New from the Institute for Free Speech
NAACP v. Alabama: When “Transparency” Becomes Censorship
By Luke Wachob
The freedom to associate with others and speak as a group is foundational to democracy. Individuals rarely can change their society, government, or laws on their own. Instead, they join groups with other Americans who share their values. Whether you want to promote environmental protection, lower taxes, more gun control, greater freedom of speech, or something else entirely, there’s an organization dedicated to your cause.
In order for these groups to be effective, Americans must be able to associate with their fellow citizens privately. People behave differently when they are being watched, and this is especially true when people are monitored by the very government they are trying to reform. The right to privacy is therefore essential to the protection of First Amendment freedoms.
To understand the vital relationship between privacy rights and freedom of association, we need only look to the landmark 1958 Supreme Court case, NAACP v. Alabama…
Recognizing the inextricable link between privacy and freedom of association, the Supreme Court unanimously ruled that the government could not force groups to surrender their member lists. Such “exposure”, as the High Court termed it, would greatly damage organizations’ ability to fulfill their missions. In the words of the Court, Alabama’s demand restricted free association rights because it “may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs…” Today, this is commonly described as disclosure’s “chilling effect” on freedom of speech and association. Thanks to the Court’s ruling, nonprofits and other civic organizations have flourished in America with the knowledge that the private information of their supporters will be protected.
In the News
The Hill: Speech laws stand in the way of student gun advocacy
By Eric Wang
March for Our Lives, the student group that held nationwide rallies in the spring to decry school shootings, recently began a voter registration campaign across the country this summer. But laws restricting free speech will make them sweat a lot harder than they should.
Using the slogan and hashtag “#VoteThemOut,” the movement demands change in the most direct manner possible: by voting. But in doing so, the students will run into an elaborate maze of tax and campaign finance laws. These regulations stymie grassroots advocacy groups and effectively censor how they can speak…
The IRS relies on an extremely vague and broad “facts and circumstances” test to determine “political campaign intervention.” Under this standard, the agency may apply unspecified factors that it has not publicly disclosed in advance. The IRS warns that voter registration efforts that “have the effect of favoring a candidate or group of candidates [] will constitute [political campaign] intervention.” In fact, the IRS denied 501(c)(4) status to an organization similar to March for Our Lives because the group’s plan to target voter registration to specific geographic areas or individuals that favor the group’s causes was campaign intervention…
As if the tax laws were not bad enough, the campaign finance laws add yet another layer of obstacles for groups like March for Our Lives. Thanks in no small part to certain commissioners at the Federal Election Commission, that federal agency is unlikely to stand in the way of grassroots activities. But state laws and regulatory agencies are a different matter. When March for Our Lives speaks on both federal and state gun laws, it risks getting entangled in a web of state speech laws.
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: TODAY
Time: 12:00 PM to 1:30 PM EDT
Location: Cato Institute
Supreme Court
Wall Street Journal: Justice Anthony Kennedy Defined His Career at Center of Biggest Decisions
By Brent Kendall and Jess Bravin
The retirement of Anthony M. Kennedy brings to an end the tenure of one of the Supreme Court’s most consequential modern-day justices, the author of landmark rulings on gay rights, the death penalty and campaign finance and one of the last bearers of the case-by-case jurisprudence and old-fashioned politesse that once marked the court…
On the conservative side of the ledger, he was part of majorities that loosened campaign-finance restrictions, recognized individual gun-ownership rights and decided that voting-rights protections dating to the Jim Crow era imposed too heavy a burden on states in the modern-day South.
He wrote the court’s 2010 opinion in Citizens United v. Federal Election Commission, which struck down longstanding restrictions on corporate and union political spending in elections.
WKMS (Murray State NPR): U.S. Sen. McConnell: Senate Will Vote To Confirm Justice Kennedy’s Successor
By Cory Sharber
U.S. Senate Majority Leader Mitch McConnell said the Senate will vote to confirm the successor to Supreme Court Justice Anthony Kennedy this fall.
A release from McConnell’s office followed Wednesday’s announcement that Justice Kennedy has retired. McConnell expressed gratitude for Kennedy’s 43 years of service.
“In particular, we owe him a debt of thanks for his ardent defense of the First Amendment right to political speech,” McConnell said…
He says the Senate stands ready to offer advice and consent to President Donald Trump’s nominee. McConnell says he and the Senate look forward to “yet another outstanding selection.”
The Hill: Free speech wins again at the high court
By Mark Miller
On Tuesday the Supreme Court came down on the side of free speech and freedom of thought in NIFLA v. Becerra, a closely-watched case arising from the California Legislature and courts. Like recent Supreme Court decisions, including Minnesota Voters Alliance v. Mansky, Matal v. Tam, and Reed v. Town of Gilbert, this case pitted a government intent on controlling private speech against Americans who did not wish to be told what they had to say and how they had to say it. The liberty to speak and think for oneself, which the Roberts court repeatedly has protected in recent years, won again.
Free Speech
First Amendment Watch: Ronald K.L. Collins Responds to Louis Michael Seidman’s “Can Free Speech Be Progressive?” Let us not speak falsely – A call to candor from one progressive to another
By Ronald K.L. Collins
If one is to be true to the spirit of the First Amendment, one must be open to speaking frankly about it . . . and about the risks posed by it. After all, it is too late in the conceptual day to think of the First Amendment as a machine perpetually producing bounties of freedom lacking of any cultural costs. Mind you, this is not an argument for abridging such rights. Rather, it is a call to candor. That call was heeded recently by Professor Louis Seidman in a thoughtful essay he wrote: Can Free Speech Be Progressive? I commend Professor Seidman for it, if only because his words invite us all (progressives, liberals, libertarians, conservatives, et al) to rethink our thoughts about free speech in America. In that spirit, a collegial one, I raise nine questions for my fellow progressive.
FEC
Center for Public Integrity: Federal officials struggle to drag political ad rules into the internet age
By Ashley Balcerzak
Republican Commissioner Matthew Petersen said he would prefer a clear-cut set of rules so committees won’t continually have to come to the FEC for advice. Among the pressing questions: What size should the required disclaimer be? Can viewers simply click an icon to see this message? What icon? Is a group’s free speech stifled by needing to include such a long message in limited digital space? Some panelists didn’t see the merit in these specific guidelines.
“Rules focused on characters, pixels, seconds, font size, contrast and other visual factors are too inflexible to withstand technological change,” said Dave Grimaldi, the executive vice president of the media company Interactive Advertising Bureau, who favored a more simple approach using an advertising icon to link to the required information…
The Republican commissioners say they’re concerned the FEC will suppress free speech with online ad restrictions, and they’ve repeatedly stressed that the slow-moving agency cannot adapt quickly enough to technological changes…
Google and Twitter warned in their statements that some of the FEC’s suggestions would not work on emerging ways of advertising, such as voiceovers in newly-popular six-second videos. The required script would not fit in that format…
The tech companies’ presence at the hearing “would have been more useful than a panel of constitutional lawyers,” said Weintraub, the sole commissioner who regularly uses a Twitter account.
Candidates and Campaigns
NBC News: Rep. Joe Crowley loses primary to 28-year-old newcomer Alexandria Ocasio-Cortez
By Alex Seitz-Wald and Associated Press
Crowley, the Queens Democratic party boss who has spent two decades in Congress, was thought to have an inside track to become the next House speaker if Democrats win the majority.
He was defeated Tuesday by Alexandria Ocasio-Cortez, a member of the Democratic Socialists of America who has never held elected office.
Meanwhile, another prominent Sanders ally, former NAACP head Ben Jealous, won a crowded Democratic gubernatorial primary in Maryland. And a second insurgent in New York came within a few percentage points of ousting Rep. Yvette Clark, D-N.Y., who days ago said she was “laughing” at the challenge…
Ocasio-Cortez ran a low-budget campaign and was outspent by an 18-1 margin. She argued that Crowley had lost touch with his diverse district, both ideologically and demographically, and by spending too much time in Washington.
“This race is about people versus money. We’ve got people, they’ve got money. It’s time we acknowledge that not all Democrats are the same,” she said in a biographic video released by her campaign.
HuffPost: Alexandria Ocasio-Cortez Just Made The Democratic Party Safe For Democracy Again
By Zach Carter
In the Democratic Party primary for New York’s 14th Congressional District, progressive political outsider Alexandria Ocasio-Cortez was outspent by 10-term incumbent Joe Crowley more than 17 to 1.
Crowley went all-out, pouring $3.4 million into the race, according to the latest figures from the Center for Responsive Politics. The money was raised from some of the biggest names in corporate America – private equity titan Blackstone, health insurance giant Aetna, Nasdaq, Google, Facebook, Comcast, Boeing, Verizon, AT&T, Microsoft, Goldman Sachs, JPMorgan Chase, Morgan Stanley, General Electric, Northrop Grumman and Bank of America, among others.
Ocasio-Cortez spent just under $200,000, none of it from corporate political action committees or lobbyists. And she beat the hell out of him…
Democratic Party leaders typically plead pragmatism on Big Money…
Until legislation could be passed ending the electoral advantage held by organized money, Democrats could never win elections by relying on organized people alone, and it would take Democratic victories to defeat Citizens United – or so the argument went. The only way to get rid of Big Money in the long run was to rake it in right now.
People listen to such fatalism because money really does matter in elections. If it didn’t, the richest and most powerful people in the world wouldn’t keep dumping fortunes into the political process. But not every district is the same. In districts and states where the Democratic Party holds an overwhelming advantage, the power of ideas can indeed overcome the power of money. Ocasio-Cortez just proved it.
The States
Maine Public Radio: Ethics Commission Works To Fix Clean Elections Act Funding Problems
By Mal Leary
The State Ethics Commission has crafted a short-term fix to sidestep a political logjam that is keeping public campaign financing from reaching candidates. But the commission, which administers these public funds under the Clean Elections Act, says lawmakers will have to address the larger problem in order to avoid possible legal challenges.
