In the News

The Hill: Action against Russian meddling cannot threaten our civil liberties

By Alex Baiocco

The greatest threats to civil liberties often occur in the name of “national security.” History has shown that free political speech is almost always among the first rights to be curbed. In the ongoing debate surrounding appropriate remedies and responses to foreign election campaign interference, we must remain skeptical of any proposal that risks repeating this shameful history.

This brings us to the Honest Ads Act. The sponsors of the bill in Congress are pitching their proposal as a response to Russian ad buys on social media. Most of these ads were meant to inflame existing political tensions in the United States by echoing controversial views on contentious issues. Some were an attempt to influence our opinions of candidates during the run up to the 2016 election. While this legislation seeks to broadly regulate political communications online, it will not meaningfully address the kind of foreign meddling we saw in 2016.

But it will chill core political speech from Americans. Why? The bill holds both online platforms and speakers liable for violations of its many confusing provisions. The risk of legal liability for speech offenses necessarily chills speech. All speech liability imposed by the bill would fall squarely on Americans engaging in or facilitating political speech…

The incompatibility of liability for speech and freedom of speech is easy to understand. If speakers risk running afoul of the law when expressing their opinions, many will simply choose silence. If platforms also risk penalties when hosting such opinions, some will steer clear of allowing such speech altogether. The more vague or complex any new regulations of speech are, the higher the risk of violating them.

The rules in the Honest Ads Act are both vague and complex, not to mention burdensome. 

New from the Institute for Free Speech

Giving Meaning to Narrow Tailoring and Burdens of Proof: IJ Scores a Win for Free Speech in Colorado

By Brad Smith

One of the problems with campaign finance laws is that, no matter how well-intentioned, in practice, the laws have less to do with “cleaning up government” or “ending special interest influence” than they do with squelching political speech. Despite this reality, judges – including those who are highly skeptical of state claims in areas of criminal law or other civil rights – tend to be remarkably credulous when the state makes claims about the necessity of its campaign finance laws. [Tuesday’s] decision by the United States District Court for the District of Colorado in Holland v. Williams, in which our good friends at the Institute for Justice represented the plaintiff (and we filed an amicus brief), is an engaging break from this pattern.

In 2002, Coloradans adopted an amendment to the state constitution that, in addition to imposing numerous limitations and mandates on the financing of political campaigns and speech, essentially turned over the power of the government enforcement process to “any person who believes that a violation [of the campaign finance laws] has occurred.”…

Judge Raymond did something too many federal and state courts are refusing to do: put some teeth into the requirement that the government have a compelling reason to adopt policies that limit speech, and insist that the government solution be narrowly tailored to address that interest…

[D]ue process has to include something that limits the ability of any partisan political foe to impose substantial costs on speech, particularly when the costs may be imposed for bad motive or sheer ignorance of the law. One might imagine a law that allowed any business to prosecute another for “unfair competition” with no mechanism for weeding out frivolous or mistaken complaints. It would soon become a tool to destroy one’s market competitors, used in place of manufacturing better products, providing better service, or finding unmet customer needs. The Court recognized this and would have none of it. 

Twitter Loses Round One in Lawsuit Challenging User Ban

By David Keating

[A] California judge refused to dismiss a lawsuit that challenges Twitter’s ban of one of its former users, the controversial Jared Taylor.

I may write more on the case later, but the transcript of the ruling makes for pretty entertaining reading, as far as these things go. My understanding is the ruling is permanent. The transcript will make more sense if you have a copy of the complaint handy.

The judge knocked out two of the claims in the complaint: violation of the California Constitution (made famous by Pruneyard) and violation of the Unruh Civil Rights Act. But the judge left in place the other: violation of the Unfair Competition Law, which bars “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.”

Twitter made some pretty surprising claims in the hearing. For example, it agreed with this query by the judge: “So is your position that Twitter … has an absolute First Amendment right to remove anybody from its platform, even if doing so would be discriminatory on the basis of religion, gender…”? Twitter’s counsel cited the Hurley case, but that does not strike me as all that relevant. Twitter is a business, not the Boy Scouts or a group of people organizing their own parade. I’m not saying Twitter is wrong, but I don’t think there is any precedent on this point, and I found it surprising Twitter would claim this right.

And shame on Twitter for filing an anti-SLAPP claim in the case, a thuggish tactic. They lost on that point, thankfully.

Supreme Court

Palm Beach Post: U.S. Supreme Court hands Fane Lozman second win against Riviera Beach

By Jane Musgrave

In a 8-1 decision announced Monday, the high court sent his case back to an appeals court to review a 2o15 jury verdict that found city officials did not retaliate against Lozman when they had him arrested for speaking out during a public comment period during a 2006 council meeting. Only conservative Justice Clarence Thomas dissented.

In a narrow decision written by Justice Anthony Kennedy, the court sent the case back to the 11th Circuit Court of Appeals to review the validity of Lozman’s arrest to determine whether the former U.S. Marine and self-made millionaire is entitled to a new trial. A U.S. District Court jury in West Palm Beach rejected Lozman’s claims that his arrest was to punish him for exercising his First Amendment rights.

“This is not to say, of course, that Lozman is ultimately entitled to relief or even a new trial,” Kennedy wrote.

The Courts

Election Law Blog: D.C. Circuit, in 2-1 Votes, Makes It Much Harder to Challenge Decisions by Republican FEC Commissioners Not to Enforce Federal Campaign Finance Laws

By Rick Hasen

This opinion by Senior Judge Randolph, joined by Judge Kavanaugh is most unfortunate. As Judge Pillard suggests in her dissent, the opinion insulates FEC Commissioners’ refusal to enforce certain campaign finance laws from judicial review under the guise of “prosecutorial discretion.”

ABC News: Lawsuit over white nationalist’s Twitter ban clears hurdle

By Michael Kunzelman

San Francisco Superior Court Judge Harold Kahn ruled in Jared Taylor’s favor during a hearing Thursday on Twitter’s request to dismiss the suit, court records show.

Taylor claims Twitter permanently suspended accounts belonging to him and hundreds of other far-right users in December based solely on their political views and affiliations.

The judge described Taylor’s case as a “classic public interest lawsuit” and said it “goes to the heart of free speech principles that long precede our constitution,” according to a transcript of the hearing.

“Now, it may be speech that you and I don’t wish to enjoy, but that’s not germane to the determination of whether it’s public interest. Public interest doesn’t have a flavor of ideology to it; public interest is whether it benefits the public,” Kahn said.

Company attorney Patrick Carome argued that platforms like Twitter have a First Amendment editorial right to choose what kind of content to distribute.

“And a book store, or a newspaper editor, or a cable platform has a First Amendment right to make good, bad, horrible decisions about who and who does not get to speak on its platform and what content does and does not get to be on its platform,” he said.

The judge asked Carome if he was arguing Twitter has an “absolute First Amendment right” to remove anybody from its platform, including on the basis of their religion or gender.

“Twitter doesn’t do that,” Carome responded, “but that is what the First Amendment guarantees to First Amendment actors.”

Wall Street Journal: Responding to the Bias Response Team

By Editorial Board

Attorney General Jeff Sessions recently promised to be “vigilant” in defending free-speech rights on campus, and last week the Justice Department followed through by scoring the University of Michigan for chilling speech.

Justice filed a statement of interest, similar to an amicus brief, siding with Speech First, a nonprofit that has sued the school on behalf of its student members. Justice says the university’s policies and practices “ban a broad swath of core protected speech based solely on ‘listeners’ reaction.'”

Speech First’s lawsuit takes issue with the university’s student code, which prohibits bullying and harassment but with only vague definitions of both. The university also operates a Bias Response Team, to which students can submit complaints accusing peers and professors of “bias incidents” that violate no law…

Justice’s statement says Michigan’s “failure to bind itself to controlling definitions” of terms like bullying and harassment “effects ‘an unrestricted delegation of power’ to University officials” and “opens up precisely the risk of ‘arbitrary, discriminatory and overzealous enforcement’ that the First Amendment forbids.” The “reduction of ‘bias incidents’ to the listener’s ‘own feelings’ . . . likewise violates the First Amendment because it is not ‘based on speech at all’ but on ‘a listener’s reaction to speech,'” Justice wrote.

This is the first time the federal government has weighed in on Bias Response Teams, but more than 200 universities have similar administrative offices. The Justice Department’s statement puts these other universities on notice.

FEC

Politico: FEC dismisses self-enrichment complaint against Trump campaign

By Maggie Severns

The FEC will not investigate President Donald Trump’s political campaign for enriching his businesses after considering a complaint from a liberal watchdog group, which alleged that Trump’s boasting about his hotels and use of his private jets constituted a violation of campaign law.

The agency released its decision Friday, two years after the complaint was filed during the 2016 primaries, when then-candidate Trump plugged Trump-branded wine, steaks and golf courses during political events and held press conferences at Trump properties. The complaint from American Democracy Legal Fund alleged that represented a use of campaign funds to further Trump’s business and personal interests in violation of campaign finance law. Additional complaints alleged that Trump had “charged his own campaign significantly more money” for events than he had charged others for similar events.

But the FEC dismissed the complaints on a 3-1 vote, with Democratic commissioner Ellen Weintraub dissenting, after the agency’s general counsel recommended against moving forward.

Candidates and Campaigns 

The Atlantic: The Disastrous Legal Implications of the Trump Foundation’s Activities

By Bob Bauer

The law governing the activity of charitable organizations can be complex, but on the question of whether 501(c)(3) charities can engage in political activity, it could not be more straightforward. They cannot. The IRS enforces an “absolute” prohibition on any intervention in political campaigns.

Whether such an intervention has occurred depends on the facts and circumstances, and sometimes there are close calls. None of those close calls are reflected in the New York attorney general’s complaint against the Donald J. Trump Foundation, which tells the tale of a relationship between a charity and a political campaign that flouts in every conceivable way the legal prohibition on 501(c)(3) campaign activity.

Enforcement action at the state level, including this action to dissolve the Foundation, is likely to be followed by repercussions from federal law enforcement. The charity is subject to inquiry, and to the payment of sizeable penalties, for failing by virtue of its political activity to comply with the terms of its exemption. The Federal Election Commission will have little choice but to initiate its own investigation into the illegal corporate contributions from the Trump Foundation to President Donald Trump’s campaign. The New York attorney general has specifically “referred” these matters to the FEC, the Department of Justice, and the IRS for their review.

New York Times: Will the Justice Department Investigate the Trump Foundation?

By Kenneth P. Vogel

Election law experts from across the political spectrum largely agreed that the New York attorney general made a compelling case this week that President Trump’s campaign and his charitable foundation violated federal campaign finance laws during the 2016 election.

What they could not agree on, though, was whether any federal investigators will pick up the case…

The copying of the letter to the Justice Department attracted wide notice in Washington’s close-knit election-law bar, as did the claim in the lawsuit that the use of the Trump Foundation to benefit the Trump campaign “was willful and knowing.”

That phrase, combined with the “cc,” appears to be an effort to set the stage for a criminal election-law prosecution. That would be handled by the Justice Department rather than the F.E.C., which can only levy civil penalties and fines.

“The evidence collected by the attorney general is so compelling that she was able to make a case that the Trump Foundation knowingly and willfully violated the source prohibitions and dollar limits of the Federal Election Campaign Act,” said Brett Kappel, an election lawyer with the firm Akerman who has represented clients on both sides of the aisle…

“There are certainly grounds to open an investigation on the merits,” said Paul S. Ryan, vice president for policy and litigation at the campaign finance advocacy group Common Cause. “But the F.E.C. has been dismissing complaints that I think are much stronger slam dunks than this.”

The Justice Department, on the other hand, has ramped up its prosecutions of election law violations in recent years, pursuing high-profile cases against operatives for misleading fund-raising and misappropriating political committee funds.

The Media

The Guardian: Trump has turned words into weapons. And he’s winning the linguistic war

By George P Lakoff and Gil Duran

By faithfully transmitting Trump’s words and ideas, the press helps him to attack, and thereby control, the press itself.

Trump knows the press has a strong instinct to repeat his most outrageous claims, and this allows him put the press to work as a marketing agency for his ideas. His lies reach millions of people through constant repetition in the press and social media. This poses an existential threat to democracy…

When the press gives Trump absolute power to dictate coverage, it abdicates its role as a pillar of democracy…

Newsgathering should be a serious affair controlled by editors whose power rivals any politician’s. Stop chasing his tweets and elevating every sideshow. Start every story with truth and the context of what’s really important to citizens in a democracy. More BBC, less TMZ…

The job of the free press is to seek the truth and report the truth, especially the morally important truths and their consequences. If the press fails to do this job, not only does it lose its freedom, but we all do.

The States

Albany Times-Union: Three days to get it done

By Editorial Board

They can bring down this state’s high limits on campaign donations – ceilings that are now so high they all but scream “pay to play.” And while they’re at it, they can ban the awarding of state contracts or the issuance of state grants or loans to people and entities that have donated large sums of money to state politicians and political parties – and declare once and for all that writing a big campaign check cannot buy such favors.

They can close the LLC Loophole, which rich individuals and businesses have used to funnel unlimited contributions to campaign accounts through limited liability companies.

They can enact public financing of campaigns – and stop exaggerating how much it would cost or suggesting that all sorts of bad people would take advantage of it. The current system has been abused by plenty of bad actors. Public financing, already working in New York City, could come with even tighter rules so that money isn’t misspent.