In the News
By Jeffrey Brindle
With due respect, I disagree the [Americans for Prosperity Foundation v. Bonta] ruling jeopardizes election-related campaign finance disclosure requirements…
Indeed, David Keating, president of the Institute for Free Speech, which had filed its own lawsuit against California’s non-profit disclosure law, said the ruling could mean his group will launch more challenges against “unreasonable” campaign finance rules.
“It definitely makes it easier for us to persuade courts that certain disclosure laws are unconstitutional,’’ he told The Hill on July 5, 2021.
However, he added: “With that said, laws that require disclosure of large campaign contributions to politicians, political parties, PACs…I don’t think they are in any danger from this ruling.”…
In my opinion, the Bonta decision will be limited to prohibiting the broad disclosure to state officials of the names and addresses of charitable donors and will not reach into campaign finance law, which in the context of elections has been found to be a sufficiently important governmental interest.
New from the Institute for Free Speech
If Corporations Can Speak, Then They Can Speak Freely
By Nathan Maxwell
When the Georgia General Assembly took on voting rules in March, partisan attitudes toward corporate speech rights inverted. Some of the most vocal defenders of corporations’ speech rights, typically Republicans, suddenly wished to banish businesses that criticized the law from the political arena, while Democratic activists, traditionally eager to exile corporations from politics, demanded precisely the opposite. Both groups are wrong. A First Amendment right can’t be selectively defended or embraced.
Although they are often maligned, corporate speech rights are an important feature of a well-functioning democracy. While the right to free speech is often discussed in a personal context, businesses also have a stake in the political climate. Few would disagree that individuals should be permitted to criticize their national leaders and discuss legislation. It isn’t much of a democracy if the governed don’t have a voice. Businesses are subject to federal rulemaking, too. Not only does the Congressional power to tax and to regulate interstate commerce (to name just a few) directly impact companies, but businesses are comprised of people, after all – and they have valuable perspectives to share on how policy proposals may impact their work. As the debate around corporate speech continues, we must recognize that their rights are tantamount to our own. If corporations can speak, then they can speak freely.
Congress
By Cathy Gellis
[Sen. Amy] Klobuchar’s bill, “The Health Misinformation Act of 2021,” would condition Section 230’s platform protection to apply only to platforms that moderate user content as the government has decreed they should moderate it. The constitutional problems with this scheme should thus be readily apparent: First, it directly violates platforms’ First Amendment rights to moderate user content as they see fit by effectively forcing them to moderate content as the government has decided they should, lest they risk the loss of a critical statutory protection they otherwise would have had. Secondly, the bill inherently allows the government to put its thumb on the scale of deciding which points of view are the allowed ones and which are the ones subject to legal penalty, which obviates freedom of speech since some ideas are obviously no longer effectively free to be expressed if they can attract a censorial government-induced penalty.
The Klobuchar bill would like to pretend that the means somehow justify the ends. The government certainly has a legitimate interest in keeping the population alive and healthy, so it’s not an inherently corrupt goal she’s trying to further with this bill. She just wants to suppress medical misinformation that has been prolonging the pandemic.
But there’s nothing about the bill that confines it to such benevolent purpose. There can’t be, because that’s not how government power works, which is why we have the First Amendment because we always need to be able to speak out against the government when it gets things wrong.
And we know it gets things wrong.
Roll Call: Washington is a lobbying boom town under Biden
By Kate Ackley
Democrats who control Capitol Hill have invested copious amounts of messaging this year on overhauling the nation’s political money and influence systems, but both sectors appear poised to smash records nevertheless…
And it seems unlikely that congressional Democrats’ signature 800-plus-page overhaul of campaign finance, lobbying and elections laws will make it into enactment, at least in its current form. The Senate version stalled back in June, and its fate, so far, appears unchanged.
If anything, debate over the bill may simply drive more fundraising as Democrats clamor for an end to the Senate filibuster currently blocking them from advancing the overhaul measure and other stalled legislative priorities, and Republicans mount a backlash.
Though much of the attention on the bill has focused on the changes to elections law, the bill also would reshape how congressional candidates fund their campaigns by instituting an optional public financing system that would match $6 in government money for every $1 raised in small donations. It would mandate new disclosures for groups, such as trade associations and other nonprofits, that engage in political spending and would establish new rules and ethical standards for lobbyists.
Supreme Court
The Atlantic: This Court Has Abandoned the Most Essential Element in American Democracy: Voters
By Kimberly Wehle
For its part, [Americans for Prosperity Foundation v.] Bonta involved a challenge to a California law requiring charitable organizations to disclose the names of major donors in order to register with the state. The Court applied a construction of the First Amendment that it called “exacting scrutiny,” which would allow the state to mandate the identification of donors if there is “a substantial relation between the disclosure requirement and a sufficiently important government interest.” The majority held that there was a “dramatic mismatch” between the state’s interest in investigating charities for fraud and the disclosure rule, calling it “a dragnet for sensitive donor information.” The Court thus vigorously protected unnamed, possibly wealthy donors in Bonta over the interests of the voting public. (No donors actually joined the lawsuit.)
Justice Sonia Sotomayor argued in her dissenting opinion that the majority went too far in “striking the law down in its entirety” with no proof that “disclosure will likely expose [donors] to objective harms, such as threats, harassment, or reprisals.” In fact, she complained, the chief justice’s opinion “recklessly holds a state regulation facially invalid despite petitioners’ failure to show that a substantial proportion of those affected would prefer anonymity, much less that they are objectively burdened by the loss of it.” …
The Supreme Court lost its bearings on this issue in 2010, when a conservative 5–4 majority in Citizens United v. Federal Election Commission struck down key provisions of federal legislation imposing campaign-finance restrictions.
Online Speech Platforms
Breitbart: Free Speech Expert: Big Tech Platforms Are ‘Public Accommodations,’ Cannot Restrict Free Speech
By Sean Moran
Randy Barnett, a nationally recognized Georgetown University Law professor, said during a Federalist Society forum Thursday that big tech platforms have become “public accommodations,” meaning they cannot discriminate against Americans using them.
The Federalist Society for Law and Public Policy hosted a panel of First Amendment experts to discuss the degree to which Americans need access to social media platforms in the 21st Century, much in a similar manner to how civil rights law declared all Americans should have access to restaurants and lodging in the 20th…
Others, such as Eugene Volokh, the UCLA School of Law professor, said during a Federalist Society forum in June that the federal government could use common carrier regulations to prevent big tech companies from censoring Americans’ speech.
The Hill: Tech groups urge Congress to ‘dig deeper’ on Facebook role in Capitol riot
By Rebecca Klar
Tech accountability groups are urging members of Congress to “dig deeper” into the role Facebook played in leading up to the Jan. 6 riot at the Capitol ahead of Tuesday’s House hearing about the attack, according to a report shared with The Hill on Monday.
The groups are sending the report, composed of publicly available information and the groups’ previous findings of how Facebook was used ahead of the riot, to House and Senate leadership offices, as well as members of the House select committee formed to investigate the attack…
The report [from Accountable Tech, the Institute for Strategic Dialogue, Media Matters and the Tech Transparency Project]…also accused Facebook’s pledge to remove election-related misinformation after the riot of being too narrow and allowing much of the disinformation to remain on the platform. It includes reports from Media Matters citing posts spreading such false claims from prominent accounts, including members of Congress, that were not removed.
Along with the report, Accountable Tech is launching a digital ad campaign urging “real regulation” of Facebook. The narrator of the 47-second ad accuses Facebook of a business model that “incentivizes radicalization” and “inflames hate and disinformation.”
By Mike Masnick
It’s not a new thing that those without any experience in content moderation assume that it’s somehow “easy” to just find and delete misinformation and disinformation online — but it’s often stunning how little they’ve thought through how all of this plays out. As the White House has stupidly been using its bully pulpit to pressure Facebook into deleting anti-vax misinformation, and elected officials are threatening legislation they must know is unconstitutional, none of them seem to recognize that it’s not that easy.
Anyone who has done any work related to content moderation knows this. They know that the vast majority of misinformation is not that easy to spot. First of all, it’s not clear what is misinformation. You could have someone who gets something inadvertently wrong. Or, perhaps they just misread something or misunderstand something. Is that misinformation that needs to be deleted? Also, there are things like sarcasm or criticism that frequently repeat the misinformation in order to respond to it. Then there are plenty of things that may seem like misinformation but tend to just be people posting stuff that is technically true, but without the necessary context. Does that need to also be deleted? There are tons of degrees involved in misinformation, and figuring out what should stay up and what should be taken down is not nearly as easy as many commentators make it out to be.
But, on top of that, there’s the simple fact that those spreading misinformation know that they may face consequences for it, and thus they adapt their techniques.
City Journal: The Social Justice Network
By Arthur Milikh
The battle over permissible speech in American society was helpfully, and predictably, elaborated by Facebook last week in an update to its “hate speech” rules. The social media giant’s changes are a signal of the new limits being placed on political expression and the freedom of the mind. Other major American institutions are almost sure to follow its lead.
Until recently, most online platforms largely defined “hate speech” as speech that could lead to imminent physical harm. But Facebook now demands that its users “not post” speech critical of “concepts, institutions, ideas, practices, or beliefs associated with protected characteristics, which are likely to contribute to imminent physical harm, intimidation or discrimination against the people associated with that protected characteristic.”
“Protected characteristics,” according to Facebook, include “race, ethnicity, national origin, disability, religious affiliation, caste, sexual orientation, sex, gender identity and serious disease.” On its face, this sounds neutral and universally applicable. Yet anyone following the matter knows that it is inconceivable, for instance, that Facebook would ban critiques of “cisgenderism,” a concept whose purpose is to attack heterosexuality and the legitimacy of the generative family. It is similarly unimaginable that protected groups would be blocked from criticizing American constitutionalism as a construct of “whiteness.” Oppressor groups, after all, do not possess “protected characteristics.”
The States
Texas Tribune: Gov. Greg Abbott promised “transparency and accountability” for border wall donations. But donors don’t have to use real names.
By James Barragán
Despite promises from [Gov. Greg] Abbott that transparency in the crowdfunding process for the border wall would be paramount, donor information released to The Texas Tribune for the first week of collections was bereft of any way to verify the identities of the majority of the donors. Abbott’s office is not disclosing the locations of donors, nor is it requiring that they identify themselves with their real names…
The shortcomings in the donation disclosures have raised ethical concerns about the private fundraising effort for the governor’s major state initiative…[Experts have warned] it could invite the perception of a “pay to play” system in which donors, who are anonymous to the public, benefit from their donations to one of Abbott’s priority projects.
“You don’t want to have this big slush fund of money that is going to this pet project of the state executive that has zero accountability to anybody, with money coming in from who knows what and God knows who,” said Beth Rotman, national director of money in politics and ethics at Common Cause, the government watchdog group…
“Due to the sensitive nature of the personal information for the credit card transactions, and the very real fear of retaliation for donating to the border security mission, billing information is only being kept by the state agency responsible for processing the credit card financial transactions,” [Abbott spokesperson Renae] Eze said in a statement…
The Tribune has not sought the disclosure of the donors’ credit card numbers, but it has asked for donor names, cities and states to aid in the verification of identities.
