Daily Media Links 12/1: Ban on speech ‘about a person’ that negligently causes ‘significant mental suffering, anxiety or alarm’ struck down, The New York Times Does Its Best Super-PAC Impersonation, and more…

In the News

American Prospect: Internet Ad Rules Bring Together Strange Bedfellows

By Eliza Newlin Carney

When the FEC moved unanimously this month to clear the way for a rulemaking that would require small, online political ads to include disclaimers saying who paid for them, GOP election lawyer Dan Backer raised the alarm that such rules “will do nothing but keep law-abiding Americans away from political speech.” When lawmakers on Capitol Hill introduced a bipartisan bill to expand disclosure for online campaign ads, Institute for Free Speech President David Keating warned that it “would shut off an indispensable outlet for small grassroots groups to get their message out.”

It’s the same line of attack that First Amendment champions on the right have deployed to tear down all but a few of the nation’s political money rules…

Conservatives object that new internet restrictions would block ordinary Americans and small, grassroots groups from speaking freely in politics. An analysis by the Institute for Free Speech even raises the specter that the Honest Ads Act, for one, would impose the heavy hand of government on individual websites and email communications.

New from the Institute for Free Speech

Roy Moore, Taco Bell, and How We Use Disclosure Data

By Scott Blackburn

Often those digging into disclosure are not voters at all, but opposition researchers or media outlets. When that happens, the goal is not to inform the public, but rather to create a narrative that (deliberately or accidentally) misinforms…

To sum up: A super PAC running ads in Alabama supporting Roy Moore received $15,000 from a donor who happens to be CEO of a private equity firm that invests in restaurant franchises, including some Taco Bells.

Q.E.D. (at least for some readers of The Daily Beast) Taco Bell is supporting Roy Moore.

In this case, efforts have been made to correct the misconception (though, here too, Snopes conflates corporate spending with individual and PAC contributions). And the organizers of a Facebook protest of Taco Bell for their alleged support of Roy Moore appear to have gotten the message this time (as of now, the Facebook post has been removed). Nonetheless, a dedicated group of anti-Moore progressives on Facebook continue to believe that the money from their Gorditas is supporting Roy Moore.

While this may be a funny example of how disclosure can feed fake news, this is just another (if somewhat extreme) case of the flaws inherent in almost all campaign finance reporting.

The Courts

Washington Post: Ban on speech ‘about a person’ that negligently causes ‘significant mental suffering, anxiety or alarm’ struck down

By Eugene Volokh

[T]he Illinois Supreme Court struck down these provisions (which it referred to as “subsection (a)”), in People v. Releford…

Here are some key conclusions from the court…

The statute is unconstitutionally overbroad, because it potentially covers a wide range of constitutionally protected speech. This includes political speech:

For example, subsection (a) prohibits a person from attending town meetings at which he or she repeatedly complains about pollution caused by a local business owner and advocates for a boycott of the business. Such a person could be prosecuted under subsection (a) if he or she persists in complaining after being told to stop by the owner of the business and the person knows or should know that the complaints will cause the business owner to suffer emotional distress due to the economic impact of a possible boycott.

WND.com: Judge goes to court to regain free-speech rights

By Bob Unruh

State Supreme Court Justice Tom Parker, a candidate for the elected position of chief justice, is asking the court to block enforcement of Alabama Judicial Canon 3A(6) while his lawsuit against the rule develops.

The rule forbids sitting judges in Alabama from commenting on any case pending before any court in the country.

The non-profit legal group Liberty Counsel, which is representing the judge, explained the restriction on speech involves “any pending or impending case in any court of the country irrespective of whether the comments are likely to have any impact on the case.”

“Similar bans were abandoned long ago by the American Bar Association, and every other state in the nation have repealed these speech restrictive provisions, except Alabama. Alabama alone retains this type of ban, and Alabama’s Judicial Inquiry Commission (JIC) has shown its willingness to use the ban to punish and silence judges like Justice Parker if they comment on any case no matter how removed it may be from Alabama,” the organization explained.

“The speech restriction is so broad it prohibits a sitting judge who teaches or speaks to law students in a law school classroom from commenting on any pending case anywhere in the country.” 

First Amendment

National Review: Secretary DeVos Should Remind Colleges of Their First Amendment Obligations

By Frederick M. Hess and Grant Addison

In a comprehensive review released last December, the Foundation for Individual Rights in Education (FIRE) reviewed 449 higher-education institutions – 345 public and 104 private – and found that 92 percent had policies prohibiting certain categories of constitutionally protected speech.

These now-familiar policies fly in the face of an established body of jurisprudence that sets forth the rights of students on college and university campuses. As the United States Supreme Court explained in Healy v. James (1972), “The precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. . . . State colleges and universities are not enclaves immune from the sweep of the First Amendment.”…

A useful place to start would be a “Dear Colleague” letter clarifying the obligations that colleges have in regard to free speech and free association on campus. Secretary DeVos could point institutions to the Supreme Court’s ruling in Healy v. James, and to other rulings such as Tinker v. Des Moines Independent School District (1969) and Shelton v. Tucker (1960).


Independent Journal Review: We Should Be Thankful for Bipartisan Opposition to the Free Speech Tax

By Peter Van Voorhis

A bipartisan group of 15 senators has come out opposed to Missouri Democratic Sen. Claire McCaskill’s amendment to the Tax Cuts and Jobs Act, which would prevent pharmaceutical companies from full and immediate expensing of advertising costs.

Regardless of one’s individual feelings on the merits of pharmaceutical companies, all Americans should be opposed to a new tax that threatens the free speech of any industry…

Singling advertising out for different tax treatment, while leaving other forms of free speech alone, would set a dangerous precedent for the federal government’s power to control what types of speech it approves of, and more alarmingly, what it does not approve of…

Luckily, bipartisan opposition by more than a dozen senators has convinced the Senate Finance Committee to not attach her amendment to the bill. However, there is still a chance it could be attached when the legislation comes up for debate on the Senate floor.

The Media

National Review: The New York Times Does Its Best Super-PAC Impersonation

By Jonah Goldberg

I think the Times stunt was foolhardy. But I don’t think it was immoral, illegal, unconstitutional, or even unethical…

What bothers me is that the Times’s editorial board is among the most vocal opponents of the Citizens United v. FEC decision…

While both the Times and the Obama administration believed in sweeping government censorship during elections – or at least when most voters pay attention (i.e., right before Election Day) – they thought one group should be exempt from these prohibitions: newspapers and other media outlets. Never mind that pretty much every significant newspaper, television network, and magazine, including the Times itself, is owned by a corporation. They simply wanted other corporations to be forced to shut up. A super PAC that wants to put out a pamphlet or video or even a paid ad in the Times should be barred from doing so if it might influence voters. But The New York Times Company can write whatever it damn well pleases…

The Constitution holds that a free press is vital, but it doesn’t define the press as some kind of incumbent guild. By acting like a run-of-the-mill super PAC, the Times is highlighting how capricious and dangerous such line-drawing really is. The Times had every right to do what it did – but so does everyone else, whether the Times likes it or not.


Daily Beast: The Super PAC Attacking Roy Moore Won’t Disclose Its Donors Before the Vote

By Lachlan Markay

The biggest independent spender in the contentious Alabama Senate race is a super PAC backing Democrat Doug Jones. But voters will have no idea who is funding its seven-figure ad blitz until the election is over.

Super PACs are required to disclose their donors, but the group Highway 31 has structured its spending in a way that campaign-finance experts say is almost unprecedented. While legal, it will have the effect of obscuring the group’s benefactors, who will have financed a series of ads over the last two months of the campaign propping up Jones and hammering his Republican opponent, former State Supreme Court Justice Roy Moore…

The group filed what was expected to be its first itemized disclosure of donors and expenditures Thursday. But in the filing, Highway 31 said it had received and spent no money whatsoever.

Instead, the filing revealed, a handful of Democratic campaign vendors have produced and placed a number digital ads for the group entirely on credit. Though it disclosed no income or expenditures, Highway 31 listed debts owed to those vendors, and the amounts owed match up precisely with the values of the ads it reported to the FEC.


Daily Caller: Secret Donors Are Financing Leandra English Lawsuit Against Trump

By Richard Pollock

Deepak Gupta, the lead lawyer of a boutique law firm that launched its suit on behalf of CFPB acting director Leandra English, confirmed in a CNBC interview that English is not paying for his hourly fees, but rather unknown anonymous donors are.

Gupta refused to name who is funding the lawsuit, making it difficult to ascertain the motives, intentions, or any special interests of those underwriting the case…

When repeatedly asked who is paying for the case, which could go all the way to the Supreme Court, Gupta answered, “It’s just not appropriate for me to be talking about that right now.”

CNBC’s host asked Gupta if his firm is handling the case pro bono. “No. We’re not,” Gupta replied…

Former U.S. Attorney Joseph DiGenova said Gupta and English’s reliance on anonymous donors “really focuses on the dangers of not having full accountability for the expenditure of funds for this type of litigation.” …

“We don’t know if some of the funds are coming from the financial institutions or organizations she’s regulating. We don’t know who it is. In which case, that would be criminal.”

The States

Los Angeles Times: State officials investigate L.A. County over ads appearing to support homeless services tax measure

By Adam Elmahrek

State officials are investigating whether Los Angeles County violated state law governing political campaigns when it ran glowing television spots and generated social media posts that appeared to support a homeless services tax ballot measure, a spokesman with California’s political watchdog agency confirmed.

The March campaign for the quarter-cent sales tax, known as Measure H, was a multimillion- dollar effort backed by prominent businesses, labor groups and others. The tax is expected to generate $355 million annually that would be dedicated to services for homeless people.

Officials with the Fair Political Practices Commission launched their probe after a complaint filed by the Howard Jarvis Taxpayers Assn., which contends that the county conducted an illegal political campaign by running ads with positive messages about the measure…

Jon Cupal, president of the Howard Jarvis group, said the county’s spending of about $1 million backing the measure was “the force of government putting its thumb on the scale of an election issue.”

“While public funds can be used for informational material that is balanced, it cannot engage in electioneering,” Cupal said.

Arizona Republic: Should Arizona voters end ‘dark money’ in state political campaigns?

By Adam Elmahrek

A group called Outlaw Dirty Money wants to end anonymous financing in elections through a ballot initiative. The measure would amend the state Constitution to require that people making expenditures to sway campaigns disclose the names of major donors…

Former Democratic Attorney General Terry Goddard and campaign consultant Bob Grossfeld are leading the effort – a follow-up to Goddard’s unsuccessful 2016 push to stem the influence of dark money…

But the initiative likely will face strong opposition from some conservatives, who say that citizens should have a right to give their money in support of causes without fear of retaliation or intimidation.

Chad Willems, a Republican political consultant who’s worked with 501(c)4 groups, said Goddard and his group have falsely framed the issue around transparency. Rather, Willems said, voters see the issue as a matter of free speech and personal privacy.

“People who support issues that are near and dear to their heart should not live in fear of being boycotted, harassed, threatened,” he said.

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