We’re Hiring!
Legal Director – Institute for Free Speech – Washington, DC or Virtual Office
The Institute for Free Speech anticipates the need for a highly experienced attorney to direct our litigation and legal advocacy. In September, President Trump nominated our longtime Legal Director to the Federal Election Commission, and it is likely he would be confirmed this fall.
This is a rare opportunity to develop and implement a long-term legal strategy directed toward the protection of Constitutional rights. You would work to create legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, that threaten citizens’ privacy if they speak or join groups, and that impose heavy burdens on organized political activity. The Legal Director will direct our litigation and legal advocacy, lead our in-house legal team, and manage and expand our network of volunteer attorneys.
A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country.
[You can learn more about this role and apply for the position here.]
In the News
Bloomberg Government: Record $13 Billion Raised for 2020 Elections Spurs Ad Avalanche
By Kenneth P. Doyle
The 2020 election has generated a record $13.3 billion in federal campaign contributions, funding a barrage of political advertising that strategists say risks blurring candidate messaging.
The unprecedented outpouring of campaign cash raised through Sept. 28 is more than 75% above what was donated during the same period in the 2016 election, according to a cumulative total of disclosure reports filed with the Federal Election Commission…
PACs, including super PACs…have collected nearly $7 billion for the 2020 election so far…- more than candidates and parties combined. Major super PACs aligned with both parties routinely receive contributions of $1 million or more, and their biggest donors in this year’s election have given up to $50 million each.
Fred Wertheimer, president of the nonprofit Democracy 21 who’s tracked campaign fundraising since the Watergate era, said in a phone interview the fundraising this year is more than “anything we’ve seen in our lifetimes.”
Outside groups can focus money on the most competitive races, and the result, he said, “is a campaign finance system dominated by influence-seeking billionaires and millionaires” who fund super PACs aligned with the leaders of both parties.
Bradley Smith, a former Republican FEC commissioner who heads the nonprofit Institute for Free Speech, said money from billionaires doesn’t buy elections – it pays for messages they hope will resonate with voters.
Campaign money has skyrocketed in 2020 not because of greater efforts to buy influence, he added, but because “a lot of people seem to think on both sides that this in an extremely important election.”
New from the Institute for Free Speech
Amicus Brief: One Violation of Free Speech Is Too Many
The Institute for Free Speech urged the Supreme Court yesterday to reverse a lower court ruling that favors the government in First Amendment challenges in many parts of the country. The Court will hear arguments in the case, Uzuegbunam v. Preczewski, in its next term.
“The lower court’s ruling would let state actors off the hook for violating core First Amendment rights. When Americans are harmed, they shouldn’t have to prove they will be repeatedly victimized to get access to the courts,” said Institute for Free Speech Attorney Zac Morgan.The case began when Georgia Gwinnett College (GCC) prevented a student, Chike Uzuegbunam, from distributing religious literature and speaking about his religious views on campus. Uzuegbunam and Joseph Bradford, a fellow GCC student who refrained from similar activities for fear of the same repercussions, sued the school for violating their First and Fourteenth Amendment rights.
In the middle of the lawsuit, the school abruptly changed its suppressive rules and motioned to have the case dismissed. The district court agreed, and the Eleventh Circuit Court of Appeals affirmed its dismissal. This ruling sets a dangerous precedent for free speech, the Institute’s brief explains…
To read the Institute’s brief, click here.
In her time on the Seventh Circuit Court of Appeals, President Trump’s nominee to the Supreme Court, Judge Amy Coney Barrett, has participated in few cases with First Amendment-related claims. Though, in the cases in which she’s participated, Judge Barrett has shown a willingness to expand free speech protections in certain contexts. One recent and timely case, in which she sat on a unanimous three-judge panel, sheds some additional light on her thinking in this area.
Illinois Republican Party v. Pritzker, No. 20-2175, 2020 U.S. App. LEXIS 28118 (7th Cir. Sep. 3, 2020)
Judge Barrett was a member of a Seventh Circuit panel that decided a First Amendment challenge to a COVID-19 regulation in Illinois Republican Party v. Pritzker. The unanimous opinion, authored by Judge Diane Wood, decided a First Amendment claim brought by political groups against an executive order issued by the Governor of Illinois that limited public gatherings to 50 people, with exceptions for emergency and government functions, as well as for religious gatherings – stating the order “does not limit the free exercise of religion.”
The plaintiffs argued “that the accommodation for free exercise contained in the executive order violates the Free Speech Clause of the First Amendment” and sought an injunction permitting them to congregate in groups larger than 50 people to discuss the 2020 election.
Congress
Washington Post: Senate Republicans accelerate public scrutiny of Trump-Russia investigation as election looms
By Karoun Demirjian
Senate Republicans’ election-season gambit to scrutinize the 2016 investigation of President Trump’s campaign resumes Wednesday with public testimony from former FBI director James B. Comey, and as one of the president’s chief allies on Capitol Hill warns that a “day of reckoning” is coming.
Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.), who issued that warning on Fox News’ “Sunday Morning Futures,” organized the hearing with Comey as part of a long-running review of the counterintelligence probe known as “Crossfire Hurricane.” He is one of three Senate committee chairmen looking into the matter on suspicion that law enforcement’s scrutiny of Trump was biased…
On Tuesday, Graham released a letter from Director of National Intelligence John Ratcliffe stating that Obama administration officials were briefed on a Russian intelligence analysis alleging that Trump’s opponent in 2016, Hillary Clinton, authorized “a campaign plan to stir up a scandal” against Trump by tying him to Russian President Vladimir Putin and the Russians’ hack of Democrats’ emails. In the letter, Ratcliffe acknowledged that the intelligence community is uncertain if the information in that analysis was accurate.
The Washington Post reported in 2017 that officials believed a document matching the description in Ratcliffe’s letter was possibly fake and planted to confuse the FBI.
IRS
Politico: IRS chief asks watchdog to review safeguards after leak of Trump’s tax information
By Toby Eckert
IRS Commissioner Chuck Rettig has asked an inspector general to review the agency’s safeguarding of taxpayer information, following revelations that President Donald Trump has routinely paid little or no federal income tax.
Meanwhile, a pair of House Republicans asked Attorney General William Barr to launch a Justice Department investigation of who may have leaked Trump’s confidential tax information. Trump has charged that it was “illegally obtained” by The New York Times.
The IRS said on Tuesday that it “has taken steps to reconfirm the integrity of its processes and procedures for protecting all taxpayers’ return information,” including “enhanced safeguards” for certain taxpayers, “and has found no issues.”
“Nevertheless, and in an abundance of caution, the Commissioner has requested that the Treasury Inspector General for Tax Administration take all appropriate steps to confirm the IRS’s finding,” the agency’s statement said.
Free Speech
RealClearPolitics: College No Place for Free Speech Fans, Rankings Show
By J. Peder Zane
When it comes to protecting free speech, America’s colleges and universities are earning a failing grade. That’s the upshot of a comprehensive new study that asked almost 20,000 students at 55 schools how tolerant and open to controversial ideas their campuses are.
The University of Chicago received the highest score – just 64.2 points out of a total of 100; DePauw University was at the bottom, with 44.2 points. The University of Arkansas, the University of Minnesota, UC-Berkeley and Princeton were bunched in the middle with about 53 points.
Even accounting for grade inflation, that still smells like an F.
The College Free Speech Rankings generated by the survey – which was commissioned by RealClearEducation (RCE) in partnership with The Foundation for Individual Rights in Education (FIRE) – are significant because they offer the first-ever national ranking of free speech based on student perceptions. Research firm College Pulse conducted the survey that forms the basis of the rankings.
RCE and FIRE, which ranked the schools, based 80% percent of each school’s score on a series of questions that measured two key aspects of free speech: tolerance for allowing controversial speakers on campus and students’ responses when asked how free they feel to hold open conversations about controversial topics such as abortion, transgender rights, and racial justice. The remaining 20% of the score was based on the freedom students feel to express their opinions, their perception of the administration’s support for free speech and FIRE’s rating of each school’s official policies toward free speech.
National Review: Ohio State Professor Cancels Himself for Praising Football
By Charles C. W. Cooke
At Inside Higher Ed, a Professor Matthew J. Mayhew of Ohio State University has managed to pen a piece of craven absurdity so perfect in scale and composition that it is difficult to imagine how it might ever be topped. Mayhew’s essay has it all. It possesses the quality of a confession extracted under torture. It contains a generous smattering of the meaningless academic buzzwords that have so adroitly corrupted our universities and our thought. And, most important of all, it clings desperately to the pretense that one can meaningfully describe “being told what to think by a mob on pain of being canceled” as “learning.” Mayhew is the writer of our age. His is a tale of grievous sin, of newfound scholarship, and, ultimately, of redemption. In his range, he is almost biblical.
Mayhew’s mistake was to argue in public that college football might “help get us through these uncharacteristically difficult times of great isolation, division and uncertainty.” Worse still, it was to contend without any respect for norms that “college football holds a special bipartisan place in the American heart” – especially at school such as Ohio State – and that the return of the game might help Americans remember to “respect” one another.
The Media
National Review: The Stupidest Fact-Check in the History of Fact-Checking
By Dan McLaughlin
Last week, conservative Christian satire site The Babylon Bee published one of its daily array of gags, headlined “Ninth Circuit Court Overturns Death Of Ruth Bader Ginsburg.” The Bee goes on, “SAN FRANCISCO, CA- In a landmark ruling, the Ninth Circuit Court of Appeals has overturned the death of Supreme Court Justice Ruth Bader Ginsburg. . . .’ Death, at its core, is a construct designed to subvert the rule of law by taking pro-choice liberal judges away from us too soon . . . We hereby rule any attempt by President Trump to appoint a replacement to be unconstitutional. We will block any attempt until we figure out a way to resurrect her or maybe clone her and restore her to her already ‘legally alive’ state. We’re still figuring that part out.” …
A week later, USAToday found it necessary, for some reason, to publish a “Fact Check” of this, by fact-checker Chelsey Cox, entitled “Fact check: Satirical claim that the 9th Circuit Court of Appeals overturned Ginsburg’s death.” “Supreme Court Justice Ruth Bader Ginsburg, who died of metastatic pancreatic cancer Sept. 18, is actually ‘alive,’ the article suggests, because the 9th Circuit overturned her death.” Cox went on for over 800 words, listing fifteen sources, in order to conclude:
We rate this claim SATIRE, based on our research…
You read that right. An editor at a national newspaper assigned a “fact-checker” to determine whether Ruth Bader Ginsburg had been raised from the dead by court order.
USA Today: Fact check: Satirical claim that the 9th Circuit Court of Appeals overturned Ginsburg’s death
By Chelsey Cox
There is no record of any Wardlaw opinion on Ginsburg’s death on the website for the 9th Circuit, but she participated in a panel discussion Friday about Ginsburg’s life produced by the UCLA School of Law. There was no mention of “reviving” Ginsburg during the discussion.
Online Speech Platforms
Washington Post: Trump’s assault on Twitter is an attack on the First Amendment
By Lee C. Bollinger and Donald E. Graham
President Trump’s ongoing assault against Twitter may represent the most egregious violation of the First Amendment by a president since Richard M. Nixon went to war against this newspaper almost half a century ago.
Given the stakes, reaction has been strangely muted. Perhaps Americans have become accustomed to the president’s tweets and don’t believe he would do violence to his primary communications platform. Perhaps people are weary of the ceaseless controversies around social media.
Regardless, the seriousness of what’s happening and the threat it represents to one of our country’s most basic principles must be confronted.
Hard-won freedoms allow Americans to criticize the government and to voice any opinion without being punished for it. You cannot do so in countries such as China – but here, the First Amendment to the Constitution protects a level of uninhibited expression and wide-open debate found in few other nations. The First Amendment protects this newspaper, its readers and Twitter from punishment by the government. It does not, as the president seems to think, protect him from criticism.
To take this freedom for granted is to risk losing it.
Wall Street Journal: Twitter Partner’s Alerts Highlight Divide Over Surveillance
By Jeff Horwitz and Parmy Olson
Twitter Inc. Chief Executive Jack Dorsey has pledged that Twitter’s data won’t be used for government surveillance, a commitment the company affirmed four years ago in responding to allegations of widespread police monitoring of Black Lives Matter protesters.
A Twitter data partner is selling a service to law enforcement and other agencies that monitors Twitter on their behalf and provides alerts that include information about potential demonstrations and possible criminal behavior, documents and interviews show. That has the companies at odds with privacy advocates over what level of social-media monitoring qualifies as surveillance.
In recent months, the partner, Dataminr Inc., provided alerts to police and other government clients that included Twitter handles of users discussing plans for protests or where activists were blocking streets, according to the emailed alerts viewed by The Wall Street Journal. Twitter’s rules prohibit partners from using its data for “tracking, alerting or monitoring sensitive events,” specifically including protests and rallies.
By Mike Masnick
There’s been a lot of buzz lately about the Netflix Documentary The Social Dilemma, which we’ve been told reveals to us “the dangerous human impact of social networking, with tech experts sounding the alarm on their own creations.” …[T]here’s a problem with the film: nearly everything it claims social media platforms do — manipulating people with misinformation — the film does itself. It is horribly one-sided, frequently misrepresents some fairly basic things, and then uses straight up misinformation to argue that social media has some sort of godlike control on the people who use it. It’s nonsense…
One theme that runs throughout the film, and is dead wrong, is the idea that social media advertising can somehow “control” you. And… uh… no. Come on. Social media advertising is a joke. Can it better target some ads? Sure thing, and if those ads target stuff you actually find useful, then… that’s a good thing? But, most social media advertising is still garbage. It’s why so many of us block or ignore ads. Because they’re still just not that good.
Candidates and Campaigns
New York Post: ‘Shut up, man!’ Biden refuses to answer court-packing question during presidential debate
By Steven Nelson
Democratic presidential candidate Joe Biden on Tuesday told President Trump to “shut up, man!” while refusing to say if he wants to add justices to the Supreme Court during the first presidential debate.
Biden declined to tell debate moderator Chris Wallace of Fox News whether he would support adding justices to the court if Trump’s conservative pick, Amy Coney Barrett, is confirmed to replace liberal icon Ruth Bader Ginsburg.
“Whatever position I take on that, that’ll become the issue. The issue is the American people should speak. You should go out and vote. You’re in voting, now vote and let your senators know how strongly you feel. But vote now,” Biden said.
Trump interjected: “Are you going to pack the court? Are you going to pack the court? He doesn’t want to answer.”
“I’m not going to answer the question, because the question is, the question is, the question is -” Biden said, as Trump continued to press him to answer.
“Will you shut up, man?” the former vice president said.
Trump persisted: “Who is on your list, Joe? Who is on your list? He’s going to pack the court.”
The States
Tucson.com: Court reopens door to ‘dark money’ in Arizona political races
By Howard Fischer, Capitol Media Services
The Arizona Court of Appeals has reinstated a 2017 law that opens the door to “dark money” contributions to political races.
The judges said Tuesday that the Republican-controlled Legislature was within its rights to decide that any group the Internal Revenue Service classified as nonprofit does not have to disclose its donors, even if it uses the money to finance independent expenditures to elect or defeat candidates.
That legislative change overturned the ability of the voter-created Citizens Clean Elections Commission to determine whether the group was really a charity or only a thinly disguised political action committee. PACs have to disclose donors.
Tuesday’s unanimous ruling also allows political parties to spend unlimited dollars on behalf of their candidates without disclosure.
And it means individuals and special interests can pay the legal fees of candidates without it counting against the legal limit of how much financial help they can provide.
But there was a key victory in the ruling for the Arizona Advocacy Network, which had challenged the law.
The appellate judges said lawmakers had no right to limit the Clean Elections Commission to policing only independent expenditures made on behalf of candidates who are accepting public financing.
This preserves the right of the five-member commission to require disclosure of all money spent on all candidates – publicly financed or not – even if it can no longer force reporting of the original source of those dollars.
Appellate Judge David Gass, writing for the court, said voters were well within their authority in giving that broad right to the commission to police independent expenditures. And since voters approved it, lawmakers were powerless to change it.
The Oregonian: Police move in on protesters before N. Portland march; 24 arrested in demonstration (key takeaways)
By Beth Nakamura and Jim Ryan
Several dozen Portland police officers moved on protesters gathering in a North Portland park Monday night, sweeping through the park, confiscating homemade shields and other items in advance of a planned march.
The new tactic clearly caught the protesters off guard, temporarily splintering the crowd and delaying – at least for a time – the planned march to a nearby police union office. The crowd eventually regrouped and marched as planned, and police declared the event an unlawful assembly.
