By Bradley A. Smith
Laws banning corporate speech do not just silence major for-profit firms. They also silence nonprofit advocacy groups. Justice Anthony Kennedy listed examples of speech that would constitute a felony prior to Citizens United: “The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.” …
An amendment reversing Citizens United would be most dangerous for critics of powerful politicians, not those already with money and power. History teaches us that giving government power over speech, however indirect, inevitably harms marginalized groups and critics of the government. America’s strong protections for political speech were developed by generations who discovered that, unless the First Amendment was given a robust interpretation, in practice it was easy for governments to shut down their critics. Those on the outskirts of acceptable political opinion, from civil rights activists to Communist Party members, found themselves at risk of being arrested, fined, and subject to retribution simply for speaking their minds.
This history should inform the current debate. Government officials typically do not go after the message they want to censor directly. Instead they target the methods employed by groups they wish to stop. Political spending is one method that is always under attack.
Illinois Business Journal: Counterpoint: Should the U.S. Constitution be amended to reverse Citizens United? No: Government power over campaign spending is a threat to free speech (In the News)
By Bradley A. Smith
By Alex Baiocco
The greatest threats to civil liberties often occur in the name of “national security.” History has shown that free political speech is almost always among the first rights to be curbed. In the ongoing debate surrounding appropriate remedies and responses to foreign election campaign interference, we must remain skeptical of any proposal that risks repeating this shameful history.
This brings us to the Honest Ads Act. The sponsors of the bill in Congress are pitching their proposal as a response to Russian ad buys on social media. Most of these ads were meant to inflame existing political tensions in the United States by echoing controversial views on contentious issues. Some were an attempt to influence our opinions of candidates during the run up to the 2016 election. While this legislation seeks to broadly regulate political communications online, it will not meaningfully address the kind of foreign meddling we saw in 2016.
But it will chill core political speech from Americans. Why? The bill holds both online platforms and speakers liable for violations of its many confusing provisions. The risk of legal liability for speech offenses necessarily chills speech. All speech liability imposed by the bill would fall squarely on Americans engaging in or facilitating political speech…
The incompatibility of liability for speech and freedom of speech is easy to understand. If speakers risk running afoul of the law when expressing their opinions, many will simply choose silence. If platforms also risk penalties when hosting such opinions, some will steer clear of allowing such speech altogether. The more vague or complex any new regulations of speech are, the higher the risk of violating them.
The rules in the Honest Ads Act are both vague and complex, not to mention burdensome.
By Luke Wachob
For Facebook, government regulation of political and issue ads on its platform is the lesser of two evils. Russian interference in the 2016 election, which involved the purchasing of politically-charged Facebook ads, has sparked calls for government to regulate the social media giant. It has also raised awareness of the way Facebook’s business model relies on collecting data on its users and allowing advertisers to target users with messages designed to appeal to their interests.
Public unease with this aspect of Facebook’s business could be a major problem for the company. It’s therefore in Facebook’s interest to do whatever it can to shift the conversation away from its user privacy protections – or lack thereof. The company’s first reaction to the Russia controversy, which was simply to deny that any problem existed with the platform, failed to persuade. So now Facebook is on to plan B: support some dumb legislation and self-censor until the politicians get off its back.
Enter the Honest Ads Act. Notably, prior to Facebook CEO Mark Zuckerberg’s endorsement of the bill in April, the Honest Ads Act had been languishing in Congress. That neglect was for good reason. Drafted in a rush to capitalize on media coverage of Russian interference, the Honest Ads Act fails to provide real solutions to foreign meddling. Compared to the more targeted approach pursued in other proposals, the Honest Ads Act would indiscriminately increase regulation for all online political advertising…
Online speech has long been regulated with a light touch out of a bipartisan recognition that the Internet is an empowering and diversifying medium capable of uplifting marginalized voices. Regulating Internet ads like expensive television and radio ads breaks with that tradition and recasts the Internet’s ability to accelerate social change as a bug rather than a feature.
By Luke Wachob and Alex Baiocco
In a new Free Speech Index on political giving, Connecticut, along with 10 other states, receives an ‘F’ grade.
Connecticut’s limits are so low that individuals can give no more than $250 per election to a candidate for the House of Representatives. The state doesn’t adjust its limits for inflation either, meaning a citizen’s ability to support candidates will continue to decline. And while Connecticut has a program that doles out taxpayer dollars to campaigns in the hopes of bolstering candidates, these programs are easily gamed by savvy political actors and do little to change the makeup of legislatures or Connecticut legislators’ voting behavior.
The problems don’t end there. The state limits individual giving to political committees to $750 per year, and also limits the ability of groups and parties to support candidates.
In all the debate over what can go wrong when people give money to candidates, we rarely consider the benefits. Making a donation to a candidate or group with shared beliefs is one of the simplest and most effective ways for Americans to make their voice heard. These contributions fund campaign spending that raises awareness and interest in elections, especially among those least interested in government.
Contribution limits stand in the way of this process. They hinder candidates trying to spread their message and make it harder for voters to learn about the choices they’ll be asked to make on Election Day.
Perhaps most disappointing of all, they hobble political newcomers trying to shake up the system.
Allentown Morning Call: Pa. among top states that support free speech of campaign donors (In the News)
By Joe Albanese
The Institute’s Free Speech Index scores and ranks all 50 states on their laws governing political giving, grading them from A-plus to F. Fortunately, Pennsylvania ranked as one of the top states in the country, earning an A grade…
Pennsylvania’s high score is particularly notable given the poor performances of its neighbors. Bordering West Virginia and Maryland both receive an F, while Ohio and Delaware each earn a D. New York fares a little better, earning a C grade, but it still restricts most forms of political giving. Taking stock of the entire East Coast, only Virginia does as well as the Keystone State at protecting the freedom to support candidates and causes…
Capping the amount of money that a candidate’s supporters can donate makes it harder for political outsiders to break into a system dominated by entrenched incumbents.
Perhaps that is why recent calls to impose contribution limits in Pennsylvania have come from the governor’s residence. Gov. Tom Wolf has pushed for contribution limits as part of his plan to “reform” Pennsylvania politics. If he gets his way, democracy will become less vibrant in the state and voters will have less speech about candidates to inform their vote.
Daily Caller: The Different Ways States Regulate And Protect Our First Amendment Rights (In the News)
By Scott Blackburn
To understand the differences in how states restrict citizens’ abilities to support their favored candidates and causes, the Institute for Free Speech categorized each of the 50 states’ contribution-limit laws and measured their impact on free speech. The result is the first of its kind “Free Speech Index.”
To those familiar with the politics of campaign finance law, the results may be surprising. Eleven states have no limits whatsoever on individual contributions to candidates. They include liberal Oregon and deep-red Alabama (both tied for first in the Index). They include the second most populous state, Texas (ranked 9th), and the third least populous state, North Dakota (ranked 9th). They include eastern states (9th ranked Pennsylvania), western states (1st ranked Utah), midwestern states (7th ranked Iowa) and southern states (1st ranked Virginia)…
Twenty-eight states have no restriction on how much an individual can contribute to a political party, among them liberal stalwart Washington (ranked 20th), conservative stronghold South Carolina (ranked 35th), and swing state Wisconsin (ranked 22nd). But West Virginia (ranked 49th) and Rhode Island (ranked 42nd) have decided to limit individual donations to parties to just $1,000. Massachusetts (ranked 44th) allows contributions from unions to candidates, but prohibits contributions entirely from corporations, while New Hampshire (ranked 39th) prohibits union to candidate contributions altogether and allows corporations to donate directly. Neighboring Vermont (ranked 21st) allows both unions and corporations to contribute.
By Joe Albanese
The Institute’s Free Speech Index scores and ranks all 50 states on their laws governing political giving, grading them from A+ to F. Fortunately, Indiana ranked as one of the top states in the country, earning an A grade. This places it alongside 10 other states that earned an ‘A’ or higher. One crucial trait these states have in common is that they don’t limit the freedom of individuals to give to candidates, parties, and political committees, as well as the ability of parties and political committees to give to candidates…
Why is it so important that states like Indiana allow freedom in political giving to and between these groups? Because the main effect of government-imposed restrictions on political giving is to limit the amount of speech individuals, organizations, and political actors can express. Giving money is not just a show of support. It also enables candidates and groups to spread their message further.
That means stringent campaign finance laws tend to favor incumbents and hinder challengers…
Lawmakers in Indiana deserve praise for preserving their constituents’ First Amendment freedoms. Many politicians find it easier to pass laws that make it harder for voters or rival candidates to criticize them. They do so while claiming they are protecting voters from the rich, when really, they are protecting themselves.
By Thomas Wheately
The case, known as First National Bank of Boston v. Bellotti, challenged the constitutionality of a Massachusetts law that censored speech by corporations on ballot measures. The law included criminal penalties.
In a 5-4 decision, the Court struck down the law, reversing the Massachusetts Supreme Judicial Court. “We … find no support” the Court held, “for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation…” …
But that’s wrong – very wrong. For decades, the Supreme Court has recognized a corporation’s right to free speech. The Citizens United opinion alone cites 25 cases supporting this point, the first cited case being Bellotti, though it was not the first such decision. Nor, as some have suggested, has the Court ever recognized a so-called “media exemption,” which would grant press outlets full First Amendment protection, but not other corporations. Indeed, the Court has explicitly rejected that argument…
Americans of all political stripes have long reaped the rewards of the sort of corporate speech protected by Bellotti and earlier rulings. Take, for example, the civil rights movement.
In 1964, the New York Times defeated a dubious libel suit brought by white southerners in part because the newspaper, a corporation, was able to invoke First Amendment protection.
Washington Examiner: Maryland lawmakers voted to criminalize online speech in the name of security (In the News)
By Eric Wang
More than a thousand students gathered at the Maryland state capitol in March as part of the national “March for Our Lives” demonstrations against school shootings. Presumably, these students used the Internet, social media, or mobile device apps to organize their rally.
In so doing, they may have committed a crime under an obscure Maryland law.
Instead of fixing this flawed speech law, the Maryland General Assembly recently passed a bill to reenact and expand it. The legislation purports to counter foreign online political propaganda. But in reality, the new burden it would place on Marylanders’ Internet speech threatens our First Amendment rights. Gov. Larry Hogan, R, should veto the bill.
At issue is HB 981, the so-called “Online Electioneering Transparency and Accountability Act.” If signed into law, the bill would reenact the state’s existing regulation of “campaign material.” The term includes any “material transmitted by or appearing on the Internet or other electronic medium” that “relates to” a candidate, prospective candidate, ballot measure, or prospective ballot measure. If you think about it, that includes just about anything…
It is bad enough that HB 981 would reenact Maryland’s unconstitutional speech law. But the bill would make matters even worse by imposing a whole host of additional reporting and record-keeping requirements.
By Luke Wachob
A new report by the Institute for Free Speech grades the states on political giving freedom and offers the clearest picture to date of how states limit contributions to candidates, political parties, and political action committees. These limits make life difficult for upstart challengers and others who lack a pre-existing base of financial support. But exactly how cumbersome they are varies tremendously from state to state.
Consider a candidate for the Colorado General Assembly. Despite the fact that many of these candidates will have to campaign in the expensive Denver media market, they can accept no more than $200 per election from individuals. In addition, corporations and labor unions are prohibited from giving any money to candidates. Cross the border in neighboring Nebraska, and it’s a totally different story. The Cornhusker State has no contribution limits at all, allowing individuals, groups, businesses, and unions to donate as they please.
The pattern repeats across the country. One state will impose low limits across the board, while a neighboring state has no limits whatsoever, and yet another has a mix of moderate limits on some kinds of giving. So it is that a candidate in Virginia faces no limits on contributions from individuals, while a candidate in West Virginia is limited to $1,000 per donor. A candidate for the South Dakota House of Representatives can also accept no more than $1,000 per individual, while a candidate in North Dakota can accept unlimited amounts, just like in Virginia.