Supreme Court
Concurring Opinions: FAN 192.1 (First Amendment News) Thomas & Gorsuch discuss First Amendment expression claim in Colorado baker case
By Ronald K.L. Collins
Unlike the majority, Thomas and Gorsuch addressed the First Amendment free expression claim in their separate opinions…
Here, first, are some excerpts from Justice Thomas’s opinion: …
“Forcing Phillips to make custom wedding cakes for same-sex marriages re quires him to, at the very least, acknowledge that same- sex weddings are “weddings” and suggest that they should be celebrated-the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to “bear witness to [these] fact[s],”Hurley, 515 U. S., at 574, or to “affir[m] . . . a belief with which [he] disagrees,” id., at 573.”…
Next, here are some excerpts from Justice Gorsuch’s opinion: …
“To suggest that cakes with words convey a message but cakes without words do not-all in order to excuse the bakers in Mr. Jack’s case while penalizing Mr. Phillips-is irrational. Not even the Commission or court of appeals purported to rely on that distinction. Imagine Mr. Jack asked only for a cake with a symbolic expression against same-sex marriage rather than a cake bearing words conveying the same idea. Surely the Commission would have approved the bakers’ intentional wish to avoid participating in that message too. Nor can anyone reasonably doubt that a wedding cake without words conveys a message. Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding.”
The Courts
Reuters: U.S. appeals against ruling that Trump could not block Twitter followers
By David Shepardson
The U.S. Justice Department said on Monday it would appeal against a federal judge’s ruling that President Donald Trump may not legally block Twitter users from his account on the social media platform based on their political views, according to a court filing.
Jameel Jaffer, a lawyer for the seven plaintiffs who sued, said the @realDonaldTrump account had unblocked the seven plaintiffs on Monday.
“We’re pleased that the White House unblocked our clients from the President’s Twitter account but disappointed that the government intends to appeal the district court’s thoughtful and well-supported ruling,” Jaffer said in an email.
The White House did not comment immediately. A Justice Department spokeswoman confirmed the plaintiffs had been unblocked…
U.S. District Judge Naomi Reice Buchwald in Manhattan ruled on May 23 that comments on the president’s account, and those of other government officials, were public forums and that blocking Twitter users for their views violated their right to free speech under the First Amendment of the U.S. Constitution.
Buchwald’s ruling was in response to a First Amendment lawsuit filed against Trump in July 2017 by the Knight First Amendment Institute at Columbia University and several Twitter users…
Buchwald rejected the argument by Justice Department lawyers that Trump’s own First Amendment rights allowed him to block people with whom he did not wish to interact.
Trump could “mute” users, meaning he would not see their tweets while they could still respond to his, she said, without violating their free speech rights.
New York Times: Are You Sure You Want a Right to Trump’s Twitter Account?
By Noah Feldman
As more and more of our speech takes place on social media, courts are beginning to experiment with expanding the First Amendment, proposing that its protection of political speech applies even in privately controlled virtual spaces. The most recent example is a federal court in New York that held last month that President Trump cannot block anyone from following his Twitter account because it functions as a public forum. This is the first time, to my knowledge, that the First Amendment has ever been applied to a private platform.
On the surface, this apparent expansion of free speech may seem sensible, even exciting. After all, if social media is where we do our political talking, it would seem logical to bring the Constitution to bear there.
The problem, however, is that applying the First Amendment to social media will make it harder or even impossible for the platforms to limit fake news, online harassment and hate speech – precisely the serious social ills that the world is calling on them to address.
The Atlantic: What the @RealDonaldTrump Ruling Actually Means
By Garrett Epps
[T]he judge did not decide that the First Amendment governs Twitter generally. What she did rule is that, because @realDonaldTrump is a massive space where the president does official business, that small part of Twitter has become, at least in part, a “designated forum.” …
If the president chooses to “block” certain users-as he has done with the individual plaintiffs in this case-he has excluded them from this forum. They cannot access his tweets within Twitter, and thus they cannot post replies that will be seen by others. Seeing tweets elsewhere doesn’t cure this exclusion: “the ability to interact directly cannot be completely reestablished and that ability-i.e., access to the interactive space-is therefore best described as the access that the individual plaintiffs seek.”
To put it simply, Twitter is how the president speaks to the people; replies on Twitter are how the people speak to each other, in a “place” the government uses for expression and has opened to the public for expression as well. Obviously, blocked users can “reply” to the president on other sites. But a hornbook principle of First Amendment law, enunciated nearly 80 years ago, is that “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” That’s especially true when the other “places” available draw many fewer eyeballs than does @realDonaldTrump.
The plaintiffs in this case, the judge said, “were indisputably blocked as a result of viewpoint discrimination.” And viewpoint discrimination in a public forum is a very serious violation of the First Amendment.
Politico: Is Mueller taking legal short-cut in Russian troll case?
By Josh Gerstein
Usually, prosecutors have to prove that a defendant charged with a campaign-law violation acted “willfully,” meaning that the defendant did the act on purpose and knowing that it would violate the law.
However, in the February indictment over alleged Russian troll activity in the 2016 race, Concord isn’t charged directly with violating U.S. election law. Instead, the firm is charged with “conspiracy to defraud the United States” – a broad charge involving an alleged effort to impede the functions of one or more federal agencies. The indictment mentions the Federal Election Commission, the Justice Department’s foreign agent registration functions and the State Department’s role in visa issuance as activities that were impaired by the scheme Concord and the others allegedly carried out.
While the charge of conspiring to defraud the U.S. government sounds ominous, prosecutors contended in a brief filed Friday that they can prove the charge without meeting the high “willful” standard and instead just showing that the defendants acted intentionally…
Concord’s lawyers noted that when prosecutors brought a similar case in 1998 over alleged foreign donations to Democratic campaigns and funds, the indictment contained the “willfully” language not present in the Russia-related case filed earlier this year…
Mueller’s prosecutors suggested in their filing Friday that they aren’t trying to swap a conspiracy charge for a campaign finance law violation charge. Instead, they note that their case accuses the Russians of trying to subvert the Federal Election Commission, Justice’s foreign agent requirements and State’s visa process.
Internet Speech Regulation
The Hill: Slamming the door shut to foreign meddling in America
By Richard A. Clarke and Ian Vandewalker
As with the threat posed by Russia’s tanks, submarines, and missiles, our nation is not secure unless we have an effective defense against these informational weapons…
To better control the wild west of online advertising, we need to bring the rules we’ve created for conventional political advertising into the 21st century. Online ads should be just as regulated as the ads we’re used to seeing on TV. We need more transparency in who pays for online ads and more regulatory teeth to ensure the ban on foreign spending is enforced for online campaigning.
Congress should follow California’s lead. The state’s recently-enacted Disclose Act improved transparency for the type of online ads Moscow used to interfere in the presidential election. Disclosure makes it harder for Russian trolls to disguise themselves as Americans.
Looking beyond the internet, we need to rein in the scourge of dark money. Groups are currently spending mind-boggling sums on our elections, while taking unlimited sums from secret donors. This may provide an easy gateway for foreign interference. And the concern isn’t just theoretical. The FBI is reportedly investigating whether a Russian banker with ties to Putin used the NRA to channel foreign dollars into our elections.
And lastly, we need to halt foreign-owned businesses from spending on our elections. Under current law, foreign corporations are banned from political spending, but domestic firms aren’t, even if they’re partially or fully owned by foreign nationals.
By Steven Rosenfeld
Facebook’s new political ad-buying rules are sabotaging grassroots candidates in June’s first primaries-and hurting ballot initiatives with upcoming filing deadlines-according to conservatives and progressives who say their campaigns are being suppressed. But Facebook says these campaigns weren’t paying attention or following instructions to verify their identities…
This new landscape, where Facebook has taken it upon itself to police political content, was not unexpected. Election scholars have been predicting that a private company would emerge in this role as the internet grew in reach. But the fact that Facebook is now a more powerful political referee than the current Congress can be seen in June’s first primaries as its rules, whether delivered with clarity or not, are abruptly shutting off legitimate candidates who have been forced to scramble in response…
“We don’t have the money that the incumbent has to challenge him, to square off with him on television advertising or radio advertising,” Rose said, referring to Rep. Steven Palazzo, R-MS, who was first elected to Congress in 2010. “So we have decided that online is our best way to get the most audience interaction. And, of course, Facebook is the best way we can engage.” …
Cheng, the social media manager of the proposed San Francisco Community Housing Act, said they were also cut off without notice…
“Grassroots campaigns are particularly vulnerable, because for them, Facebook is one of the few affordable and accessible options to get their word out to a large viewership.”
Independent Groups
Bloomberg Government: Outside Groups Bet Millions on Shaping Midterm Primary Contests
By Ken Doyle
FEC figures analyzed by another nonprofit watchdog, the Center for Responsive Politics, indicated total outside spending in the 2018 midterms so far has reached $142.5 million. That’s more than 40 percent above the $100 million spent by the same point in 2014 and represented a more than six-fold increase over the outside spending level in the 2010 midterms…
The outside money reported to the FEC includes “independent expenditures” that explicitly call for votes for or against a candidate. Spending on messages that avoid such “express advocacy” generally isn’t reported…
The latest Wesleyan Media Project study found that in House and Senate races the majority of outside spending this election cycle is coming from nondisclosing groups. The study found, for example, that two-thirds of outside ads in the 2018 Senate races have come from groups that keep their funding sources secret.
The States
NW News Network: Washington AG Files Campaign Finance Lawsuits Against Facebook, Google
By Austin Jenkins
Washington Attorney General Bob Ferguson is suing Facebook and Google for campaign finance violations. The lawsuits filed Monday allege the companies failed to keep records about who purchased political advertising from them.
Washington state law requires companies that sell political advertising to track who buys ads and make that information available for public inspection. The lawsuits against Facebook and Google allege they failed to comply despite accepting millions of dollars in political ads over the last decade.
Ferguson acknowledged the stakes are higher these days following evidence of Russian interference in the 2016 election.
“I think it’s more than fair to say that that heightened concern of interference that we’re seeing nationally underscores the importance of a legal case like this,” Ferguson said. “The whole thrust of our legal action is to make sure that Google and Facebook are transparent about who specifically is paying for ads.”
In a statement, Facebook’s director of product management wrote, “Attorney General Ferguson has raised important questions and we look forward to resolving this matter with his office quickly.”
Kansas City Star: Eric Greitens is gone, but investigation into secretive nonprofit should continue
By Editorial Board
It isn’t clear if the House committee has the authority to expand its investigation into the role of dark money in the state. In fact, now that Greitens has quit, the committee may simply dissolve.
That means dark money reform will be up to the full legislature and Gov. Mike Parson. They should all begin work immediately on a measure requiring social welfare nonprofits involved in political affairs to reveal their donors.
Lawmakers can use a recent advisory opinion from the Missouri Ethics Commission as a guide for their work. In May, the commission said political nonprofits are the equivalent of a political “committee” under state law and must reveal the names of contributors.
Missouri Auditor Nicole Galloway and others say the commission’s finding should be embedded in state law as soon as possible, just to be sure. They’re right.
Those who support the use of dark money corporations claim secret donations are a matter of free speech. They aren’t. They’re a matter of bribery, conducted in the shadows.
Missouri can and should take a national leadership role on this issue. The state should require social welfare corporations to either reveal their donors or conduct business somewhere else.
