Supreme Court

Washington Post: Supreme Court sides with ‘subversive’ clothing designer in First Amendment case

By Robert Barnes

The Supreme Court on Monday struck down the federal government’s ban on registering “immoral” and “scandalous” trademarks, saying it violates the First Amendment.

“The most fundamental principle of free speech law is that the government can’t penalize or disfavor or discriminate against expression based on the ideas or viewpoints it conveys,” Justice Elena Kagan said in announcing the decision.

“The ban on ‘immoral’ and ‘scandalous’ trademarks does just that.”

Five justices joined Kagan’s opinion. But others worried it went too far and would leave the federal trademark office powerless, in the words of Justice Sonia Sotomayor, “to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable.”

Sotomayor feared that the government would now be forced to register trademarks including “one particularly egregious racial epithet.”

Kagan was joined in the majority by Justices Clarence Thomas, Ruth Bader Ginsburg, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh.

Chief Justice John G. Roberts Jr. and Justice Stephen G. Breyer shared Sotomayor’s concern that the opinion went too far.

Iancu v. Brunetti is a trademark dispute in which Los Angeles artist Erik Brunetti sued the government, saying it violated the First Amendment by refusing to register the trademark for his “subversive” clothing line: FUCT.

Wall Street Journal: A Supreme Debate on Speech

By Editorial Board

At issue in Manhattan Community Access Corp v. Halleck was whether government regulation transforms private entities into state proxies… 

Writing for the majority, Justice Brett Kavanaugh rebuked the filmmakers’ legal logic. The Court’s longstanding state-actor doctrine holds a private entity is subject to the First Amendment only if it exercises “powers traditionally exclusively reserved to the State,” he wrote, and “providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed.” …

If providing a public forum transforms an entity into a state actor, he noted, “private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether.” “Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty,” Justice Kavanaugh wrote…

Requiring private entities to provide a forum for any speech would impinge on their First Amendment liberties, including the freedom of conscience…

Justice Sonia Sotomayor asserted in dissent that New York City secured a “property interest” in the channels “when it granted a cable franchise to a cable company,” which makes MNN “an organization appointed by the government to administer a constitutional public forum.”

Her logic misconstrues the facts of the case and would eviscerate a limiting principle to the state-actor doctrine. Broadband operators that use government-licensed spectrum could be subject to the First Amendment. Google might have to allow hateful content.

As Justice Kavanaugh put it, this doctrine would “expand governmental control while restricting individual liberty and private enterprise.” 

The Courts

Townhall: Support Is Pouring In For Imprisoned Former Rep. Steve Stockman

By Rachel Alexander

His attorneys filed an appeal last month. It was followed by an amicus curiae signed by 27 prominent conservatives… The amici are concerned with how the law was twisted to find illegal behavior in regards to the nonprofits Stockman was affiliated with. They wrote, “Under the theory of fraud used by the Government, few if any charitable endeavors – particularly start-ups – could proceed.” …

What happened was Stockman raised money for nonprofit organizations. The money went for educational endeavors, including the creation of a conservative youth political training effort and an informative mailer comparing Stockman’s positions to that of his opponent’s in a Senate race.

Prosecutors claimed that since the money for the youth political training activity didn’t go to the precise aspect of purchasing a training building, it constituted fraud. Similarly, prosecutors claimed that because all of the money for the campaign mailer didn’t precisely go to the postage – since not as many mailers ended up being sent out as planned – it was fraud…

Prosecutors also claimed that the campaign mailer comparing Stockman’s positions with that of his Senate opponent constituted “express advocacy,” …

The amicus curiae brief said that prosecutors “confused the standard of what constitutes fraud in the solicitation of donations for tax-exempt causes, confused the law applicable to what is allowable political speech and press rights exercised by tax-exempt organizations, and misstated the law governing ‘express advocacy’ that forms the basis of ‘independent expenditures’ made in the context of federal campaign finance law.” …

Stockman’s supporters wrote that it “is especially concerning to many of these amici who, from time to time, may be high-profile, outspoken critics of government officials and politicians, as was Stockman.” Stockman’s conviction will have a chilling effect on nonprofits trying to raise and spend money.

Washington Times: Clinton campaign broke election laws with dossier author payment, lawsuit claims

By Rowan Scarborough

A conservative nonprofit has filed a federal lawsuit accusing the Hillary Clinton campaign of violating election laws when it paid British citizen Christopher Steele to gather Kremlin-provided political dirt on candidate Donald Trump.

Though not stated outright, the lawsuit argues that Democrats violated an admonition issued last week by Federal Election Commission Chairman Ellen L. Weintraub. She decreed that political campaigns cannot accept “anything of value” from foreign nationals.

The lawsuit from The Coolidge Reagan Foundation says the Clinton campaign and Democratic National Committee accepted something of value from a foreign national, Mr. Steele, in the form of Kremlin anti-Trump smut.

The suit’s purpose is to persuade a federal judge to order the FEC to vote on whether to open a formal investigation. Coolidge Reagan filed an FEC complaint in August. It was accepted for review, but there has been no formal commission action, according to Dan Backer, the foundation’s founder and president…

“[Hillary for America] and the DNC paid Christopher Steele, a foreign national, to generate the Steele dossier, based primarily on lies and fabrications from current and former Russian government officials and other foreign nationals,” the Coolidge Reagan lawsuit states. “To mask their key role in funding the dossier, HFA and the DNC funneled their payments through their law firm, Perkins Coie, and failed to properly report the purposes of those payments to the FEC as required by federal law.” …

“Steele, a foreign national, solicited numerous other foreign nationals, including but not limited to Russian citizens and current and former members of the Russian government and Russian intelligence services, for things of value,” Coolidge Reagan alleges.

FEC

Bloomberg Government: Manafort Campaign-Finance Charges Dismissed by Deadlocked FEC

By Kenneth P. Doyle

FEC Chairwoman Ellen Weintraub said in a statement that the commission should have investigated whether money for campaign contributions was provided by Manafort’s client, the pro-Russian Ukrainian Party of Regions. Federal campaign finance law bars foreign contributions, as well as donations made in the name of another person.

The commission had “a credible allegation indicating that pro-Russian Ukrainian leaders were indirectly making campaign contributions to Members of Congress,” said Weintraub (D). “If Manafort and his foreign clients obeyed campaign finance law here, it was just about the only law they did obey. The Commission should not have given a convicted criminal and fraudster the benefit of the doubt.”

Weintraub was joined in voting for an investigation by Commissioner Steven Walther, who also holds a Democratic seat on the FEC.

The two Republican commissioners, Matthew Petersen and Carline Hunter, voted to follow a recommendation by FEC staff attorneys to drop the case without a full investigation.

The commission attorneys accepted statements from lobbyists working for Manafort that they used their own money, not their client’s money, to make campaign contributions. The contributions were reported as made by lobbyists from the firm Mercury Public Affairs, headed by former Rep. Vin Weber (R-Minn.).

Mercury and another firm, Podesta Group, were hired by Manafort to represent the Ukrainian party’s interests. Podesta Group, founded by Democratic lobbyist John Podesta, dissolved as a result of Mueller’s investigation of Manafort.

Privacy

The Intercept: I’m A Journalist But I Didn’t Fully Realize The Terrible Power Of U.S. Border Officials Until They Violated My Rights And Privacy

By Seth Harp

On May 13, I was returning to the U.S. from Mexico City when, passing through immigration at the Austin airport, I was pulled out of line for “secondary screening,” …

I told [the U.S. Customs and Border Protection officer] I’d been in Mexico for seven days for work, that I was a journalist, and that I travel to Mexico often, as he could see from my passport. That wasn’t enough for him, though. He wanted to know the substance of the story I was currently working on, which didn’t sit right with me. I tried to skirt the question, but he came back to it, pointedly…

Next up was a thorough search of my suitcase, down to unscrewing the tops of my toiletries. That much I expected. But then a third officer, whose name was Villarreal, carefully read every page of my 2019 journal, including copious notes to self on work, relationships, friends, family, and all sorts of private reflections I had happened to write down…

That was just the beginning. The real abuse of power was a warrantless search of my phone and laptop. This is the part that affects everyone, not just reporters and people who keep journals…

In late 2017, EFF teamed up with the American Civil Liberties Union and filed a case alleging the unconstitutionality of the administration’s blitz of warrantless searches…

Forcing travelers who are not suspected of any wrongdoing to cough up their passwords, on pain of having their devices seized, violates the Fourth Amendment right to be free of unreasonable searches and seizures, the plaintiffs argue, and also infringes the First Amendment right to free expression and association by means of government intimidation and surveillance.

Online Speech Platforms  

Reason: How Europe Censors What Americans Say Online (Video)

By Zach Weissmueller

Google, Facebook, and Twitter are protected by the First Amendment, but are their decisions about which content to remove and which users to evict from their platforms really free from government pressures?

Social media firms are complying with the requests of lawmakers from European countries, where free speech protections are significantly weaker, according to Daphne Keller, a former Google attorney who’s now a law professor at the Stanford Center for Internet and Society. They’re pressuring these U.S.-based firms to ban “hate speech,” “terrorist content,” and alleged disinformation, and because these policies are applied across their platforms, they also affect what U.S. customers are allowed to see.

“They are making European law global,” Keller says.

Reason’s Zach Weissmueller sat down with Keller to talk about the so-called Terrorist Content Regulations currently being debated in the European Union, which could empower local police to track and report terms of service violations. They also discuss the chilling effects that content regulations have on legitimate political discourse and why Mark Zuckerberg’s call for federal regulation of Facebook and other social media could be a way of blocking potential competitors.

Political Parties

Vox: Challenges to parties in the United States and beyond

By Didi Kuo

One reason for the robust empirical relationship between strong parties and stable democracy is related to the important role that parties perform as gatekeepers. Party leaders have a stake in the longevity of the party itself, rather than any individual politician. Because democracy is a repeated game, party leaders have incentives to sustain party organizations across successive elections. Political parties therefore function as gatekeepers in the democratic process, keeping radical candidates and ideas out of mainstream politics…

Another challenge to gatekeeping is money in politics. Parties used to have more control over financing of campaigns and party activities. The world of campaign finance, however, has become more diffuse. The Bipartisan Campaign Finance Reform Act limited the soft money parties could raise and use, and a series of Supreme Court decisions protects political money as a constitutional right.

There are debates about what this means for parties. While there is some evidence that states that allow parties greater control over financing elect more moderate politicians, others argue that the diffuse world of finance is simply an extension of party control. Regardless, candidates for office now face a set of stakeholders and donors beyond their own parties and constituencies. Outside groups can also perform many of the duties once left to parties, including campaign advertising and get-out-the-vote efforts.

A final challenge to gatekeeping has to do with technology and the ease with which outsiders can connect with voters. The internet and social media provide individual candidates with cheap forms of outreach, circumventing traditional ways of coming up through the party system.

Candidates and Campaigns 

Fox News: Sorry, media — talking to foreigners does not violate federal campaign laws

By Hans A. von Spakovsky

Federal law (52 U.S.C. §30121) prohibits a foreign national from contributing or donating money or a “thing of value” to a federal, state, or local candidate or political committee…

This ban doesn’t prevent foreign nationals from volunteering to help a campaign, as long as the foreigner does not “dictate, control, or directly or indirectly participate in the decision-making process” of the campaign under a regulation issued by the FEC (11 CFR §110.20)…

A foreign national who simply volunteers to provide information to a campaign would certainly seem to fall within this regulatory exemption.

However, the FEC says that this exemption for a foreign volunteer applies only “as long as the individual performing the service is not compensated by anyone.”  Makes you wonder why the FEC hasn’t investigated a certain presidential campaign in 2016 that allegedly paid a former British intelligence agent (i.e., a foreigner) to do political opposition research, doesn’t it?

Information freely received from a foreigner is not a money contribution or donation. So does it fall within the “thing of value” phrase in the federal statute?It does not.

That phrase has been used by the FEC to go after individuals who make valuable in-kind contributions to campaigns that are the equivalent of direct dollar donations. For example, if a landlord provides rental space to a campaign free of charge, that would certainly be a “thing of value.” The candidate would have to report the fair market value of that rental space as a contribution to her campaign and the source of the free rent could not be a corporation – or a foreigner.

Treating information as a financial contribution would bring up constitutional issues. As George Washington University law professor Jonathan Turley says, such a “loose interpretation” of the term “thing of value” would “raise serious first amendment concerns.”  

Fundraising 

Politico: GOP to launch new fundraising site as Dems crush the online money game

By Alex Isenstadt

Republicans are set to launch a long-awaited, much-delayed online fundraising platform on Monday, a move aimed at closing Democrats’ massive small-donor money advantage ahead of the 2020 election.

WinRed is being billed as the GOP’s answer to the Democratic Party’s ActBlue, which has already amassed over $174 million this year. The new tool is intended to reshape the GOP’s fundraising apparatus by creating a centralized, one-stop shop for online Republican giving, which the party has lacked to this point…

“This is the first time I’ve ever seen either political party come together to do something genuinely good for campaigns instead of consultants,” said Josh Holmes, a top lieutenant to Senate Majority Leader Mitch McConnell (R-Ky.) who was involved in the negotiations. “It’s unquestionably the most significant realignment of political infrastructure in my career.”

Reeling after a midterm election in which they were badly outraised by Democrats, Republicans reached a landmark agreement early this year to consolidate behind a single online platform that could serve the entirety of the party…

WinRed has been designed with an eye toward enabling down-ballot Republicans to capitalize on Trump’s massive small donor base. The product will allow the president to send fundraising appeals asking supporters to split their donations between his reelection campaign and Republican congressional candidates…

Trump is also expected to benefit. Down-ballot candidates will be able to send appeals asking for donors to divide their contributions between them and the president.

Trump Administration 

Freedom Forum Institute: White House “Chills” On Free Speech

By Lata Nott

[T]he Office of the Special Counsel publicly recommended that White House counselor Kellyanne Conway be fired for repeatedly violating the Hatch Act…

White House counsel Pat Cipollone responded with a letter stating, among other things, that applying the Hatch Act to political activity on social media “has a chilling effect on all federal employees whose fundamental First Amendment right to engage in political and public policy discussions should not be compromised based solely on OSC’s guidance.”

This isn’t the first time the OSC has faced that accusation. Ethics and transparency advocates said more or less the same thing last year, when the agency issued new guidelines that federal employees weighing in on President Trump’s prospects for impeachment or talking about “the Resistance” might constitute political activity. National Treasury Employees Union President Tony Reardon’s exact words were, “This guidance is a broad reach that employees may find confusing. It could unnecessarily have a chilling effect on employees’ First Amendment free speech.” …

It’s a reminder that most government employees have severe restrictions on their First Amendment rights. Some of these restrictions are justified – government offices wouldn’t be able to function if they couldn’t discipline employees for speech that interferes with their duties. But there are plenty of examples of this censorship going too far.

Just look at the impact of the 2006 Supreme Court decision Garcetti v. Ceballos, which removed any First Amendment protection for speech that government employees make in the course of their duties. Since then, we’ve seen numerous cases where government employees have been fired for reporting the misconduct of others and whistleblowing about corruption and mismanagement…

Or think about the times when government entities have decided that their employees’ private conduct on social media impacts their official duties… 

Or think of the postal carriers and regular federal workers who avoid political activity altogether because they’re anxious about running afoul of the Hatch Act.