In the News
Ballot Access News: Federal Lawsuit Filed Over New Jersey Limits to Political Slogans on Primary Ballots
By Richard Winger
On July 2, two Democrats running in the New Jersey July 7 primary for U.S. House filed a federal lawsuit. The lawsuit attacks the state law that restricts political slogans that candidates can place next to their names on primary ballots. Mazo v Way, 2:20cv-8174. Here is the Complaint.
No one expects that the case will have any impact on the 2020 primary, because the primary is just a few days away. The lawsuit will have its first impact, if it wins, in the 2021 gubernatorial primary. Thanks to Rick Hasen for the link.
All on Georgia: State Rep. Battles Municipality Over Free Speech & Political Yard Signs
By Jessica Szilagyi
A Georgia state representative is battling with a local municipality in his district over the enforcement of a sign ordinance that the representative says is unconstitutional.
Minority Leader Bob Trammell says the City of Luthersville in Meriwether County is trying to force his mother to remove a political yard sign from her property, which Trammell said prompted him to place a sign on his own property to make a point.
The crux of the issue is that the City of Luthersville ordinance does not allow political signs for more than 10 days following an election, among other restrictions. While the primary election was on June 9th, the General Election is not until November…
Represented by Sarah Brewerton-Palmer, Trammell and his mother sent a letter to the City of Luthersville demanding that the City immediately suspend enforcement of its sign ordinance…
Brewerton-Palmer’s full letter is below.
[From the letter:
“While in Reed the Supreme Court left open the question of whether governmental interests in aesthetic appeal and traffic safety qualify as compelling, it is notable that no court has ever held those interests would justify a content-based restriction on signage like Luthersville’s. See Thomas v. Bright, 937 F.3d 721, 733 (6th Cir. 2019) (“[N]o court has ever found public aesthetics to be a compelling interest, and [the state] presents no persuasive arguments for finding that it is.”)]…
[Ed. note: The Institute for Free Speech represents Mr. Thomas in the case Thomas v. Bright.]
Supreme Court
By Amanda Shanor
On Monday, in a fractured set of opinions, the Supreme Court ruled in favor of an association of political consultants challenging the Telephone Consumer Protection Act of 1991. That statute bans robocalls to cellphones. In 2015 Congress added an exception to permit robocalls collecting government-backed debts. In Barr v. American Association of Political Consultants, the court decided that the 2015 exception violates the First Amendment’s speech clause. The consultants won the constitutional argument, but they did not achieve the practical result they sought. Instead of striking down the robocall ban altogether, the court invalidated only the exception. After the court’s ruling, political robocalls are still illegal, but so are robocalls to collect government-backed debts – showing, perhaps, that dislike of robocalls spans ideological differences.
Reason (Volokh Conspiracy): S. Ct. Strikes Down Content-Based Exception from Robocall Ban
By Eugene Volokh
A 1991 federal statute generally banned robocalls to cell phones (among other things), but a 2015 amendment exempted calls “made solely to collect a debt owed to or guaranteed by the United States.” In today’s Barr v. Am. Ass’n of Political Consultants, the Court held that this was unconstitutional, because it discriminated based on the content of speech; but it held that the 2015 amendment could be struck down, thus keeping the broader ban. As a result, robocalls to cell phones are now generally banned regardless of whether they are made to collect debts.
The Justices split on the constitutionality of the exemption:
- Justice Kavanaugh, with whom Chief Justice Roberts and Justices Thomas, Alito, or Gorsuch, agreed on this point, concluded that the exception was content-based and thus unconstitutional unless it passed “strict scrutiny”-i.e., unless it was narrowly tailored to a compelling government interest, a standard that this exception couldn’t meet.
- Justice Sotomayor concluded that the exception should be subjected only to the lower standard of “intermediate scrutiny,” even though it was content-based, but couldn’t meet even this lower standard.
Justices Breyer, Ginsburg, and Kagan concluded that the exception should be subjected only to “intermediate scrutiny,” and could meet this standard.
The Courts
News & Observer: Judge stops NC town’s limits on protests after ACLU files lawsuit
By Lynn Bonner
A judge has put a hold on the town of Graham’s limits on protests, the American Civil Liberties Union said Monday.
The ACLU had sued the town over its limits on protests, saying it was violating the First Amendment.
The ACLU and the ACLU of North Carolina joined the Lawyers’ Committee for Civil Rights Under Law and the Lockamy Law Firm to file the lawsuit in U.S. District Court in Greensboro on behalf of the Alamance NAACP and eight people, The News & Observer reported. The group sought a temporary restraining order.
Reason (Volokh Conspiracy): Short Circuit: A Roundup of Recent Federal Court Decisions
By John Ross
After Christian County, Mo. sheriff pleads guilty to embezzling $50k from the county . . . a new sheriff is elected. He promptly fires two deputy sheriffs who supported his opponent in the election. Were they fired for their political activity in violation of the First Amendment? Eighth Circuit: A deputy sheriff is the sheriff’s alter ego (in Missouri, anyway), so the sheriff can demand political loyalty upon pain of firing.
Free Speech
New York Times: Reading Orwell for the Fourth of July
By Bret Stephens
[A]n idea is at risk. That’s the idea that people who cannot speak freely will not be able to think clearly, and that no society can long flourish when contrarians are treated as heretics.
That idea, old as Socrates, formerly had powerful institutional defenders, especially in the form of universities, news media, book publishers, free-speech groups and major philanthropies.
But those defenders are, on account of one excuse or another, capitulating to people who claim free speech for themselves (but not for others), who believe all the old patriarchal hierarchies must go (so that new “intersectional” hierarchies may arise), who are in a perpetual fervor to rewrite the past (all the better to control the future), and who demand cringing public apologies from those who have sinned against an ever-more radical ideological standard (while those apologies won’t save them from being fired)…
[T]he Orwell essay to which I keep returning is a little jewel from 1946, “The Prevention of Literature.” …
“What is sinister,” he wrote, “is that the conscious enemies of liberty are those to whom liberty ought to mean most.” . . . “They do not see that any attack on intellectual liberty, and on the concept of objective truth, threatens in the long run every department of thought.”
Media
Seattle Times: Seattle Times, other media fight Seattle Police Department subpoena for raw footage, photos of protest
By Hal Bernton
The Seattle Police Department has gone to court to gain access to unpublished media images from the May 30 protests as part of an investigation to identify who allegedly helped set police vehicles on fire and stole firearms from them.
The SPD is demanding the production of unedited photos and video taken over a 90-minute afternoon period by The Seattle Times, KIRO 7, KING 5, KOMO 4 and KCPQ, according to an affidavit for a search warrant and a subpoena document submitted to King County Superior Court…
The Seattle Times and the other media outlets are contesting this action in a court brief arguing that a subpoena would violate the First Amendment and a Washington state journalistic shield law that sharply limits the circumstance when unpublished work must be turned over to law enforcement…
The media outlets, as well an amicus brief submitted by the Reporters Committee for Freedom of the Press, also outline another major objection. They say that granting the subpoena could foster a public impression that journalists are an investigative arm of law enforcement, which could lead to physical harassment when they cover protests.
Online Speech Platforms
USA Today: Facebook ad boycott: Sheryl Sandberg vows company will get better at removing hate speech
By Jessica Guynn
Facebook’s Sheryl Sandberg pledged Facebook would “get better and faster” at rooting out hate speech.
Tuesday’s announcement came ahead of a meeting with civil rights leaders over a growing advertising boycott fueled by long simmering frustrations over objectionable content on the social media giant’s platforms.
“We have made real progress over the years, but this work is never finished and we know what a big responsibility Facebook has to get better at finding and removing hateful content,” Sandberg wrote in a blog post.
Sandberg along with Facebook CEO Mark Zuckerberg is scheduled to meet Tuesday with online racial justice group Color of Change, the Leadership Conference on Civil & Human Rights, the NAACP Legal Defense Fund and other groups behind the boycott…
Organizers of the boycott have asked Facebook to submit to independent audits of hate speech and misinformation, remove all hate speech and hate groups, refund corporations when ads appear next to hate speech and hire a civil rights executive to scrutinize products and policies for discrimination and hate.
On Wednesday, Sandberg said Facebook would release the final results of a two-year civil rights audit but said the company would not make every change the civil rights community has requested.
The Hill: Pompeo: US ‘certainly looking at’ ban on Chinese social media apps like TikTok
By Zack Budryk
Secretary of State Mike Pompeo said the U.S. is “certainly” exploring a ban on Chinese social media apps such as TikTok, citing concerns the app has shared user data with the government in Beijing.
“I don’t want to get out in front of the president, but it’s something we’re looking at,” Pompeo told Fox News Monday.
Asked whether he recommended downloading TikTok, Pompeo responded: “Only if you want your private information in the hands of the Chinese Communist Party.”
Bipartisan U.S. lawmakers have previously expressed concerns about the app in connection with Chinese laws that require the nation’s firms to “to support and cooperate with intelligence work controlled by the Chinese Communist Party,” Reuters noted.
Candidates and Campaigns
University of Rochester: Corporate money in politics threatens US democracy-or does it?
In their new book, Campaign Finance and American Democracy: What the Public Really Thinks and Why it Matters (University of Chicago Press, 2020), [professors David Primo and Jeffrey Milyo] argue that campaign finance reform is not a “cure-all for what ails American democracy-at a time when it is viewed by many academics and practitioners as essential medicine.” Says Primo: “Americans believe, for instance, that super PAC spending dominates campaigns, which is false.”
Primo and Milyo surveyed a total of 4,000 Americans in 2015 and in 2016-and about 150 experts in 2017-about their views on money in US politics. They also collected survey data on trust and confidence in government spanning three decades to study the effects of changes in campaign finance laws on trust.
Having aggregated the results of decades of survey responses, the authors conclude that changes in state-level campaign finance laws-where most changes in the laws take place, making it an ideal testing ground for social scientists-have little to no effect on attitudes toward government, contrary to conventional wisdom. The finding, the authors argue, is perhaps the book’s most important conclusion, as it calls into question four decades of legal justifications for campaign finance reform.
The researchers’ other key findings on campaign finance include the following:
- While the public is very cynical about the role of money in politics, people are also skeptical about the potential for reforms to dramatically alter the political process.
- Americans do not see campaign contributions as uniquely corrupting…
The Citizens United decision has not reduced trust and confidence in government, as critics of the Supreme Court ruling had feared.
The States
La Grande Observer: Pandemic leads to unusually short list of ballot measures
By Gary A. Warner, Oregon Capital Bureau
Drug decriminalization, a cigarette tax increase and limits on political campaign financing are on a historically short list of ballot measures that will go before [Oregon] voters in the Nov. 3 election…
Initiative 401 would allow for campaign contribution limits. The state currently has no limits on campaign contributions, though they must be recorded with the Secretary of State and put on a website available for public view. The state Supreme Court has voided earlier attempts to lower the amount of money raised and spent in campaigns, citing the state’s expansive definition of freedom of speech.
By John Engel
The political committee of Dr. Christine Mann, a candidate in the Democratic primary runoff for Texas’ 31st Congressional District, received a $28,000 loan through a federal program designed to help struggling small businesses impacted by the COVID-19 pandemic.
Christine Mann for Congress received a $28,000 loan from First Bank Texas on May 5, according to pre-runoff campaign finance reports filed with the Federal Election Commission. The line item is labeled “Payment Protection Program,” though the program through the Small Business Administration is called the “Paycheck Protection Program.” …
“As a grassroots campaign and like many other small businesses, we were hit financially during the pandemic,” a spokesperson for Mann’s campaign said. “As a front-line doctor testing patients during COVID-19, Dr. Mann did not fundraise the ways she had previously but wanted to ensure her staff continued to receive a livable wage.” …
Brendan Fischer, director of the Campaign Legal Center’s Federal Reform Program, said Mann’s political committee appears to be one of the first, if not the first, to directly receive a PPP loan. [Fischer continued,]
“It’s not necessarily unlawful but it’s perhaps politically inadvisable.” …
An FEC spokesperson said the agency could not comment on any specific matter but said: “An authorized campaign committee of a federal candidate is permitted to receive loans from the candidate as well as other permissible sources such as lending institutions.”
Chicago Tribune: Ald. Michele Smith keeps Mayor Lori Lightfoot’s proposed change to lobbying rules on indefinite hold
By John Byrne
Mayor Lori Lightfoot’s move to roll back rules to prevent elected officials from outside Chicago from lobbying the city is going nowhere for the time being.
Lincoln Park Ald. Michele Smith, who the mayor picked to chair the City Council Committee on Ethics and Government Oversight, said last week she has no plans to call Lightfoot’s ordinance for a vote.
The mayor wants to roll back part of a package the council passed in December. If Lightfoot’s plan passed, elected officials from outside Chicago could again lobby aldermen, the mayor’s office and other city government offices, as long as the public body they represent doesn’t have pending or recurring legislative or contractual matters involving the city of Chicago.
