In the News
Daily Caller: EXCLUSIVE: Libertarian Candidate Discovers A Novel Way To Test Whether Bloomberg’s Massive DNC Donation Is Legal
By Andrew Kerr and Chris White
A libertarian who unsuccessfully ran for president thinks he’s found a novel way to pressure the Democratic Party and former New York City Mayor Michael Bloomberg into nixing a massive donation that Bloomberg made to the party…
Shaun McCutcheon…filed an advisory opinion request with the Federal Election Commission on Monday asking the agency if he can bypass individual contribution limits by transferring $50,000 that he contributed to his campaign committee directly to the Libertarian National Committee…
McCutcheon’s “position is if Bloomberg broke the law, then Shaun should be allowed to do the same thing. If not, then it completely destroys the entire concept of contribution limits, because then anybody could start a campaign, dump all their money in, and transfer it to the parties,” Dan Backer, a Washington, D.C., lawyer who specializes in campaign finance, told the DCNF…
“The other outcome is that the FEC says that the thing Bloomberg did is illegal. Bloomberg can buy his party cheap, but not the election. To put this in perspective. Having $18 million cash on hand is the equivalent of raising $100 million. It is a massive, massive windfall,” he told the DCNF.
Former FEC Commissioner Brad Smith said he wasn’t sure how the commission would respond to McCutcheon’s request.
“The statute is pretty clear that such transfers are allowed,” Smith told the DCNF. “Note that it’s right in the statute – this is not a creation of FEC regulation, but of Congress.”
Smith added that if the FEC does acknowledge the legality of such transfers, “we may see more of it – now that the tactic has been demonstrated, we should expect that others will probably use it.”
Trump Administration
The Atlantic: Trump’s Grotesque Violation of the First Amendment
By Garrett Epps
The contrast is striking: On May 28, Donald Trump demanded the First Amendment right of free speech for himself on privately owned social media, and then, four days later, declared war on the people, gathered on public property, as they sought, in the words of the amendment itself, “to assemble, and to petition the Government for a redress of grievances.”
The right of assembly is an important First Amendment right, one treasured by the founding generation and the First Congress, which wrote the amendment, and one re-won two centuries later at great pain by the labor, civil-rights, and anti-war movements. The show of force that swept peaceful protesters from Lafayette Square in Washington, D.C., last night was an assault-and perhaps only one of a series of assaults-on that right…
The people own the streets-not the police, not the military, and not Donald Trump. And regulation of their use of the streets must be conducted with the greatest care, recognizing that occasional inconvenience caused by demonstrations is the price America pays for free government. The fact that some demonstrations are violent cannot be used to strip all Americans of their right to assemble.
Buzzfeed News: The DEA Has Been Given Permission To Investigate People Protesting George Floyd’s Death
By Jason Leopold and Anthony Cormier
The Drug Enforcement Administration has been granted sweeping new authority to “conduct covert surveillance” and collect intelligence on people participating in protests over the police killing of George Floyd, according to a two-page memorandum obtained by BuzzFeed News…
The DEA is limited by statute to enforcing drug-related federal crimes. But on Sunday, Timothy Shea, a former US attorney and close confidant of Barr’s who was named acting administrator of the DEA last month, received approval from Associate Deputy Attorney General Bradley Weinsheimer to go beyond the agency’s mandate “to perform other law enforcement duties” that Barr may “deem appropriate.” …
“Drug enforcement agents should not be conducting covert surveillance of protests and First Amendment protected speech,” said Hugh Handeyside, a senior attorney for the ACLU. “That kind of monitoring and information sharing may well constitute unwarranted investigation of people exercising their constitutional rights to seek justice. The executive branch continues to run headlong in the wrong direction.”
Reason (Volokh Conspiracy): President Trump Calls for Flag-Burning Bans
By Eugene Volokh
CNN reports (and you can hear the remarks at 43:15 of this audio):
President Donald Trump said Monday that he’d support laws criminalizing flag burning, saying in a call with governors that it’s time for the Supreme Court to take up the issue again as nationwide protests have intensified over the death of George Floyd…
As I discussed in detail in a 2009 law review article, Anglo-American law has treated symbolic expression, pictorial expression, and verbal expression analogously since before the Revolution. That notion was well embedded in American law by the time of Texas v. Johnson and U.S. v. Eichman, which held that the government can’t target flagburning for punishment; same for the notion that speech can’t be restricted just because it expresses an offensive or anti-American viewpoint.
I therefore think the Court was quite right in those cases, and I strongly doubt that the Court today would reach any different result: If anything, the principle that the government can’t ban speech based on its viewpoint has gotten even more support from the Court since then…But if such a ban was reenacted, I’m quite confident it will get struck down, and I don’t think that any briefing that the Justice Department would provide in support would change that.
Wall Street Journal: Trump Echoes Nixon in Targeting Twitter
By Preston Padden
President Trump signed an executive order Thursday that would have the Federal Communications Commission judge decisions made by Twitter, Facebook and others to moderate speech. Under Mr. Trump’s order, the FCC could revoke liability protection if a social-media platform hasn’t acted “in good faith.” The order amounts to a content review and is reminiscent of past restrictions on broadcast networks.
The Fairness Doctrine, introduced in 1949, required broadcasters to air opposing views on issues of public interest. The FCC determined whether broadcast speech was fair to both political parties. In the 1980s, conservative FCC Chairmen Mark Fowler and Dennis Patrick worked to repeal the doctrine, overcoming opposition in both parties, and succeeded in 1987…
In 1987 Mr. Patrick said, “We seek to extend to the electronic press the same First Amendment guarantees that the print media have enjoyed since our country’s inception.”
Right to Protest
New York Times: In America, Protest Is Patriotic
By The Editorial Board
In the absence of national leadership, it is all the more vital that mayors and governors affirm the rules that ought to govern American society. The nation is founded on the freedom of speech – and particularly the right to gather in protest against the government. Politicians must hold the police accountable for protecting the rights of everyone they are sworn to protect and serve…
The police have imposed arbitrary limits on protests, creating excuses for confrontation. They have fired countless rounds of tear gas and rubber bullets into unarmed crowds, sometimes without warning. They have attacked with fists, truncheons, shields – and cars…
In some of the most troubling attacks, police officers have singled out those who spoke up, wading into crowds of protesters and silencing the loudest voices.
Supreme Court
Reason (Volokh Conspiracy): Should the Supreme Court Reconsider Keller v. State Board of California?
By Jonathan H. Adler
In Keller v. State Bar of California (1990), the Supreme Court unanimously upheld the constitutionality of requiring practicing attorneys to join an “integrated” state bar association-a bar association that both regulates the practice of law within the state and lobbies on behalf of the interests of the legal profession (as determined by the bar). The decision expressly rested on Abood v. Detroit Board of Education, which allowed for mandatory public sector union dues. Abood is no longer good law, however, having been overturned in Janus v. AFSCME. So does this mean the Supreme Court should reconsider Keller?
This morning the Supreme Court denied certiorari in Jarchow v. State Board of Wisconsin, which presented that question. Justice Thomas, joined by Justice Gorsuch, dissented from the denial of certiorari. Justice Thomas wrote:
In Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), the Court held that a law requiring public employees to pay mandatory union dues did not violate the freedom of speech guaranteed by the First Amendment, id., at 235-236. In Keller, the Court extended Abood to integrated bar dues based on an “analogy between the relationship of the State Bar and its members, on the one hand, and the relationship of employee unions and their members, on the other.” 496 U. S., at 12. Applying Abood, the Court held that “[t]he State Bar may . . . constitutionally fund activities germane to [its] goals” of “regulating the legal profession and improving the quality of legal services” using “the mandatory dues of all members.” 496 U. S., at 13-14.
The Courts
Sacramento Bee: Sacramento sheriff settles with activists after banning them from his Facebook page
By Darrell Smith
Sacramento County Sheriff Scott Jones will pay two local African-American activists $16,000 each and establish social media policies protecting free speech on his Facebook account a year after he unconstitutionally banned them and other activists for posting critical comments on his official page.
The settlement reached with Tanya Faison of Black Lives Matter Sacramento and Sonia Lewis of the Liberation Collective for Black Sacramento was announced Thursday in a joint statement from the women’s attorneys and co-counsel American Civil Liberties Union of Northern California.
The deal came more than a year after the ACLU sued Jones on behalf of Faison and Lewis on First Amendment grounds in Sacramento federal court for deleting the activists’ comments and barring the two from his page…
Faison and Lewis were vocal critics on Jones’ page of the Sheriff’s Office’s handling of use-of-force incidents and Jones’ rejection of public oversight in the aftermath of the 2017 shooting of Mikel McIntyre, an unarmed black man…
“This case is about the right to criticize a public official in an online forum without being censored,” opened the 2019 lawsuit. “Sheriff Jones censored Plaintiffs’ voices during a critical time of public debate in Sacramento about whether and how his department should be subjected to outside oversight.”
U.S. District Court Judge Troy Nunley would later agree, ordering Jones in a February ruling to “unban” the activists, calling it a burden on their freedom of speech.
Congress
Wall Street Journal: Regrets, Rod’s Had a Few
By James Freeman
[Testifying before the Senate Judiciary Committee, former Deputy Attorney General Rod Rosenstein,] the government official who oversaw the collusion investigation[,] acknowledged that while there was never any evidence Donald Trump colluded with Russia, there was evidence Russia helped create the pretext for our government to investigate Donald Trump…
Perhaps the most shocking news to all Americans is how easy it was for abusive officials to turn federal surveillance powers against a political candidate they opposed.
FCC
Politico: Trump’s unexpected ally in the fight against tech
By John Hendel
The [Federal Communications Commission], though it has no direct authority over social media, could play a key role in assisting Trump’s efforts to rein in the power of Twitter and other online companies…
“This is really welcome news,” [FCC Commissioner Brendan] Carr told Lou Dobbs on Fox Business on Thursday, hours after Trump signed an executive order that threatens to reduce the online industry’s protections from lawsuits. Carr argued that the “far left” is “committed to not letting these platforms stay neutral in the run-up to 2020.” …
“Commissioner Carr has broken with traditional Republican orthodoxy and put all his chips on team Trump,” said Doug Brake, a director at the Information Technology and Innovation Foundation.
“This [executive order] is problematic for all sorts of reasons, and clearly not the proper process or forum to have a discussion around content moderation,” Brake added. “I suspect Carr himself knows this.” …
Some critics question whether the FCC should have any role here. Democratic Commissioner Jessica Rosenworcel, another outspoken voice at the agency, said she worries the order may turn the FCC into Trump’s “speech police.”
Events
Cato Institute: Coronavirus and the Constitution III: Shutdown Lawsuits, Testing, and Contact Tracing
Online Event: June 5, 2020 11:00 AM to 12:00 PM EDT (Register here.)
Featuring Christine Wilson, Commissioner, Federal Trade Commission; Matthew Feeney, Director, Project on Emerging Technologies, Cato Institute; moderated by Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute.
Three months into the pandemic, things are opening back up in fits and starts, with legal challenges about lingering shutdowns that may no longer be justified as well as other shutdowns that were always on dubious legal grounds. Conventional wisdom is that we could get things moving quicker if we had broader testing programs and more ambitious contact tracing. But can the government-federal, state, or local-force you to get tested before you can go to certain places or participate in certain activities? Can it make you wear a mask whenever you go outside? Can private businesses require temperature testing at the door and masks inside? For that matter, can the government work with technology companies or force you to download an app to track your phone and make sure you’re following distancing guidelines? Whether digital or analog, what kinds of powers can contact tracers have and how does all of this relate to your Fourth Amendment right to be free of unreasonable searches and seizures? Does contact tracing even work when there’s community spread, and how does that affect the constitutional analysis? Please join FTC Commissioner Christine Wilson and Cato scholars Matthew Feeney and Ilya Shapiro for an online forum to discuss these and other issues.
Online Speech Platforms
Wall Street Journal: Snap Says It Won’t Promote Snapchat Account of President Trump
By Sebastian Herrera
Social-media company Snap Inc. said Wednesday that it would no longer promote the Snapchat account of President Trump on its home page after finding that his public remarks could incite racial violence, a spokeswoman said.
Snap, which runs the popular video and photo chat app Snapchat, said it had determined that Mr. Trump’s public comments could lead to violence…
In the tweets, Mr. Trump praised the U.S. Secret Service for keeping protesters from “breaching the fence” at the White House. “If they had they would have been greeted with the most vicious dogs,” the president wrote in the tweets.
The company said Mr. Trump’s account would remain on the app but wouldn’t be featured prominently on its Discover page, where it has usually been placed highly among celebrities and other popular public figures.
“We will not amplify voices who incite racial violence and injustice by giving them free promotion on Discover,” a Snap spokeswoman said Wednesday. “Racial violence and injustice have no place in our society.” …
In a statement, Mr. Trump’s 2020 campaign manager, Brad Parscale, accused Snapchat of voter suppression and said the company is illegally trying to suppress the president. “If you’re a conservative, they do not want to hear from you, they do not want you to vote,” Mr. Parscale said.
Business Insider: Twitter says it’s not tackling all misinformation on the app, only that with ‘the highest potential for harm’
By Sarah Al-Arshani
In a series of tweets clarifying their new policies on misinformation, Twitter said the company wasn’t focused on flagging all misinformation but instead is giving priority to posts with “the highest potential for harm.”
Twitter said that based on a survey at the end of last year, respondents said they believed that Twitter “shouldn’t determine the truthfulness of tweets,” but rather “provide context to help people make up their own minds in cases where the substance of a tweet is disputed.”
“Hence, our focus is on providing context, not fact-checking,” Twitter wrote.
The company explained that labeled tweets will link to a Twitter conversation that shows factual statements, counterpoint opinions and perspectives, and ongoing public conversations.
The company explained that it would focus on the misinformation of “manipulated media, civic integrity, and COVID-19.”
The States
Tennessean: Tennessee House approves measure reducing campaign finance disclosures in election years
By Joel Ebert
The Tennessee state House on Monday approved a measure that would claw back campaign finance disclosures during election years.
This year, like in other election years, lawmakers are required to file five disclosures outlining how they raised and spend campaign money…
In non-election years, lawmakers are required to file two disclosures.
The bill, sponsored by Rep. Tim Rudd, R-Murfreesboro, would remove the requirement to file disclosures before the primary and general elections. Those reports currentlymust be filed no later than seven days before the elections.
Under Rudd’s bill, any campaign contributions or expenditures detailing activity near the elections would not be known until months later.
At the same time, Rudd touted the legislation as one that would bolster certain disclosures.
Rudd’s bill would require candidates to report all contributions. Current law requires candidates to only report contributions of $100 or more.
Unlike in federal races, most donors give Tennessee candidates money in amounts in excess $100…
The legislation as written would delete language from state law that limits reporting on expenditures of $100 or more. Instead, it would require full disclosure of all expenditures, no matter the amount, according to a fiscal note…
On the floor on Monday, Rudd said the reporting requirements during election years were “cumbersome.”
WMUR: NH Primary Source: Feltes calls for changes in elections access, campaign finance reform
By John DiStaso
[New Hampshire] State Senate Majority Leader and Democratic candidate for governor Dan Feltes this week released a “People’s Plan” that he says will reform elections and campaign finance laws, as well as some of the ways elected officials conduct themselves in office and as candidates.
Feltes would…establish a “multi-year cooling-off period” before former lawmakers can become lobbyists…
To reform campaign finance, Feltes would prohibit limited liability corporation contributions to political campaigns and prohibit owners of more than one LLC from making multiple contributions in the name of each LLC – essentially closing the so-called “LLC loophole.” …
In his plan, Feltes would prohibit legislators and executive councilors from working at firms with lobbying practices…
He would require all political groups to disclose donors and require campaigns and outside groups to disclose donations of $1,000 or more within 24 hours.
He would prohibit candidates from spending campaign funds for personal use.
Feltes supports a taxpayer-funded matching program for small dollar contributions.
