New from the Institute for Free Speech
FEC Should Not Dictate What Types of Ads Speakers Use
Institute for Free Speech Legal Director Allen Dickerson urged the Federal Election Commission to adopt flexible rules for online ad disclaimers at an FEC hearing Wednesday morning.
“Americans must be able to use any commercially available advertising product to promote a political message,” said Dickerson. “If the mandated disclaimer takes up the majority of an ad, the speaker’s message will be overwhelmed by the government’s. Speakers will not use such ads, and the Commission will have effectively banned certain forms of advertising from being used for political advocacy.”
Dickerson was invited to speak on the first of several panels convened to provide feedback on competing proposals to regulate Internet ad disclaimers. In his opening remarks, he criticized the Commission for seeking “to regulate the briefest, most cost-effective means of communicating with our fellow citizens.” He advised the FEC to adopt “common sense” exceptions to Internet disclaimer requirements, similar to those already on the books for physical advertisements.
“Is there any question that campaigns would often forego campaign buttons if they required the full disclaimers required for printed material? Is there any doubt that advertisers will not run six-second online ads if they must include 4 seconds of a mandatory disclaimer?” asked Dickerson.
By Allen Dickerson and Tyler Martinez
Congress has required disclaimers on a wide variety of core political speech, compelling would-be speakers to truncate their own message in order to convey the government’s preferred information. While there is little reason to believe these disclaimers add much to the national conversation, especially where they require poorly-written scripts that go far beyond identifying the speaker’s identity, these burdens have generally been considered manageable when applied to the paradigmatic big-budget broadcast advertisements Congress clearly envisioned and which the Commission habitually regulates.
But in other cases, Congress has provided-and the Commission has traditionally exercised-discretion to excuse these disclaimers where they overly-burden the speaker’s message while providing little value to the listener. Even in cases where a disclaimer can technically be included (there is no bar to printing disclaimers on a t-shirt or bumper sticker), the Commission has exercised common sense and permitted speakers to proceed without including a disclaimer.
The Internet has upended that consensus. Time and again, the Commission has been unable to agree that online speakers may be excused from including or modifying disclaimers where they are clearly impractical. This state of affairs was troubling enough when such small or brief advertisements were comparatively rare. But online advertisements now constitute a significant share of Americans’ paid political speech. Requiring disclaimers that will, in many cases, consume a substantial portion of a particular advertisement will impose significant burdens on these speakers. This is especially true for poorly-resourced individuals and groups relying on small or brief online advertisements precisely because they are cost effective.
In the News
Public Policy Legal Institute: Supreme Court Reverses Injunctions Against “Travel Ban,” Rejects Use of Campaign Statements
By Barnaby Zall
Last year, the Public Policy Legal Institute and the Institute for Free Speech filed “friend of the court” briefs in the Supreme Court of the United States challenging an opinion of the U.S. Court of Appeals for the Fourth Circuit that hailed a “welcome restraint” of campaign speech…
[Yesterday], June 26, 2018, the Supreme Court of the United States issued its final decision in this long line of cases. The Court reversed the lower court decisions enjoining the “travel ban” and sent the cases back to the lower courts…
Media coverage, as is common, has focused on the first part of the opinion, citing Chief Justice Roberts’ comment that “we must consider not only the statements of a particular President, but also the authority of the Presidency itself.” But for lawyers, the real meat of the decision is in the standard of review to be applied (which actually explains why this part of Roberts’ opinion was so succinct).
The new standard of review is rational basis, which is restated here as: “It cannot be said that it is impossible to ‘discern a relationship to legitimate state interests’ or that the policy is ‘inexplicable by anything but animus.'”
So, if the biased campaign statements are the only grounds for the official action, or the policy itself is “inexplicable by anything but animus,” the courts can look to the campaign statements to see if there is a violation. But if the facial explanation both shows an important governmental interest and is readily related to legitimate state interests, the Court, at least in national security questions, won’t look to campaign statements.
Politico: Morning Tech
By Cristiano Lima
FEC MEETS ON INTERNET DISCLAIMERS – The Federal Election Commission will kick off a two-day public hearing on disclaimers for online political ads and other internet communications – which will include a discussion on just what constitutes a “public communication.” The hearing will feature testimony from officials, advocates and scholars, including leaders from the Republican National Committee, the Institute for Free Speech, TechFreedom, Public Citizen, the Cato Institute, the Brennan Center for Justice and the University of Wisconsin. See the full line-up here.
– Initially, the FEC said it had invited leaders from Facebook, Twitter and Google to testify on their initiatives on political ad disclaimers. In March, Democratic FEC Commissioner Ellen Weintraub tweeted she had extended an invite to Facebook’s Mark Zuckerberg, Google’s Larry Page and Twitter’s Jack Dorsey. But as of late Tuesday, none of the tech leaders were listed as witnesses for the hearing. “We received no response,” Tom Moore, counsel for Weintraub, said of their request to the companies in an email to MT. Officials for Twitter and Facebook declined to comment. Google did not respond to a request for comment.
– The hearing comes as Facebook faces major scrutiny over how it classifies political ads on the platform. Organizations representing over 20,000 publishers penned a letter to the company earlier this month opposing Facebook’s new system for identifying political ads. Some even threatened to suspend advertising on Facebook if the social media giant didn’t change its ad policy. Meanwhile, several news outlets, spearheaded by ProPublica, have launched initiatives to track political ads on the site. The Tampa Bay Times announced Tuesday it will become the latest to join the efforts.
Quora: What is dark money?
By Bradley A. Smith
There is no agreed upon definition of “dark money.” Hence it can be used as a pejorative term for any number of things that the person using it does not like.
For example, suppose you give money to the Sierra Club. The Sierra Club then spends some of its money to advocate for the defeat of a political candidate who opposes green energy subsidies. Are you a “dark money” donor? After all, your name will not be publicly disclosed.
Suppose that instead, the Sierra Club uses some its money to run ads urging voters to contact their senators to support green subsidies: Now are you a “dark money” donor? …
In the narrowest sense of the term, “dark money” usually means money spent by a group to promote the election or defeat of a candidate, where that group (like most non-profits and trade associations) does not publicly name all its members and donors. But what does it mean to promote the election or defeat of a candidate, or to use another term bandied out, what is “political spending?” Was the think tank’s spending money on a study that was critical of green energy subsidies “political spending?” If a group like, say, Common Cause, sends out a mailer urging people to demand an end to “dark money,” is that “political spending?” What if it doesn’t actually mention any candidates? What if does, but merely to note their position on a bill to reform campaign finance? …
So here’s the bottom line answer to your question: When somebody talks about “dark money,” they’re not trying to clarify or explain. They’re trying to make something normal sound sinister, something legal sound shady, something complex sound simple. It’s political rhetoric for any spending pertaining to public affairs and elections that the speaker doesn’t like. (Speakers who like the spending call it “donations” or “grassroots advocacy” or something like that).
Event
Featuring Bradley Smith, Chairman and Founder, Institute for Free Speech and Josiah H. Blackmore II/Shirley M. Nault Professor of Law at Capital University Law School, Capital University; Lawrence Noble, former General Counsel, Federal Election Commission; moderated by John Samples, Vice President, Cato Institute.
Sixty years ago, the United States Supreme Court decided the landmark case of NAACP v. Alabama. In 1956, as part of the civil rights struggle, the state of Alabama sought the membership lists of the NAACP chapter in that state. The Court ruled against the state and discerned a “vital relationship between freedom to associate and privacy in one’s associations.” The decision remains a high point from the civil rights era. However, many now deny the Court’s assertion that a broad right to privacy offers a vital protection for the freedom to associate and to speak.
Since the decision, the Court has placed few limits on government’s power to mandate disclosure of political activities and associations. As the new online era of speech dawns, the principles at stake in NAACP v. Alabama remain at the center of public debates. Is the right to associational privacy recognized in NAACP v. Alabama still good law? Or should the Court reconsider the tie between privacy and association? Please join us for a vigorous debate that takes this important anniversary as a starting point for our common future.
Date: June 28, 2018
Time: 12:00 PM to 1:30 PM EDT
Location: Cato Institute
Supreme Court
CNBC: Supreme Court rules nonunion workers cannot be forced to pay fees to public sector unions
By Tucker Higgins
The Supreme Court ruled 5-4 on Wednesday in Janus v. AFSCME that nonunion workers cannot be forced to pay fees to public sector unions…
Janus argued that his $45 monthly fee to the American Federation of State, County, and Municipal Employees was unconstitutional. He said the fees infringed on his first amendment rights, and that, in the case of public employees whose contract negotiations are with the government, the fees were a form of political advocacy.
He argued that there was little distinction, for instance, between requiring employees to fund unions that engage in political lobbying and requiring them to fund political groups such as the Democratic Party.
The court on Wednesday agreed with Janus’s argument.
“Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned,” wrote Justice Samuel Alito, who authored the court’s opinion in the case…
Avoiding free riders, Alito wrote, “is not a compelling interest.”
“Many private groups speak out with the objective of obtaining government action that will have the effect of benefiting nonmembers,” he wrote. “May all those who are thought to benefit from such efforts be compelled to subsidize this speech?”
Cato: A First Amendment Win in a Case That Was NOT about Abortion
By Ilya Shapiro and Meggan DeWitt
In a decision that many First Amendment faithful might find too good to be true, in NIFLA v. Becerra, the Court delivered a solid victory for freedom of speech and against government agents who would force people to speak state-approved messages. Despite the hype to the contrary – and activists from both sides on the courthouse steps – this was NOT an abortion case. The Court was able to separate the First Amendment principles at stake from that fraught subject.
Reiterating its previous rulings on similar provisions controlling speech based on its content, the Court held that any content-based speech regulation – in this case a California law that compels delivery of particular scripts regarding the availability of abortion services (but that could equally be applied to speech about adoption and prenatal services) – is presumptively unconstitutional. To regulate the content of speech, the government must show that it has the most important of reasons for regulating the speech in question, and that it is only prohibiting or mandating speech to the extent necessary to achieve that highly important and specific purpose. California failed to show that “compelling” interest, namely why it was necessary to single out pro-life pregnancy centers and conscript them into delivering the state’s message about low-cost abortion services.
Free Speech
First Amendment Watch: John Paul Schnapper-Casteras Responds to Louis Michael Seidman’s “Can Free Speech Be Progressive?” Free speech isn’t supposed to be (just) progressive
By John Paul Schnapper-Casteras
The article both assumes and overlooks a lot. To be fair, Professor Seidman does so in the service of covering sizeable territory around constitutional doctrine and political philosophy. But some of his foundational suppositions are sweeping if a bit startling: that free speech is “often zero sum”; that free speech “systematically favors . . . the rich and powerful”; that “[f]ake news’ is everywhere” and “Twitter produces an undifferentiated and useless swamp of information and opinion.” (Really?) Moreover, the first page contains the disconcerting premise that “[m]ost progressives do not favor violence, authoritarianism, or deception even if these techniques might be used to advance progressive ends.” (Most!?) Are there progressive leaders marauding about advocating the use of force or the advent of tyranny? Lord I hope not – and not that I have ever met.
Cumulatively, Seidman seems to presume a mandatory, maximalist vision of progressive governance that seeks to “constitutionally entrench a liberal utopia,” including “creating some target ‘fair’ distribution of speech opportunities” such as “[a] statute that required best-selling books to publish ‘balanced accounts of controversial issues. . . .” This bears little resemblance to the public interest organizations and aims that I know. Perhaps this all stems from Seidman’s assumption that because the First Amendment is “neutral regarding the outcome” and “progressivism is not neutral,” the two are inherently at odds. But this too blinks at reality: progressive groups regularly embrace First Amendment arguments – including as amici in cases brought by their ideological adversaries – precisely because the integrity and the neutrality of the principle is legally and practically significant.
Internet Speech Regulation
Bloomberg: Facebook Retools Political Ad Rules After Media Blowback
By Naomi Nix
A top Facebook Inc. executive said Tuesday the company’s strategy to distinguish between journalism and political content will go into effect in the “coming days.”
Facebook’s head of global news partnerships, Campbell Brown, said in an updated blog post that the social-media giant would divide its political ads archive into two sections — one for ads promoting news stories about politics and one for ads promoting political candidates and issues…
For now, Facebook plans to put verified media advertisers who are members of the Local Media Consortium, the Local Media Association, the Local Independent Online News and the National Association of Broadcasters into the separate news section in the archive. Ads bought by members of other trade groups including “all major national publications” will also be placed in the separate archive, said Facebook spokesman Adam Isserlis.
“Our ultimate goal is for the Promoted News section of the archive to reflect the broader set of news outlets running ads on Facebook that contain political content,” Isserlis said in a statement…
Facebook’s announcement comes as the Federal Election Commission is poised to conduct two days of hearings on proposed rules for online advertising disclosures.
Slate: The Great Facebook Crash
By Will Oremus
In June 2016, it announced a shift in philosophy, prioritizing posts from individual friends and family over those from groups, brand pages, and (to a lesser extent) news outlets. The effects appeared relatively subtle at first, but Facebook acknowledges they likely compounded over time. Then, in January 2018-a time when it was under heavy fire for its role in elections and politics around the world-Facebook announced another major change to how its news feed algorithm chooses what you see when you load up the platform, this time de-emphasizing news publishers in particular and skewing the feed further toward posts from individuals.
At the same time, Facebook said that it would focus on boosting higher-quality news publishers in its rankings, using surveys to identify “trusted” sources and prioritize their content ahead of clickbait, propaganda, and fake news. (Facebook also said it would prioritize “local” and “informative” news sources, in different ways.) Facebook hoped these changes would help to stem the abuse, manipulation, and general cacophony that had polluted the platform during and after the 2016 elections…
Should Slate, which publishes political viewpoints that frequently lean left, count as a trusted source? Should a respected but explicitly conservative publisher like National Review? How about Fox News, which calls itself “fair and balanced” but counts right-wing conspiracymonger Sean Hannity as its top personality? No doubt different people would have different answers to each of those questions. It’s not unreasonable that Facebook should prefer to punt the question to its own users. But the opacity of Facebook’s approach might add to the epistemological uncertainty it has fomented since before the 2016 election, because it is still asking us to trust that it can surface what is trustworthy.
FEC
NPR: FEC Takes On Online Political Ads
The Federal Election Commission is holding public hearings on how to mandate transparency in online political advertising. NPR’s David Greene interviews FEC Vice Chair Ellen Weintraub.
Congress
Sludge: The Senate Did Something Good for Campaign Finance Transparency
By Donald Shaw
After more than a decade of debate and delay, the Senate passed the Senate Campaign Disclosure Act, a bill requiring Senate candidates to file their campaign finance reports electronically. If the bill becomes law, the public will have more timely access to information about who is funding their politicians.
The bill, sponsored by Sen. Jon Tester (D-Mont.), was included in a measure to fund the legislative branch that was approved Monday in a 86-5 vote.
“Montanans deserve to know who’s funding our elections,” Tester said in a statement. “It’s high time we shine some light on the money flowing into campaigns and bring our election system into the 21st Century.”
The bill will bring the Senate into parity with political committees,candidates for the House of Representatives and the presidency, which have been filing their reports electronically with the Federal Elections Commission since 2001.
Civil Society
Washington Examiner: America’s dearth of civil society
By Salena Zito
For the past 200-plus years Americans eagerly formed countless associations within their communities. It didn’t matter if their neighborhoods were in large cities, small towns, or spread out in expansive rural farming areas. We liked to form associations; a lot.
Some were serious, some were frivolous, some had ties to commerce in a town or were wedded to a church and some were exclusive, but nearly all of them were formed to advance or foster a better community or a better city.
Or as Alexis de Tocqueville wrote of America’s burgeoning democratic order and the rapid formation of civic groups, through example “they form a society.”
But we don’t join things the way we used to. The question is why?
Disclosure
Pensions & Investments: Corporate political disclosure moves firmly into mainstream
By Brian Croce
The combined political proposals have been the most common proposal sought by shareholders in 2018, according to ISS. And 23 of the 85 proposals year-to-date garnered more than 30% of shareholder support, in line with the past three years. But no proposal has received majority support this year…
Groups like Public Citizen and CPA have an influential ally on this issue – SEC Commissioner Robert Jackson Jr. Before taking the SEC post, Mr. Jackson, while a professor at New York’s Columbia University, co-authored a letter asking the commission to “develop rules to require public companies to disclose to shareholders the use of corporate resources for political activities.”
To date, no such SEC rules exist…
Political spending disclosure opponents, like the U.S. Chamber of Commerce, say the trend has a negative impact on the business community.
“Disclosure is a tool employed by activist investors to generate information about a company’s lobbying and political activities that can then be used by those same activist investors to harass and pressure the company into disengaging from political debates,” Chamber spokeswoman Blair Holmes wrote in an email. “We don’t think this is good for businesses or, ultimately, the millions of investors who do not share the activists’ extreme and narrowly focused political agenda.”
The States
Kansas City Star: Don’t let up on dark money’s corrupting influence in Missouri politics
By Nicole Galloway
This spring, a legislative committee investigating Greitens began digging into issues concerning the corrupting influence of dark money. As the committee’s chairman recommended Monday, that work is important and must continue…
Legislation I pushed this past session to protect taxpayers by making public any connections between dark money donors and state government contracts must become law.
In a letter earlier this month, I urged members of the General Assembly to rein in dark money and secret donors in Missouri government. I’ve also expressed these concerns to our new governor, both in conversation and with a formal request. I laid out legislative solutions as well as an avenue to use his executive authority, as his predecessors did, to ensure fairness in government contracting.
I have fought to ensure that Missouri lives up to its reputation as the Show-Me State through greater openness, and I will keep fighting to give taxpayers the protections they deserve.
