Daily Media Links 6/15: More on the First Amendment and @RealDonaldTrump, ‘A Firm Hand of Repression’: The Espionage Act Turns 100, and more…

In the News

Bloomberg BNA: Trump Campaign Statements Protected in Travel Ban Case, Group Says

By Kenneth P. Doyle

Relying on statements President Donald Trump made during his campaign to argue against his proposed immigration restrictions could chill free speech in campaigns, posing “an unacceptable risk to First Amendment interests,” according to a new brief filed with the Supreme Court ( Trump v. International Refugee Assistance Project, U.S. No. 16-1436, brief filed 6/9/17).

The friend-of-the-court brief filed by the nonprofits Center for Competitive Politics (CCP) and Public Policy Legal Institute (PPLI) urges the high court to grant review of a lower court decision that struck down Trump’s executive order…

“A review of campaign speech-even speech that sheds light on the reasons for later official action-chills expression and conflicts with numerous long-standing protections for campaign speech,” the brief said…

Dickerson, CCP’s legal director, said in a statement regarding the new Supreme Court brief in the travel-ban case: “If courts begin probing campaign statements to determine the legality of later official actions, candidates will be less inclined to give their frank opinions. The true victims of this principle are voters, who rely on unfiltered campaign speech to evaluate candidates’ fitness for office.”

Free Speech

Washington Post: More on the First Amendment and @RealDonaldTrump

By Eugene Volokh

That Trump is talking about government-related matters to the public, including what he is doing and what he will do, doesn’t make it government speech. As I mentioned in my earlier post, when an incumbent running for reelection gives a campaign speech, he is not acting on behalf of the government. Likewise, even Supreme Court justices who believe that the government may not endorse religion think that it’s fine for government officials to express religious views in their speeches…

That courts have given the president’s tweets weight in determining his motivations is not, I think, relevant: Indeed, the U.S. Court of Appeals for the 4th Circuit’s decision, cited by the Knight Institute, cited a tweet from when Trump was a candidate – that certainly couldn’t have been government speech. The theory behind the 4th Circuit’s use of the tweet is that Trump’s motivations were relevant to whether he had a discriminatory intent at the time he created the policy, and for that the 4th Circuit didn’t care whether the tweet was an official statement or just his views in 2015 as a private citizen.

Vox: Lawmakers across the US are finding ways to turn protesting into a crime

By Ruthann Robson

A spate of incidents, including the prosecution of a protester at the confirmation hearings of Attorney General Jeff Sessions and get-tough proposals and laws at state and local levels, are testing the nation’s commitment to the First Amendment…

The ratcheting-up of laws punishing criminal conduct in the context of protests could spur courts to view those laws with a skeptical eye. A very severe penalty (a felony) for a simple infraction (failure to obey an order to clear a public street) could well be seen as an attempt to discourage protests, not keep the streets clear…

Another strategy that governments take – both historically and in the past few months – is to take aim at the somewhat tenuous First Amendment right to anonymity…

And such laws might also be defended on “time, place, and manner” grounds: You can say what you want, but not hide your face while doing so. On the other hand, there are many reasons why one would want – or need – to be anonymous during a demonstration, including the fear of retribution.

The Week: The shared flaw of our fights against terrorism and climate change

By Shikha Dalmia

Al Gore himself gave a great speech in 2006 lamenting all the constitutional protections that the war on terrorism was claiming and expressed alarm that the executive branch had been conducing warrantless surveillance of telephone calls, emails and other internet communication inside America.

But when it comes to global warming, Gore’s ideological blind spots are more dazzling than the sun…

And what about those pesky skeptics who question the climate change gloom-and-doom? Do they deserve First Amendment’s free speech protections? Gore may cry crocodile tears about the abrogation of civil liberties by the war on terrorism, but Democratic Sen. Barbara Boxer of California singled out Reason Foundation (where I work) as an outfit that is part of the “web of denial” undermining “climate science.” Some climate change warriors have called for jailing dissenters, on par with the indefinite detention of alleged suspects in the fight against terrorism. The Democratic Party’s 2016 platform wants to criminally investigate whether companies such as ExxonMobil lied about global warming to the public and shareholders back in 1997 (even though the company long ago became an advocate of a carbon tax)!

Washington Post: A public university eases limits on chalk messages after complaint from anti-abortion group

By Justin Wm. Moyer

In March, a chapter of Students for Life of America, an anti-abortion group based in Virginia, complained after chalk messages that read “Stop abortion” and “Life is sacred” were cleaned from sidewalks at Kutztown University in Kutztown, a school of about 9,000 roughly 75 miles northwest of Philadelphia.

The school’s “posting and chalking guidelines” had included prohibitions on messages “infringing upon the rights of others” and “endangering the health or safety of the University community,” among other restrictions.

Days later, the Alliance Defending Freedom, a Christian legal group that represents Students for Life of America, said erasing the messages violated students’ First Amendment rights. In a letter, the Alliance asked the school to condemn the erasure and change guidelines on chalking “to remove all content- and viewpoint-based restrictions” and “to protect anonymous speech.”

After a review of its policies, Kutztown said in a statement Monday that school policy was changed to “better reflect our support of free speech,” with language about the content of messages removed.

Reason: ‘A Firm Hand of Repression’: The Espionage Act Turns 100

By Damon Root

One hundred years ago today, the U.S. government declared war on the First Amendment.

It all started with President Woodrow Wilson. In April 1917, Wilson urged the nation into battle against Germany in order to “make the world safe for democracy.” But he also set his sights on certain enemies located closer to home. “Millions of men and women of German birth and native sympathy…live among us,” Wilson observed. “If there should be disloyalty, it will be dealt with with a firm hand of repression.”

That firm hand of repression came in the form of the Espionage Act, which Congress passed on this day in 1917 and Wilson eagerly signed into law. Among other things, the Espionage Act made it illegal to “convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies.” That sweeping language effectively criminalized most forms of antiwar speech.

Tax-Financed Campaigns

International Business Times: Capping Spending Makes Elections More Competitive, Study Says

By Lydia O’Neal 

Based on post-reform Brazilian mayoral election data, the study, from researchers based in California and Rio de Janeiro, found that a 25 percent drop in limits on campaign spending led to a 9 percent rise in the number of individuals running for office, as well as a 40 percent decrease in the average candidate’s wealth… 

Given the results of his team’s work, Finan advocated for strictly public financing of campaigns…

Campaign Legal Center General Counsel and Senior Director of Ethics Larry Noble, after reading the results of the study, echoed Finan’s calls for public financing of campaigns, and pointed to recent efforts to do so in localities and states throughout the U.S., such as Seattle and Connecticut. The federal government began administering public funding for presidential primary and general election campaigns in 1976, he said, and will match up to $250 of individual contributions to candidates. But, Noble said, that form of support essentially became irrelevant during former President Barack Obama’s first campaign, as the funding amounts have waned in comparison to ballooning private expenditures. But an embrace of public campaign financing, he added, helps to stymie the incumbent’s advantage, as well as the influence of “special interests.” 

The States

U.S. News & World Report: New Campaign Disclosure Rules Proposed for New Mexico

By Associated Press

New Mexico Secretary of State Maggie Toulouse Oliver is proposing changes to the state’s campaign finance reporting rules for candidates and committees designed to provide more detailed and accurate disclosures of political contributions.

Toulouse Oliver published Tuesday proposed rules that address contributions to political committees that both coordinate with candidates and operate independently. Three public hearings on the rules will be held during July at Albuquerque, Las Cruces and Santa Fe.

The draft rules follow in the footsteps of legislation vetoed in April by Republican Gov. Susana Martinez that would have made more information available about unlimited independent political donations from corporations, unions and other groups.

Martinez said the bill would have hampered advocacy work by charities.

Toulouse Oliver wants reforms in place before the next statewide elections in 2018.

Rockland County Times: Assembly continues to back closure of “LLC loophole”

A bill to close the limited liability corporation (LLC) campaign finance loophole has passed the Assembly (A.1926) for the third straight session. The LLC loophole allows individuals who own LLC corporations to circumvent campaign contribution caps and funnel limitless donations to political campaigns…

Under current law, anyone can set up any number of LLCs and make campaign donations beyond the $5,000 limit placed on other corporations. Because the Board of Elections treat LLCs as individual donors, they are not subject to the same limits. As a result, one person can set up multiple LLCs and exert considerable pressure on the political process while hiding behind different company names.

The bill passed by the Assembly extends the $5,000 donation limit to LLCs and requires that individuals with membership interests be disclosed.

The Center for Competitive Politics is now the Institute for Free Speech.