In the News
Washington Examiner: Cancel culture and speech regulation make a toxic mix
By David Keating
Cancel culture has become a potent weapon used by activists on the Left and the Right against their political opponents. Express an opinion they disagree with? They’ll try to get you fired. If you run a business, they’ll urge a boycott of its products or services.
The right to organize and encourage boycotts is protected by the First Amendment, of course. But overuse of this tactic creates a hostile environment for free expression. Social media combined with our polarized political climate is causing more people to self-censor. Supporters of free speech should defend differences of opinion.
This illiberal trend is troubling enough. What makes it far more alarming are new laws that provide fuel for the fire. Some of these laws force groups to expose their donors even when they haven’t spent any money to support the election of any candidate. Others force groups to name their donors directly on their messages and sometimes, amazingly, even force them to name their donors’ donors – people who never even gave to the group.
These laws that expose the identities, addresses, and employers of people who take part in politics make cancel culture much more dangerous…
When we discourage citizens from supporting the causes they believe in, we make our country weaker. Democracy doesn’t work without deliberation. Laws that expose the personal information of donors will discourage people from contributing and will cause groups to stay silent. That deprives us of information on vital public issues.
New from the Institute for Free Speech
The FEC’s Interpretation of the Press Exemption Is Almost Certainly Unconstitutional
By Zac Morgan
The Institute for Free Speech filed an amicus curiae brief last week before the federal district court in the District of Columbia in support of no party in the dispute. Why? …
Campaign Legal Center (CLC)…recently filed a complaint about the 2016 campaign of Hillary Clinton, alleging that its cozy relationship with an independent group called Correct the Record (CTR) constituted illegal coordination. The FEC dismissed this complaint, and CLC brought a lawsuit seeking a court order forcing the Commission to accept the complaint’s theory of wrongdoing…
[W]e noticed an alarming sentence in an opinion by the judge assigned to hear the case, and we wished to, if you will, “correct the record.”
The Clinton campaign and Correct the Record briefly asserted to the FEC that CTR’s activities were exempt from regulation under the so-called press or media exemption. Although this defense wasn’t the reason for the FEC’s dismissal of CLC’s complaint, Judge James E. “Jeb” Boasberg weighed in on the issue in denying the Clinton campaign’s motion to dismiss the case. Specifically, Judge Boasberg opined that the federal media exemption – the immunity from campaign finance law that lets CNN and Fox News hustle for their preferred candidates in November – is “for the media” as a class.
Troublingly, Judge Boasberg’s formulation is technically correct. (The best kind of correct, some would say.) Since the 1980s, the FEC has interpreted the press exemption as serving the needs of the institutional press in particular. This application relies on a likely unconstitutional reading of that statute, one that cannot be squared with the Press Clause of the U.S. Constitution. The Press Clause protects every American’s right to publish, not just legacy media outlets. We filed our brief to make this point and advise the court against taking the FEC’s (mis)understanding of the exemption’s reach as gospel.
The Courts
Reason (Volokh Conspiracy): Federal Court Holds Pennsylvania’s Shutdown Order Unconstitutional: Ban on Public Gatherings
By Eugene Volokh
In today’s decision in County of Butler v. Wolf (W.D. Pa.), Judge William S. Stickman IV broadly struck down the Pennsylvania shutdown orders, reasoning:
[1.] The court held that Jacobson v. Massachusetts (1905), which ruled in favor of broad government power in an epidemic, should not be applied, and instead the government’s heightened interests in public health should be considered within the normal framework of constitutional scrutiny (e.g., in deciding whether a law is narrowly tailored to an important government interest)…
[2.] The court then concluded that the limits on nonreligious gatherings (“25 persons for indoor gatherings and 250 persons for outdoor gatherings,” “specifically exempt[ing] religious gatherings and certain commercial operations”) violate the Assembly Clause. The court concluded the restrictions were content-neutral, and therefore applied intermediate scrutiny-but held that the restrictions failed this scrutiny…
This is a plausible argument, given that the law seems to treat constitutionally protected activity worse than other activity. But I’m far from certain that it will be upheld on appeal, given courts’ general (and likely correct) tendency to give the government considerable latitude in trying to contain the disease while minimizing the economic devastation of the shutdowns.
I also think a stronger argument would have been that the restrictions don’t leave open “ample alternative channels” for expression-a separate prong of the content-neutral restriction test-especially given that the First Amendment singles out peaceable assembly as a separately protected right: other channels would be more expensive, or wouldn’t reach the same audience, or wouldn’t convey the same message. (See City of Ladue v. Gilleo (1994).)
Reason (Volokh Conspiracy): Excluding Transit Ads That “Contain Political Messages” Violates the First Amendment
By Eugene Volokh
The government acting as proprietor of nonpublic fora (or so-called “limited public fora”)-for instance, advertising spaces on public buses-may impose many kinds of viewpoint-neutral restrictions on speech in those fora. A ban on listed vulgarities on public transit ads, for instance, might well be constitutional (even though a governmental ban on billboards containing such material on private property would not be).
But the restrictions must still be not just viewpoint-neutral but “reasonable,” which the Supreme Court held (Minnesota Voters Alliance v. Mansky) requires, among other things, that they be “capable of reasoned application.” And, as in Minnesota Voters Alliance, today’s Third Circuit decision in Center for Investigative Reporting v. Southeastern Pennsylvania Transportation Authority (SEPTA) (written by Judge Joseph Greenaway, Jr., and joined by Judges David Porter and Morton Greenberg), held that a ban on “political” speech wasn’t clear enough to qualify:
[W]hen asked during oral argument whether SEPTA would determine a series of hypothetical advertisements to be in violation of the current Advertising Standards, [which ban {advertisements that “contain political messages” and those that address “political issues,”}] SEPTA’s counsel’s answers further highlighted the arbitrariness of the decision-making process. For example, when we asked whether an advertisement that depicted three girls of different races holding hands with a message that says, “This is how racism ends,” would be political, counsel for SEPTA responded “no, I don’t think so.” When the Court adjusted the hypothetical to include the same picture with a message that says, “This is what America looks like,” counsel for SEPTA responded by asking, “Who’s putting the ad on?” That response highlights the extent to which the current Advertising Standards are susceptible to erratic application…
First Amendment
FIRE: The Bedrock Principle: Why Trump (and everyone) should oppose anti-flag burning laws
By Greg Lukianoff
On Sunday, at a rally near Las Vegas, President Trump claimed that he “would love to see” a law making flag-burning punishable by up to one year in prison.
Trump has beaten this drum for some time. He made a similar call for a year’s imprisonment at a Tulsa rally in June. In 2019, he tweeted support for Montana Sen. Steve Daines’ proposed constitutional amendment to ban flag-burning. And in a 2016 tweet, the President weighed loss of citizenship as another possible punishment…
The constitutional amendment would be one of only two paths that would lead to imprisoning flag-burners, because the Supreme Court already decided that flag-burning is constitutionally protected. The other way, of course, would be for the Supreme Court to reverse itself. During a conference call with state governors in June, President Trump expressed hope that the court might do just that…
The irony here is that the Supreme Court opinion Trump objects to is Texas v. Johnson…In Johnson, Justice Brennan, writing for the majority, stated: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Why is this ironic? Because if, like other countries, we banned speech merely because someone finds it offensive, that legal process would almost immediately be used against President Trump and some of his vocal supporters. Whether the president and his supporters know it or not, they rely and sleep on the logic of the flag burning case.
Independent Groups
Wall Street Journal: Bloomberg’s Florida Purchase
By The Editorial Board
Mr. Bloomberg’s money will go via his Super PAC Independence USA and other Democratic groups toward television and digital advertising in English and Spanish.
It’s all perfectly legal so long as Mr. Bloomberg doesn’t coordinate with the Biden campaign. By announcing the $100 million campaign publicly, Mr. Bloomberg is letting the Biden campaign know it can take millions it might have otherwise spent in Florida and redirect them to other battleground states.
Mr. Bloomberg could emerge as 2020’s single biggest donor. His billions give him outsized influence, but so do campaign finance laws that limit the size of donations to the candidates’ campaigns.
We don’t begrudge Mr. Bloomberg’s spending on causes and candidates he believes in. But Democrats and the political left say big money corrupts politics. Now that the big money will be used against President Trump, we’re not hearing complaints about spending.
Politico: A looming milestone: $1B in dark money spending
By Zach Montellaro
Since 2010, groups that are not required to disclose their donors have spent $996 million in election-related expenditures, according to an analysis from the good governance group Issue One and campaign finance number crunchers at the Center for Responsive Politics, including $33 million so far this cycle.
But the reach of dark money groups is likely much, much more extensive than even that eye-popping $1 billion mark that we’ll soon hit. That’s only $1 billion in direct spending that’s been reported to the Federal Election Commission – which is either independent expenditures, or any electioneering communication in a short window before elections. Ads and other communications that are carefully crafted to not trigger reporting requirements outside of that window adds an untold amount of more spending to that total…
And not even all disclosed spending is transparent on who has been funding it, or at least in any meaningful time period. Recent cycles has brought the rise of partially-disclosed spending – sometimes referred to as “grey money” – in which a super PAC discloses its donors, but receives a big chunk of their fundraising from those very same nonprofits that don’t have to say who is funding them. That makes it impossible to know who is actually bankrolling the operation, even if donors are technically disclosed. And in this cycle’s primaries in particular, we’ve seen the rise of “pop-up super PACs,” which are created (or left dormant) until just before the relevant election, meaning voters don’t know who is behind election expenditures until after they vote.
Online Speech Platforms
Wall Street Journal: YouTube’s Political Censorship
By The Editorial Board
On Friday Google’s YouTube platform notified Stanford University’s Hoover Institution that it had removed a 50-minute video interview with Scott Atlas, a neuroradiologist and Hoover fellow, that was published in June. Dr. Atlas has argued publicly-including in an interview in our pages-that the social harm from strict coronavirus lockdowns is severe.
YouTube’s notice to Hoover says “YouTube does not allow content that spreads medical misinformation that contradicts the World Health Organization (WHO) or local health authorities’ medical information about COVID-19.” …
YouTube tells us in a statement that it removed the Atlas interview for “falsely stating that a certain age group cannot transmit the virus.” The company is apparently referring to Dr. Atlas’s remark, amid a discussion about school reopening, that children “do not even transmit the disease.”
That seems to have been an exaggeration for emphasis. Dr. Atlas corrected himself in his next answer, saying that transmission by children is “not impossible, but it’s less likely.” A body of research shows precisely that…
The Atlas interview was posted in June, yet YouTube only removed it in September. The public can be forgiven for wondering if Dr. Atlas’s appointment as a White House coronavirus adviser last month has made him a political target…
If the virus nightmare has taught the world anything, it’s that no one has a monopoly over the right policy advice. That’s why a free society fosters debate-so that better policies can be arrived at incrementally through argument and evidence. Understanding a presidential adviser’s views are crucial to free debate and political competition.
Buzzfeed News: “I Have Blood on My Hands”: A Whistleblower Says Facebook Ignored Global Political Manipulation
By Craig Silverman, Ryan Mac, and Pranav Dixit
Facebook ignored or was slow to act on evidence that fake accounts on its platform have been undermining elections and political affairs around the world, according to an explosive memo sent by a recently fired Facebook employee and obtained by BuzzFeed News.
The 6,600-word memo, written by former Facebook data scientist Sophie Zhang, is filled with concrete examples of heads of government and political parties in Azerbaijan and Honduras using fake accounts or misrepresenting themselves to sway public opinion. In countries including India, Ukraine, Spain, Brazil, Bolivia, and Ecuador she found evidence of coordinated campaigns of varying sizes to boost or hinder political candidates or outcomes, though she did not always conclude who was behind them.
“In the three years I’ve spent at Facebook, I’ve found multiple blatant attempts by foreign national governments to abuse our platform on vast scales to mislead their own citizenry, and caused international news on multiple occasions,” wrote Zhang, who declined to talk to BuzzFeed News. Her Linkedin profile said she “worked as the data scientist for the Facebook Site Integrity fake engagement team” and dealt with “bots influencing elections and the like.”
“I have personally made decisions that affected national presidents without oversight, and taken action to enforce against so many prominent politicians globally that I’ve lost count,” she wrote.
Candidates and Campaigns
Politico: Russia is back, wilier than ever – and it’s not alone
By Mark Scott
Russian operatives are using a sneakier, more sophisticated version of their 2016 playbook to undermine the November election – and this time, groups inside and outside the U.S. are furthering their goal of sowing chaos…
And the biggest threat this year may be Americans themselves. Many have embraced a deluge of fringe ideas and misinformation to a degree that may dwarf those foreign efforts. Extremists in the U.S. have adopted much of Moscow’s online strategy, including creating fake online personas to pump out falsehoods…
“The scale, scope and, most importantly, the impact of domestic disinformation is far greater than any foreign government could do to the United States,” said Graham Brookie, director of the Atlantic Council’s Digital Forensic Research Lab, which tracks online influence campaigns – and was itself the victim of recent Russian cyberattacks…
Ten U.S. and international national security officials, misinformation experts and tech executives who spoke to POLITICOsaid their major concerns include a hack of either campaign coming to light only days before Nov. 3. Most spoke on the condition of anonymity because they were not authorized to discuss national security matters.
The States
Center Square: Ohio representative wants to end political dark money
By J.D. Davidson
One Ohio lawmaker wants to shed more light on political contributions with proposed legislation that would force organizations to disclose funding sources for money used for certain political purposes.
State Rep. Diane Grendell, R-Chesterland, announced her plan to introduce what she’s calling the “Light of Day” bill, which she said would shine light on campaign funding and eliminate dark money…
Specifically, the bill would require nonprofits, organizations and corporations to file a disclosure that shows sources of all funds received and used for or against an issue or candidate on the ballot for any election in Ohio.
It also separates definitions of political action committee and political contributing entity, while requiring any and all political contributions and donors, regardless of the dollar amount, to be disclosed.
Grendell also wants political contributing entities to keep separate accounts earmarked for the purpose of political expenditures. Individuals donating to organizations for charitable purposes or reasons unrelated to political expenditures would not need to be disclosed.
Grendall, who is seeking co-sponsors and plans to introduce the bill this week, introduced a resolution in the Ohio House last month that urged Congress to pass legislation that requires corporations and labor organizations that make political expenditures to disclose their donors.
Spotlight PA: Top Pa. GOP lawmaker taps politically connected lobbyist to be chief of staff
By Angela Couloumbis and Brad Bumsted
Like Zaborney’s companies, Long, Nyquist operates both a campaign and a lobbying arm, helping to elect candidates or reelect sitting officials and then lobbying them once they are in office.
Few other firms in Harrisburg offer both political and lobbying services…
Zaborney and Mike Long have long argued their work is legal and protected by the First Amendment. But critics believe their business model perpetuates a culture of undue access and favoritism. Several lawmakers have, over the years, attempted to ban the dual practice but have not succeeded…
Because of Pennsylvania’s weak lobbying disclosure laws, it is impossible to know which lawmakers the firms have lobbied, or on what issues. Unlike other states, Pennsylvania only requires that private interests, and their lobbyists, report the total amount of money they spent on lobbying activities, without having to provide any detail.
