Ed. note: The Daily Media Update will return Tuesday, July 6. Happy Independence Day Weekend!
New from the Institute for Free Speech
Statement on Supreme Court Citizen Privacy Ruling
The Institute for Free Speech released the following statement in response to today’s decision by the United States Supreme Court in Americans for Prosperity Foundation v. Bonta and Thomas More Law Center v. Bonta. The Court’s ruling struck down a California mandate that nonprofit groups soliciting funds in the state must reveal their major supporters to state officials.
“Today’s ruling is a big win for free speech and privacy. The Court has taken a critical step towards protecting Americans’ right to support nonprofit causes without fear of official or public retaliation and harassment for their beliefs. California’s careless warehousing of sensitive nonprofit supporter lists resulted in public leaks, putting the safety of civically engaged Americans at risk. The Court’s strong opinion makes clear that the state’s dragnet was not just irresponsible, it was unconstitutional. Its decision reaffirms the Court’s vital precedents protecting citizen privacy and gives real teeth to the legal standard under which many laws harming speech and assembly rights are reviewed by courts,” said Institute for Free Speech Chairman and Founder Bradley A. Smith.
The Institute for Free Speech filed an amicus brief supporting the plaintiffs and was the first organization to sue California for demanding nonprofits’ supporter lists. The Court today scheduled a conference on our case, Institute for Free Speech v. Bonta, and we expect an order soon.
Ed. note: Here’s this morning’s order in Institute for Free Speech v. Bonta.
At the April 22, 2021 open meeting of the Federal Election Commission (FEC), the agency’s six commissioners discussed a proposed policy to close the file at the initial stage in the enforcement process. The proposal was contained in a memorandum from Vice Chair Allen Dickerson, Commissioner Sean J. Cooksey, and Commissioner James E. “Trey” Trainor III dated April 1, 2021.
For additional background on the crucial importance of this proposed policy to protect speakers, public interest in the Commission’s actions, and due process rights, the Institute’s Vice President for Litigation, Alan Gura, submitted comments to the FEC in support of the proposal. In addition, IFS Chairman and former Federal Election Commission Chairman Bradley A. Smith authored an op-ed in Real Clear Politics discussing how the failure to close the file following tie votes harms speech rights, abdicates the Commission’s responsibility for civil interpretation and enforcement of campaign finance law to private, partisan actors, and amounts to “bad government.”
The commissioners’ late April discussion can be viewed online here. To aid public understanding of this important issue, we transcribed a portion of the meeting where substantive discussion occurred on the proposed policy.
Supreme Court
National Review: A Good Day for Free Speech and Free Elections
By The Editors
Americans for Prosperity Foundation v. Bonta arose from the California attorney general’s office, mainly under Kamala Harris and Xavier Becerra, trampling the First Amendment rights of nonprofit advocacy groups to the privacy of their donors. It was not a coincidence that California launched that initiative at the height of the Tea Party movement. Its draconian scope applied not only to California charities but to any nonprofit that solicited donations in the state — even Chinese dissident groups. In an age of cancel culture and ever-increasing digital surveillance, the Court found, the risks of harassment and reprisals “are heightened in the 21st century and seem to grow with each passing year, as anyone with access to a computer can compile a wealth of information about anyone else, including such sensitive details as a person’s home address or the school attended by his children.” …
Even the Biden administration’s brief admitted that Harris and Becerra had disregarded the importance of protecting the privacy of donors by maintaining donor lists on a system the trial court found to be “an open door for hackers.” Given the record of Harris and Becerra, Roberts wrote, their office’s “assurances of confidentiality are not worth much.” The Court also found “a dramatic mismatch” between the California AG’s claimed interest in fighting charitable fraud and its methods, with “not a single, concrete instance” in which collecting this information advanced its law-enforcement purpose. AFPF v. Bonta may be a loss for the likes of Kamala Harris and Xavier Becerra, but it is a victory for the free-speech and association rights of people and groups spanning the entirety of the political spectrum. It is also a shot across the bow against the Democrats’ “For the People Act,” which similarly invades the privacy of donors.
Wall Street Journal: A Victory for Donor Privacy
By The Editorial Board
Americans who give money to any polarizing cause—say, gun rights, abortion or religious liberty—can sleep a little easier tonight thanks to the Supreme Court’s 6-3 ruling on Thursday in defense of donor privacy. Given the threat lately of being publicly canceled for having the wrong views, it’s vital that the First Amendment protect anonymity…
It’s good to have the Supreme Court looking at forced disclosures with an increasingly skeptical eye. “Today’s analysis,” Justice Sotomayor laments, “marks reporting and disclosure requirements with a bull’s-eye.” Let’s hope so.
Mountain States Legal Foundation: A Major Win for the First Amendment, a Major Rebuke for California
By Tyler Martinez
The Court clarified that demands for donor lists must be tailored to a particular pressing need from the government—not just a dragnet for data. That is because “[t]he deterrent effect feared by these organizations is real and pervasive.” A broad cross-section of advocacy groups had weighed in on the case, crossing ideological lines. Charities ranging from the ACLU and Human Rights Campaign to MSLF and the Cato Institute all came out to team up on the unconstitutional California law, noting how it chilled their advocacy…
Americans for Prosperity proved that they were subject to threats, harassment, and reprisals from those opposed to the nonprofit’s ideological mission. Worse, California didn’t even do a good job protecting the data it collected—it put the information on the state attorney general’s website. In times of cancel culture, this was very dangerous indeed. And there was even proof that the state did not even need the information—it had other tools to get donor lists if the state was actually investigating a particular charity for alleged fraud.
All California wanted was to have the information “just in case.” But making life easier for a government bureaucrat isn’t a strong enough reason to invade people’s privacy in what causes they support. As the Chief Justice said, “[m]ere administrative convenience does not remotely reflect the seriousness of the actual burden that the demand for Schedule Bs imposes on donors’ association rights.”
New York Times: The Supreme Court Is Putting Democracy at Risk
By Richard L. Hasen
In…Americans for Prosperity v. Bonta, the court has laid the groundwork for lower courts to strike down campaign finance disclosure laws and laws that limit campaign contributions to federal, state and local candidates…
[I]t is unsurprising that this particular conservative majority on the Supreme Court sided with these conservative charities. And had the court said only that California’s law as applied to those facing a threat of harassment was unconstitutional, it would have been no big deal. But the majority opinion, by Chief Justice John Roberts, is much more troubling. The court held the disclosure law could not be applied to anyone, even those not facing a risk of harassment. He also rejiggered the First Amendment standards to call many other laws into question.
In the Americans for Prosperity case, he redefined the “exacting scrutiny” standard to judge the constitutionality of disclosure laws so that the government must show its law is “narrowly tailored” to an important government interest. This makes it more like strict scrutiny and more likely that disclosure laws will be struck down…
The court’s ruling calls into question a number of campaign finance disclosure laws. Perhaps even more significant, it also threatens the constitutionality of campaign contribution laws, which are judged under the “exacting scrutiny” standard, too.
Republican Leader Mitch McConnell: McConnell: SCOTUS Rulings Affirm Fundamental Protections of Representative Government
“The Court also confirmed today what decades-old legal precedent already tells us: that associational privacy is a fundamental American right. As the NAACP argued forcefully more than half a century ago, the defense of First Amendment rights is especially important in places where citizens’ views cut against those of governing majorities.
“As such, the ruling in Americans for Prosperity Foundation v. Bonta is a stern warning to those corners of the Left where naming and shaming is treated like a routine political tool. It should also serve as a cautionary tale for any elected Democrat still hoping to codify dragnet disclosure and tip the scales of our electoral system.
The Courts
Florida Politics: Federal judge blocks contribution cap for ballot initiatives
By Renzo Downey
A federal judge has halted Florida’s law placing limits on early donations to citizen initiative campaigns the day it was set to take effect.
The judge sided with the American Civil Liberties Union of Florida, which sued to defeat the bill (SB 1890) last month. The ACLU argues the measure unconstitutionally burdens and chills Florida citizens’ free speech.
“Senate Bill 1890 is just another attempt to undermine Florida citizens’ rights and we are pleased the court blocked it from going into effect today,” said ACLU of Florida staff attorney Nicholas Warren in a statement. “The Florida Legislature has made it increasingly harder and costlier to propose citizens’ initiatives and get them on the ballot. We know this effort is unconstitutional because it violates Floridians’ First Amendment rights, and we look forward to getting the law permanently struck down.”
The measure would cap donations to political committees backing proposed constitutional amendments at $3,000 during the signature-gathering process. That’s the same restriction placed on donations to statewide candidates.
Disclosure
Roll Call: Political spending proposals gain traction in proxy season
By Keith Lewis
Shareholder proposals seeking to increase transparency on publicly traded companies’ political activities won in record numbers this proxy season.
Investors gave strong support to measures asking corporate boards to disclose more about company campaign contributions and lobbying, with proposals earning resounding approval from shareholders at Netflix Inc., railway operator Norfolk Southern Corp., and GEO Group Inc., which runs immigration detention facilities.
Each of those measures passed with at least two-thirds support at annual shareholder meetings. The proposal for Netflix to enhance its disclosure around lobbying and establish greater board oversight on election spending attained over 80 percent backing from investors, according to Proxy Preview, a collaborative project that tracks shareholder votes.
“This was an absolutely critical proxy season because of the message being sent by investors, that they strongly support political spending disclosure,” Bruce Freed, president of the Center for Political Accountability, told CQ Roll Call in an interview. “It was a banner year.”
Consistent upward trends in the number and success of political activity disclosure efforts over the past few proxy seasons demonstrate the Securities and Exchange Commission needs to establish a framework for environment, social and governance disclosure, according to Freed…
“Companies are recognizing it’s in their self-interest to adopt robust policies on political spending,” Freed said.
Dallas Morning News: Chip and Joanna Gaines speak out against claims of racism after campaign donation
By Anna Caplan
Chip and Joanna Gaines made their first public comments Wednesday, speaking out to The Hollywood Reporter about accusations that they say claim they are anti-LGTBQ and racist.
Their response is after a report in The Dallas Morning News revealed that the Gaineses contributed to Chip’s sister, Shannon Braun’s Grapevine-Colleyville ISD school board race. Braun, a critical race theory opponent, said the district was trying to teach the controversial curriculum…
The couple told the publication that they made the donation before Braun “came out against teaching critical race theory.” …
The couple donated $1,000 to Braun’s campaign, according to campaign finance reports. Braun and Chip Gaines’ parents, Bob and Gayle Gaines, donated $2,000…
“Sometimes I’m like, ‘Can I just make a statement?’ ” Joanna Gaines told The Hollywood Reporter. “The accusations that get thrown at you, like you’re a racist or you don’t like people in the LGBTQ community, that’s the stuff that really eats my lunch — because it’s so far from who we really are. That’s the stuff that keeps me up.”
They did not comment in the story about their donation…
Online Speech Platforms
Politico: D.C. AG subpoenas Facebook in escalating probe of Covid-19 misinformation
By Cristiano Lima
D.C. Attorney General Karl Racine has subpoenaed Facebook for records related to the platform’s handling of coronavirus misinformation as part of a previously undisclosed investigation into whether the tech giant is violating consumer protection laws.
Racine, a Democrat, is calling on Facebook to release by the end of next week an internal study it conducted looking into vaccine hesitancy among its users…
The subpoena, filed June 21, also calls on Facebook to provide records identifying all groups, pages and accounts that have violated its policies against Covid-19 misinformation and documents detailing how many resources the tech giant has devoted to the cause.
Politico: Team Trump quietly launches new social media platform
By Meridith McGraw, Tina Nguyen, and Cristiano Lima
Former President Donald Trump’s team quietly launched a new social media platform on Thursday, billing it as an alternative to Big Tech sites…
The site, called GETTR, advertised its mission statement as “fighting cancel culture, promoting common sense, defending free speech, challenging social media monopolies, and creating a true marketplace of ideas.” The app is currently in beta form and will be officially launched on July 4 at 10a.m…
Trump’s involvement with the project is unclear as is whether or not he will set up an account on GETTR and use it…
The former president has been looking for alternative ways to engage with his base online after having been booted off Twitter and suspended from Facebook…
A description for GETTR on the app stores calls it a “non-bias social network for people all over the world.”
