In the News 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 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 […]
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
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.
By Eliza Newlin Carney
Last year state lawmakers introduced more than 40 bills that took aim at protesters. Some expanded the definition of “riot” or “domestic terrorism,” some introduced new categories of crimes, such as “unlawful mass picketing,” some penalized protesters who block traffic or wear face coverings.
Many proposed prison time or fines into the tens of thousands of dollars, and proved too draconian even for Republicans. Of more than 40 anti-protest bills introduced in 2017, only seven were enacted into law. Another 22 died or were vetoed or defeated, and 17 carried over. In the 2018 legislative session, which is in the process of winding down, GOP legislators introduced more than a dozen new anti-protest bills, with varying degrees of success. Almost half of them went after protesters who impede so-called critical infrastructure, a dangerous turn that troubles civil rights advocates…
“They are trying to bankrupt and punish what they perceive to be movement organizations,” says Moira Meltzer-Cohen, a staff attorney with the Water Protector Legal Collective in North Dakota, which provides pro bono legal help to Dakota Access pipeline protesters charged at Standing Rock. Imposing such steep fines and long sentences “functions in the same way as prior restraint,” she warns. “It makes it so risky to engage in protected speech … that it will disincentivize people from doing so.” …
As a champion of campaign finance deregulation, the Institute for Free Speech does not often side with progressives. But in Reason magazine, one research fellow with the group warned: “Faced with the possibility of fines or legal battles, many will choose not to speak at all.”
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 Brian Garst
Schedule B requires 501(c) organizations to include certain contributors’ names and addresses with their annual Form 990 reports. Yet the IRS has acknowledged that this information has no enforcement value. Instead, its collection creates opportunities for abuse and chills speech and civic participation.
Like the secret ballot, respecting donor privacy and thus anonymous speech and association is essential to prevent majoritarian abuse and intimidation that subverts democracy. This was a lesson learned in the civil rights era after the shameful attacks on the NAACP and its supporters.
Although officials pledge to keep the collected information confidential, there’s good reason to question the ability of the government to protect sensitive taxpayer information given the history of inadvertent disclosures and information leaks at the IRS…
For minority viewpoints, public exposure can lead to intimidation or other private consequences. We saw this when Brendan Eich was forced out as Mozilla CEO after it was revealed he donated in support of California Prop 8.
Not long after that, an effort by then-California Attorney General Kamala Harris to collect donor information was found to be unconstitutional as applied to the Americans for Prosperity Foundation and the Thomas More Law Center, though a similar challenge by the [Institute for Free Speech] failed. In ruling on the Thomas More Law Center challenge, the district court found that “in the context of a proven and substantial history of inadvertent disclosures,” the state’s government could not assure donor confidentiality.