New from the Institute for Free Speech
Campaign Organizers Sue California Over AB 5’s Discrimination Against Political Speech
A California nonprofit, a political committee, and a company that provides door-knocking and signature gathering services late yesterday filed a lawsuit in federal court saying that California’s Assembly Bill 5 (AB 5) discriminates against political speech. The lawsuit argues that AB 5 violates the First Amendment because independent contractors, who are permitted to work as direct sales salespersons and newspaper carriers, are prohibited from performing similar work for campaigns and advocacy groups.
“California allows independent contractors to ask passersby to sign a credit card application, but not a ballot measure petition. It allows them to go door-to-door selling home goods, but not promoting candidates. It allows them to drop off newspapers, but not campaign literature,” said Institute for Free Speech Vice President for Litigation Alan Gura. “The First Amendment prohibits discrimination against speech based on its content, and that’s exactly what’s happening here.” …
The plaintiffs are Mobilize the Message LLC, a Florida-based company that provides signature-gathering and door-knocking services to campaigns across the country, including in California; Moving Oxnard Forward Inc, a California nonprofit organization that works to create and enact ballot measures in Oxnard, California; and the Starr Coalition for Moving Oxnard Forward, a related political committee…
The case is Mobilize the Message, LLC v. Bonta in the United States District Court for the Central District of California. To read the complaint, click here.
Supreme Court
New York Times: A Cheerleader Lands an F on Snapchat, but a B+ in Court
By Justin Driver
In the most significant legal decision involving education in decades, the Supreme Court on Wednesday declared that public school students typically retain broader free-speech protections when they are away from campus, rather than in school settings…
The primary reason for celebrating stems from the simple fact that the Supreme Court declared victory for a high school student in a free-speech case at all. The last time that such a speaker won at the court happened way back in 1969 [in Tinker v. Des Moines] … Since then, the court has issued three major decisions involving student speech. In each instance, it upheld school censorship over student freedom.
This trend of hostility to student speech proved so alarming that some perceptive commentators have asserted that the protection established in Tinker has, in effect, been eroded altogether…
At a time when many harbor grave doubts regarding the value of free speech — including younger Americans who often contend that it tends to shield the powerful and to harm the vulnerable — the court’s rousing recommitment to First Amendment principles on students’ behalf should be cherished.
This decision should not, however, be misunderstood as an unalloyed victory for students’ constitutional rights of free speech. To the contrary, one regrettable strain of the court’s opinion seems to threaten continued recognition of those rights within the school setting. It is this aspect of the opinion that dampens my enthusiasm.
Congress
Wall Street Journal: The Gory Details of H.R.1
By Kimberley A. Strassel
To understand the real threat of Democrats’ “voting rights” bill, consider a little-noticed decision from an underappreciated federal agency. H.R.1 isn’t about reforming elections or protecting voters. It’s about raw power, unleashing Ellen Weintraubs on the world.
Ms. Weintraub is the most partisan member of the Federal Election Commission. For four years she trolled the Trump presidency, egging on the Robert Mueller investigation and spinning accusations that the White House illegally solicited foreign political help. So it was astonishing last week that Ms. Weintraub quietly voted with pro-free-speech GOP commissioners to dismiss a case involving a clear Democratic solicitation of foreign help in the 2016 election…
[I]t deserves attention, as it perfectly highlights the extraordinary dangers of H.R.1. The left’s express purpose with the bill is to weaponize this sort of behavior—to enable the likes of Ms. Weintraub to punish their political opponents and absolve their friends.
The FEC in theory holds extraordinary power, in that it regulates speech in elections (via campaign-finance law). The protection against partisan abuse of this power is the commission’s structure. Its congressional creators wisely designed a six-person commission, with three members from each party. At least four votes are required for commission action.
Democrats despise the deadlocks. The more they’ve struggled to sell their agenda, the more they’ve turned to trying to strangle their opponents. Democrats have been campaigning for years to restructure the FEC as a partisan regulator. H.R.1 would do that . . .
New York Daily News: Voting rights and wrongs: On Senate Democrats’ For the People Act and the filibuster
By Editorial Board
[The For the People Act] also sets up a complicated new public-financing system for congressional races, a sweeping change that should be considered separately. It also creates an expansive and we believe unconstitutional new regime for regulating political speech under the auspices of preventing big money from dominating elections. And in the name of preventing “foreign nationals” from participating in paid advocacy, the bill would sideline noncitizens, who have the right to be heard.
We must not weaken basic American freedoms in the name of defending democracy.
Corporate Disclosure
Roll Call: Investors press firms on donations as political spending jumps
By Laura Weiss
Democratic state treasurers and social issue-focused investment funds are pressing 82 corporations to be transparent about donations to candidates and causes as contributions resume after a pause in the wake of the Jan. 6 attack on the Capitol.
More than 125 groups managing over $1.5 trillion in invested assets recently wrote to board members who oversee political spending at some of the largest U.S. public companies, including Walmart, Amazon and Exxon Mobil Corp., urging more disclosure of political spending. The message comes as shareholder proposals on the issue are gaining momentum and as spending by corporate political action committees picks up…
The letter asks companies to provide public disclosure of the amount and recipient of every election-related expenditure, including those made through political action committees and third-party groups such as trade associations. It also calls on firms to make formal policy changes barring all direct and indirect contributions to those who voted not to certify the 2020 presidential election results or who sponsor state-level legislation that the Brennan Center for Justice or the Voting Rights Lab determine could restrict voting access.
The investors said they sent the letter because the companies are reportedly contributing to politicians who would be on these lists.
Free Speech
Wall Street Journal: How I Liberated My College Classroom
By John Rose
I teach classes [at Duke University] called “Political Polarization” and “Conservatism” that require my students to engage with all sides of today’s hottest political issues…
In an anonymous survey of my 110 students this spring, 68% told me they self-censor on certain political topics even around good friends. That includes self-described conservative students, but also half of the liberals…
To get students to stop self-censoring, a few agreed-on classroom principles are necessary. On the first day, I tell students that no one will be canceled, meaning no social or professional penalties for students resulting from things they say inside the class. If you believe in policing your fellow students, I say, you’re in the wrong room. I insist that goodwill should always be assumed, and that all opinions can be voiced, provided they are offered in the spirit of humility and charity. I give students a chance to talk about the fact that they can no longer talk. I let them share their anxieties about being socially or professionally penalized for dissenting. What students discover is that they are not alone in their misgivings.
Having now run the experiment with 300 undergraduates, I no longer wonder what would happen if students felt safe enough to come out of their shells. They flourish.
Online Speech Platforms
Mother Jones: Facebook Doesn’t Want to Talk About Fake Users Created by the Pentagon
By Ali Breland
On a press call a few years ago, I asked Facebook’s head of cybersecurity policy, Nathaniel Gleicher, if the company would treat a misinformation campaign orchestrated by the US government the same as it would as one from a foreign adversary…
Gleicher’s response to my hypothetical question about whether they would react the same way was quite clear: “Yes. Part of the key of our operations here is that we engage based on behavior—not based on content and not based on the nature of the actor. And that’s been a very intentional choice on our part.”
The question I posed is no longer so hypothetical.
The States
KAWC: Arizona Senators Vote To Investigate Social Media Practices To Seek Campaign Finance Violations
By Howard Fischer, Capitol Media Services
State senators voted Wednesday to spend $500,000 to investigate the practices of social media platforms and search engines to see if they are violating campaign finance laws…
[SB 1819’s] most unusual provision is $500,000 for a newly created Unreported In-Kind Political Contributions Task Force Fund.
It is specifically charged with investigating whether and to what extent the practices of social media platforms and internet search engines effectively become in-kind political contributions to a candidate, meaning the donation of not cash but some service with financial value. That drew questions from Sen. Juan Mendez, D-Tempe.
“Am I going to have to start reporting retweets as in-kind contributions?” he asked.
Borrelli said what he wants ferreted out is more specific.
“There are social media platforms that have been very biased towards one particular party over another,” he said.
For example, Borrelli said, some politicians have lost followers. And he said that the algorithms used by search engines to determine results when someone asks a question can be altered so that certain subjects show up first.
“These are the kinds of things that need to be investigated and make sure that it’s fair,” Borrelli said…
Borrelli’s proposal…allows the task force to investigate things like denying a candidate access to a social media platform.
Maine Wire: Governor Mills signs a full slate of election, campaign finance reforms into law
By Katherine Revello
Governor Mills recently signed into law several bills that affect campaigns and elections in the state of Maine…
L.D. 1417 is one of several recently signed bills that reform Maine’s campaign finance laws…
It bans separate segregated fund committees from accepting individual donations that exceed $5,000 in a calendar year. It also bans separate segregated fund committees from accepting contributions from business entities, but allows a corporation that established a separate segregated fund committee to provide the use of offices and equipment if it does not result in additional costs…
It bans business entities from making contributions to leadership PACs and limits the contributions that can be made to leadership PACs by party committees, leadership PACs, separate segregated fund committees, caucus PACs, or other PACs.
The law also prohibits business entities from making contributions to candidates.
L.D. 1621 also impacts campaign finance law by changing the payments legislators can make to PACs or ballot question committees in which they are involved…
L.D. 1485 makes changes to the laws governing the registration of PACs and ballot question committees and also changes some financial reporting requirements.
It updates some of the technical rules related to filing and reporting deadlines for PACs and ballot question committees, as well as redefines the meaning of a PAC by lowering the amount of money spent or received by a corporation or organization with the intent of influencing an election.
Reason (Volokh Conspiracy): Does a New Florida Law Require State Universities to Monitor Faculty and Student Beliefs?
By Jonathan H. Adler
“Florida Gov signs law requiring students, faculty be asked to declare their political beliefs,” blares a headline from The Hill. A story on the same legislation in the Tampa Bay Times has the header: “State university faculty, students to be surveyed on beliefs,” with the subhed: “Gov. Ron DeSantis suggested that budget cuts could be looming if universities and colleges are found to be “indoctrinating” students.” Will Stancil warned the law represents “a government-led crackdown on college thoughtcrime.” It all sounds scary, but is this what the law does?
As always when talking about statutes, it helps to read the bill. Here is the text…
As the above text makes clear, the required survey is not a survey of the political beliefs of students and faculty. Rather, the survey is to measure “the extent to which competing ideas and perspectives are presented,” and the extent to which “members of the college community, including students, faculty, and staff, feel free to express their beliefs and viewpoints on campus and in the classroom.” It does not ask student, faculty and staff what their viewpoints are, but whether they feel free to express their viewpoints, whatever they may be. It is a survey about the academic environment, not the political beliefs of members of the academic community…
The bottom line is that headline writers and the Twitter commentariat have grossly misrepresented this legislation and pilloried what is actually a good idea: State governments ensuring that state institutions of higher learning provide open learning environments in which the full range of political and other views may be expressed.
Politico: Can’t buy me love: How record outside spending played in the mayor’s race
By Joe Anuta
Outside special interest groups spent record amounts of cash in the New York City mayor’s race this year — almost triple that spent in the last competitive primary in 2013 — but in most cases the investment was an unqualified dud.
All told, political action committees spent nearly $25 million on broadcast, radio and digital advertising, according to data from AdImpact. But the money did little to improve the electoral fortunes of many candidates in the crowded field. In fact, some of the highest-dollar splurges went toward candidates who never got out of the single digits, according to preliminary vote counts Tuesday night…
The impact of outside money, however, depended largely on the strength of the candidate receiving the support, according to POLITICO’s analysis of spending in the race.
