amanda Priest pointed to Monday when asked for comment on the ruling.
Wired: Inside Backpage.com’s Vicious Battle With the Feds
By Christine Bieder
United States v. Lacey is a dangerous case, with potential consequences far beyond the freedom of two aging antiauthoritarians…
[R]egular forfeiture rules do not apply in cases involving forums for speech-newspapers, films, books, magazines, websites. The US Supreme Court has decreed that when the government seizes these expressive materials, or the proceeds derived from them, it must immediately hold an evidentiary hearing…
But the Backpage defendants have a problem: So far, they can’t get a court to hear their claims…
Paul Watler, a media law specialist at Jackson Walker LLP in Dallas, is troubled by the seizure tactic. “It’s an end run around the First Amendment,” he says. The big question remaining, according to Eric Goldman, a professor at Santa Clara University School of Law, is whether federal prosecutors will use this strategy to crack down on other platforms in the future. “Is this the leading edge or a one-off?” he asks. “I still don’t know the answer to that. But they’re coming for us, one way or another.” Even if Fosta-Sesta is one day ruled unconstitutional, as many legal scholars expect, government officials have shown that they’re willing to subvert Section 230 in other ways. If Lacey and Larkin lose-if the asset seizures stand and the Travel Act charges stick-prosecutors will have a valuable new weapon to wield against Silicon Valley. Personal wealth will be no deterrent.
Meanwhile, the National Association of Attorneys General is on the warpath once again. On May 23, 2019, the group sent a letter to a handful of congressional leaders urging further cutbacks to Section 230. “The abuse on these platforms does not stop at sex trafficking,” they wrote. “Stories of online black market opioid sales, ID theft, deep fakes, election meddling, and foreign intrusion are now ubiquitous.” They recommended that Section 230 be amended to allow a wide variety of state-level criminal prosecutions.
Free Speech
Washington Post Live: Free to State
On June 17, The Washington Post and the Knight Foundation joined forces for the 3rd annual Free to State summit on The First Amendment…
Free Speech Online: One U.S. Senator’s Perspective (Full Segment with Sen. Ted Cruz)
From trolls to hate speech to disinformation, internet companies have been called upon to set standards for online speech. Tasked with moderating information and, in some cases, removing it in order to ensure safety on and off their platforms, companies have found policing expression and content to be a tricky business. While stemming the flow of violent, offensive content is the priority for many, some lawmakers see a pattern of political bias in censoring conservative voices.
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The Assange Effect (Full Segment)
The recent charge of WikiLeaks Founder Julian Assange for violating the Espionage Act has reignited the debate over the question: What is the line between First Amendment-protected journalism and the theft and publication of classified information? A group of seasoned journalists and legal experts discuss how investigative journalists navigate this legal and professional minefield and balance related ethical considerations.
The Atlantic: From Public Shame to the Courtroom
By Conor Friedersdorf
The writer Jon Ronson once observed that every day in the social-media era, “a new person emerges as a magnificent hero or a sickening villain. It’s all very sweeping.” In Ronson’s 2015 book, So You’ve Been Publicly Shamed, his subjects found themselves beset by angry detractors for, say, an insensitive Twitter joke or Facebook photo. They lost jobs, received threats, even pondered suicide. And they mostly retreated from view until the shame storm passed.
Today they might sue instead…
These cases vary in the particulars, the degree of sympathy one might feel for the plaintiffs and defendants, and the strength of the legal claims. But all involve men and women who were publicly shamed and who are now trying to recover damages. The plaintiffs are betting that they can persuade a jury to side with them rather than their public shamers. They believe their antagonists belong to an umbrage-taking minority, not a majority enforcing a social consensus.
All may lose in court anyway…
But another multimillion-dollar lawsuit suggests that there is an appetite among some juries for awarding big damages when the plaintiff is perceived to have been treated badly in a public shaming…
I celebrate the happy ending for the Gibsons, but not without some trepidation about the downsides of adjudicating culture-war fights or the proper administration of America’s colleges in court, where extreme cases can mean cathartic outcomes and bad law. It would be a shame if jurors intent on vindicating the wrongly maligned wound up severely chilling protected speech too.
FEC
Center for Responsive Politics: FEC chair makes another go at regulating online political ads
By Karl Evers-Hillstrom
Federal Election Commission Chair Ellen Weintraub is proposing rules that would require some online political ads to attach a disclaimer describing who is paying for them.
The proposed rules – similar to measures introduced by the FEC last year – would subject paid online ads to similar disclaimer rules as print, television and radio ads. Increasingly popular social media ads, including those engaging in electioneering communications that mention a candidate shortly before an election, are currently exempt from including disclaimers under federal law.
“Americans deserve transparency when it comes to internet communications, especially as we face the growing threat of online disinformation campaigns and false political advertising,” Weintraub wrote in her memorandum.
The proposed rules will be discussed at the FEC’s Thursday meeting…
Weintraub’s proposal includes some elements that could be attractive to her Republican colleagues by providing advertisers several options as to how they can present their “paid for by” disclaimer within online ads. The rules allow advertisers to use mechanisms such as hyperlinks or hover-over actions to act as a home for a disclaimer as long as the information is no more than one action – or click – away from the user.
Congress
Daily Signal: First Amendment Protects Offensive Speech. Even by This Anti-Israel Movement.
By GianCarlo Canaparo
Sen. Marco Rubio last week criticized the anti-Israel movement known as Boycott, Divestment, and Sanctions, calling it “anti-Semitism disguised as economic policy and disguised as a free speech argument.”
The Florida Republican also called on Congress to pass a bill allowing the states to “go after” the movement, which considers Israel an “apartheid state” and argues in favor of various economic sanctions against Israel.
Rubio sets up a false dichotomy by saying the Boycott, Divestment, and Sanctions movement is masquerading as free speech. The movement may be anti-Semitic, economically wrongheaded, and offensive, but it’s still protected by the First Amendment.
Policy Research
Cato: Spillovers from Regulating Corporate Campaign Contributions
By Adam Fremeth, Brian Richter, and Brandon Schaufele
Corporate money in U.S. politics generates substantial controversy, and a series of recent Supreme Court decisions have fueled the widespread perception that the regulations governing corporate political activity are inadequate. Many believe that more needs to be done to control the influence of corporate interests in politics – especially the role of corporate money. But public anxiety over corporate involvement in political campaigns has a long history, and the recent decisions are merely the latest in a string of contentious cases. Somewhat surprisingly, there is little empirical analysis of the existing regulations on corporate political involvement…
We demonstrate that, similar to other domains of the economy, regulating specific activities such as corporate campaign contributions leads to unintended effects or spillovers. Importantly, these spillovers are large…
Even as advocates call for stricter regulation of corporate political activity in the aftermath of Citizens United v. FEC and SpeechNOW.org v. FEC …they appear to underemphasize an important point: many of the political activities in which companies engage are challenging to observe and hence difficult to regulate. Documenting the unintended consequences of existing campaign finance regulation on observable activities, such as lobbying, therefore provides valuable perspective. This is especially true as we demonstrate that the spillovers from imperfect regulation can often be larger than the initial problem that the rules were attempting to remedy. Magnitudes become important, especially if corporate political activity is increasingly hidden from view. If the spillover effects are large between lobbying and campaign contribution, they may be equally important along margins that are more difficult to control (i.e., independent expenditures and targeted philanthropic giving).
Candidates and Campaigns
Washington Post: The Daily 202: Steve Bullock won’t be on the debate stage. But he’ll keep talking about his signature issue.
By James Hohmann
Campaign finance animates his presidential campaign more than any other issue. In an extended interview, Bullock excitedly recounted the litigation he’s been involved with since the Citizens United decision, outlined steps he would take on his first day as president to limit the influence of deep-pocketed donors and discussed strategies to force more disclosure from independent groups…
The governor is suing the Trump administration in a bid to compel the Internal Revenue Service to resume collecting information about major donors to groups registered as 501(c)(4) nonprofits. Bullock notes that the IRS announced that it would stop demanding such information by happenstance on the same day Trump held his news conference in Helsinki with Vladimir Putin. Montana’s Republican attorney general refused to join the suit, so the governor went to court on his own. A federal judge heard arguments earlier this month about whether the case can proceed. The Trump Justice Department argues that Bullock lacks standing and that states have no right to dictate to the IRS what information it must collect from taxpayers…
Last year, Bullock said he became the first governor to issue an executive order that requires all state government contractors to disclose their political spending and efforts to exert influence. A push to do something similar at the national level faltered during the final year of Barack Obama’s presidency. Bullock promises to sign an order applying the same policy to federal contractors on his first day in the White House if he’s elected…
Ultimately, though, Bullock argues, transformational change will require a change in Supreme Court jurisprudence. That’s why he is open to expanding the Supreme Court to 11 justices.
The States
By Matt Arco
Gov. Phil Murphy signed into law Monday a bill he rejected only a month ago.
The Democratic governor approved a measure that will require more political action organizations that accept so-called dark money in New Jersey to disclose their donors…
According to a statement his office released, Murphy signed the bill “based on an express commitment from my colleagues in the Legislature” to make changes to measure before it goes into effect…
State Senate President Stephen Sweeney, a fellow Democrat with whom Murphy has routinely clashed, said last week there was no deal…
Specifically, Murphy wants a provision that grassroots organizations and progressive groups would have to reveal their donors removed…
If the changes aren’t made, the ACLU of New Jersey – which would be required to disclose its donors under the new measure – said it would challenge the law’s constitutionality.
“The courts have made it clear time and again that the Constitution does not allow the government to target organizations simply for speaking on issues of public concern,” Amol Sinha, the group’s executive director, said in a statement.
“Regardless of the law’s intent, in practice, it punishes people for expressing their values by aligning with issue-based social welfare organizations,” Sinha said. “… We will address this bill’s constitutional violations in the halls of the Legislature, or if necessary, in a court of law.”
North Jersey Record: NJ’s secret, big-spending donors will be named now that Phil Murphy has backtracked on new law
By Ashley Balcerzak
“I am concerned that extending the disclosure requirements to cover advocacy that is not connected to an issue before the electorate may infringe upon constitutionally protected speech and association rights,” Murphy said in an accompanying statement. “Additionally, I remain concerned that various apparent drafting errors in the bill may invite confusion among filers and could spawn time-consuming litigation.”
The new law will require social welfare nonprofits and 527 political organizations to report any contributions worth $10,000 or more, and spending of more than $3,000, to the New Jersey Election Law Enforcement Commission. As written, these groups will report any spending related to elections, as well as ballot questions and legislation.
